Meena Vinod Kulkarni, C/O Anant … vs Vinod Trimbakrao Kulkarni R/O … on 6 November, 2017

FCA No.13/17
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD

FAMILY COURT APPEAL NO. 13 OF 2017
WITH
CIVIL APPLICATION NO. 3155 OF 2017

Meena w/o. Vinod Kulkarni,
Age 45 years, Occu. Household,
R/o. At present at C/o. Anant
s/o. Manoharrao Patki,
Gopalnagar, Sangvi,
Tq. Dist. Nanded. ….Appellant.

Versus

Vinod s/o. Trimbakrao Kulkarni,
Age 48 years, Occu. Private Service,
at Kohinoor Cattle Feeds, MIDC, Nanded
R/o. Dnyaneshwarnagar, CIDCO,
New Nanded, Tq. Dist. Nanded. ….Respondent.

Mr. A.A. Mukhedkar, Advocate for appellant.
Mr. S.S. Gangakhedkar, Advocate for respondent.

CORAM : T.V. NALAWADE AND
ARUN M. DHAVALE, JJ.
DATED : November 6, 2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is admitted. Notice after admission made

returnable forthwith. By consent, heard both the sides for final

disposal. This Court has perused the original record.

2) The appeal is filed to challenge the judgment and decree

of Family Court Nanded delivered in Petition No. C-6/2014. The

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petition was filed under the provisions of Hindu Adoption and

Maintenance Act for maintenance of Rs.15,000/- p.m. by present

appellant. On merits, the Trial Court has dismissed the petition.

3) It is the case of appellant/wife that she was given in

marriage to present respondent Vinod on 6.5.1998 and she

cohabited with respondent in his house at Dnyaneshwar Nagar,

CIDCO, Nanded. It is her case that one son by name Chinmaya was

born to her out of this wedlock and after 3-4 months of birth of

Chinmaya, respondent started giving illtreatment to her on petty

grounds.

4) It is the case of wife that respondent/husband was

asking her to bring money from her parents for even household

expenses. It is her case that as she has only mother who is widow

and brothers who are receiving education, she could not meet this

demand and so, illtreatment was given to her and ultimately, in the

month of May 2001, she was driven out of matrimonial house with

son Chinmaya by respondent. It is her case that she made many

attempts through relatives to convince respondent to accept her

back in matrimonial house, but respondent refused to accept her

back in the matrimonial house. It is her case that since May 2001 no

provision is made by respondent for her maintenance and for the

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maintenance of Chinmaya. It is her case that she has no source of

income, she is unable to maintain herself and Chinmaya. It is her

case that she is suffering from diabetics and husband is not

providing anything even for treatment.

5) It is the case of wife that the husband is employed in

Kohinoor Cattle Feeds Private Limited and his monthly salary is

around Rs.15,000/-. It is her case that husband owns agricultural

land and he is getting handsome income from agriculture. She has

given the numbers of the lands which are standing in the name of

husband. It is her case that husband sold his share in land Gat No.

657 situated at Daithana and has collected the amount of Rs. eleven

lakh as consideration. It is her case that annual income of the

husband is more that Rs. five lakh and he is in a position to give

Rs.15,000/- p.m. to her as maintenance. It is her case that she

requires such amount as she is required to maintain herself, she is

required to maintain Chinmaya and she is required to spend on

education and other expenses of Chinmaya. It is her case that

Chinmaya requires atleast Rs.5000/- to 7000/- p.m. for expense. It

is her case that as per the status also, she requires to get

Rs.15,000/- p.m. for maintenance.

6) The husband filed written statement at Exh. 15. He

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admitted the relationship. But, he denied that he drove the wife out

of the matrimonial house and he has neglected and refused to

maintain wife. He has denied that his income is more than Rs. four

lakh from agriculture and he is getting Rs.15,000/- by way of salary.

7) It is the case of husband that the wife cohabited hardly

for few months after the marriage and she was insisting him to live

separate from his elder brother. It is his case that he was living with

his mother and elder brother at Nanded. It is his case that ultimately

due to pressure of wife, he obtained separate premises at Nanded

and there, he started cohabiting with wife. It is his case that there

also the wife cohabited hardly for a month. It is his case that the

wife was very adamant and she wanted to live as per her whims and

wishes. It is his case that in the year 2000 when plaintiff/wife

became pregnant, her two brothers took her from matrimonial house

under pretext that they were taking her for delivery. It is his case

that he was ready to take care of her during the period of delivery,

but they refused to allow him to do so. It is his case that he used to

pay amount for educational expenses of Chimnaya. It is his case that

he made many attempts to bring the wife back to the matrimonial

house, but the brothers and mother of wife refused to send her back

to matrimonial house. He has contended that at the time of Diwali of

the year 2002, he made sincere efforts to bring back wife to

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matrimonial house, but the efforts were in vain.

8) It is the case of husband that he gets salary of hardly

Rs.4000/- p.m. and from that salary, he is required to pay rent of

Rs.2000/- p.m. and so, he is not in a position to pay separate

maintenance to wife and issue. It is his case that there is agricultural

land, but he and his two brothers have share in the agricultural land.

It is his case that his income from agriculture land is Rs.5,000/- to

Rs.10,000/- p.a. It is his case that they were required to sell some

portion of land Gat No. 657 as they were not able to supervise the

cultivation of the land and by using the sale proceeds, they have

purchased some property, house in Nanded for residence purpose.

