extreme positions. The petitioner, at least, presently, has taken up a
extreme stand that she is unemployed and earns nothing. On the
other hand, the respondent, by pointing out to his physical
impairment, has taken the same stand with the further addition that
he is incapable of earning anything even in the near future. There
does not appear to be truth, in each of the extreme stands adopted
by the parties. The petitioner is a qualified professional, who has at
least in the past, taken up several important jobs. The petitioner, is
also involved in theater, though, it is not quite clear as to whether
she earns anything substantial in this field. It is however not
possible to accept that the petitioner is totally unemployed and has
no income whatsoever. At the same time, it is also not possible to
accept that the respondent is in no position to earn anything at all
for his own maintenance. Despite, the physical impairment, the
respondent does have the earning capacity, particularly, by way of
taking computer classes or tuitions. The respondent fortunately has
some premises, from where he can take up such classes. The
physical condition of the respondent is certainly not such as to
disable him from taking up any employment. The respondent also
appears to have the family support.
Therefore, upon cumulative consideration of the material on
record, interests of justice would be met if the petitioner is directed
to pay to the respondent by way of interim maintenance an amount
of Rs.2,000/- per month with effect from 27 August 2004 till the final
disposal of Petition No. A-199 of 2002. In the impugned order, the
Family Court, has no doubt, awarded interim maintenance at
different rates for different periods. This exercise, of awarding
different rates for different periods is no doubt proper. However, it
must be noted that between the year 2004 and 2006, when the
respondent had met with an accident, it is possible that the
respondent was not in a position to earn anything significant and at
the same time was required to bear significant medical expenses.
Further, in the later years as the position of the respondent
improved, the respondent must have been in a position to earn
income and at the same time there was corresponding decrease in
medical expenses. As of now, the respondent is certainly in a
position to take up suitable employment and the mere
circumstance that the respondent is not doing so, does not mean
that the respondent is entitled to exorbitant maintenance from the
petitioner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10406 OF 2015
Meenakshi Prashant Kshirsagar .vs. Prashant Tukaram Kshirsagar & Anr.
CORAM : M. S. SONAK, J.
Date of Pronouncing the Judgment : 03 February 2016
Citation;2016(3) MHLJ 260,2016(2) ALLMR401
1] Rule. With the consent of and at the request of the learned
counsel for the petitioner and the respondent no. 1, who appears in
person, Rule is made returnable forthwith.
2] The challenge in this petition is to the order dated 7
September 2015, by which the Family Court, Pune has directed the
petitioner wife to pay to the respondent husband interim
maintenance at the rate of Rs.3,000/- per month from the date of
application i.e. 27 August 2004 till end of December 2006; interim
maintenance at the rate of Rs.4,000/- per month from January 2007
till December 2008; interim maintenance at the rate of Rs.5,000/-
per month from January 2009 to October 2010; and interim
maintenance at the rate of Rs.3,000/- per month from November
2010 till the final disposal of the Petition No. A-199 of 2002
instituted by the petitioner wife against the respondent husband,
seeking divorce, on grounds of cruelty. On 19 October 2015, ad
interim relief was granted in terms of prayer clauses (b) and (c)
subject to the petitioner depositing before the Family Court 50% of
the amount directed to be paid as maintenance in terms of the
impugned order dated 7 September 2015. By order dated 18
December 2015, the respondent was permitted to withdraw an
amount of Rs.1,00,000/-, without prejudice to the rights and
contentions of the parties.
3] Mr. P. M. Bopardikar, the learned counsel for the petitioner
has submitted that the Family Court has failed to appreciate that the
petitioner is presently unemployed. He submitted that in the past,
even though, the petitioner has attempted to serve at several
places, on account of the cruelty and harassment inflicted by the
respondent, including by way of filing a complaint against one of her
employers, the petitioner has not been in a position to take up
regular employment. The learned counsel pointed out that even the
petitioner is required to maintain her old aged parents and her
younger unemployed brother. He pointed out that the parties were
married in the year 2000 but there was de facto separation in the
year 2001. The suit for divorce was instituted in the year 2002. The
respondent husband claims that he suffered an accident in the year
2004, however, there are neither police records nor proper medical
records in support of such claim. In the year 2007, in fact, exparte
decree of divorce was granted to the petitioner. In the year 2010,
however, the exparte decree was set aside and the matter is
pending adjudication. Considering all these circumstances, the
learned counsel for the petitioner submitted that there was no case
made out to require the petitioner to pay maintenance to the
respondent husband.
4] Mr. Bopardikar, the learned counsel for the petitioner further
pointed out that the respondent husband claims to have a degree
in Computer Science and further, there is material on record that the
respondent owns premises, from which, the respondent takes up a
computer classes. The learned counsel has pointed out that even if
it is assumed that the respondent husband suffers from certain
physical disabilities, such disabilities in no manner prevent the
respondent husband from earning a decent income by way of taking
computer classes or tuitions, for which, he is substantially fit. Mr.
