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Dr Mohan Wadhwani vs Rekha on 24 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 8483/2016

Dr. Mohan Wadhwani S/o Shri Beeru Mal Wadhwani,by Caste
Sindhi, Aged About 50 Years, At Present Resident Of Through
Medical Superintendent, Sawai Mansingh Hospital Jaipur(Raj.)
Non applicant—-Petitioner
Versus
Rekha Daughter Of Late Shri Bhojraj Tahlani, by Caste Sindhi,
Aged About 47 Years, Sector 2, above Shop No. 9-10, Jawahar
Nagar,jaipur(Raj.)
Complainant—-Respondent

For Petitioner(s) : Dr. Mohan Wadhwani, present in
person.

For Respondent(s) : Smt. Rekha, present in person.

HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order Reserved on 11th April, 2018

Order pronounced on 24th April, 2018

1. The petitioner and the respondent who are present in person

heard at length.

2. The petitioner has submitted that he had challenged the

order passed by the Family Court No.2, Jaipur dated 24.05.2016

whereby the Family Court as over above orders passed by the

Supreme Court directed to pay further a sum of Rs.5500/- with

effect from the month of January, 2016 and also directed for

paying Rs.5500/- for every month in future. The petitioner

submits that the Division Bench in D.B. Civil Misc. Appeal

No.1705/2005 decided on 06.11.2012 upheld the judgment and

decree of dissolution of the marriage of the parties and passed an

order relating to maintenance. The said order was challenged
(2 of 8) [CW-8483/2016]

before the Supreme Court and the Supreme Court vide its order

dated 24th March, 2014 passed the following order:-

“Having considered the matter in its totality, we
are of the view that the order passed by the
High Court deserves to be sustained except to
the extent that the payment of Rs.3 lakhs
awarded to meet the educational and other
expenses of the son of the parties is hereby
enhanced to Rs.7 lakhs. Ordered accordingly.”

3. In terms of the order passed, the petitioner was required to

pay the amount to the respondent on 27.05.2015 in proceedings

arising out of divorce petition, the petitioner was directed to pay

sum of Rs.2,13,000/- to the respondent in terms of judgment of

the Hon’ble Supreme Court and further petitioner’s-employer has

been directed that 2/3rd salary of the petitioner be deposited with

Family Court till recovery of the amount. The said writ petition

No.12346/2015 was dismissed by the Coordinate Bench on

18.09.2015 and the same was challenged by filing SLP

31172/2015 wherein the operation of the order was stayed. In the

meanwhile, contempt petition No.7/2015 was filed by the

respondent Rekha before the Apex Court, and the Apex Court vide

its order dt.17.11.2015 passed the following order:-

“In order to determine the quantum of
maintenance, if any, payable by the respondent
to the petitioner, we had, by our motion bench
order dated 2.7.2015, directed the parties to
appear before the Registrar (Judicial) of this
Court, so as to enable them to project their rival
claims towards maintenance. We had also
required the Registrar (Judicial) to submit a
(3 of 8) [CW-8483/2016]

report quantifying the computation of payment
of maintenance, as directed from time to time,
and also, the amount actually paid by the
respondent to the petitioner.

In furtherance of the aforesaid motion
bench order, Mr. M.V. Ramesh, Registrar (J-II)
has submitted a report dated 14.08.2015.
Copies of the aforesaid report were furnished to
the petitioner as well as the respondent. They
have filed objections thereto.

Since detailed objections have been filed,
we are of the view, that the same will need to
be examined. We accordingly direct the
Registrar of this court to forward the aforesaid
report dated 14.8.2015 to the Family Court
No.1, Jaipur forthwith. The rival parties shall
appear before the Family Court No.1, Jaipur on
02.12.2015 at 2:00 p.m. in order to
substantiate their objections. After affording an
opportunity of hearing to the rival parties,
including the liberty to furnish documents (if
necessary), the Family Court No.1, Jaipur shall
submit a further report to this Court within one
month of the parties appearing before the
Family Court quantifying the computation of
payment of maintenance, and the actual
amount paid. A copy of the report of the Family
Court No.1, Jaipur shall be furnished to the rival
parties, who shall appear before this Court on
20.01.2016.

List again on 20.01.2016″

4. It is submitted that on the basis of the aforesaid order a

report was submitted by the Registrar on 01.02.2018 and the

Registrar (J-II) of the Supreme Court submitted the following

report:-

(4 of 8) [CW-8483/2016]

“I have gone through every aspect of the
file and have also perused the calculation made
by the Family Court. Again at the sake of the
repetition even if the version of the petitioner is
accepted with regard to her claim till 31.12.2015,
she is not entitled for more than Rs.13,54,000/-
i.e. claim calculated by the Family Court plus
Rs.8,000/- which she was entitled for the 11 th
month as per order dated 05.01.2012 of the High
Court of Rajasthan under Section 127 Cr.P.C. and
a further sum of Rs.10,000/- as travelling
expenses. Meaning thereby that she is claiming
Rs.13,72,000/-(Rs.13,54,000/-+Rs.8,000/-
Rs.10,000/-).