9) On the basis of aforesaid pleadings, issues were framed

by the Trial Court. Both the sides gave evidence. The Trial Court has

given finding that the wife has failed to prove that she was neglected

or deserted by the husband. Due to such finding, the proceeding is

dismissed by the Trial Court.

10) The record shows that the wife examined herself before

Trial Court and she placed reliance on some documents like 7/12

extracts. On the other hand, husband examined himself and he

produced salary certificates issued by Kohinoor Feeds and Fats

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Limited.

11) The evidence on record shows that the husband was

ready to take wife back to the matrimonial house and even during

cross examination when offer was given to wife to return to

matrimonial house, she replied that she has no desire to return to

matrimonial house. The pleading of the wife with regard to the

allegations made against husband are very vague. When on one

hand, she contends that husband is getting handsome income from

agriculture and he was earning atleast Rs.15,000/- p.m. by way of

salary, she contended that husband was asking her to bring some

money from parents for household expenses. Her version shows that

she has no record to show that she had made an attempt to return

back to matrimonial house, when on the other hand husband is still

ready to take her back to matrimonial house. She admits that

husband had taken premises on rent basis near Gurudwara Nanded

for their separate residence. She admits that she had returned to

her parental house with her brothers when she was pregnant. She

admits that the husband had attended Munj ceremony of Chinmaya

which was performed in the year 2011 at Parli. She admits that for

that function, husband had brought necessary articles like clothes

and other things. Thus, on one hand husband is still ready to take

back wife for resuming cohabitation and on other hand, the wife is

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not ready to return to matrimonial house and she has not given any

justification for that. The husband was keeping contact with the

family and he attended one function in the year 2011. The evidence

of wife shows that after birth of Chinmaya, she started living

separate from husband. Thus, after about 10 years of separate

residence, she filed the proceeding for maintenance. She did not

approach police and she has no allegation of specific illtreatment

from the husband. Due to these circumstances and the evidence

given by husband in rebuttal that he is still ready to resume

cohabitation, but wife is adamant and she is not ready to return to

matrimonial house, the Trial Court has held that there is clear

probability that wife is not ready to return to the matrimonial house.

Thus, the wife failed to prove that she is deserted by the husband or

the husband has refused and neglected to maintain her. For living

separate and for getting maintenance while living separate, the wife

is expected to make out the case of aforesaid nature. She is

expected to give justification. No justification is given by the wife.

Due to this reason, this Court holds that the Trial Court has not

committed any error in refusing maintenance to the wife.

12) The reasoning given by the Trial Court does not show

that the claim of the issue is considered by the Trial Court. If the

pleading of the petition is read as a whole, it can be said that the

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needs of the minor son Chinmaya are mentioned and it is also

mentioned that he requires maintenance amount from the husband.

Under section 20 of the same Act the minor can get maintenance.

Though the section was not specifically mentioned and minor was

not specifically arrayed as plaintiff/petitioner in the proceeding, the

Trial Court ought to have considered the claim of son also in view of

the pleading in the petition.

13) The defences available to respondent/husband to avoid

maintenance to wife are not available when there is claim of

maintenance for minor issue. There is the evidence on the

requirement from the appellant/mother of the minor. The cross

examination of the respondent does not show that he had sent any

money for maintenance of the child. He does not even know the

institution where his son is taking education. He does not know as to

how the son is spending on education. He does not know as to how

many marks son has secured in 10th standard. Thus, even when

since 2001 the son is living separate, the present respondent did not

make any arrangement for his maintenance. It is the duty of

respondent to make such arrangement.

14) It appears that nobody from the employer’s office was

examined to prove the salary certificates which are exhibited as

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Exhs. 53 and 54. In the year 2012 gross salary was shown as

Rs.4,250/- and in the year 2016, gross salary was shown as

Rs.6,000/-. The husband is a commerce graduate. The 7/12 extracts

produced on record show that he has share in the agricultural land

and he owns land admeasuring more than 2 H. The 7/12 extracts

also show that in the land both Rabbi and Kharip crops are being

taken. He has admitted that by spending the sale proceeds, he has

purchased house in Nanded. Thus, he is not required to spend on

rent. In those days, ordinary labour could earn more than Rs.200/-

per day. Considering all these circumstances, this Court holds that

the husband is in a position to give atleast Rs.3,500/- p.m. to son

Chinmaya for his maintenance. As per the status of the parties also,

son Chinmaya requires such amount. This Court holds that the

appeal needs to be partly allowed to give such relief in favour of son

Chinmaya, who is minor. In the result, following order :-

ORDER

(I) The appeal is partly allowed.

(II) Respondent Vinod Trimbakrao Kulkarni is hereby

directed to pay monthly maintenance of Rs.3,500/- (Rupees

three thousand five hundred) to son Chinmaya s/o. Vinod

Kulkarni from the date of proceeding i.e. from 20.9.2012 till

Chinmaya attains majority.

(III) The arrears amount is to be deposited by the

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respondent/husband within two months from today. The

amount which becomes due in future is to be deposited

before 10th day of every month when the amount becomes

due. If the arrears amount is not deposited within prescribed

period, the amount shall carry interest at the rate of 8% p.a.

(IV) The claim of the appellant/wife Meena w/o. Vinod

Kulkarni is rejected.

(VI) In view of disposal of Family Court Appeal, Civil

Application stands disposed of.

(VII) Decree is to be prepared accordingly.

[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]

ssc/

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