WP1964_19.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1964 OF 2019

Chetana Shailesh Gurav … Petitioner
Vs.
Shailesh Atmaram Gurav … Respondent

Mr. Samir Sarambalkar for Petitioner.
Mr. Raviprakash Chaturvedi for Respondent.

CORAM : R. G. KETKAR, J.

DATE : APRIL 25, 2019

P.C. :

Heard Mr. Sarambalkar, learned Counsel for the petitioner and
Mr. Chaturvedi, learned Counsel for the respondent.

2. This Petition takes exception to the order dated 25.07.2018 passed
by the learned trial Judge below exhibit-10 in Petition No.A-1246 of
2017. By that order, the learned trial Judge rejected the application made
by the petitioner-wife for maintenance for herself and two children
namely, son Sarthak and daughter Swara.

3. By order dated 04.04.2019, matter was listed today in the
Supplementary Board and the parties were put to notice that subject to
the time constraint and convenience of the Court, Petition will be
disposed of finally on that date. In view of that order, Rule.
Mr.Chaturvedi waives service for the respondent. Rule is made
returnable forthwith and the Petition is taken up for final hearing.

2. Mr. Sarambalkar submitted that Petition No.A-1246 of 2017 is
instituted by the respondent-husband for dissolution of marriage
between the parties. The petitioner had filed the proceedings under the

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Protection of Women from SectionDomestic Violence Act, 2005 (for short ‘SectionD.V.
Act’). During the pendency of that proceeding, she filed application for
interim relief. By order dated 22.12.2017, the learned Metropolitan
Magistrate, 29th Court, Bhoiwada, Dadar, Mumbai partly allowed the
application and directed the respondent to pay a sum of Rs.3,000/- per
month to the petitioner since the date of filing of the application. The
respondent was further directed to pay rent of Rs.2,000/- per month to
the petitioner. It is common ground between the parties that the said
order is not challenged and is operating. It is also common ground
between the parties that respondent is complying that order.

3. During the pendency of the Marriage Petition, the petitioner filed
application for interim maintenance under Section 24 of the Hindu
Marriage Act, 1955 (for short ‘Act’) claiming maintenance of Rs.3,000/-
per month to her and Rs.28,000/- per month to son Sarthak aged about 7
years and daughter Swara, aged about 4 years i.e. Rs.31,000/- per month
in total. The respondent filed say dated 24.04.2018 opposing the
application. By the impugned order, the learned trial Judge rejected the
application.

4. In support of this Petition, Mr. Sarambalkar submitted that the
learned trial Judge rejected the application on the ground that petitioner-
wife is earning Rs.17,000/- per month. The respondent is earning
Rs.24,000/- per month, and thus, the difference of earning between the
parties is hardly Rs.7,000/-. The learned trial Judge also noted that
respondent is occupying the premises on leave and licence basis and the
licence fee is Rs.8,000/- per month. The learned trial Judge, therefore,
rejected the application. He submitted that while rejecting the
application, the learned trial Judge proceeded on the footing that the
application was made only by the wife and not by the children. The

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learned trial Judge also accepted that the licence fee was Rs.8,000/- per
month as a gospel truth. The leave and licence agreement is not a
registered instrument. As the learned trial Judge did not give any reason
for rejecting the maintenance to the children, the impugned order
deserves to be set aside.

5. On the other hand, Mr. Chaturvedi supported the impugned order.
He submitted that the application is made by the petitioner under
Section 24 of the Act and the learned trial Judge was justified in
rejecting the application for maintenance of the children. Under Section
24 of the Act, maintenance can be awarded either to the wife or the
husband. Though the said reason is not recorded in the impugned order,
the order can be supported having regard to the fact that application is
made under Section 24 of the Act. He, therefore, submitted that no case
is made out for interfering with the impugned order.

6. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. After considering the material on record, the learned trial Judge
recorded a finding to the effect that salary of the petitioner is
Rs.17,000/- per month. Salary of the respondent is Rs.24,000/- per
month. A perusal of paragraph 10 of the impugned order shows that the
learned trial Judge referred to the leave and licence agreement showing
licence fee @ Rs.8,000/- per month. It is admitted position that the leave
and licence agreement is notarized document executed on 05.01.2016. In
other words, the agreement of leave and licence is not a registered
instrument. In my opinion, the learned trial Judge committed serious
error in accepting the case of the respondent as a gospel truth that he is
paying Rs.8,000/- per month towards licence fees. The approach of the
learned trial Judge in this regard is totally wrong. That apart, a perusal of

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the impugned order shows that the learned trial Judge did not give a
single reason for denying maintenance to the children.

7. Mr. Chaturvedi relied upon Section 24 of the Act to contend that
under Section 24 of the Act, maintenance can be awarded either to the
wife or the husband, as the case may be, and not to the children. In my
opinion, this submission of the respondent deserves to be rejected as it is
settled principle of law that mere mentioning of wrong provision of law
is not fatal if the Court otherwise has power to award the maintenance.
Section 20 of the Hindu Adoptions and SectionMaintenance Act, 1956 lays
down that subject to the provisions of that Section, a Hindu is bound,
during his or her lifetime, to maintain his or her legitimate or
illegitimate children. Sub-section (2) thereof lays down that a legitimate
or illegitimate child may claim maintenance from his or her father or
mother so long as the child is a minor. Section 21 defines, for the
purpose of Chapter III, expression ‘dependants”. As per clause (iv) of
Section 21, ‘dependants’ include minor children. Section 22 deals with
maintenance of dependants. Section 23 deals with amount of
maintenance. As the learned trial Judge has not recorded any reason for
denying the maintenance, the impugned order is liable to be set aside
thereby restoring exhibit-10 to its original position before the trial Court.
Hence, the following order:

a. The impugned order dated 25.07.2018 is set aside and application
exhibit-10 is restored to its original position before the trial Court.
The learned trial Judge will treat this application as the
application made by the petitioner wife under Section 24 of the
Act so far as maintenance for wife is concerned and will also treat
this application as application under Section 20 of the Hindu
Adoptions and SectionMaintenance Act, 1956 so far as maintenance for
children is concerned;

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b. The learned trial Judge will proceed to decide the application on
the basis of material on record and on its own merits and in
accordance with law;

c. All contentions of the parties in that regard are kept open;
d. The parties shall appear before the Family Court on 21.06.2019,
and for that purpose, no fresh notice be issued to them;
e. The learned trial Judge will decide the application within 4 weeks
from 21.06.2019.

8. Rule is made absolute in the aforesaid terms with no order as to
costs.

(R. G. KETKAR, J.)

Minal Parab

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