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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 29 OF 2017
WITH
CIVIL APPLICATION NO.10915 OF 2017
AND
CIVIL APPLICATION NO. 3919 OF 2018
Deepak s/o. Anantrao Dahiwal .. Appellant
Age. 36 years, Occ. Service,
R/o. Ranubai Mandir, Hanuman Mandir Road,
Shahunagar, Beed, Tq. Dist. Beed.
Versus
Kalpana w/o. Deepak Dahiwal .. Respondent
Age. 34 years, Occ. Service,
R/o. Savit Apartment, Geeta Nagar,
Nanded, Tq. Dist. Nanded.
Mr.V.P. Savant, Advocate for the appellant.
Mr.G.D. Kale, Advocate for sole respondent.
CORAM : S.S.SHINDE
S.M.GAVHANE,JJ.
RESERVED ON : 04.04.2018
PRONOUNCED ON : 17.04.2018
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JUDGMENT : [PER : S.M. GAVHANE,J.] :-
1. The appellant-husband (hereinafter referred to
as the “respondent”), who is directed to pay monthly
maintenance of Rs.8000/- as per judgment and order dated
15.07.2017 passed by the Judge, Family Court, Nanded in
Petition No.C-5 of 2015 from the date of filing of said
petition i.e.05.10.2015 to the respondent-wife
(hereinafter referred to as the “applicant”), who had
filed said application under section 18 of the Hindu
Adoption and Maintenance Act, claiming maintenance, has
preferred this appeal challenging the said judgment and
order.
2. The facts giving rise to this appeal in short
are thus :-
A) The marriage of the applicant was solemnized
with respondent on 05.06.2005 at Nanded as per the
customs and rituals prevailing in their community.
Applicant cohabited at the house of respondent after
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marriage. She was treated properly just for one month.
Thereafter, respondent, his parents and other relatives
started taunting and harassing her for the reason that
she is handicapped and unable to perform domestic chores
properly. They also illtreated her for the reason that
less dowry was paid in the marriage. Respondent alleged
that she is unable to give full satisfaction to him in
sexual intercourse. All these acts of respondent and his
family members caused mental pain and physical torture to
her. She tolerated all these atrocities on the hope of
good future. The mother of respondent is a Government
kerosene dealer and also politically influential person.
She started demanding Rs. 2 lakhs to applicant for
expansion of the medical shop. Applicant informed this
demand to her parents. On 06.07.2005 her father and
brother came to her matrimonial house and tried to
persuade the respondent and his family members, they also
expressed their inability to fulfill the said monetary
demand. Respondent, under the thumb of his mother,
refused to accede to their requests and refused to keep
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the applicant in his house. Consequently, she was
compelled to come back to her parental house with her
father and brother on 07.07.2005. On this day,
respondent and his parents came along with them. They
forced the applicant and her father to travel via
Parbhani. They stopped at Parbhani and compelled
applicant to purchase bond papers of Rs.100/-. Her
signatures were obtained on blank papers under the garb
of writing an undertaking of good behaviour. Thereafter,
applicant was compelled to go to her parental house.
B) The applicant further asserts that subsequent to
the above incident respondent issued false notice to her
calling upon her to resume cohabitation. On receipt of
notice, she made a telephonic call to respondent and
expressed her readiness to join his company. He refused
saying that he shall not allow her in his house until the
demand of Rs.2,00,000/- is fulfilled. Owing to weak
financial condition her father could not fulfill the said
demands. Therefore, she lodged report under section 498-
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A of IPC to Itwara Police Station, Nanded, which was
transferred to a Police Station at Beed. She filed Civil
Suit No.317/2006 in the Court of Civil Judge, Junior
Division, Nanded for maintenance under section 18 of the
Hindu Adoption Maintenance Act. Thereafter respondent
filed HMP No.68/2007 for nullity of the marriage in the
Court of Civil Judge, Senior Division, Nanded. In the
same Court applicant filed HMP No.42/2006 for restitution
of conjugal rights. Both the petitions were clubbed and
decided together. HMP No.68/2007 was dismissed while HMP
No.42/2006 was decreed. Despite the decree of
restitution of conjugal rights, respondent did not allow
the applicant to resume cohabitation. Hence, she filed
execution petition No.93/2008 for execution of the said
decree. Meantime a compromise took place between the
spouses. Applicant withdrew the execution petition and
deposed in favour of respondent in the prosecution under
section 498-A of IPC.