1. With regard to her averments relating to
claim at point 2, 3, 4 and 7 wherein she has
prayed for a sum of Rs.30,000/-, Rs.

1,30,000/-, Rs. 1,22,430/- and 2,13,000/- it is
submitted that the said claim is totally
misconceived. This conclusion is based upon the
reasoning that Ms. Rekha cannot approbate and
reprobate in the same vein with regard to her
claim of Rs. 7,00,000/-. Ms. Rekha is estopped
from repeatedly caliming piece meal payment of
components of Rs. 7,00,000/-. If her claim in
para 2,3,4 and 7 is critically analysed, what is
apparent is that these payments derive their
substratum from Rs. 7,00,000/- only which was
ordered to be paid by the Hon’ble Supreme
Court in the form of education allowance while
altering the High Court order. Ms. Rekha is
repeatedly trying to raise her claim qua the
amount of Rs. 7,00,000/- in one form or the
other.

2. The petitioner is claiming an amount of Rs.
2500/- per month for 12 months (Rs.30,000/-)
which was ordered to be paid to her by the
Hon’ble Rajasthan High Court vide order dated
06.11.2012. The respondent was also directed
to pay to the petitioner in the alternative and
amount of Rs. 3,00,000/- within a period of two
months w.e.f. the date of this order ie.
06.11.2012. However, the amount of Rs.
3,00,000/- was enhanced to Rs. 7,00,000/- by
the Hon’ble Supreme Court of India vide its
order dated 24.03.2014. Since this enhanced
amount of Rs. 7,00,000/- has already been
taken into consideration by the Family Court,
(5 of 8) [CW-8483/2016]

Jaipur during the calculation of her claim,
therefore, she cannot additionally claim this
amount of Rs. 30,000/- (Rs. 2500X12).

3. The petitioner also made a claim of Rs.
1,60,000/- [(7500+2500)x16] less Rs. 30,000/-,
which she has admitted to have received from
the respondent. Therefore, net amount, which
she is claiming from the respondent is Rs.
1,30,000/- (Rs.1,60,000-30,000). It appears
that her calculation is based upon the aspect
that she claims Rs.7500/- for 12 months plus
Rs. 2500/- for 16 months. Out of this amount,
the quantum of Rs.2500x16Rs.40,000/- is not
payable to her as it is a part of Rs.7,00,000/-
which stands already included in her calculation
by the Family Court. As per the submission of
the petitioner, the Hon’ble Supreme Court of
India vide order dated 19.11.2013 had directed
the respondent to pay an amount of Rs.7500/-
per month w.e.f. 19.11.2013. Four months
Calculation i.e. Rs.7500/-x4Rs.30,000/- has
already been computed by the Jaipur Family
Court. Even if her version is believed in toto, in
that situation also she has admittedly received
Rs.5500/- for these months. Therefore, her
further entitlement for 12 months would be
12x(7500-5500)24000/-. Even if the claim of
the petitioner is taken from another angle
whereby the petitioner has claimed Rs.7500/- as
payment for 16 months, still her entitlement for
12 months would be 12x(7500-550) 24000/-.
Resultantly, her entitlement till 31.12.2015
would be Rs.13,54,000/-+8000+24000Rs.
13,86,000/- which is still less than the payment
made by respondent to the petitioner.
Accordingly, the contentions raised by the
petitioner qua the claimed amount fails and is,
therefore, not sustainable from all the angles
and she is not entitled for any payment from the
respondent till 31.12.2015.

4. With regard to her claim for Rs.5830 on
prorata basis for 21 months, the said claim is
totally erroneous and cannot be sustained in the
eyes of law. In this regard, the respondent has
submitted that the demand of petitioner for the
amount of Rs.1,22,430/- i.e. proportionate
increase in payment is not sustainable. This is
because as per the order dated 24.03.2014 of
the Supreme Court what has been ordered is a
lump sum amount of Rs.7,00,000/- and there is
no direction with regard to any proportionate
payment to be made by the respondent to the
respondent. He further submitted that therefore,
the amount of Rs.1,22,430/- as claimed by the
(6 of 8) [CW-8483/2016]

petitioner is not acceptable. She has in a
manner raised multiple claims of Rs.7,00,000/-
which is not acceptable. For the sake of
repetition Rs. 7,00,000/- can only be paid to her
once either in lump sum or in monthly
installment in addition to Rs.5500/- till her son
attains the age of 21 years and qua that aspect
the Family Court has duly included the same
while calculating her entitlement in a lump sum
manner. The components of Rs.2500/- for 12
months; her assertion with regard to Rs.
1,30,000/- and her claim qua 21 months for
payment of Rs.5830 on prorata basis is totally
misconceived.

