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Judgments of Supreme Court of India and High Courts

Sudarshan Baburao Khande vs Sau. Indumati Sudarshan Khande on 8 November, 2019

1 SA 663-2016 SA 664-2016

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

SECOND APPEAL NO.663 OF 2016
(WITH CA/3839/2019)

WITH

SECOND APPEAL NO.664 OF 2016
(WITH CA/3838/2019)

Sudarshan s/o Baburao Khande,
Age 40 years, Occupation Suspended
Service (Head Master) At Present Nil,
Dr. Babasaheb Ambedkar Vidyalaya,
Gautam Nagar, Parbhani. …Appellant.

(Appellant/ Original defendant)

VERSUS

Sau. Indumati w/o Sudarshan Khande,
Age 37 years, Occupation Household,
R/o Jalalpur Tq. Dist. Parbhani. …Respondent.

(Respondent / Original Plaintif)

……
Advocate for Appellant : Mr. A. S. Usmanpurkar.
Advocate for Respondent : Mr. V. P. Kadam
……

CORAM : SMT.VIBHA KANKANWADI, J.

Date Of Reserving The Judgment :
26-09-2019.

Date Of Pronouncing The Judgment :
08-11-2019.

JUDGMENT :

1) Both these appeals are arising between same parties. They are

husband and wife. In Second Appeal No.663 of 2016 the husband is

challenging the concurrent Judgment and decree passed in Regular

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2 SA 663-2016 SA 664-2016

Civil Appeal No.61 of 2013, by learned Adhoc District Judge-2,

Parbhani, dated 12-10-2015, thereby maintaining the Judgment and

decree passed in Regular Civil Suit No.149 of 2009 by learned 6 th

Joint Civil Judge, Junior Division, Parbhani, dated 07-03-2013,

whereby the suit for getting maintenance under Section 18 of the

Hindu Adoption and SectionMaintenance Act came to be partly decreed.

2) In Second Appeal No.664 of 2016 the husband is challenging

the Judgment and decree passed in Regular Civil Appeal No.54 of

2013, by learned Adhoc District Judge-2, Parbhani, dated 12-10-

2015, thereby the Judgment and decree passed in Regular Civil suit

No.149 of 2009, by learned 6th Joint Civil Judge, Junior Division,

Parhani, dated 07-03-2013, modifying and enhancing the

maintenance amount by partly decreeing the appeal fled by the

wife.

3) It is admitted fact that, the husband and wife got married in

year 1986 as per their customs and rites. The wife had fled the

petition for getting maintenance by contending that, she was treated

properly by the husband for about only one year, and thereafter, he

started demanding amount from her for purchase of scooter. She

was harassed and then after beating her, she was sent to her

parental house. After persuasion by her parents, she was left with

the husband. They have begotten a son in the year 1990, but

thereafter, again the husband started harassing her on the same

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3 SA 663-2016 SA 664-2016

count. It was contended that, after she was driven out of the house,

the husband has performed illegal marriage with one Suman, and

therefore, the present wife has fled criminal proceedings against the

husband. She had fled suit for getting maintenance i.e. Regular Civil

suit No.155 of 2006, however it was dismissed in default on 20-06-

2007. She is unable to maintain herself. The husband is

Headmaster in a school and getting huge amount as salary. He has

additional income in the form of rent. His parents are not depending

on him as they are pensioners, and therefore, the wife prayed for

maintenance to herself as well as to her son.

4) The husband resisted the claim and denied the allegations

made against him. It was contended that, the wife has left him

without assigning any reasonable ground. Since she has deserted

him, she is not entitled to get maintenance. It was also contended

that, maintenance has been granted in a proceedings under Section

125 of Code of Criminal Procedure in Criminal Misc. Application

No.276 of 2009, and therefore, she is not entitled to claim

maintenance once again. She is getting beneft under ‘Sanjay

Gandhi Niradhar Yojana’, and therefore, she can maintain herself.

5) After the issues were framed, parties have led oral as well as

documentary evidence. Taking into consideration the evidence on

record, it was held that, the husband has deserted and refused to

maintain the wife. She is unable to maintain herself. The husband

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4 SA 663-2016 SA 664-2016

has sufcient means to maintain the wife, and therefore,

maintenance was granted @ Rs.2500/- per month.

6) As aforesaid, both the parties challenged the said Judgment

and decree before the learned Appellate Court. The appeal fled by

the husband was dismissed and the appeal fled by the wife was

partly allowed. The amount of maintenance has been enhanced to

Rs.3,500/- per month. Hence, both these second appeals.

7) Heard learned Advocate Mr. A. S. Usmanpurkar for appellant

husband and learned Advocate Mr. V. P. Kadam representing the

respondent wife.

