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Nagnath Ramchandra Muttepwar vs Sadhana Nagnath Muttepwar on 8 July, 2021

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO. 7788 OF 2020

Nagnath s/o Ramchandra Muttepwar Petitioner

Versus

Sadhana w/o Nagnath Muttepwar Respondent

Mr. G.N. Kulkarni, Advocate for the petitioner.
Mr. D.K. Kulkarni, Advocate for the respondent.

CORAM : M.G. SEWLIKAR, J.

DATE : 8th July, 2021.

PER COURT :

1. By this petition under Article 227 of the Constitution of

India, the petitioner is assailing the order dated 8th October, 2020

passed by the learned Family Court below Exhibit 16/A in Petition

No. P.A.-209/2018, by which, the learned Family Court has directed

the petitioner to pay an amount of Rs. 20,000/- per month as ma

intenance pendente lite.

2. Facts leading to this petition are that the petitioner and

respondent tied a nuptial knot on 31 st May, 1985. Now, the petitioner

is 65 years of age and the respondent is 54 years of age. Till 2013,

married life between the petitioner and the respondent was good.

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Therefore, their relations were strained. Thereafter, petitioner fled

petition for divorce under Section 13(1)(b) of Hindu Marriage Act.

3. Respondent-wife appeared and resisted the petition by

fling written statement. She admitted the marriage but denied all

the other allegations. She fled application for maintenance pendente

lite at Exhibit 16/A. In this application she contended that she is

suffering from Cancer and is taking treatment from Dr. Satarkar.

She has to incur Rs. 10,000/- towards medical expenses. She has

undergone surgery of Cataract for both the eyes for which she had to

take Rs.35,000/- on loan. It is her contention in the application that

petitioner-husband earns Rs. 3,00,000/- per month and therefore, he

can very well pay Rs. 50,000/- per month as maintenance. She has,

therefore, prayed for maintenance of Rs. 50,000/- per month and

Rs.20,000/- as cost of the litigation.

4. Petitioner-husband fled say to application at Exhibit 16/

A. He denied all the allegations against him. He contended that both

the sons are living with the respondent-wife and both of them earn

Rs.60,000/- per month. He has to spend Rs. 3,000/- on medicines.

He has nowhere denied that his income is Rs.3,00,000/- per month.

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He stated that he is not in a position to pay maintenance to the

respondent-wife. He, therefore, prayed for rejection of the

application.

5. After hearing both the sides, the learned Family Court,

by order dated 8th October, 2020, allowed the application and

awarded maintenance pendente lite at Rs. 20,000/- per month. This

order is impugned in this petition.

6. Heard Shri Girish Kulkarni, learned counsel for the

petitioner and Shri D.K. Kulkarni, learned counsel for the

respondent.

7. Learned counsel Shri Girish Kulkarni argued that

younger son aged 27 years is now living with the petitioner whereas

elder son aged 35 years is living with the respondent. He submits

that the learned Family Court has erroneously awarded maintenance

at the rate of Rs. 20,000/- per month. He argued that the income

tax returns fled by the petitioner show that the income of the

petitioner for the year 2018-2019 was Rs. 2,55,000/-. The learned

Family Court has granted Rs. 20,000/- per month as maintenance

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which means total amount of maintenance is Rs.2,40,000/- per

annum. He submits that the amount of maintenance is unjust.

Rs. 2,55,000/- will have to be utilised for payment of maintenance.

He submits that if the petitioner is required to pay Rs. 2,40,000/- per

annum, it is as good as paying the entire proft of the year to the

respondent. He further submits that the amount of maintenance has

to be fxed keeping in view the earnings of the petitioner. He further

submits that in the year 2019-2020, income from Row House was

shown as Rs. 5,10,000/-. On the basis of this income, the learned

Family Court has awarded maintenance of Rs. 20,000/- per month.

This income from Row House is a one time income. Therefore, the

learned Family Court ought not to have considered this income. He

submits that the impugned order, for this reason, deserves to be set

aside.

8. Learned counsel Shri D.K. Kulkarni submits that the

petitioner has suffcient income. He states that his income in the

year 2018-2019 was Rs. 26,00,000/-. He has income from other

sources also. Therefore, petitioner can easily pay the amount of

Rs. 20,000/- per month. He submits that the respondent is

undergoing treatment for Cancer. She has to spend huge amount on

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her treatment. He, therefore, submitted that the petition deserves to

be dismissed.

9. Petitioner has produced Proprietor’s Capital Account for

the year ending on 31st March, 2019. It shows that Opening Balance

of the account was Rs. 58,45,268.54. Net Proft was Rs.2,55,662.84.

Income from Row House was Rs. 5,10,000/-. This shows that Net

Proft for the year ended on 31st March, 2019 was Rs. 2,55,662.84.

Balance Sheet of petitioner’s business is placed on record. It shows

that Investment and Deposits of petitioner was Rs. 6,38,655/-. It

further shows that Cash-in-Hand was Rs. 20,55,153.48. Petitioner

has Fixed Assets amounting to Rs. 31,72,887.07. This clearly shows

that petitioner was having almost Rs.27,00,000/- towards Cash-in-

Hand. On this background, the contention of learned counsel for the

petitioner that his net proft was only Rs. 2,55,000/- and on that

basis maintenance amount ought to have been awarded cannot be

considered.

10. It is true that because of pandemic everyone has received

a set back. Naturally, petitioner must also have received a set back.

However, it cannot be denied that respondent is suffering from

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Cancer and she is required to spend some amount for her treatment.

She has not produced any documentary evidence in support of her

contention that she has to spend Rs. 10,000/- per month for her

treatment. However, it cannot be denied that she must be spending

some amount for her treatment. Therefore, considering the income of

the petitioner, I do not think that the learned Family Court has

committed any error in awarding the amount of maintenance. In this

view of the matter, writ petition is bereft of any merit and deserves to

be dismissed.

11. At this stage, learned counsel for the petitioner has made

a request that the trial pending before the Family Court be expedited.

He submits that petitioner is under cross-examination. It will be in

the ftness of things if the learned Family Court is directed to dispose

of the petition for divorce in a time bound manner. Learned counsel

for respondent has no objection for the same. In view of this, writ

petition is dismissed. The learned Family Court shall expedite trial of

Petition No. P.A-209/2018 and shall dispose it off within a period of

six months from today.

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12. Petitioner to pay Rs. 5,000/- to the respondent as cost of

this petition.

( M. G. SEWLIKAR )
Judge

dyb

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