Bombay High Court Bharti Rajesh Pahuja-vs-Mr. Rajesh Choitram Pahuja on 29 February, 2008
Author: A Sayed
Bench: J Patel, A Sayed
A.A. Sayed, J.
1. This appeal impugns the judgment and order dated 16-10-2004, passed by the Civil Judge, S.D., Kalyan, whereby the suit under Section 18 of Hindu Adoption and Maintenance Act of the appellant-wife seeking maintenance and residence has been partly decreed and the appellant-wife has been granted maintenance of Rs. 10,000/-per month from 1/11/1999 onwards and her prayer for separate residence is rejected.
2. By this appeal the appellant-wife is seeking enhancement of maintenance with effect from 24th December, 1996 at the rate of Rs. 2 lac per month with interest and separate residence at Ulhasnagar with all modern amenities. The case of the appellant wife is that she got married to respondent-husband on 21-7-1996. At that time, the respondent-husband was serving in St.Marten, North America as Manager on contract for a period of three years and that he agreed to take the appellant-wife alongwith him after marriage. According to the appellant-wife, her parents had given to her 10 tolas gold ornaments and diamond studded jewellery as stridhan. There is no issue from the wedlock. After the marriage they cohabited only for about 10 days. The appellant husband thereafter left for St. Marten, North America alone and the appellant-wife continued to reside with her in-laws at her matrimonial home. However, soon thereafter things took a different turn. She has alleged ill-treatment and dowry demand for which she had filed a criminal case under Section 498A of Indian Penal Code against the respondent- husband and his family members. It is the case of the appellant-wife that the respondent-husband, at the time of marriage was earning about 3000 to 4000 US$. It is her further case that the respondent-husband had deserted her. At the time of leaving for St. Marten, North America after marriage, the respondent-husband told the appellant-wife that she should join him after getting her passport and visa. However, the respondent-husband did not make arrangements for her to join him in North America and she was driven away by her in-laws from her matrimonial home on 24-12-1996. In 1999 the respondent-husband came back to India and there was reconciliation meeting held on 12-1-1999, wherein the respondent-husband informed the appellant-wife that he was not interested in her.
3. The respondent-husband thereafter preferred a divorce petition under Section 13(i-a), (i-b) and (iii) of the Hindu Marriage Act, 1955. In the said petition the appellant-wife was granted interim maintenance at the rate of Rs. 5000/- per month. The said petition was ultimately dismissed for non prosecution. It is the case of the appellant-wife that in spite of the order for maintenance, the respondent-husband has not paid single penny to her. It is her case that the father of the respondent-husband is running a hotel named Kailash at Pune and that the respondent-husband is now earning US$ 8390/- to US$ 10,000/- by way of salary and his share in the business of the said hotel and that her husband had huge investments and he is also having residential flat in Pune, the market value of which is about 20 lacs.
4. It was her case that she is unable to maintain herself and is at the mercy of her old father and that considering the income of the respondent-husband, maintenance of Rs. 2 lac per month with arrears ought to have been granted to her from 24.12.1996 by the trial Court. The trial court has, however, awarded her a sum of Rs. 10,000/- per month from 1st November, 1999.
5. We have heard the appellant-wife, who has appeared in person. The respondent-husband has not resisted the appeal and not appeared in the matter through counsel or otherwise. As we felt that the amount of maintenance claimed by the appellant-wife was on the higher side, we had called upon her to file an affidavit to justify her claim for Rs. 2 lacs per month and accordingly an affidavit dated 26th September, 2007 has been filed by her. In her affidavit, the appellant-wife has claimed Rs. 90,000/ towards her monthly expenses, and in so far as the balance amount of Rs. 1,10,000/-, it is stated that it shall be deposited in her bank account to meet any exigencies or emergencies. We find that appellant-wife has not been able to justify her claim for monthly maintenance even for Rs. 90,000/- much less Rs. 2 lacs. Out of Rs. 90,000/- monthly expenses as set out by her in her affidavit, Rs. 10,000/- per month has been shown towards Clothes, Accessories and bed linen, Rs. 25,000/-p.m. is shown towards jewellery, Rs. 15,000/-p.m. for travelling to religious places and other tourist spots amongst other expenses shown by her.
6. We are unable to convince ourselves about the expenses set out by appellant-wife in her affidavit and we find that her maintenance claim is rather exaggerated by any standards. The appellant-wife has not been able to produce any evidence to show that respondent-husband is earning US$ 8000 to US$ 10,000 per month. We take note of the fact that in the letter addressed by the appellant-wife through her Advocate on 24.02.1999 to the Respondent-husband, she has claimed maintenance @ Rs. 20,000/-per month and in her Application for interim maintenance in Petition No. 40 of 1999 of the respondent-husband for divorce, the appellant-wife had claimed interim maintenance @ Rs. 10,000/-per month and she was granted interim maintenance @ Rs. 5,000/- per month.
7. We have perused the material on record and the impugned order dated 16-10-2004. The learned trial Judge has observed in the impugned order that there is no shred of evidence filed on record in regard to the income of the respondent-husband and considering the facts and circumstances, awarded maintenance from 1st November, 1999 i.e. three years prior to the institution of the suit, at the rate of Rs. 10,000/ per month, and rejected the claim of monthly maintenance from 24-12-1996 as sought by the appellant-wife. In our view, the learned trial judge has not committed any error or illegality in awarding maintenance from 1st November, 1999.
8. However, looking to the overall facts and circumstances of the case, in our view interest of justice would be met if the appellant-wife is awarded monthly maintenance @ of Rs. 20,000/- per month and the impugned order shall stand modified to that extent and we order accordingly. Though, the appellant-wife is residing with her father at present, we have taken into consideration that this monthly maintenance amount would include the monthly licence fee for a decent accommodation of one bed-room flat at Ulhasnagar, where she is residing. In addition to the above respondent-husband is directed to pay cost in the sum of Rs. 10,000/- to the appellant-wife.
9. The appeal is allowed to the aforesaid extent.