Bharat Kishor Bundele vs Sau. Sima W/O Bharat Bundele on 18 July, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

FAMILY COURT APPEAL NO.11/2015
with
CROSS OBJECTION NO.43/2014
AND
FAMILY COURT APPEAL NO.12/2015
with
CROSS OBJECTION NO.44/2014

—————————————————————————————————

FAMILY COURT APPEAL NO.11/2015

APPELLANT: Bharat Kishor Bundele,
Ori. Respondent aged about 42 years, Occupation : service,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.

…VERSUS…

RESPONDENT: Sau. Sima w/o Bharat Bundele,
Ori. Petitioner aged about 37 years, occupation : service,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.

————————————————————————————————–
Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent
————————————————————————————————–

WITH

CROSS OBJECTION NO.43/2014

APPELLANT: Bharat Kishor Bundele,
aged about 38 years,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.

…VERSUS…

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RESPONDENT: Sau. Sima w/o Bharat Bundele,
(CROSS OBJECTOR) aged about 32 years,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.

————————————————————————————————–
Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent/cross-objector
————————————————————————————————–

AND

FAMILY COURT APPEAL NO.12/2015

APPELLANT: Bharat Kishor Bundele,
Ori. Respondent aged about 42 years, Occupation : service,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.

…VERSUS…

RESPONDENT: Sau. Sima w/o Bharat Bundele,
Ori. Petitioner aged about 37 years, occupation : service,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.

————————————————————————————————–
Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent
————————————————————————————————–

WITH

CROSS OBJECTION NO.44/2014

APPELLANT: Bharat Kishor Bundele,
aged about 38 years,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.

…VERSUS…

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RESPONDENT: Sau. Sima w/o Bharat Bundele,
(CROSS OBJECTOR) aged about 32 years,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.
————————————————————————————————–
Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent/cross-objector
————————————————————————————————–
CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.

DATE : 18.07.2017

ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)

1. Being aggrieved by the common judgment and decree dated

4/4/2013, passed by the Principal Judge, Family Court, Amravati in

Petition Nos.C-5/2011 and C-9/2012, the appellant-husband has

preferred two separate appeals against the respondent – wife. (The

parties are referred to as per their original status).

2. The brief facts of the family court appeals are stated as

under :-

Petition No.C-5/2011 is filed by Sau. Sima for enhancement

of the maintenance under Section 25 of the Hindu Adoption and

Maintenance Act. Petition No.C-9/2012 is filed by Bharat for cancellation

of maintenance amount. The wife – Sima has averred that she is legally

wedded wife of husband – Bharat and their marriage took place on

20/6/2004 at Amravati according to Hindu rites and customs. She

pleaded that after the marriage, both were residing together at Achalpur.

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She pleaded that her husband was demanding Hero Honda motorcycle

and fridge from her father and on that count abusing her in filthy

language. She further contended that on 3/10/2004 she was forcibly

driven out of the house. She pleaded that she started residing with her

READ  Ajitsingh Harnamsingh Gujral vs State Of Maharashtra on 13 September, 2011

parents at Amravati. According to her, thereafter, compromise took place

on 9/11/2004 and she resumed cohabitation with her husband. She

further pleaded that on 31/1/2006 she came to her parents’ house for

delivery purpose and gave birth to a male child on 24/2/2006. According

to her again her husband picked up quarrel with her and abused her in

filthy language and mercilessly beat her. She further pleaded that she

constrained to file Regular Civil Suit No.433/2006 which came to be

decided on 26/6/2007 in which maintenance was granted to her

@ Rs.800/- per month from the date of the application. The wife further

pleaded that since the price of the essential commodities has risen and

expenses towards the education of child Bhagyesh has also risen she

required more amount of maintenance. According to her, the respondent

was working as an Assistant Teacher and receiving the amount of

Rs.12,000/- per month by way of salary. According to her, her husband

now is working as full fledged teacher and receiving salary of Rs.30,000/-

per month. She therefore claimed maintenance of Rs.10,000/- per month.

According to her, she has no independent source of income. She showed

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her willingness to resume cohabitation but her husband had not allowed

her to resume cohabitation. She thus, claimed enhanced maintenance

@ Rs.10,000/- per month.

3. The husband filed say at Exh.13 and resisted the claim of

the petitioner – wife. He admitted the relations of the parties. He also

admitted filing of Regular Civil Suit No.433/2006 in which maintenance

was granted @ Rs.800/- per month. However, he denied all other adverse

allegations made in the application. According to him, his salary was only

Rs.12,000/- at the time of grant of maintenance in Regular Civil Suit.

However, he denied that his salary is Rs.30,000/-, as alleged by the wife.

According to him, at present the petitioner – wife is working as an

Assistant Teacher in Suryakanta Devi Pote Public School, Amravati and

earning salary of Rs.5,000/- per month. According to him, his wife is in a

position to maintaining herself and child Bhagyesh in the maintenance

granted to her. According to him, he has filed a petition for restitution of

conjugal rights bearing Hindu Marriage Petition No.76/2006 before the

Civil Judge (Senior Division), Achalpur in which a decree of restitution of

conjugal rights is passed in his favour. According to him, the petitioner-

wife had never resumed cohabitation with him. Hence, she is not entitled

to claim maintenance rather than enhanced maintenance.

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4. After recording the evidence in the matter and after hearing

both the sides, the learned Principal Judge, Family Court Amravati

allowed the Petition No.C-5/2011 and granted enhanced maintenance

@ Rs.2,000/- per month instead of Rs.800/- per month from the date of

the order. The learned Judge of the Family Court however dismissed the

Petition No.C-9/2012 filed by the husband.

