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Shailesh Milind Gupte vs Asmita Shailesh Gupte on 24 October, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

Writ Petition NO. 4471 OF 2017

Shailesh Milind Gupte …Petitioner
Versus
Asmita Shailesh Gupte …Respondent
….
Mr. Saurabh Oka, Advocate for the Petitioner.
Mr. G.R. Sawant a/w. P.C. Mohite I/b. R.S. Bidkar, Advocate for the
Respondent.
….

CORAM : R. G. KETKAR, J.

DATE : 24th OCTOBER, 2018
P.C.

1. Heard Mr.Saurabh Oka, learned counsel for the petitioner

and Mr.G.R. Sawant, learned counsel for the respondent, at length.

2. By this Petition under Article 227 of the Constitution of India,

the petitioner has challenged the order dated 17.11.2016 passed by the

learned 2nd Jt. Civil Judge, Senior Division, Kalyan below Exhibit-16 in

M.P. No.819/2015. By that order, the learned trial Judge allowed the

application made by the respondent under Section 24 of the Hindu

Marriage Act, 1955 (for short, ‘Act’) and directed the petitioner to pay

Rs.30,000/- per month to the respondent as maintenance pendent-lite

from the date of the application till decision of the Petition.

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3. In support of this Petition, Mr. Oka submitted that the

learned trial Judge was not justified in passing the impugned order. He

submitted that the respondent-wife has admitted in her written

statement as also counter claim that since 2016 the petitioner is jobless

person. As the petitioner has no source of income, it is impossible for

him to pay the maintenance @ Rs.30,000/- per month. He submitted

that though the respondent-wife came with the case that the petitioner

has 2 flats in Pune, 4 BHK flat at Dombivali and 1 BHK flat and shop

premises which he has given on rent, the petitioner has denied that

these are his properties. Those properties are self-acquired properties

of the deceased maternal grand-father of the petitioner. Those

properties have come to mother of the petitioner and her sister. Thus,

though the respondent has claimed these are the properties of the

petitioner, they are not his properties. He further submitted that he was

rendered jobless from 2016. Since then he is maintained by his mother.

He further submits that he is not in arrears of maintenance and has paid

upto date maintenance as per the impugned order. He, therefore,

submitted that the petition requires consideration.

4. On the other hand, Mr. Sawant supported the impugned

order. He submitted that in addition to awarding maintenance as per

the impugned order, by order dated 11.7.2016, the learned Judicial

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Magistrate, First Class, 3rd Court, Kalyan has awarded maintenance

under the provisions of the Protection of Women from Domestic

Violence Act, 2005 (for short, ‘D.V. Act’) directing the petitioner herein

to pay Rs.10,000/- per month from the date of the application till final

disposal of the proceedings filed under the D.V. Act. He submitted that

the petitioner has not complied and still the petitioner is not complying

said order.

5. Mr. Oka submitted that the maintenance cannot be awarded

in two different proceedings. In any case, the learned trial Judge ought

to have adjusted the amount of maintenance awarded under the D.V.

Act.

6. I have considered the rival submissions advanced by the

learned Counsel appearing for the parties. I have also perused the

material on record. It is not in dispute that the marriage between the

parties was solemnized on 24.1.2002. Out of this wedlock, son Apurva

is born on 29.11.2004. The respondent came with the case that the

petitioner is working as a Chef on a ship and was getting Rs.2,50,000/-

per month as and by way of salary. She also contended that the

petitioner has two flats in Pune. He has 4 BHK flat at Dombivali and 1

BHK flat and shop premises which he has given on rent. The petitioner

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has Rs.50,00,000/- in his bank account and also fixed deposits. He has

immovable property at Murbad and has no other responsibilities.

7. In paragraph-4 of the impugned order, the learned trial Judge

has dealt with the say Exhibit-23 filed by the petitioner herein. The

learned trial Judge also noted that the petitioner is jobless and is in

search of job for keeping himself as alive. After considering the material

on record, in paragraph-5 the learned trial Judge observed that the

petitioner was working as a Chef in a ship and was getting salary of

Rs.2,50,000/- per month. The learned trial Judge also noted that

according to the petitioner he is a jobless. Considering the status of the

petitioner and the respondent, the petitioner has ability to earn more

than Rs.1,00,000/- per month. Having regard to the fact that the parties

were living lucrative life and they are from higher middle class families,

the learned trial Judge observed that the petitioner is in sound financial

position. The income tax returns of the petitioner for the year 2012-

2013 showed income of Rs.15,00,000/- per annum, in the year 2013-

2014 Rs.7,00,000/- per annum and in the year 2014-2015

Rs.17,00,000/- per annum.

8. That apart, as noted earlier, the learned Magistrate has

awarded maintenance of Rs.10,000/- per month in the proceedings filed

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under the D.V. Act. The petitioner has not complied said order as of

date. Section 24 of the Act reads thus :

“24. Maintenance pendente lite and expenses of
proceedings.– Where in any proceeding under this
Act it appears to the court that either the wife or the
husband, as the case may be, has no independent
income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the
application of the wife or the husband, order the
respondent to pay to the petitioner the expenses of
the proceeding, and monthly during the proceeding
such sum as, having regard to the petitioner’s own
income and the income of the respondent, it may
seem to the court to be reasonable.

Provided that the application for the
payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the
date of service of notice on the wife or the husband,
as the case may be.”

[emphasis supplied]

9. Thus, the Court has to fix reasonable maintenance having

regard to the income of the husband and the income of the wife. After

considering the material on record, the learned trial Judge has fixed the

interim maintenance. For the reasons recorded in paragraph-5 of the

impugned order, I do not find that the learned trial Judge has fixed

unreasonable maintenance.

10. As mentioned earlier, the husband has not paid the

maintenance under the D.V. Act. Mr. Oka submitted that the

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maintenance cannot be awarded in two different proceedings. In any

case the learned trial Judge ought to have adjusted the amount of

maintenance awarded under the D.V. Act. I do not find any merit in

this submission. Section 20(1)(d) of the D.V. Act empowers the

Magistrate to award maintenance for the aggrieved person as well as

her children, if any, including an order under or in addition to an order

of maintenance under Section 125 of the Code of Criminal Procedure,

1973 or any other law for the time being in force. Section 26 lays down

that any relief available under Section 20 amongst others, can be sought

for in addition to and along with any other relief that the aggrieved

person may seek in suit or legal proceedings before a Civil or Criminal

Court. Section 36 lays down that the provisions of D.V. Act are in

addition to, and not in derogation of the provisions of any other law, for

the time being in force.

11. In the light of aforesaid discussion, the Petition fails and the

same is dismissed. The respondent is permitted to withdraw the

amount deposited by the petitioner in this Court, unconditionally. Order

accordingly.

(R. G. KETKAR, J.)
Deshmane (PS)

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