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2019 DIGILAW 2227 (BOM)

Umesh Ramdas Meshram v. Nisha

2019-09-26

MILIND N.JADHAV

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JUDGMENT : Milind N. Jadhav, J. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 2. By the present Petition, the Petitioner has challenged the legality, validity and propriety of two orders dated 21st December, 2016 and 29th March, 2017, both passed by the learned Civil Judge Senior Division, Chandrapur, in Hindu Marriage Petition No.172/2016, inter alia, pertaining to grant of interim maintenance and attachment of salary respectively in favour of the Respondent Wife. 3. The relevant facts required for appreciating the controversy and lis between the parties, are as follows: The Petitioner and the Respondent's marriage came to be solemnized on 30th May, 2015. After marriage, the Petitioner and the Respondent cohabitated together at Wani. The Petitioner is working as Government servant in the office of the Collector, Chandrapur. The Respondent-Wife is a home-maker. The Petitioner and the Respondent-Wife have one daughter, aged 4 years. It is the Petitioner's case that the Respondent-Wife used to quarrel with the Petitioner and make false allegations against him and his family members. After birth of the daughter, the Respondent-Wife resided with the Petitioner for some time. On 14.9.2015 the Respondent-Wife filed a Police Report against the Petitioner and left the Petitioner's house permanently with all her belongings. The Petitioner has stated that the Respondent-Wife used to harass and threaten him. The Respondent-Wife filed Application bearing M.C.A.No.155/2015 under the provisions of Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'D.V. Act') before the learned Judicial Magistrate First Class, Chandrapur on 16.11.2015. On 30.9.2016 the learned Judicial Magistrate First Class, Chandrapur also decided application bearing M.C.A.No.155/2015 filed by the Respondent-Wife and directed grant of maintenance of Rs.4,000/- per month. In retaliation, the petitioner filed Divorce Petition on 14.7.2016 against the Respondent-Wife being Hindu Marriage Petition No.172/2016. On 6.9.2016 the Respondent-Wife filed application for grant of interim maintenance against the Petitioner in the aforesaid divorce proceedings. This application came to be listed as Exhibit-9. The Petitioner contested this application but, the learned Trial Court by its order dated 21.12.2016 directed the Petitioner to pay Rs.5,000/- per month as interim maintenance to the Respondent-Wife. On 27th January, 2017 the Judicial Magistrate First Class passed further order below Exhibit-19 in the said M.C.A. No.155/2015 directing deduction of the amount of Rs.4,000/- from the salary of the Petitioner. On 27th January, 2017 the Judicial Magistrate First Class passed further order below Exhibit-19 in the said M.C.A. No.155/2015 directing deduction of the amount of Rs.4,000/- from the salary of the Petitioner. Thereafter, further order came to be passed on 29th March, 2017 directing deduction of the amounts from the salary of the Petitioner including the maintenance amounts ordered earlier. 4. The present petition, therefore, lays a challenge to the orders dated 21st December, 2016 and 29th March, 2017 passed by the learned Civil Judge Senior Division, Chandrapur in Hindu Marriage Petition No.172/2016. 5. Shri Ashish Kadukar, learned counsel appearing for the Petitioner, submitted that the impugned order did not take into account the evidence placed on record and as such, was arbitrary and highhanded as against the Petitioner. He submitted that the impugned order was liable to be quashed and set aside, as the same was non-reasoned, non-speaking and cryptic order passed without application of mind by the learned Judge. He submitted that the Respondent-Wife could not produce any documentary proof and/or evidence relating to the income of the Petitioner and, therefore, the learned Trial Court grossly erred in deciding the quantum of interim maintenance, which came to be awarded. He submitted that the Respondent-Wife was an educated and qualified person inasmuch as she was a diploma-holder in Education and, therefore, was able to maintain herself. According to the Petitioner, this fact ought to have weighed with and considered by the Trial Court while deciding the quantum of interim maintenance, though, it was fairly admitted that the Respondent- Wife was not working or employed, as she had to take care of her daughter, who was small. He submitted that the Respondent-Wife was residing with her father and her father was working in Western Coalfields Limited and was drawing salary of Rs.60,000/- per month and thus, the learned Trial Court ought to have considered this aspect while