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Deepak Anantrao Dahiwal vs Kalpana Deepak Dahiwal on 17 April, 2018

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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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