8) It has been vehemently submitted on behalf of the appellant

husband that, by way of subsequent events and in view of the

afdavit fled by the appellant, a fact has been brought on record

that, the husband was prosecuted under SectionPrevention of Corruption Act

and he has faced Special Case No. (ACB) No.2 of 2014 before learned

Sessions Judge, Parbhani. The husband has been convicted on 19-

10-2016 and has been directed to undergo rigorous imprisonment for

four years and pay fne of Rs.3000/-, in default rigorous imprison for

3 months, for committing ofence punishable under Section 7 of the

Prevention of Corruption Act and equal punishment has been

awarded for committing ofence punishable under Section 13 (1) (d)

of the SectionPrevention of Corruption Act. Even prior to the trial after the

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5 SA 663-2016 SA 664-2016

registration of the ofence, the husband was suspended from service

on 28-05-2015, and after the conviction, an order has been passed

on 14-03-2017 that, the husband will not be entitled to any benefts

including pensionary as well as salary, therefore he is not getting

either salary or any other emoluments. So also in the meantime, i.e.

on 31-10-2017, he has retired from the services. Now he is not

getting pension and other service benefts, therefore he is unable to

pay maintenance.

9) At the outset, it can be said that, while dealing with second

appeal what is required to be shown by the appellant is the

substantial question of law as contemplated under Section 100 of

Code of Civil procedure. Now by way of subsequent event, the

documents have been produced on record to show that the appellant

has been convicted and the letters on record show that at present he

is not getting any part of his salary or after his retirement any

pension and other benefts. This fact has not been refuted by the

wife by fling any counter afdavit. Therefore, by taking into

consideration the said subsequent event, the substantial question of

law though might be relating to the quantum of maintenance, would

be as follows ;

“Whether the First Appellate court was justifed in
enhancing the compensation and granting it in addition
to the maintenance granted under Section 125 of the
Code of Criminal Procedure ?”

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6 SA 663-2016 SA 664-2016

10) Here it is to be noted that, while granting maintenance under

Section 18 of the Hindu Adoption Act and SectionMaintenance Act, what was

required to be seen by the Court was, as to whether there was any

maintenance granted under Section 125 of the Criminal Procedure

Code. Even after taking into consideration that amount, whether

then the wife can survive would be a question. It cannot be stated

that, since maintenance has been granted under Section 125 of

Criminal procedure Code, the wife has no right to get maintenance

under Section 18 of the Hindu Adoption and maintenance Act. Both

the remedies are diferent and they will have to be considered on its

own merits. Here in this case, there is concurrent fnding by both the

Courts that, the wife has been deserted and has not been looked

after or maintained by the husband, and therefore, she is entitled to

get maintenance when she is unable to maintain herself. While

assessing the maintenance amount, what was considered by both

the Courts was, the salary of the husband as Headmaster. However,

in view of the subsequent event it can be said that, the said source

of income is no longer available to the husband. The wife is already

getting maintenance @ Rs.3000/- per month under criminal

proceedings and whatever was granted by the Trial Court and then

enhanced by the District Court was in addition to the said amount of

maintenance. It has not been brought on record that, the said order

of granting maintenance under criminal proceedings has been

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7 SA 663-2016 SA 664-2016

disturbed or set aside by any Courts. That means, the said order is

still in existence and the husband is bound to obey the said order.

The only question is regarding the amount now awarded under this

proceedings.

11) The present appellant is an able bodied person. Though he

might have lost one source of income, i.e. his salary as Headmaster,

and then because of his own acts, he appears to have been

convicted and now the pension has been stopped. That cannot be

the ground to totally set aside the entire decree. However, the only

amount can be reduced so as to commensurate with the requirement

of the wife to survive, and therefore, revival of the original order

passed by the Trial Court would be the just and appropriate step. In

other words whatever enhancement has been granted by the

learned First Appellate Court in the appeal fled by the wife deserves

only to be set aside taking into consideration the subsequent event.

Hence, following order.

ORDER

(1) Second Appeal No.663 of 2016 is hereby dismissed.

(2) Second Appeal No.664 of 2016 is hereby partly
allowed.

(3) The Judgment and decree passed in Regular Civil
Appeal No.54 of 2013, by learned Adhoc District Judge-2,
Parbhani, dated 12-10-2015, is hereby set aside to the
extent of enhancing the maintenance by modifying the
Judgment and decree passed in Regular Civil Suit No.149

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8 SA 663-2016 SA 664-2016

of 2009, by learned 6th Joint Civil Judge, Junior Division,
Parbhani, dated 07-03-2013.

(4) It is clarifed that, only the Judgment and decree in
Regular civil Appeal No.54 of 2013 to the extent of
enhancement is set aside thereby reviving the Judgment
and decree passed by the learned Trial Court.

(5) In view of the facts above, parties to bear their own
cost.

(6) Pending civil applications stand disposed of.

(SMT. VIBHA KANKANWADI)
JUDGE

vjg/-.

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