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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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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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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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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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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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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 664-2016disturbed 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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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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