Mangal Jaikumar Magar vs Jaikumar Khelnath Magar on 21 November, 2017

1 FCA 29/2009, 20/2011 31/2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Family Court Appeal No. 29 of 2009

Mangala w/o Jaikumar Magar,
Age 54 years,
Occupation : Household,
R/o “Abhijit”, 64, Builders Society,
Nandanvan Colony, Aurangabad
Taluka and District Aurangabad. .. Appellant.

Versus

Jaikumar s/o Khelnath Magar,
Age 64 years,
Occupation : Editor/Writer/
Ph.D. Research Guide,
R/o “Abhijit”, 64, Builders Society,
Nandanvan Colony, Aurangabad,
Taluka and District Aurangabad. .. Respondent.

—-
Shri. Rajendra Deshmukh, Advocate, for appellant.

Shri. Anand Chawre, Advocate, for respondent.
—-

With

Family Court Appeal No. 20 of 2011

Jaikumar Khelnath Magar,
Age 62 years,
Occupation : Retired,
R/o “Abhijit”, 64, Builders Society,
Nandanvan Colony, Aurangabad,
District Aurangabad. .. Appellant.

Versus

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2 FCA 29/2009, 20/2011 31/2017

Mangala Jaikumar Magar,
Age 52 years,
Occupation : Household,
R/o Abhijit, 64, Builders Society,
Nandanvan Colony, Aurangabad. .. Respondent.

—-
Shri. R.R. Suryawanshi, Advocate, for appellant.

Shri. Rajendra Deshmukh, Advocate, for respondent.
—-

With

Family Court Appeal No. 31 of 2017

Mangal w/o Jaikumar Magar,
Age 63 years,
Occupation : Household,
R/o ‘Abhijit’, 64, Builders Society,
Nandanvan Colony, Aurangabad,
Taluka and District Aurangabad. .. Appellant.

Versus

Jaikumar s/o Khelnath Magar,
Age 73 years, Occupation : Pensioner,
R/o Sharavati Housing Society,
Plot No.6, 2718, Dahanukar Colony,
Kothrud Pune,
Taluka and District Pune. .. Respondent.

—-
Shri. Rajendra Deshmukh, Advocate, for appellant.

Shri. Anand Chawre, Advocate, for respondent.
—-

Coram: T.V. NALAWADE
A.M. DHAVALE, JJ.

Date: 21 November 2017

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3 FCA 29/2009, 20/2011 31/2017

JUDGMENT (Per T.V. Nalawade, J.):

1) Family Court Appeal No.31 of 2017 is admitted.

2) Family Court Appeal No.29/2009 is filed by

original petitioner, wife to challenge the judgment and

decree of Proceeding No. C-26/2006 which was pending in

Family Court Aurangabad. The challenge is limited only

to the quantum of maintenance. Family Court Appeal

No.20/2011 is filed by the husband to challenge the

decision given Family Court in Proceeding No. A-261/2006

which was filed by wife under section 10 of the Hindu

Marriage Act for judicial separation. Decree of judicial

separation is given in favour of the wife on the ground of

cruelty. Proceeding No.A-261/2006 and No. C-26/2006

were decided by Family Court Aurangabad by common

judgment but the husband has not challenged the decree

given of maintenance under the provision of Hindu

Adoption and Maintenance Act. Both the sides are heard.

Original record was called and that record is perused by

this Court.

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4 FCA 29/2009, 20/2011 31/2017

3) The submissions made and the record of the

proceeding of Family Court Appeal No.31/2017 pending

before this Court shows that on the basis of decree given

to the wife of judicial separation, she had claimed divorce

under the provision of sections 13(i-a) (i-b) and (1-A)(i) of

the Hindu Marriage Act and divorce is given to the wife

by Family Court Aurangabad by decision dated 23-12-

2016. This decision given in Proceeding No. A-347/2014 is

not challenged by the husband. Family Court Appeal

No.20/2011 was filed on 7-4-2010 when the decree of

judicial separation was given on 20-8-2009. The

proceeding for divorce was filed by wife on 7-8-2014. The

proceeding was contested by husband and on merits

decree of divorce is given by Family Court. Thus, the

circumstance that decree of judicial separation was given

in favour of wife and on that basis the wife was claiming

decree of divorce is considered by Family Court and then

the decree of divorce is given. No stay was given by this

Court to the proceeding which was filed by wife for

divorce and the decision of divorce is not challenged by

the husband. In view of these circumstances, the

challenge of the husband to the decree of judicial

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5 FCA 29/2009, 20/2011 31/2017

separation cannot be considered. Due to these

circumstances, the appeal of the husband bearing Family

Court Appeal No.20/2011 needs to be dismissed.