C) Consequent to the compromise applicant joined
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the company of respondent. During this cohabitation she
conceived. On 02.08.2009 respondent drove her out of the
house while she was carrying gestation of seven months.
On 02.10.2009 she gave birth to a son named, Abhinav.
Respondent has not provided any maintenance to applicant
and her son since separation. He has completely
neglected them. Applicant is unemployed and without any
source of income. Respondent is qualified up to B.
Pharmacy and is serving as a Pharmacist (Aushadnirmata)
in the primary Health Center at Shirasmarg, Tq. Georai,
Dist. Beed and is drawing salary of Rs.35,000/- per
month. He has sufficient means to provide maintenance to
applicant. Hence, petition claiming maintenance was
filed.
D) Respondent filed his written statement at Exh.14
and admitted his relationship with applicant. However,
he denied all the adverse allegations contending that
petition is not tenable. The applicant had filed RCS
No.317/2006 for the same relief and she has withdrawn it
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unconditionally. Now she cannot file this petition on
same facts. Applicant has also withdrawn all the cases
pending in various courts admitting that she is residing
happily with respondent. As such, there is no cause of
action to file this petition. Respondent also is a
handicap. Applicant disliked him since beginning for
this reason. She has completed her B.A.M.S. and is
serving at ShishuGruha at Koutha, Nanded, as well as in
the hospital of Dr. Sunita Gutte. She is earning huge
amount and is able to maintain herself. She does not
require any maintenance. She is very arrogant. She
always threatened the respondent during cohabitation that
she shall destroy his life. For this reason she filed
false prosecution under section 498-A of IPC against
respondent and his family. The Chief Judicial
Magistrate, Beed has acquitted him and his family members
from the said prosecution. Respondent is suffering from
kidney problem and various ailments. He requires huge
medical expenses per month. After marriage he joined the
service at Primary Health Centre. But his income is
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meager to satisfy his own needs. Applicant has levelled
false allegations against him. If he was not sexually
satisfied, applicant would not have conceived pregnancy.
This denotes the falsity in the allegations of applicant.
In order to obey the orders of the court of justice, he
took the applicant for cohabitation. But the behaviour of
applicant did not change. She is not interested in
cohabiting with him. She has illicit relations with her
brother-in-law named Arjun Kulthe. Therefore, she is not
interested in respondent. Applicant, her father and
brother compelled him to travel to Parbhani. They were
interested in dissolution of marriage. They purchased
bond papers and scribed a deed of divorce on them. The
marital tie has been dissolved this way by applicant and
her family members. Even subsequent to the compromise,
applicant did not behave properly. She voluntarily left
his house. She is demanding Rs. Ten lakhs and half the
salary of respondent towards one time settlement and
dissolution of marriage. On his refusal, he has been
involved in various cases in different courts. He gets
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salary of Rs. 22,000/- per month. He is unable to provide
separate maintenance to applicant. Hence he claimed to
dismiss the petition.
3. The learned judge framed in all following four
issues.
Sr. No. Issues
1. Does petitioner prove that she has
sufficient cause to reside separate
from respondent without forgefitting
her right to maintenance?
2. Does petitioner prove that having
sufficient means respondent had
refused or neglected to maintain her?
3. Does respondent prove that petitioner
has sufficient source and income to
maintain herself?
4. Is petitioner entitled to maintenance
as sought?
