WP-6544-18.doc

BDP-SPS

Bharat

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D. Pandit
Digitally signed
by Bharat D.

CIVIL APPELLATE JURISDICTION
Pandit
Date: 2020.02.26
10:50:51 +0530

WRIT PETITION NO.6544 OF 2018

Swapnil Rajendra Shete …. Petitioner.
V/s
Priyanka @ Prajakta Swapnil Shete ….. Respondent.

ALONGWITH
CIVIL APPLICATION NO.1012 OF 2019
IN
WRIT PETITION NO.6544 OF 2018

Priyanka @ Prajakta Swapnil Shete ….. Applicant
V/s
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.

P.C.:-

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

as under:-

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(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

24/7/2017.

(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,

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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

son.

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

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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

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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

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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-

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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

Respondent.

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

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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. )

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