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Smt. Kiran Srivastava vs Ganga Prasad Srivastava on 20 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 3

Case :- FIRST APPEAL No. – 63 of 2018

Appellant :- Smt. Kiran Srivastava

Respondent :- Ganga Prasad Srivastava

Counsel for Appellant :- Saima Khan

Counsel for Respondent :- Amit Dwivedi

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

(C.M.A. No. 129653 of 2019 – Recall)

Heard Ms. Saima Khan, learned counsel for the appellant, Sri Amit Dwivedi, learned counsel for respondent and perused the record.

Cause shown in the accompanying affidavit filed in support of application for recall of the order dated 05.11.2019 is sufficient. Application is allowed.

Accordingly, order dated 05.11.2019 is recalled.

First Appeal is restored to its original number.

(Saurabh Lavania, J.) (Anil Kumar, J.)

Order Date :- 20.11.2019

Ravi/

Court No. – 3

Case :- FIRST APPEAL No. – 63 of 2018

Appellant :- Smt. Kiran Srivastava

Respondent :- Ganga Prasad Srivastava

Counsel for Appellant :- Saima Khan

Counsel for Respondent :- Amit Dwivedi

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

Heard Ms. Saima Khan, learned counsel for the appellant, Sri Amit Dwivedi, learned counsel for respondent and perused the record.

By means of the appeal, the appellant has challenged the judgment and order dated 19.04.2018 passed by Additional District and Sessions Judge/Family Judge/F.T.C. (New), Gonda, in Case No. 808 of 2010 (Smt. Kiran Srivastava Vs. Ganga Prasad) filed under Section 18 read with Section 25 of Hindu Adoptions and SectionMaintenance Act, 1956 (hereinafter referred to as the ‘Act, 1956’). The prayer sought in the present appeal as under:-

“Wherefore, it is most respectfully prayed that this Hon’ble court may kindly be pleased to set-aside the impugned judgment and order dated 19.4.2018 partially, passed by the learned Additional District and Sessions Judge/Family Judge/F.t.C. (new), Gonda, in Case No. 808 of 2010; Smt. Kiran Srivastgava Versus Ganga Prasad, under Section 18 read with section 25 of Hindu Adoption and SectionMaintenance Act to the extent of not enhancing the maintenance amount to the tune of Rs. 10,000/- per month and also be pleased to further enhance the maintenance amount to the tune of Rs. 8,000/- per month from the date of filing the suit, under Section 18 read with Section 25 of Hindu Adoption and SectionMaintenance Act, and allow the appeal with const, throughout, in the interest of justice.”

Facts in brief of the present case, as submitted by learned counsel for appellant, that appellant/Smt. Kiran Srivastava filed a suit for enhancement of maintenance amount under Section 18 read with Section 25 of the Act, 1956 with a prayer to grant Rs. 10,000 additional maintenance to her in addition to maintenance granted to her in Regular Suit No. 229/2009 (Smt. Kiran Srivastava Vs. Gopal Prasad).

On 10.10.2012, respondent has filed written statement, thereafter evidences between the parties were exchanged and by judgment and order dated 19.04.2018, the court below has partly allowed the suit, operative portion reads as under:-

” ?????????? ?? ??? ????? ??? ?? ??????? ???? ???? ?? | ??????? ???? ?????? ?????????? ?? ?????? ???? ???? ?? ?? ?? ???????? ??? ??????? ???? 18 ??? 25 ?????? ????? ??? ??? ???? ??????? 1956 ?? ??? ?????? ?? ???? ?? ??? 2000/- ????? ???????? ?????????? ?? ??? ???? ?????? ?????? ????|??? ?????? ????????? ???????? ????? ????? ?? |”

We have heard learned counsel for parties and gone through the record.

From the perusal of the impugned judgment, it appears that while coming to the conclusion the court below has observed that the appellant is entitled for maintenance under Section 18 read with Section 25 of the Act, 1956 and partly allowed the suit.

The trial court while partly allowing the suit has also given findings, based on evidence, that respondent/Gopal Prasad along with two brothers is the owner in possession of 16-17 Bigha agricultural land and the respondent/Gopal Prasad is working as Junior Engineer in Rural Engineering Department and he is getting a monthly salary, which is about Rs. 54,000/-. In this regard a document i.e. salary slip of May, 2014 of respondent filed by the appellant before the trial court, numbered as paper No. 38 Ga, was also taken into consideration by the trial court.