4. In evidence the applicant has filed her
affidavit at Exh.17 and produced copy of judgment at Exh.
19 in Hindu Marriage Petition Nos.68 of 2007 and 42 of
2006, between her and her husband i.e. respondent,
respectively filed by husband/respondent for dissolution
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of marriage and filed by her for restitution of conjugal
rights. Respondent has filed his affidavit in evidence
at Exh.45 and examined witness Ramrao Tompe and Hari
Sontakke respectively at Exhs.54 and 67.
5. On considering the evidence adduced by the
parties, the learned Judge of the Family Court held that
the applicant has proved that she has sufficient cause to
reside separate from respondent without forfeiting her
right to maintenance; that the applicant has proved that
having sufficient means respondent had refused or
neglected to maintain her; that the respondent has failed
to prove that the applicant has sufficient source of
income to maintain herself and on answering above issue
Nos.1, 2 and 4 in the affirmative directed the respondent
to pay monthly maintenance of Rs.8000/- from the date of
said petition by the impugned judgment and order.
6. Aggrieved by the above said judgment and order
respondent/appellant has filed this appeal on several
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grounds mentioned in the memorandum of appeal.
7. We have heard the learned advocates appearing
for the respondent/husband and the applicant/wife. With
their assistance, we have perused the evidence adduced by
the parties before the Judge, Family Court, Nanded. So
also we have perused the impugned judgment.
8. There is no dispute regarding relationship of
the applicant and the respondent as wife and husband and
that they have married on 05.06.2005. So also there is no
dispute that from the wedlock with the respondent
applicant/wife has begotten a son and is residing with
the applicant.
9. According to the applicant she has sufficient
cause to reside separate from respondent and that having
sufficient source of income respondent had refused to
maintain her. In this respect in her evidence at Exh.17
applicant has stated in accordance with her contentions
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in the petition that after marriage she was treated well
hardly for one month and during the said period, parents,
brother and other relatives of respondent started
taunting and harassing her by uttering words that she is
handicapped and that she does not perform the household
work properly and that her parents have not given more
dowry. She stated that they tried to beat her and when
she told this fact to the respondent he also supported
his parents. She also stated that respondent alleged
that she is not able to give full satisfaction of sexual
intercourse and it has caused mental and physical torture
to her. She stated that she suffered all this with a
view that there would be change in the behaviour of the
respondent but in vain. Moreover in paragraph Nos.3 and
4 she has stated about demands of amount made by the
respondent on the say of his mother from her (applicant)
and illtreatment given to her on that ground. During the
course of her cross-examination on behalf of the
respondent, the said evidence of the applicant has not
been shattered. Therefore on the basis of above said
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evidence, it can be said that there was harassment to the
applicant at the hands of the respondent and therefore
though she has a son from the wedlock with the
respondent, she has no alternative than to reside
separate from the respondent.
10. Exh.19 – copy of common judgment in HMP Nos.
68/2007 and 42/2006 shows that first petition was filed
by the respondent against the applicant/wife for divorce
under section 12(A) of the Hindu Marriage Act and
subsequent petition was filed by the applicant/wife
against the respondent/husband for restitution of
conjugal rights and divorce petition of the respondent
was rejected with costs and HMP No.42/2006 of the
applicant/wife was decreed with costs. This shows that
the applicant was ready to cohabit with the respondent
husband. As per finding of issue No.1 in the said
petition of applicant/wife, she had proved that she was
illtreated by the respondent physically as well as
mentally. Thus, the decision in HMP No. 42/2006 shows
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that though applicant/wife was ready to cohabit with the
respondent husband, the respondent husband did not
cohabit with her and illtreated her physically as well as
mentally. So also from the decision in HMP No. 68/2007
it can be said that the respondent was not willing to
cohabit with the applicant/wife and therefore he had
filed said petition for dissolution of marriage and it
shows that he deserted to applicant/wife. In such
circumstances it is quit natural for the applicant/wife
to reside separately from the respondent/husband.
