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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