However, from the material on record, particularly para 22 of the judgment dated 19.04.2018, under appeal, the position which emerged out is that the trial court while partly allowing the suit of the appellant has not considered the income of the respondent in a correct manner and on the basis of presumption has granted Rs. 2000/- per month as maintenance. The para 22 of the judgment in appeal reads as under:-

” ?? — ???????? ?? ?????? ??????? ?? ?????? ?? ?? ????????? ?? ????? ???? ???? ?????/- ????? ?? ??? ????????? ?? ?? ?? ???? ???? ?? ????? ??????? ???? ??? ?? ?? ???? ?? ???? ?? ?????? ?? ??? ????? ???? ??-?? ???? ???? ????? ???? ?? ????? ???? ???? ??? ?? ??? ???? ??? ???? ?? | ?????? ?? ?????? ??? ???? ??? ?? ?? ????, ???? ??? ????? ??? ???? ????? ?????/- ????? ?? ???? ??? ?? | ?????? ??? ??? ?????? ?????? ?? ?? ?? ????? ???? ???? ??? ?? ????? ?? ????????? ???? ?? ?? ?????? ??? ?????? ?? ????? ???? ?????/- ?? | ??????? ??? ??? ??? ???? ??????? ?? ??? ????? ????????? ???? ?? ?? ?????? ?????? ???? ??????? ?? ??? ???? ????/- ????? ???????? ?? ?????? ????? ?? ??? ???? ???? ???????? ?? ????? ?? ?????? ?? ?? ????? ??????? ???? ?? ?? ??? ????/- ????? ???????? ??? ???? ??? ??? ????????? ?? ??????? ?? ??? ?? | ??? ??? ????????? ??? ???????? ??? ?? ??????? ?????? ?? ??????? ?? ??? ????/- ????? ????????? ?? ?????? ???? ????????? ???? |”

Hon’ble the Supreme Court in the case of Reema Salkan Vs. Sumer Singh Salkan in Crl.A.No.1220/2018 in judgment dated 25.09.2018 relying on the earlier judgment of the Supreme Court in Bhuwan Moihan Singh Vs. Meena : (2015) 6 SCC 353 held that “the concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”

Needless to say that while considering the issue of grant of maintenance a dtly is casted upon the court to award maintenance in such a manner so that spouse and the child can live with dignity according to their social status. Factors which can be culled out as required to be kept in mind, in our view, while awarding the maintenance are as under:-

(i) Status of partner

(ii) Reasonable requirement/wants of the claimant.

(iii) The income and property of the claimant vis-a-vis of side opposite.

(iv) Number of persons to be maintained by the Husband.

(v) Liabilities, if any, of husband.

(vi) The amount required by the wife to live similar life-style as she enjoyed in the matrimonial home keeping in view the food, clothing, shelter, education and medical needs of the wife and the children, if any, residing with the wife.

(vii) It has to be remembered that the object of providing maintenance is to prevent vagrancy by compelling the husband to support his wife and children, who are unable to support themselves in the manner they were living in the matrimonial house.

On perusal of the judgment dated 19.04.2018, under appeal, we feel that the court below did not consider the aforesaid aspects in the facts and evidence on record and on the basis of conjuncture and surmises awarded Rs. 2000/- as maintenance in addition to earlier amount of maintenance i.e. Rs. 2000/-

For the foregoing reasons, the appeal deserves to be allowed.

At this stage, learned counsel for appellant, submits that the amount provided by the trial court vide order dated 19.04.2018 has not been given by respondent to the appellant.

Sri Amit Dwivedi, learned counsel for respondent submits that if the maintenance awarded by the court below has not been paid to the appellant then the due amount i.e. amount to be paid w.e.f. 19.04.2018 to 30.11.2019 shall be paid to the appellant within one month from today.

In result, the appeal is allowed with the aforesaid observations. The impugned judgment and order dated 19.04.2018 passed by Additional District and Sessions Judge/Family Judge/F.T.C. (New), Gonda, in Case No. 808 of 2010 (Smt. Kiran Srivastava Vs. Ganga Prasad) is set aside and the matter is remanded back to the court below with a direction to decide the case afresh, expeditiously, say within a period of one year, if possible in view of the observations made hereinabove.

(Saurabh Lavania, J.) (Anil Kumar, J.)

Order Date :- 20.11.2019

Ravi/

 

 

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