determining interim maintenance, which came to be awarded. He submitted that the Respondent-Wife was also simultaneously being allowed maintenance of Rs.4,000/- per month as per order dated 30th September, 2016 in M.C.A. No.155/2015 under the D.V. Act and, therefore, the same ought to have been factored into passing the impugned orders dated 21st December, 2016 and 29th March, 2017. He submitted that the Respondent-Wife was also simultaneously being allowed maintenance of Rs.4,000/- per month as per order dated 30th September, 2016 in M.C.A. No.155/2015 under the D.V. Act and, therefore, the same ought to have been factored into passing the impugned orders dated 21st December, 2016 and 29th March, 2017. He submitted that the allegations made by the Respondent-Wife against the Petitioner viz., in paragraph nos.8 and 9 of the application were false and misleading and the Trial Court failed to consider the same in its proper perspective. He stressed that the Trial Court ought to have considered that the Respondent-Wife had herself on her own deserted the house of the Petitioner and was, therefore, not entitled for any maintenance. Apart from this, he submitted that the Petitioner had to maintain a large family and from his monthly salary had specific expenditure of Rs.5,000/- towards medicines of his uncle, Rs.4,000/- towards rent, Rs.300/- towards travelling expenses, Rs.3,000/- towards food, electric bill and other expenses and, therefore, in view thereof the impugned orders were not justified. He submitted that though, there was no specific application on the part of the Respondent-Wife for seeking deduction of the maintenance amount from his salary, the Trial Court on its own suo motu directed deduction of the maintenance amount from his salary, and, therefore, this was clear violation of the principles of natural justice wherein the Petitioner was not accorded an opportunity to desist the same. 6. Per CONTRA, Shri V.V. Bhardwaj, learned counsel appearing for the Respondent-Wife, submitted that when the marriage of the Petitioner and the Respondent-Wife was solemnized, the Petitioner had received Rs.50,000/- in cash from the father of the Respondent-Wife, apart from other articles. He submitted that the Respondent-Wife was ill-treated by the Petitioner and his aunt, who used to time and again visit the residence of the husband and wife and used to quarrel with the Respondent-Wife on petty reasons. He submitted that the Respondent-Wife was abused repeatedly and the Petitioner repeatedly referred to the plot of land belonging to her father in Wani and demanded the same. He further submitted that during the sixth month of the Respondent's pregnancy, the Petitioner had ill-treated her and her parents were not allowed to meet her. He submitted that the Respondent-Wife was abused repeatedly and the Petitioner repeatedly referred to the plot of land belonging to her father in Wani and demanded the same. He further submitted that during the sixth month of the Respondent's pregnancy, the Petitioner had ill-treated her and her parents were not allowed to meet her. He finally submitted that even during the birth of their child, the Respondent-Wife came to be admitted in a private hospital by her father and the Petitioner did not even attempt once to contact her or meet her. He referred to the order dated 21st December 2016 and submitted that the said order was passed in the facts and circumstances presented before the learned Civil Judge Senior Division, Chandrapur. He submitted that one of the prime reason, which weighed with the Trial Court was that as to whether the Respondent-Wife was having her own income to maintain herself and her daughter. Admittedly, there was no dispute about this fact that the Respondent-Wife was not employed and she was not having any income. According to him, the Petitioner failed miserably to place on record sufficient material to suggest and prove that the Respondent-Wife was having her own income to support and maintain herself and therefore the finding given by the learned Trial Court that it was the legal and moral duty of the Petitioner to maintain his wife, who was unable to maintain herself is correct. He submitted that the Trial Court also held that it was incumbent upon the Petitioner to bring on record the details of his present day salary (drawn by the Petitioner) in order to substantiate his case that the Petitioner had to incur expenditure for several expenses, out of the said salary. While referring to the order dated 29.3.2017 passed below Ex.15 by the learned Civil Judge Senior Divisional, Chandrapur, he submitted that there is a specific reference to the application for attachment of salary, which was filed by the Respondent-Wife and the same was contested by the Petitioner before the said