2014 Supreme(Bom) 1254

In the High Court of Bombay at Goa
U.V. BAKRE, J.
Gaurav Gupta
Versus
Radhika Gupta
Writ Petition No. 780 of 2012
Decided on: 27-06-2014

Headnote:

Writ petition challenging the interim orders dated 04/10/2012 and 05/10/2012, passed by the learned Ad-hoc Additional Civil Judge Senior Division, Mapusa (Trial Court), in Matrimonial Petition No.20/2009, was partly allowed. The part of the impugned order, which excludes the amount of Rs.50,000/- granted under Domestic violence Act, was quashed and set aside. The petitioner shall pay to the respondent the amount of interim maintenance as directed by the Trial Court, vide the impugned order, by adjusting the amount of Rs.50,000/- per month granted to the respondent under the Domestic Violence Act, which is already paid as from 09/06/2011 and which would be paid, hereinafter. Arrears shall be paid within three months from today.

Fact of the Case:

Petitioner and respondent are Hindus by religion. They got married to each other on 17/04/1998 according to Hindu Customary Right, in Agra, Uttar Pradesh and the marriage was thereafter registered before the Sub- Registrar at Mapusa on 29/06/1998 under Registration No.664/98. They have two minor daughters from the wedlock, namely Khushi born on 14/02/2001 and Saachi born on 27/03/2004. The petitioner, on or about 24/03/2009, has filed a suit for dissolution of marriage against the petitioner, being Matrimonial Case No.20/2009, under the Hindu Marriage Act, 1955 (the Act, for short), which is pending. Initially, the couple and the children stayed in the matrimonial house which is “Anukampa, 60, Green Valley, Alto-Porvorim. Presently, the respondent and her children, have been residing in a three bed room flat at 6-F1, Prudential Palms, Opposite Sapna Gardens, Alto-Porvorim, Goa. The petitioner, who was residing with them, left the said flat sometime in September, 2008 and has moved in a single bedroom apartment i.e. G-51, Villa Paradiso, Tata Housing, Alto-Betim.

Finding of the Court:

The petitioner-husband, being aggrieved by the said orders dated 04/10/2010 and 05/10/2012, has filed the present writ petition, challenging the orders on various grounds. The respondent-wife filed Affidavit-in-Reply. The petitioner then filed Affidavit-in-Rejoinder. The respondent filed Affidavit-in-Sur-Rejoinder. Some additional affidavits and replies have also been filed by the parties. Various documents have been relied upon by the parties. By order dated 30/11/2012, this Court had granted ad-interim stay of the impugned order dated 05/10/2012 subject to the petitioner depositing in this Court 25% of the amount awarded as per the impugned order. The petitioner deposited only Rs.1,00,000/-. On 10/01/2013, Rule was issued in the matter. But since the petitioner had failed to deposit the amount and had thus not complied with the order, the ad interim stay was vacated.

Issues: Whether the impugned order dated 05/10/2012 is liable to be set aside?

Ratio Decidendi: The means, of Gaurav, for earning income, as mentioned in the application for interim maintenance, are not denied by him but the income that is sought to be projected as of Gaurav from the said means are denied by Gaurav. The said terms signed by Gaurav certainly establish the financial capability of Gaurav to pay interim maintenance to Radhika and children and the amount of legal expenses and in fact the said agreement shows that what was agreed was more than what has been granted by the Trial Court. If Gaurav did not have financial capacity as stated in the application for interim maintenance and if Gaurav, his wife Radhika and their children were not living in a life style as stated in detail in the said application, under Section 24 of the Act, Gaurav would never have agreed to such terms and signed them. The denials of Gaurav, therefore, to all the averments made by Radhika on the income of Gaurav are not wholly acceptable and reliable.

Final Decision: Writ petition was partly allowed. The part of the impugned order, which excludes the amount of Rs.50,000/- granted under Domestic violence Act, was quashed and set aside. The petitioner shall pay to the respondent the amount of interim maintenance as directed by the Trial Court, vide the impugned order, by adjusting the amount of Rs.50,000/- per month granted to the respondent under the Domestic Violence Act, which is already paid as from 09/06/2011 and which would be paid, hereinafter. Arrears shall be paid within three months from today.