Bopardikar submitted that the respondent husband is bent upon
evoking sympathy and by such means, extorting maintenance from
the petitioner wife. The learned counsel submitted that the
respondent has placed on record no material with regard to any
efforts made by him in the context of the employment and earning of
some income. The learned counsel submitted that instead the
respondent husband is interested in making reckless allegations
against the petitioner wife and extorting maintenance from the
petitioner wife. The learned counsel for the petitioner attacked the
medical records relied upon by the respondent husband, by placing
reliance upon other material record to suggest that the respondent
husband is neither advised any bed rest nor is he incapable of
employment. The learned counsel submitted that even the quantum
of maintenance is quite disproportionate. In determining the
quantum, the Family Court has not had regard to the income of the
petitioner, who is presently unemployed, her needs, the needs of
her family members whom she is duty bound to maintain as well as
income and the earning capacity of the respondent husband. For all
these reasons, the learned counsel for the petitioner submitted that
the impugned order is liable to be set aside.
5] Mr. Prashant Kshirsagar, has appeared in person. He has
tendered a compilation of documents, which is quite exhaustive. He
has made his submissions quite admirably, seated in his wheel
chair. It is quite evident that the respondent husband is well versed
with the intricacies of this case and the legal procedures related
therewith.
6] Mr. Kshirsagar has submitted that in the year 2004 he met
with an accident and since then, he is not in a position to work. He
submitted that the premises to which the petitioner eludes, belongs
to his mother and in any case, the premises are quite small. He
submitted that some time he was taking up computer classes from
out of the suit premises. However, he submits that presently, he is
not in a position to take such classes on account of his physical
condition as also the circumstance that the knowledge held by him
in this area, is by now quite outdated. He cast serious doubts upon
the medical records produced by the petitioner wife. He submits that
even now, he is required to take bed rest and only with the special
permission of his doctor he can attend Court proceedings. He
submitted that he has no income of his own. In contrast, he
pointed out that the petitioner is a well qualified professional, who
has served with several companies. Besides, he pointed out that
the petitioner is involved with a theater and therefore, has income
from this field as well. For all these reasons, Mr. Kshirsagar
submitted that there is no case made out to interfere with the
impugned order.
7] Rival contentions now fall for my determination.
8] At the outset, there is no basis to accept the contention of the
learned counsel for the petitioner that the respondent husband had
never met with any accident and that from the year 2004, the
respondent husband is merely faking a disability for the sole
purposes of extorting maintenance from the petitioner wife. The
learned counsel for the petitioner has placed reliance upon letter
addressed to one of the police station seeking information with
regard to the accident and the response thereto. At this interim
stage, it is not possible to rely almost entirely upon such material.
This is because there are medical records produced,
contemporaneous with the date of the alleged accident, which do
indicate that the respondent husband did meet with accident and
was required to avail treatment. Therefore, there is no reason to
interfere with the prima facie finding recorded in the impugned
order on the aspect of accident.
9] However, even according to the respondent, the accident took
place in the year 2004. From the medical records upon which, the
respondent husband has placed reliance, it cannot be said that the
respondent husband is totally disabled from doing any work or that
he has to only take bed rest. The respondent husband, does appear
to have exaggerated his position and such exaggeration might have
nexus with the claim for maintenance which he has made against
the petitioner wife. The medical evidence on record, no doubt,
describes the petitioner's physical condition. There is also a
disability certificate produced by the respondent husband from the
State of Maharashtra which certifies that the respondent husband is
physically impaired, the diagnosis, being 'A V N Left Lower Limb'.
The percentage of disability indicated is 51%. The condition is
stated to be permanent, non progressive but not likely to improve.
10] The respondent husband has also produced on record some
certificates issued from time to time from Anjali Hospital &
Research Center. These certificates, make reference to ailments
with which the respondent husband is said to be afflicted. These
certificates, hardly inspire any confidence. On the one hand, these
certificates advise strict bed rest but at the same time allow the
respondent husband to attend Court for hour in two weeks with
doctor's permission and advise. These certificates are quite
guarded and create an impression that the same were issued for
the sole purpose of assisting the respondent husband in his Court
proceedings against his wife. The record, both in the Family Court
as well as in this Court would indicate that the respondent husband
has been attending the Court and handling this case, despite the
physical disability. As noted earlier, from the manner in which the
respondent is handling his case, it does appear that the respondent
is well versed in such matters. The certificates, on one hand,
exaggerate his medical condition by suggesting that he is advised
strict bed rest if there are episodes of pain in future and on the
other hand, the certificates permit the respondent husband to attend
the Court proceedings, which the respondent husband has been
attending with regularity and quite a zeal. The medical certificates
also make reference to certain further treatments which the
respondent may have to avail in relation to his condition.
11] The record also reveals that the respondent husband has
certain qualifications in the matter of imparting computer education.
Mr. Kshirsagar has submitted that he does not have a formal
degree, since in the last year, he failed to clear some subjects.
However that did not deter Mr. Kshirsagar from taking computer
classes in the past. Mr. Kshirsagar also has premises, which he
says, belong to his mother. Nevertheless the record indicates that
such premises are available to Mr. Kshirsagar for renewing the
activity which he was undertaking earlier, in case, such activities are
not already continuing as urged by the learned counsel for the
petitioner. Mr. Kshirsagar is no doubt entitled to have his case
evaluated with sensitivity, particularly considering his physical
impairment . However, it must also be noted that there is no need
to encourage Mr. Kshirsagar's conviction, that he is not at all obliged
to make any efforts to earn any income and that it is the
unconditional duty of his wife to go on providing with maintenance.