5. With regard to the claim of the petitioner in
point no.7 i.e. Rs.2,13,000/- this is also an
ingredient of sum of Rs.7,00,000/- which
remains after payment of Rs.4,87,000/- by the
respondent, which has already been accepted by
the Family Court and therefore cannot be
reclaimed. Accordingly, the claim of the
petitioner is misconceived and not sustainable.

6. With regard to the claim at point no. 5, the
respondent has not been able to establish on
record the payment of sum of Rs.8,000/-,
therefore, the claim of the said amount by the
petitioner is justifiable and is added to sum of
Rs. 13,54,000/-.

7. With regard to sum of Rs. 50,000/- at point
no.6, the same has already been dealt with in
my earlier report dated 03.10.2017 (reproduced
supra).

8. The petitioner has acknowledged the
factum of receiving of sum of Rs.10,000/- as
traveling allowance, therefore, the claim of the
said amount by the petitioner is unjustified and
is not sustainable.

Even though for the sake of arguments it is
presumed that her entitlement till 31.12.2015
was either Rs.13,72,000/- (Rs. 13,54,000/- +Rs
8,000/- +Rs.10,000/-) or Rs.13,62,000/- (Rs.
13,54,000/- Rs. 8000/-) or Rs.13,86,000/- (Rs.
13,54,000/-+Rs.8000/-+Rs.24000/-) as has
been discussed in the forgoing paragraphs, yet
in my earlier report, I have duly submitted that
she has already received a sum of Rs.

14,64,672/- which includes the components of
Rs.50,000/-. The respondent has already made
the payment of sum of Rs.14,14,672/- towards
the maintenance claim. It appears that as on
31.12.2015, nothing was due to be paid by the
respondent to the petitioner.”

(7 of 8) [CW-8483/2016]

5. The said report was submitted before the Supreme Court and

the Supreme Court heard both the parties at length and passed

following order dated 22.02.2018 in the contempt petition:-

” Heard the parties in person at length.
Ms. Rekha, petitioner in person has
submitted that certain amount of Rs.7,500/-,
Rs.16,000/-, Rs.7,00,000/- and Rs.50,000/-

and some other amount have not been
adjusted.
We have perused the report of the

Registrar (J-II) dated 01.02.2018 and also the
report of the Family Court No. 2, Jaipur, we are
satisfied that the amount claimed by the
petitioner had been paid as is apparent from
the reports. However, as per the reports it is
also clear that certain additional amount has
been paid, we direct that shall not be recovered
from Ms. Rekha by the husband as she is living
alone and has to support the child. We reject
the submissions raised by Ms. Rekha as to non
payment of amount, however, at the same time
we order that additional amount found to have
been paid in the report shall not be recovered
by the husband.

The two reports of the Registrar (J-II) and
that of family court, Jaipur are made part of the
order.

Contempt petition stands disposed of.
Pending application, if any, also stand
disposed of”

6. In view of the above, it is submitted that no further payment

is required to be made to the respondent. The respondent who

has put in appearance submits that she has received part of the
(8 of 8) [CW-8483/2016]

payments which have been made and noted by the Supreme

Court. She also entitled to receive regular maintenance amount

from the petitioner @Rs.5500/- per month.

7. Having heard both the parties, I find that the question

relating to the maintenance, amount to be paid to the respondent-

Rekha, has been finalized and crystallized finally in terms of the

order passed by the Supreme Court in Contempt Petition

No.7/2015 in Civil Misc. Appeal No.4014/2014. In the said order

dated 22.02.2018 the Apex Court has specifically noted as under:-

“…….We reject the submissions raised by the Ms.
Rekha as to non-payment of amount, however
at the same time, we order that additional
amount found to have been paid in the report
shall not be recovered by the husband.”

8. In the circumstances, after the divorce has already been

granted by the Court, the amount received by the respondent as

noted above, cannot be said to be an insufficient maintenance

amount and the petitioner cannot be held liable to pay any further

amount except payment of Rs.5500/- per month to wife from

March 2018 onwards.

9. In view of the aforesaid, the writ petition stands allowed to

the above extent. The order passed by the Family Court, No.2,

Jaipur dated 24.05.2016 is quashed and set-aside. No costs.

(SANJEEV PRAKASH SHARMA),J

R.Vaishnav

57.

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