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2016 DIGILAW 437 (MP)

Kunj Gada v. Sheetal Gada

2016-06-14

PRAKASH SHRIVASTAVA

body2016
ORDER 1. Heard finally with consent. 2. This order will also govern disposal of Writ Petition No.1075/2014. In both these writ petitions the order of interim maintenance dated 22.11.2013 passed by the Family Court, Indore is under challenge. Writ Petition No.159/2014 is at the instance of husband questioning the maintenance pendente lite granted by Family Court whereas Writ Petition No.1075/2014 is at the instance of wife seeking enhancement of the maintenance amount. 3. For convenience the facts have been noted from Writ Petition No.159 of 2014. 4. In brief the petitioner/husband has filed the divorce petition against the respondent/wife and in that proceeding the respondent/wife had filed an application under section 24 of Hindu Marriage Act claiming maintenance pendente lite. The said application was opposed by respondent and the Family Court by the impugned order dated 22.11.2013 had directed the petitioner to pay the interim maintenance of Rs.20,000/- per month to the respondent/wife and Rs.10,000/- each to daughter Aneri and son Ridam as also Rs.5,000/- in lump-sum as litigation expenses. 5. Learned counsel for petitioner/husband submits that the paternity of second child Ridam is in dispute and as per DNA report, the petitioner is not the biological father of the said child. He further submits that the Family Court has committed an error in fixing the maintenance on the basis of the premium paid for insurance policy without appreciating that the premium was paid by the petitioner's father. 6. As against this learned counsel for respondent has supported the impugned order and has referred to the various documents in respect of income of petitioner and has also raised a plea that the maintenance which is fixed by the Family Court is on the lower side and is required to be enhanced. 7. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the Family Court has passed an elaborate order and after examining the documents filed by the parties has fixed the maintenance amount which is payable to the respondent/wife as also the two children pendente lite. 8. So far as the issue raised by petitioner about the paternity of second child Ridam is concerned the DNA report referred by petitioner has been seriously disputed by the respondent. 8. So far as the issue raised by petitioner about the paternity of second child Ridam is concerned the DNA report referred by petitioner has been seriously disputed by the respondent. The Family Court has considered this aspect of the matter and has also examined the plea of respondent No.2 in respect of circumstances which had led to the artificial insemination and that at the time of artificial insemination the sperm was changed to make out a ground. The Family Court has rightly noted that this issue can be decided only after the evidence. 9. So far as the issue of maintenance amount is concerned, the Family Court has noted that in two insurance policies of HDFC in the year 2012 a sum of Rs.1 lac and Rs.2,50,000/- was deposited as installments. It has also been found that petitioner is the only son of his father. Though counsel for petitioner has pointed out that some premium of the insurance policy was paid by father of petitioner but that alone is not sufficient to dislodge the conclusion drawn by the Family Court because the other material has also been considered by the Family Court while arriving at the income of the petitioner. The premium paid for the insurance policy reflects the family and social status of the petitioner and the amount has been fixed proportionate to the same. The Family Court has taken note of the tax audit report of 2012, 2013, post office account and photocopy of bank account. Considering the material the Family Court has found that the petitioner is earning at least Rs.1,00,000/- per month. The Family Court has also noted that both the children are studying in Delhi Public School and considering the family and social status of the parties which is found to be high, the interim maintenance has been fixed. 10. Learned counsel for respondent has also referred to the various documents which are filed along with the reply and these documents also support the conclusion which has been arrived at by the Family Court in respect of income of petitioner. 11. Considering the material on record, I am of the opinion that the interim maintenance amount of Rs.20,000/- per month which has been fixed by the Family Court to the respondent/wife and Rs.10,000/- each to daughter Aneri and son Ridam as also Rs.5,000/- in lump sum as litigation expenses is just and proper. 11. Considering the material on record, I am of the opinion that the interim maintenance amount of Rs.20,000/- per month which has been fixed by the Family Court to the respondent/wife and Rs.10,000/- each to daughter Aneri and son Ridam as also Rs.5,000/- in lump sum as litigation expenses is just and proper. Hence no case is made out to either enhance or reduce the amount so fixed by the Family Court. 12. That apart the present writ petitions are under Article 227 of the Constitution of India and since no patent illegality has been found in the order of Family Court, therefore, no case for interference is made out. 13. Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Supreme Court in the matter of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010)8 SCC 329 , has held that High Court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. The High Court can exercise this power when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 14. Hence the writ petitions are found to be devoid of any merit which are accordingly dismissed. 15. The signed order be placed in the record of Writ Petition No.159/2014 and copy whereof be placed in the record of connected writ petition. Amit S. Agrawal for petitioner; Ajay Bagadiya for respondent.