Court. Therefore, the submission of the Petitioner that the impugned order dated 29th March 2017 was passed without any pleadings being on record is false. Therefore, the submission of the Petitioner that the impugned order dated 29th March 2017 was passed without any pleadings being on record is false. Further, in order to ensure that the Petitioner would be liable to pay interim maintenance amount of Rs.5000/- per month to the Respondent-Wife and her daughter, it was incumbent upon the Court to ensure that the amount, which was determined by the Court, would be deducted from the salary of the Petitioner and would be paid over to the Respondent-Wife. According to him, another significant aspect of the case, which deserved to be considered was that during the contest of this application, the Petitioner had filed his salary slips from March 2015 to January 2016, wherein the gross salary of the Petitioner was shown to be in the range of Rs.29,734/- to Rs.32,671/-. The learned Trial Court, therefore, opined that there is good probability that when the said application came to be decided on 29th March 2017, the salary of the Petitioner might have increased. The current salary slips were not presented and placed on record by the Petitioner. Therefore, according to Shri Bhardwaj, the order dated 29th March 2017 was correctly passed and did not require any interference. 7. Having considered the rival submissions of the respective parties, it is stated that the power to grant maintenance under Section 20 (1) (d) of the Protection of Women from Domestic Violence Act, 2005 conferred upon the Magistrate is in the nature of a monetary relief and is directly related to sufferings of the losses by the aggrieved person and any child of the aggrieved person as a result of domestic violence. The said Section reads thus: "Section 20. Monetary reliefs: (1)..... (a)..... (b)..... (c)..... (d) the 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 (2 of 1974) or any other law for the time being in force". The above proposition prima facie clearly applies to the facts and circumstances of the present case. The Respondent-Wife is unemployed and has a four year old daughter to take care of and, therefore, the order passed under the D.V.Act of granting maintenance of Rs.4,000/- per month is, therefore, correct in its true spirit. 8. The above proposition prima facie clearly applies to the facts and circumstances of the present case. The Respondent-Wife is unemployed and has a four year old daughter to take care of and, therefore, the order passed under the D.V.Act of granting maintenance of Rs.4,000/- per month is, therefore, correct in its true spirit. 8. In that view of the matter, the direction given by the Trial Court in the order dated 29th March 2017 for deduction of the amount of Rs.4000/- from the salary of the Petitioner, in my opinion, has been correctly made. Further, the order of maintenance which has been granted by the learned Trial Court is required to be viewed at as an addition to the maintenance, which has already been granted to the Respondent-Wife and her daughter. The result is that the Respondent-Wife and her daughter is required to maintain herself and for such reason, the total sum of Rs. 9,000/- which has been directed to be attached is not only fair but, adequate in the facts and circumstances of the present case. In the instant case, the mandatory relief for grant of such maintenance is based on two specific conditions viz., sufferance of domestic violence by the aggrieved person i.e. the aggrieved wife in the present case and incurring of expenses and/or suffering of losses by the Wife and her daughter as a result of such domestic violence. The Respondent-Wife and her daughter are staying separately and, therefore, deserve the aforesaid amount of Rs.9,000/- per month which has been directed to be deducted from the salary of the Petitioner towards their maintenance. In the present case, it is significant to note that the Respondent-Wife left the house of the husband when she was six months' pregnant with her child and the circumstances in which she left the Petitioner's house are required to be considered especially after the birth of the daughter and maintenance of both the Respondent-Wife and the daughter. 9. Shri Kadukar, learned counsel appearing for the Petitioner referred to and relied upon the following two cases in support of his submissions: (a) Criminal Revision Application No.203/2017 in the case of Vishal s/o Rajeshaheb Gore Vs. Sou. Aparna W/o Vishal Gore and another decided on 13.6.2018. 