11. In his evidence i.e. affidavit (Exh. 45)
respondent has stated in accordance with his contentions
in the written statement. As regards complaint against
him of the applicant more particularly he stated that
applicant is handicapped. He stated that he is
handicapped by both hands. The applicant was not
handicapped by birth but she only sustained burn. This
fact was known to both the families. Therefore, there is
no question of harassment at the hands of respondent or
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his family members as contended by the applicant. It
also appears from the evidence of respondent that
applicant filed complaint under section 498-A, 504 and
506 read with 34 of I.P.C. against the respondent and his
family members. In the cross examination respondent has
admitted that he filed divorce petition and applicant had
filed petition for restitution of conjugal rights and
his divorce petition was dismissed and petition of the
applicant for restitution of conjugal rights was decreed.
The evidence of witness Ramrao Tompe who is working as
the Notary public is on stamp paper in respect of
document article ‘A’ (photo copy) between the parties and
evidence of witness Hari Sontakke for the respondent who
is a stamp vendor is on purchase of bond paper of article
‘A’. Thus the above referred evidence of the respondent
and his witnesses is not sufficient to state that without
any reason, applicant is residing separate from the
respondent.
12. We have carefully considered the evidence of
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either sides and on the basis of evidence of applicant
and common judgment in HMP Nos. 68/2007 and 42/2006, an
inference can be drawn that applicant has sufficient
cause to reside separate from respondent without
forfeiting her right to maintenance.
13. In her evidence applicant has deposed in
accordance with her case that respondent is having
qualification of B. Pharmacy and he is appointed as a
Aushadnirmata (Pharmacist) in Primary Health Center at
Shirasmarg, Tq. Georai, Dist. Beed and his monthly salary
is Rs. 35000/-. She stated that she applied for salary
certificate of respondent through R.T.I. but respondent
played tricks and thus she failed to obtain said
certificate. In the cross examination, her evidence as
above is not shattered. The respondent in his evidence
(Exh. 45) stated that he is serving as a Pharmacist in
the Primary Health Center. He stated that applicant is
earning Rs. 30000-35000 per month from her medical job
and therefore she is able to maintain herself. In the
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cross-examination he has denied that his gross salary is
Rs. 35000/- per month. Thus from this evidence it is
clear that respondent is serving as a Pharmacist in
Primary Health Center. During the course of argument,
learned advocate appearing for the respondent has also
conceded that the respondent is serving and he his
getting salary of Rs. 22000/- per month. Said fact is
also stated in his affidavit (Exh. 15). In the said
affidavit it is stated that he has to spend Rs. 15000/-
per month for medical treatment. It is clear from the
evidence of applicant and the respondent that respondent
is having sufficient means but he has neglected to
maintain the applicant. Even if applicant has any
income, it cannot be said to be sufficient to maintain
herself as contended by the respondent.
14. For all the reasons discussed above we hold that
applicant has sufficient reason to reside separate from
the respondent and that having sufficient means the
respondent has neglected to maintain her. Therefore
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considering above evidence regarding income of the
respondent, monthly maintenance of Rs. 8000/- was rightly
granted by the trial Court to the applicant. Considering
the fact that son of the applicant is also residing with
her, the said amount of maintenance cannot be said to be
excess/exorbitant. We, therefore, hold that the trial
Court has rightly awarded maintenance to the applicant by
the impugned judgment and order. There is no reason to
interfere with said judgment and order. Thus the appeal
being devoid of merits, same is liable to be dismissed.
Accordingly, we dismiss the same with no order as to
costs.
15. In view of dismissal of the Family Court Appeal,
connected Civil Applications stand disposed of and
needless to state that respondent-wife is permitted to
withdraw the amount as requested in Civil Application
No.3919 of 2018 as per prayer clause “B”.
[S.M.GAVHANE,J.] [S.S.SHINDE,J.]
SSP/fca29.17
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