Mr. Vijay Dhondiram Ghadage vs The State Of Maharashtra And Anr on 12 October, 2017

4 WP 11985 OF
2016.odt
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.11985 OF 2016

Vijay Dhondiram Ghadage ]
age: 43 years, residing at Pathardi Phata ] Petitioner.
Vrundavan Bungalow, Plot No.26 ] Original
Vasan Nagar, surveyNo.908/3 ] Petitioner
Nashik, Tal. Dis. Nashik ]

V/s.

1.State of Maharashtra ]
]
2. Mrs.Rupali Vijay Ghadage ] Respondents.
c/o Mohan Shridhar Kale ] Respondent No.2
at Athavan Bungalow, House No.910 ] Original
Kanade Mala Sinner, Tal.Sinner ] respondent.
Nashik ]

Mr. Chetan S. Damre, for the petitioner.
Mr. Swapnil Mhatre i/by Mr. Rajan S. Pawar, for
respondent No.2.
Mr. J. A. Madane, AGP for the Respondent No.1
State.

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATED : 12th OCTOBER, 2017.

JUDGMENT.

1] Heard learned counsels for the petitioner and

respondents.

1/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::
4 WP 11985 OF
2016.odt

2] Rule.

3] Rule made returnable forthwith with the consent of

parties.

4] This writ petition is preferred by the petitioner husband,

challenging the order dated 25.01.2016, passed by the Family Court,

Nashik in P.A. No.52 of 2014, thereby allowing the respondent’s

application for interim maintenance filed under section 24 of the

Hindu Marriage Act and granting her Rs.3,000/- per month from the

date of application, Rs.5,000/- towards litigation expenses, plus

Rs.100/- per trip when she remains present in the court towards her

travelling expenses.

5] The submission of learned counsel for the petitioner is

that respondent is more qualified than the petitioner as she is double

graduate i.e. M.A. whereas petitioner is merely a graduate in Arts.

Secondly, it is submitted that the earning of the petitioner is only

Rs.7,000/- per month from his service as clerk in a private company.

Thirdly, it is submitted that respondent has not produced any

documentary evidence to prove the income of the petitioner. Despite
2/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::
4 WP 11985 OF
2016.odt

that the trial Court has awarded maintenance of Rs.3,000/- per

month.

6] An attempt is also made to contend that respondent

herself does not want to cohabit with the petitioner unless he

resides separately from his parents and therefore, she can not be

entitled to get any amount of maintenance, especially as per her own

statement as reflected in the chat of Whats APP, she is having

earning capacity of Rs.30,000/- per month.

7] Learned counsel for the petitioner, has further submitted

that in the proceeding filed under Section 125 of Code of Criminal

Procedure, respondent is awarded interim maintenance at the rate

of Rs.2,000/- per month and the petitioner is ready to pay the said

amount. He is also paying the same regularly. Therefore, the

impugned order awarding interim maintenance at the rate of

Rs.3,000/- per month passed in this proceeding needs to be set aside.

8] Coming to the various contentions raised by the learned

counsel for petitioner, about first contention that respondent is

more qualified and having earning capacity of Rs.30,000/- per
3/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::
4 WP 11985 OF
2016.odt

month. The law is well settled that merely having earning capacity is

not sufficient unless it is shown that wife is actually having some

permanent source of income and getting the income. In this respect

a useful reference can be made to the decision of Apex Court in case

of Manish Jain vs. Akanksha Jain, CDJ 2017 SC 352 . In this

case, the application for interim alimony filed by the wife was

resisted by the husband on the ground that she is an educated lady.

While rejecting this contention, in paragraph No.15, the Hon’ble

Supreme Court was pleased to hold that:-

“15. An order for maintenance pendente lite or for
costs of the proceedings is conditional on the
circumstance that the wife or husband who makes a
claim for the same has no independent income
sufficient for her or his support or to meet the
necessary expenses of the proceeding. It is no answer
to a claim of maintenance that the wife is educated
and could support herself. Likewise, the financial
position of the wife’s parents is also immaterial. The
Court must take into consideration the status of the
parties and the capacity of the spouse to pay
maintenance and whether the applicant has any
independent income sufficient for her or his support.
Maintenance is always dependent upon factual
situation; the Court should, therefore, mould the

4/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::
4 WP 11985 OF
2016.odt

claim for maintenance determining the quantum
based on various factors brought before the Court.”

(Emphasis suppled)

9] In this case, there is no pleading or any material to show

that respondent is actually working at some place and having any

permanent source of income.

10] As regards the contention that respondent has not

produced any documentary evidence about the income of the

petitioner, as a matter of fact, it was for the petitioner himself to

produce on record, his own salary slip or his income tax returns.

However, the petitioner has not done so.

11] According to respondent, petitioner is earning salary of

Rs.20,000/- per month and therefore, it was for the petitioner to

produce his salary slip or details of income tax return to show that

he is not getting salary of Rs.20,000/- per month and getting

Rs.7,000/- per month only. Non production of salary slip or income

tax returns makes, thus, it necessary to draw adverse inference that

the petitioner is getting salary for more than Rs.7,000/- per month

5/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::
4 WP 11985 OF
2016.odt

and may be Rs.20,000/- per month. Therefore, he is not producing

those documents in the Court.

12] As to the contention that respondent herself has left

petitioner’s company and she is not ready to join cohabitation with

petitioner unless he resides separately; this issue pertains to merits

and demerits and the grounds for divorce raised in the petition. It

may be stated that if the petitioner really wants to cohabit with the

respondent, then petitioner would not have filed petition for divorce,

but would have filed petition for restitution of conjugal rights in

which efforts would have been made for amicable resolution and for

restitution and cohabitation. Therefore, at this stage, this submission

holds no merit.

13] About the contention of the petitioner that he is ready to

pay and is paying amount of Rs.2,000/- per month as awarded by the

court of Judicial Magistrate First Class, Sinnar in Crim. Misc.

Application No.557 of 2015 under Section 125 of Code of Criminal

Procedure, needless to state that the said amount of maintenance

can hardly be sufficient even to satisfy the bare necessities of

respondent. Moreover, said order is passed on 10.4.2017 i.e. after
6/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::
4 WP 11985 OF
2016.odt

the impugned order is passed in Divorce Petition No.24 of 2014 and

therefore, it follows that this amount of Rs.2,000/- per month was

granted only as interim maintenance under Section 125 of Code of

Criminal Procedure. If one has regard to the standard of living and

inflation in the prices of essential commodities, this amount of

Rs.2,000/- per month awarded in proceeding under Section 125 of

Code of Criminal Procedure, cannot be sufficient having regard to the

income of the petitioner which he has not disclosed fairly. Therefore,

an amount of Rs.3,000/- per month which is granted by the trial

Court to the respondent as interim maintenance in divorce

proceeding under Section 24 of the Hindu Marriage Act, being a

reasonable sum and not in any way exorbitant or excessive, no

interference is justified in the said order in the writ jurisdiction.

14] Writ Petition, therefore, being devoid of merit stands

dismissed.

15] Rule discharged.

(DR. SHALINI PHANSALKAR-JOSHI, J.)

7/7

::: Uploaded on – 13/10/2017 14/10/2017 02:30:07 :::

Leave a Comment

Your email address will not be published. Required fields are marked *