Working couple should jointly share kids’ responsibility after separation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

FAMILY COURT APPEAL NO.127 OF 2014

Manoj s/o Shreeram Ganveer,
aged about 40 years, occupation :service,
r/o Room No.1, A-1 Wing,Twinkle Apartment, Gaodevi Nagar, Katemaniwali, Kalyan (East), District Thane. … Appellant

– Versus –

1) Smt. Urmila w/o Manoj Ganveer,
aged about 35 years, occupation : service,

2) Kunal s/o Manoj Ganveer,
aged about 10 years, occupation : Education,

3) Ku. Karnika d/o Manoj Ganveer,
aged about 9 years, occupation : Education,
Nos. 2 and 3 being minors, through
their natural guardian – mother respondent no.1.
All c/o P.M. Gedam, Savitribai Phule Nagar, Tathagat Gautam Buddha Marg, Bhagwan Nagar, Nagpur – 440 027. … Respondents

Shri N.A. Jachak, Advocate for the appellant.
None for the respondents.

CORAM : SMT. VASANTI A NAIK AND KUM. INDIRA JAIN, JJ.

DATED : OCTOBER 25, 2016 ORAL JUDGMENT (PER SMT. VASANTI A NAIK , J.) :

By this family court appeal, the appellant – husband challenges the judgment of the Family Court, Nagpur, dated 30/11/2009, allowing the petition filed by the respondents and directing the appellant to pay a sum of Rs.4000/- per month as maintenance to the respondent no.2 and a sum of Rs.3000/- per month to the respondent no.3 towards maintenance from the date of the order.

Few facts giving rise to the family court appeal are stated thus :

The marriage of the appellant – husband (hereinafter referred to as “the husband”) and the respondent no.1 – wife (hereinafter referred to as “the wife”) was solemnized at Nagpur on 26/10/1997. The parties resided together for sometime and two children were born from the wedlock. The respondent no.2 Kunal is the son and respondent no.3 Ku. Karnika is the daughter of the parties. The wife, Kunal and Karnika filed a petition before the Family Court at Nagpur against the husband under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 for maintenance. It was the case of the wife in the said petition that the husband was working in M.T.N.L. as a Grade II Stenographer. It was pleaded that the monthly income of the respondent was Rs.15,000/- –

Rs.16,000/-. It was pleaded that the husband was also earning a sum of Rs.5000/- per month by working over time. The wife, therefore, sought monthly maintenance of Rs.4000/- for Kunal and Rs.3000/- for Karnika.

The husband filed a written statement and denied the claim of the wife. It was pleaded that the wife was also working as a Stenographer in the Department of Central Government and was earning a sum of Rs.15,000/-

per month. It was pleaded that the husband was required to look after his old ailing mother and it was, therefore, not possible for the husband to shell out a sum of Rs.7000/- per month towards maintenance of Kunal and Karnika. The husband denied that the wife was entitled to claim maintenance for herself.

On the aforesaid pleadings of the parties, the Family Court framed the issues. The wife entered into the witness box and examined herself. So also, the husband tendered oral evidence in support of his case. On appreciation of the evidence on record, the Family Court partly allowed the petition filed by the wife, Kunal and Karnika and held that though the wife was not entitled to maintenance, Kunal was entitled to monthly maintenance of Rs.4000/- and Karnika was entitled to the monthly maintenance of Rs.3000/-. The judgment of the Family Court granting aforesaid monthly maintenance to Kunal and Karnika is challenged by the husband in this family court appeal.

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Shri Jachak, the learned Counsel for the husband, submits that the Family Court was not justified in directing the husband to bear the burden of maintaining both the children that were residing with the wife.

It is stated that since the husband and the wife were both working as Stenographers in the M.T.N.L. and the Department of Central Government respectively, it was necessary for the Family Court to direct both the husband and wife to maintain Kunal and Karnika. It is stated though the husband had relied on the judgment of the Hon’ble Supreme Court in Padmja Sharma vs. Ratan Lal Sharma {(2000) 4 SCC 266} to canvass that the quantum of maintenance, which the husband and the working wife would be required to contribute, would be proportionate to the income that they are earning, the Family Court has not considered the same. It is stated that there was not much difference in the income of the husband and the wife as both of them were working as Stenographers –

one in M.T.N.L. and other in the Department of the Central Government.

It is stated that since both the husband and the wife were holding similar posts, though in different Departments, the Family Court could not have fastened the liability to pay the maintenance to the children, on the husband alone. It is stated that the Family Court has erroneously refused to apply the law laid down by the Hon’ble Supreme Court in the judgment in the case of Padmja Sharma (supra) on the ground that the wife has given up her claim for maintenance, for herself.

None appears on behalf of the respondents. We have, however, perused the record and proceedings after hearing the learned Counsel for the husband.

On a perusal of the record and proceedings, it appears that the following points arise for determination in this family court appeal :

1) Whether both the husband and the wife are required to contribute towards the maintenance of Kunal and Karnika ?
2) What would be the individual contribution of the husband and the wife for maintenance of Kunal and Karnika ?
3) What order ?
To answer the aforesaid points for determination, it would be necessary to consider the pleadings and the evidence of the parties.