4) On the point of quantum of maintenance,

evidence was given by wife in Proceeding No. C-26/2006.

There is record in respect of income of the husband. It is

not disputed that the wife had no source of income. Both

are highly educated. Unfortunately, the dispute started

between them when the husband had crossed the age of

60 years and the wife had crossed the age of 50 years.

When the proceeding for maintenance was decided, the

husband had retired from service as a Lecturer. In the

year 2006 monthly pension of the husband was more than

Rs.18,000/-. He did not dispute that he had written at

least 80 books for curriculum prescribed by the State

Government for primary schools. He was appointed on

various Boards and Committees due to his academic

career and he was getting honorarium. In view of these

circumstances the trial Court has held that the income of

the husband from other sources per annum was Rs.1.5

lakh. Thus the monthly income of the husband was more

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6 FCA 29/2009, 20/2011 31/2017

than Rs.25,000/- and after considering this income the

Family Court has granted monthly maintenance of

Rs.8000/-.

5) Considering the age of the wife and the fact

that she is living alone, the expenses under other head

like medical expenses etc. need to be considered and she

is entitled to spend as per the status. It is brought on the

record that from the income made by the husband he had

purchased flats and plots. It was submitted by the learned

counsel for the husband that one flat was purchased in a

cooperative housing society by the husband in the name of

the wife but after starting of the dispute she sold it. He

submitted that though the consideration was shown as Rs.

six lakh, the wife must have received consideration of

around Rs. twenty lakh and this circumstance needs to be

considered while fixing the maintenance. It is true that

there is such record and this circumstance needs to be

considered. However, needs of the wife and the resources

still available to the husband of income need to be

considered. In view of all these circumstances this Court

holds that the wife is entitled to get Rs.10,000/- per month

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7 FCA 29/2009, 20/2011 31/2017

by way of maintenance. This amount is fixed considering

the possibility of claiming maintenance by wife from the

issues who are major and who are married. Thus the

appeal filed by the wife needs to be allowed partly.

6) Family Court Appeal No.31/2017 is filed by the

wife to challenge the decision of the Family Court given in

Petition No. A.347/2014 which was filed by the wife for

getting relief of injunction in respect of the property

where she is living. The trial Court has refused the relief

of injunction by holding that the property/flat situated in

Abhijit, 64, Builders Society belongs to the husband and

there is no vested right as such to the wife in the flat. The

circumstance that the Family Court was giving divorce to

the wife in a proceeding filed under section 13(1-A) (i) of

the Hindu Marriage Act, 1955 is considered by the Family

Court. Thus, on one hand the wife was seeking dissolution

of the marriage and on the other hand she was seeking

injunction against the husband to prevent him from

entering the flat standing in his name.

7) During arguments learned counsel for the wife,

appellant submitted that relief of the nature of injunction

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8 FCA 29/2009, 20/2011 31/2017

is given in the proceeding filed under the Protection of

Women from Domestic Violence Act by the wife bearing

Criminal Misc. Application No.1108 of 2009 before the

Judicial Magistrate, First Class, Aurangabad and this

decision of the Judicial Magistrate is confirmed by the

Sessions Court Aurangabad in appeal and so the wife is

not interested in prosecuting the matter. In view of this

submission made by the learned counsel for the appellant,

wife, the appeal needs to be disposed of as dismissed. In

the result, following order :

Order

i) Family Court Appeal No.31/2017 is dismissed.

ii) The appeal of the husband bearing Family Court

Appeal No.20/2011 is dismissed.

iii) The appeal of the wife bearing No.29//2009 is partly

allowed. The monthly maintenance granted in favour of

the wife by Family Court Aurangabad is enhanced to make

it Rs.10,000/- per month and the amount is to be

recovered from the date of decision of the Family Court

i.e. 20-8-2009.Decree be prepared accordingly.

Sd/- Sd/-
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
rsl

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