1 WP 6490/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 6490 OF 2010 Kisan Baburao Kale .. Petitioner Vs. Swati Kisan Kale .. Respondent Mr. Priyal G. Sarada for the Petitioner. Mr. Vijay Shinde for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date : 16th September, 2010 ORAL ORDER 1. This Writ Petition is filed by the Petitioner husband challenging the order of the 5th Civil Judge Junior Division, Pune dated 15th July, 2010 granting interim maintenance to the wife and children of the Petitioner. It is contended by the Petitioner that he was paying Rs.2100/- as maintenance to all of them. That maintenance has been enhanced to Rs.5,000/- to the wife and Rs.10,000/- to the children. The Petitioner earns Rs.18,000/- and it was impossible him to maintain his family with Rs.15,000/- p.m. The Petitioner has relied upon his salary certificate. The Petitioner has voluntarily caused Rs.10,000/- to be deducted from his GPF. That deduction is not mandatorily required to be made. It is far more than the minimum amount required to be put aside in GPF. Consequently the Petitioner’s salary is reduced to that extent. Two earlier salary slips produced by the wife shows GPF contribution is of Rs.8,000/- (which is also higher than the mandatory amount of GPF) and the Petitioner has voluntarily 2 WP 6490/10 increased his contribution and decreased his take home pay. 2. The Petitioner admittedly owned an agricultural land. The Petitioner contends that that is considered to grant interim maintenance and it cannot be considered for granting interim maintenance since only the income of the Petitioner is required to be considered. Reading of the order does not show the value of the land considered. The order only shows the fact that the Petitioner has agricultural land. It would mean that he has the means to own such lands. In reply to this Court’s query, the Petitioner has shown purchase thereof in February, 2009. Index II in respect of land shows its market value to be Rs.2,45,000/-. The Petitioner claims to have applied for loan and claims to have paid installments for the loan taken in respect of purchase of the agricultural land, which is also a voluntary act of the Petitioner. The loan is stated to have been taken by 3 brothers including the Petitioner. The Petitioner is the principal debtor. His other brothers are shown as owners/ guarantors. In computing the reasonable amount of interim maintenance the fact that the Petitioner was in a position to purchase agricultural land can certainly be kept in mind. Such land may yield some income; it would merit payment of property taxes which the purchaser must be taken to be able to afford. Though, therefore, no separate amount of maintenance can be granted from such property, the overall income of the Petitioner can be considered keeping such fact in mind. 3. In the case of Gita Chatterjee Vs. Probhat Kumar AIR 1988 CALCUTTA 83, the aspect of the nebulous 3 WP 6490/10 term “income” has been considered thus: 3. It is generally said that income is an expression of elastic ambit, a word of the broadest connotation, a term difficult to define in any precise general formula. But even in its widest amplitude, the expression, in our view, cannot take within its sweep the capital assets like lands and hereditaments and can only include the return accruing from those assets. Fruits of the tree are income, but not the tree; crops from the field are income, but not field, rents from land or house are income, but not the land or the house. 4. The Petitioner is a Police Constable. The Petitioner has nevertheless been able to purchase land in 2009. That aspect can rightly be considered whilst granting interim maintenance to decide whether the take home salary is the only amount to be considered. The fact that the Petitioner can purchase land shows that his case that his salary is the only income and his take home salary is not sufficient to pay the maintenance is incorrect. 5. The Petitioner is required to pay for the maintenance as also the education of his children. The Petitioner has 2 children and hence is directed to pay Rs.5,000/- p.m. each of them. The Respondent has produced a receipt of Vidyalankar Polytechnic where their elder son is admitted to Engineering Course. She has paid Rs.44,000/- as tuition fee. The Petitioner has not paid any part thereof and has not been directed to pay any part thereof. It would only be from the amount of the maintenance meant for the education of the child that his wife would have to incur those expenses. The Court must be aware of those requirements given age of the child and their course in the school or college whilst 4 WP 6490/10 granting maintenance to the children. 6. It is argued on behalf of the Petitioner that no separate application under Section 26 of the Hindu Marriage Act is made and therefore he is not bound to pay the maintenance for the child. The argument is most becoming of a worthy father. The application for the maintenance and education of the child is in terms of application under Section 26 of the Hindu Marriage Act whether or not it is so titled. It may be made along with application for the maintenance of the wife under Section 24 of the Act or separately. The Family Court which is required to consider the various aspects not as a Civil Court and is not governed by the strict procedures of a Civil Court cannot look into such hypertechnical objection and has rightly determined the maintenance on its merits. 7. There is no material irregularity which can be seen in the impugned order. The Petition is completely without merits and is dismissed. ( ROSHAN DALVI, J.)