9. Shri Kadukar, learned counsel appearing for the Petitioner referred to and relied upon the following two cases in support of his submissions: (a) Criminal Revision Application No.203/2017 in the case of Vishal s/o Rajeshaheb Gore Vs. Sou. Aparna W/o Vishal Gore and another decided on 13.6.2018. In the above case, the issue involved was whether interim maintenance directed to be paid under Section 24 read with Section 20 (1) (d) of the Protection of Women from Domestic Violence Act, 2005 can be adjusted against the amount of maintenance awarded under Section 125 of the Code of Criminal Procedure. In the instant case, the facts are that the Respondent-Wife was granted interim maintenance of Rs.5,000/- by the learned Civil Judge Senior Division, Chandrapur, in Hindu Marriage Petition No.172/2016 which was the divorce proceedings filed by the Petitioner, whereas Rs.4000/- was granted as maintenance to be payable to the Respondent-Wife by the Judicial Magistrate First Class Court, Chandrapur, under the D. V. Act. He referred to and relied upon the observations made in paragraphs 18, 19 and 22 of the said judgment, which read as thus: "18. What I intend to emphasize is the fact that the adjustment is permissible and the adjustment can be allowed of the lower amount against the higher amount. Though the wife can simultaneously claim maintenance under the different enactments, it does not in any way mean that the husband can be made liable to pay the maintenance awarded in each of the said proceedings. 19. The wife and children can claim maintenance under Section 125 of the Code of Criminal Procedure, under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 and also under Sections 20 read with 23 of the D.V. Act. The wife additionally can claim interim alimony under Section 24 of the Hindu Marriage Act. Even if all these remedies are simultaneously pursued by the wife and some or the other order is passed in each of the said proceedings, it would not be permissible for the wife to claim the amount of maintenance awarded in each of the said proceedings independently. Firstly, the propriety demands that if any similar relief is granted in the earlier proceedings, the person in whose favour such relief is granted has to disclose the said fact in the subsequent proceedings. Firstly, the propriety demands that if any similar relief is granted in the earlier proceedings, the person in whose favour such relief is granted has to disclose the said fact in the subsequent proceedings. For a moment even if it is presumed that no such discloser was made or in a hypothetical situation, all the proceedings are simultaneously decided, the husband will definitely have a right to claim adjustment of the amount awarded in the said proceeding and can not be subjected to independently pay the amount of maintenance awarded under each of the said proceedings. 22. There may be different enactments, to which I have referred to herein above, containing some or other provision providing maintenance to wife and children, but the object behind every such provision is common; to prevent vagrancy and destitution. Such a provision in all these enactments is meant to achieve a social purpose and a measure of social justice specially incorporated to protect women and children. It falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. However, as I have discussed herein before, these provisions cannot be interpreted to mean that the husband can be made liable to pay maintenance/interim maintenance awarded under each of the said provisions independently and cannot be permitted to seek 22 Cri.Revn.203/2017 adjustment of the amount of maintenance awarded in the earlier proceeding against the amount awarded in the subsequent proceeding or vice versa". He submitted that if the ratio of the above judgment is to be applied to the facts of the present case, then it would be improper for the Respondent-Wife, to make separate applications under various enactments for claiming maintenance. However, in the above case, one of the crucial facts, which distinguished the said case from the instant case, was that the fact of interim maintenance was awarded under the D.V.Act was not brought to the notice of the learned Magistrate while deciding the application under Section 125 of the Code of Criminal Procedure either by the wife or by the husband therein. Such is not the case herein. In the present case, the cognizance of the amount, which has been directed to be paid by the learned Judicial Magistrate First Class, Chandrapur, in Misc. Such is not the case herein. In the present case, the cognizance of the amount, which has been directed to be paid by the learned Judicial Magistrate First Class, Chandrapur, in Misc. Application No.155/2015 and the interim maintenance granted in Hindu Marriage Petition No.172/2016 was before the Court while passing the impugned order dated 29th March, 2017 below Exhibit-15. I would like to emphasis on the observations made in the opening sentence of paragraph