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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
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.
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
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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