IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by Bharat D.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6544 OF 2018
Swapnil Rajendra Shete …. Petitioner.
Priyanka @ Prajakta Swapnil Shete ….. Respondent.
CIVIL APPLICATION NO.1012 OF 2019
WRIT PETITION NO.6544 OF 2018
Priyanka @ Prajakta Swapnil Shete ….. Applicant
Swapnil Rajendra Shete …. Respondent.
Mr. S.S. Kulkarni a/w Mr. Rohan P. Surve for the Petitioner in Writ
Petition and for Respondent in CA No.1012 of 2019.
Mr. Nikhil Wadikar i/b Mr. Nandu Pawar for the Respondent in Writ
Petition and for the Applicant in CA No.1012 of 2019.
CORAM: NITIN W. SAMBRE, J.
Order reserved on 20/2/2020
Order pronounced on 25/2/2020.
1] This Petition is by husband questioning the order of grant of
maintenance of Rs 15,000/- in favour of Respondent-wife and son.
2] Events germane for deciding the issue raised in the Petition are
(i) On 10/7/2016, parties have performed marriage as
per Hindu Vedic Rituals.
(ii) It is claimed by the Petitioner that on 12/11/2016,
parties started residing separately and a son was born on
(iii) Proceedings for judicial separation subsequently
converted into divorce, came to be initiated on
17/3/2017 for which application under Section 24 of the
Hindu Marriage Act came to be moved on 19/1/2018 for
grant of maintenance pendente lite
(iv) It is claimed that Respondent-wife was earning
upto 4/1/2017 at the rate of Rs 29,000/- per month,
which job she resigned on 17/4/2017.
(v) It is further claimed that Respondent-wife got new
job at the rate of Rs 16,000/- per month on 23/7/2018,
which she resigned on 30/4/2019 and has secured
another new job immediately thereafter at the rate of
Rs 18,000/- per month, which fact is not in dispute.
(vi) Respondent-wife initiated proceedings for restitution
of conjugal rights on 4/11/2017
3] The order impugned dated 17/4/2018 is in the nature of award
of maintenance of Rs 15,000/- for wife and son, which is questioned
on the ground that wife was gainfully employed intermittently, as
could be inferred from the aforesaid events and that being so, award
of maintenance of Rs 15,000/- in favour of wife is not justified. It is
claimed that award of maintenance in favour of son, though is not
questioned, however, the Court below committed an error in
segregating the amount of maintenance from Rs 15,000/- for wife and
4] Learned Counsel for the Petitioner would urge that Petitioner, as
of today, is earning net salary of Rs 41,000/-, whereas earning of the
wife of Rs 18,000/- with effect from 30/4/2019 and Rs 16,000/- from
23/7/2018 is not taken into account. Apart from above, submissions
are, wife is not entitled for maintenance as she is residing with her
parents and as such, no expenses could be incurred towards residence
and other charges. Learned Counsel then would urge that there is
liability of repayment of loan amount for which Petitioner is paying an
amount of Rs 25,000/- per month and that being so, if maintenance of
Rs 15,000/- is paid, hardly anything will be left for Petitioner to
maintain himself. As such, it is prayed that the order impugned is
liable to be modified.
5] While countering the submissions, learned Counsel for the
Respondent would urge that gainful employment of Respondent with
effect from 23/7/2018 is not in dispute. According to him, even if
said amount is not considered while awarding maintenance, amount
of maintenance of Rs 15,000/- is too meagre for Respondent-wife to
maintain herself and also the son.
6] Learned Counsel for the Respondent would urge that the
maintenance is awarded from 19/1/2018, whereas the Respondent
has secured job on 23/7/2018. As such, liability to pay maintenance
cannot be disputed from 19/1/2018 to 22/7/2018.
7] It is further claimed that award of maintenance of Rs 15,000/- is
based on earning of around Rs 33,000/- per month of the Petitioner ,
which salary has been increased to net drawing of Rs 41,000/-. As
such, appropriate modification is sought by the learned Counsel for
the Petitioner, particularly in the light of increased salary of the
Respondent-wife from Rs 16,000/- to Rs 18,000/-.
8] Considered rival submissions.
9] Powers are exercised by Family Court under Section 24 of the
Hindu Marriage Act for awarding maintenance pendente lite in the
divorce proceedings. While doing so, admittedly, income of the
Petitioner-husband is taken into account, so also his liability of re-
payment of loan by EMI of Rs 13,125/- and Rs 9,270/-. Fact remains
that said liability is self created, as it is claimed that amount of loan
was in the form of personal loan and also for construction of house in
the name of his father, after he retried from the employment of MSEB.
It is not in dispute that the Petitioner is working as lead engineer with
Construction Consultant Firm and his Salary Certificate depicts that he
was drawing net salary of Rs 41,296/-.
10] Even if it is presumed that of this amount of Rs 41,296/-, the
Petitioner is required to repay loan amount, that cannot wash away
his liability to pay maintenance to his wife and child. Liability of loan
is self created liability but even if certain latitude for the same is
given, that by itself cannot be accepted as an excuse for overcoming
the liability of payment of maintenance. In the case in hand, it is not
disputed that from 23/7/2018, Respondent-wife is gainfully employed
and is earning around Rs 16,000/- from 23/7/2018 and Rs 18,000/-
from 30/4/2019. Of course, the said income is not considered by the
Family Court while deciding the proceedings for award of
maintenance. However, it is required to be noted that order of award
of maintenance of Rs 15,000/- was passed on 17/4/2018, the day on
which Respondent-wife was not earning anything. However, order is
made applicable from 19/1/2018. Even if same is accepted, the
contention of the learned Counsel for the Petitioner that the Petitioner
is not liable to pay maintenance for period from 19/1/2018 till
23/7/2018 in view of independent source of income of Respondent-
wife cannot be sufficient to deny the maintenance to Respondent.
The Petitioner is liable to pay appropriate maintenance for the said
period, having regard to the quantum of his and income of
11] As such, for period from 19/1/2018 till 27/7/2018, in my
opinion, of the maintenance of Rs 15,000/- wife is entitled to
maintenance of Rs 7500/- whereas son is entitled for maintenance of
Rs 7500/-. Though there is increase in salary of Respondent-wife
from Rs 16,000/- to Rs 18,000/- with effect from 30/4/2019, that by
itself will not dis-entitle her to claim maintenance for herself and also
for son. Even if it is accepted that net income of husband is around Rs
41,000/- and odd as compared to wife’s income of Rs 18,000/-, in
such an eventuality having regard to increase in salary of the
Petitioner, son will be entitled to maintenance of Rs 10,000/- with
effect from 19/3/2019, whereas for Respondent-wife, considering her
salary of Rs 18,000/-, she will be entitled to maintenance of Rs
5,000/- from 19/3/2019.
12] The aforesaid order of modification of maintenance is passed
having regard to gainful employment of Respondent-wife and the
increased salary of the Petitioner-husband.
13] With the above observation, Petition stands disposed of. As a
consequence of disposal of the present Petition, Respondent wife is
permitted to withdraw the amount deposited in this Court. Civil
Application No.1012 of 2019 is allowed in the above terms.
( NITIN W. SAMBRE, J. )