no.22 in the above referred Criminal Revision Application No.203/2017 (cited supra). It categorically states that there may be different enactments containing some or other provisions providing maintenance to the wife and children but, the object behind every such provision is common i.e. to prevent vagrancy and destitution and such a provision in all these enactments is meant to achieve a social purpose and a measure of social justice specially incorporated to protect women and children. It further states that it falls within the constitution sweep of Article 15 (3) reinforced by Article 39 of the Constitution of India. This principle is required to be applied to the facts and circumstances of the present case. The Respondent-Wife separated from the Petitioner when she was six months' pregnant and thereafter she gave birth to a daughter, who is at present 3- 4 years old. It is an admitted position that the Respondent-Wife though being educated is not employed or working and, therefore, unable to take care of her own maintenance much less the maintenance of her daughter. The daughter is also very small and that reason is also to be factored in while considering the claim for maintenance. (b) The learned counsel also referred to and relied upon the case of Mamta Gautam Wankhede Vs. Gautam Sukhdev Wankhede, (2018) AllMR(Cri) 3093. He drew my attention to paragraph no.6 of the said judgment, which reads thus: "In the circumstances referred to above, it was necessary for the petitioner to have shown sufficient cause in terms of what has been discussed in the earlier paragraphs as to why she was entitled to receive more maintenance amount I the proceedings initiated under the D.V.Act, in addition to what was already granted t her by the Family Court,. In particular, it was necessary for her to bring on record some evidence establishing the change of circumstances warranting grant of further maintenance amount to her by taking recourse of the power of the Court under Section 20 of the D.V.Act." He submitted that it was necessary for the Respondent-Wife to specifically show sufficient cause for seeking more maintenance amount in the proceedings initiated under the Hindu Marriage Act especially when the Respondent-Wife was already granted maintenance @ Rs.4,000/- per month under the D.V. Act by the Judicial Magistrate First Class. He submitted that it was necessary for the Respondent-Wife to bring on record some evidence to establish the change of circumstances for warranting grant of further maintenance and the Respondent-Wife failed to do so. I do not agree with the aforesaid submissions inasmuch it is an admitted position that the Respondent-Wife is not working and she has 3-4 year old daughter to succour. These circumstances are adequate and good enough to consider that there was change of circumstances when the Respondent-Wife had separated from the Petitioner-husband when she was six months pregnant and while staying separately, she gave birth to her daughter who is now four years old. The Respondent-Wife is not only required to take care of herself but, more importantly required to take care of the daughter and at that age the child requires adequate nourishment, care and relief. Hence, in my opinion, the reliance of the learned counsel on the observations made in paragraph no. 6 of the above judgment will not apply to the facts and circumstances of the present case. 10. In that view of matter, I find that both the impugned orders are speaking orders in as much as they have considered the afore-stated aspects The Petitioner has failed to produce his current salary slip in respect of the salary drawn by the Petitioner at present. The salary slips, which have been presented on record are for the years 2015-2016 i.e. more than three years old. The Salary slips show that the Petitioner was in receipt of salary between Rs.27,000-34000 per month at that time. There is bound to be an appreciation in the said salary as on today in the year 2019 considering that the Petitioner is a Government Servant working in the Collector's Office at Chandrapur. 11. The Salary slips show that the Petitioner was in receipt of salary between Rs.27,000-34000 per month at that time. There is bound to be an appreciation in the said salary as on today in the year 2019 considering that the Petitioner is a Government Servant working in the Collector's Office at Chandrapur. 11. In the above circumstances, I find that both the impugned orders dated 21st December, 2016 and 29th March, 2017 passed by the learned Civil Judge, Senior Division, Chandrapur in Hindu Marriage Petition No.172/2016 have been correctly passed and the same are upheld. 12. In view of the above, the Petition stands dismissed. Rule is discharged. There shall be no order as to costs.