5. Being aggrieved by the common judgment and decree dated

4/4/2013 passed by the Principal Judge, Family Court, Amravati the

appellant has filed two separate family court appeals before this Court.

READ  Swapnil & Ors vs State Of M.P & Anr on 9 May, 2014

The wife has also filed Cross Objection Nos.43/2014 and 44/2014 and

prayed for dismissal of both the family court appeals and confirm the

judgment and decree dated 4/4/2013 passed by the Principal Judge,

Family Court, Amravati in Petition No.C-9/2012 and prayed for enhanced

maintenance to the tune of Rs.10,000/- per month.

6. We have heard the learned Counsel for the parties at length.

Shri Kasat, the learned Counsel for the appellant in both the family court

appeals has vehemently submitted that the Civil Judge, Senior Division,

Achalpur has passed a decree on 8/2/2017 in Hindu Marriage Petition

No.26/2014 and granted a decree of divorce against the wife. He further

submitted that the wife has not resumed the cohabitation and deserted

her husband, therefore, she was not entitled to maintenance. He further

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submitted that the enhancement of amount of maintenance of Rs.2,000/-

from Rs.800/- is also not justified. He therefore prayed to allow both the

family court appeals.

7. Mrs. Kulkarni, the learned Counsel for the wife has

submitted that the Family Court has granted the enhanced maintenance

@ Rs.2,000/- per month to the wife which is meagre one. She therefore

prayed that the enhanced maintenance be granted to the wife

@ Rs.10,000/- per month. She also submitted that the wife has filed Cross

Objections in both the family court appeals and the same be allowed.

8. Considering the above facts and circumstances of the case,

following points arise for our consideration :-

(1) Whether the wife is entitled for
enhanced maintenance ? If yes, at what rate ?
(2) What order ?

9. Considering the submissions of the respective parties and

having gone through the pleadings of the parties and the evidence which

is on record, it shows that the relationship between the parties is not

disputed. The marriage of the parties was solemnized on 26/6/2004 at

Amravati as per Hindu rites and customs. Regular Civil Suit No.433/2006

filed by the wife was decreed and an amount of Rs.800/- per month w.e.f.

17/5/2006 towards maintenance was granted to her. Thereafter, the wife

has filed petition for enhancement of maintenance. The husband has also

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filed petition for cancellation of maintenance. The wife has tendered her

evidence by way of affidavit and reiterated the contents made in the

petition on oath. She was cross-examined at length by her husband. In the

cross-examination, she has stated that when the petition was filed by her

for maintenance under Section 25 of the Hindu Adoption and

Maintenance Act, she was not serving but now she got job with

Suryakanta Devi Pote Public School and earning salary of Rs.5,000/- per

month, but according to her actually she is getting Rs.3,000/- only. She

also stated that thereafter a decree of restitution of conjugal rights was

passed and she was directed to resume the cohabitation with her

husband. However, she denied that she is not entitled for enhanced

maintenance.

10. The respondent also tendered his evidence by way of

READ  Satyapal vs State Of Haryana & Anr on 13 March, 2013

affidavit and stated on oath that there is no increase in salary. He also

stated that his wife is earning Rs.5,000/- by working as an Assistant

Teacher and therefore she is not entitled for enhanced maintenance. He

was cross-examined by wife. It was suggested to him that he is earning

salary of Rs.30,000/- to Rs.40,000/- per month but he denied the said

suggestion. However, he has admitted that his gross salary was

Rs.23,463/-.

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11. Considering the evidence of both the sides, we are of the

considered view that there is sufficient increase in the salary of the

husband compared to year 2007. There is no material on record to show

that there is increase in the salary of wife. The amount of Rs.2,000/- per

month increased by way of enhancement compared to the salary of

husband is meagre one and the same needs to be enhanced. The wife has

rightly filed Cross Objections in these family court appeals for

enhancement. The wife is therefore entitled for enhancement of amount

of Rs.3,500/- per month from Rs.2,000/- granted by the learned Principal

Judge, Family Court, Amravati from the date of order, i.e. 4/4/2013. The

submission is put forth on behalf of the husband that the Civil Judge

Senior Division, Achalpur has passed a decree of divorce in favour of the

husband by the order dated 8/2/2017 in Hindu Marriage Petition

No.26/2014 and therefore the wife is not entitled for enhanced

maintenance. The learned Counsel for the respondent -wife has made a

statement that the appeal is filed against the said order before the Ad hoc

District Judge, Achalpur and the same is pending. If that is so, the

submission put forth on behalf of the respondent therefore cannot be

accepted. It is to be noted that in the earlier proceedings in Regular Civil

Suit No.433/2006 the learned Civil Judge, Junior Division, Amravati has

recorded a finding that the husband has deserted and neglected the wife

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so also refused to maintain the wife and she is entitled for separate

maintenance. The said finding has attained finality. Therefore, the wife is

justified to claim maintenance and also enhanced maintenance from her

husband. Hence, both the family court appeals filed by the husband are

liable to be dismissed and the Cross Objections filed by the wife deserve to

be partly allowed. Hence, we pass the following order.

O R D E R

(i) Family Court Appeal Nos.11/2015 and 12/2015 are

hereby dismissed.

(ii) Cross Objection Nos.43/2014 and 44/2014 are partly

allowed.

(iii) The decree passed by the Principal Judge, Family

Court, Amravati in Petition No.C-5/2011 is modified. The maintenance

amount of the wife is enhanced @ Rs.3,500/- (instead of Rs.2,000/-) per

month from the date of the judgment and decree, dated 4/4/2013 passed

by the Principal Judge, Family Court, Amravati.

(iv) In the circumstances of the case, there would be no

order as to costs.

Decree be drawn up accordingly.

JUDGE JUDGE
Wadkar

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