From the tenor of Mr. Kshirsagar's submissions, it did appear that
Mr. Kshirsagar entertains a conviction of this nature. Mr. Kshirsagar
has taken pains to collect several documents and has indulged in
lengthy pleadings to justify his claim for maintenance. It does
appear that if Mr. Kshirsagar were to put in even half efforts in
earning some reasonable income, certainly, Mr. Kshirsagar would
be successful in this regard. From the physical condition of Mr.
Kshirsagar, it does appear that Mr. Kshirsagar is in a position to
undertake suitable employment and earn, at least for his own
maintenance. But at the same time, the material on record indicates
that the respondent is not interested in doing so.
12] The record also indicates that the petitioner and the
respondent lived together as husband and wife for the period of
hardly one year. Thereafter, they were separated and within two
years from the date of marriage, the petitioner wife has instituted
proceedings for divorce. There is also some material which
indicates that at least on one occasion, the respondent along with
his mother visited the place where the petitioner was employed,
created some scene and finally lodged police complaints. In the
records relating to several jobs which the petitioner has changed,
the petitioner has no doubt, stated that the change of job is due to
'better prospects'. However, at least at the interim stage, the
contention raised by the petitioner that she was constrained to
change jobs or to finally give up employment for reasons
attributable to the respondent husband, cannot be ruled out. This is
important because the respondent husband insists that the entire
responsibility for maintaining him is upon the petitioner wife.
13] From the material on record, both the parties, have taken
extreme positions. The petitioner, at least, presently, has taken up a
extreme stand that she is unemployed and earns nothing. On the
other hand, the respondent, by pointing out to his physical
impairment, has taken the same stand with the further addition that
he is incapable of earning anything even in the near future. There
does not appear to be truth, in each of the extreme stands adopted
by the parties. The petitioner is a qualified professional, who has at
least in the past, taken up several important jobs. The petitioner, is
also involved in theater, though, it is not quite clear as to whether
she earns anything substantial in this field. It is however not
possible to accept that the petitioner is totally unemployed and has
no income whatsoever. At the same time, it is also not possible to
accept that the respondent is in no position to earn anything at all
for his own maintenance. Despite, the physical impairment, the
respondent does have the earning capacity, particularly, by way of
taking computer classes or tuitions. The respondent fortunately has
some premises, from where he can take up such classes. The
physical condition of the respondent is certainly not such as to
disable him from taking up any employment. The respondent also
appears to have the family support.
14] Therefore, upon cumulative consideration of the material on
record, interests of justice would be met if the petitioner is directed
to pay to the respondent by way of interim maintenance an amount
of Rs.2,000/- per month with effect from 27 August 2004 till the final
disposal of Petition No. A-199 of 2002. In the impugned order, the
Family Court, has no doubt, awarded interim maintenance at
different rates for different periods. This exercise, of awarding
different rates for different periods is no doubt proper. However, it
must be noted that between the year 2004 and 2006, when the
respondent had met with an accident, it is possible that the
respondent was not in a position to earn anything significant and at
the same time was required to bear significant medical expenses.
Further, in the later years as the position of the respondent
improved, the respondent must have been in a position to earn
income and at the same time there was corresponding decrease in
medical expenses. As of now, the respondent is certainly in a
position to take up suitable employment and the mere
circumstance that the respondent is not doing so, does not mean
that the respondent is entitled to exorbitant maintenance from the
petitioner.
15] Therefore, considering all these aspects, maintenance at the
rate of Rs.2,000/- per month with effect from 27 August 2004 till the
disposal of Petition No. A -199 of 2002 is hereby awarded. The
impugned order is therefore modified. The petitioner is directed to
pay interim maintenance at the rate of Rs.2,000/- per month with
effect from 27 August 2004 to the respondent till the final disposal of
Petition No. A-199 of 2002. The respondent has already withdrawn
an amount of Rs.1,00,000/-. If there are any further arrears, the
petitioner to clear the same within a period of four weeks from
today. However, if there are no arrears and the respondent has
received any excess amount, then, the respondent need not repay
the said amount to the petitioner. The petitioner shall be entitled to
withdraw the portion of the amount deposited by her before the
Family Court, in case, the same is in excess of the awarded
amount. Rule is made partly absolute to the aforesaid extent.
There shall be no order as to costs.
16] There are directions issued for expeditious disposal of
Petition No. A-199 of 2002. The same are reiterated. However, it is
made clear that in finally disposing of the said petition, the Family
Court need not be influenced by any observations made in the
impugned order dated 7 September 2015 or for that matter the
present order. The observations are only prima facie and in the
context of deciding the application seeking interim maintenance. All
contentions of all parties are left open for determination on merits by
the Family Court.
17] All concerned to act on basis of authenticated copy of this
order.
(M. S. SONAK, J.)
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