The wife, Kunal and Karnika have pleaded in the petition mainly about the cruelty inflicted by the husband on the wife. As regards the status of the parties, it is pleaded in the petition that it is difficult for the wife to maintain Kunal and Karnika in her meagre salary. It is, however, not stated as to what is the salary of the wife. It is pleaded that Kunal and Karnika are taking education in the School and it would be necessary for the husband to pay a sum of Rs.4000/- per month for Kunal and Rs.3000/- per month for Karnika. It is pleaded that the husband receives the salary of Rs.15000/- – Rs.16,000/- per month as he works as a Grade II Stenographer in M.T.N.L. The husband has denied the claim made by the wife. It is denied by the husband that he is earning the salary of Rs.15,000/- – Rs.16,000/- per month, though it is not denied that he is serving in M.T.N.L. as a Grade II Stenographer. It is specifically denied by the husband that he earns a sum of Rs.5000/- per month by working over time, apart from his salary. That is all what the parties have stated in respect of their earning capacity and the needs of Kunal and Karnika.

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The wife examined herself and mainly deposed about the ill-

treatment meted out to her by the husband. The wife reiterated in her oral evidence that the husband receives the monthly income of Rs.16,000/- as a Grade II Stenographer. The wife stated that she required a sum of Rs.4000/- for Kunal, Rs.3000/- for Karnika and Rs.3000/- for herself. The wife was cross-examined and she denied the suggestion that the earning of the husband was not Rs.16,000/- per month and, therefore, she had demanded his salary certificate from his Office. The wife admitted that she has not placed anything on record to prove that the husband was earning more than his salary, i.e. by working over time.

The husband examined himself and stated that the wife was earning a sum of Rs.8500/- per month excluding all other allowances and facilities that are extended to the Central Government employees. The husband stated in his evidence that the wife was a permanent employee of the Central Government and she had to maintain the two children, whereas his parents were dependent on him. The husband denied the claim of the wife for maintenance for herself, Kunal and Karnika. In his cross-examination, the husband reiterated that the wife was a Central Government employee and he was an employee of M.T.N.L. The husband admitted in his cross-examination that his father was in the service of Brooke Bond and he gets monthly pension. The husband, however, denied the suggestion that he earns monthly salary of Rs.16,000/-.

It is apparent from the evidence of the parties that the wife and husband are working on almost similar posts, though the husband is working in M.T.N.L. and wife is working with the Central Government.

The earning of the husband and wife would be somewhat similar though it is possible that the earning of the wife is little less than the earning of the husband as per the observations of the Family Court. The husband was working at the relevant time as a Grade II Stenographer and the wife was working as a Grade III Stenographer and, therefore, there must be some difference in the salary of the husband and wife, though it is not possible to gauge as to what would be the difference. Admittedly, Kunal and Karnika are staying with the wife after the husband and wife separated. It would be necessary for the husband and wife to bear the expenses for the maintenance of Kunal and Karnika. The wife had claimed maintenance for herself and the Family Court had refused to grant maintenance to the wife as she was working on the post of Stenographer and was able to maintain herself. When the husband and wife were both working as Stenographers, it was necessary for the wife and the husband to contribute towards the maintenance of Kunal and Karnika. It is laid down by the Hon’ble Supreme in the judgment in the case of Padmja Sharma (supra) that the contribution made by the wife and the husband would depend upon their individual income. Since the husband and the wife are working on similar posts, though the husband is working as a Grade II Stenographer and wife as a Grade III Stenographer, we are constrained to hold in the absence of cogent evidence that there may be a small difference in the salary of the husband and the wife in the year 2004. If the parties are working on almost similar posts and if the Family Court was of the view that Kunal required a sum of Rs.4000/- per month for his maintenance in the year 2004 and Karnika required a sum of Rs.3000/- per month towards maintenance when the petition was filed, the Family Court ought to have directed the husband to contribute more, i.e. a sum of Rs.4000/- per month and the wife to contribute a sum of Rs.3000/- per month. The sum of Rs.7000/- per month, that was required for the maintenance of Kunal and Karnika, could have been contributed by the husband and the wife in the proportion of 4 : 3. The Family Court, however, erroneously refused to rely on the judgment of the Hon’ble Supreme Court in the case of Padmja Sharma (supra), though it was directly applicable to the facts of the present case.

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In the circumstances of the case, though we are inclined to hold that the husband was required to contribute a sum of Rs.4000/- per month and not Rs.7000/- per month, towards the maintenance of Kunal and Karnika, we direct the husband to pay a sum of Rs.5000/- per month and the wife to bear the remaining expenses as the learned Counsel for the husband has fairly stated that in view of the interim directions of this Court, the husband is paying a sum of Rs.5000/- per month and the husband has no objection for payment of the amount of Rs.5000/- per month towards maintenance for Kunal and Karnika.

Hence, for the reasons aforesaid, the family court appeal is partly allowed. The impugned judgment of the Family Court, Nagpur, dated 30/11/2009 is modified. The husband is directed to pay a sum of rupees five thousand per month towards maintenance of Kunal and Karnika. No costs.

JUDGE

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