SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Varsha Narayan Waybhase And Anr vs Narayan Raosaheb Waybhase on 21 February, 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO.4 OF 2017

1. Varsha w/o Narayan Waybhase,
Age : 35 years, Occu. Household,
R/o at present c/o Baburao Dagduji
Kaware, Shri Gajanan Krupa Niwas,
Plot No.11, NS-4, CIDCO,
Near Pundlik Nagar Water Tank,
Aurangabad

2. Dhanshri d/o Narayan Waybhase,
Age : 7 years, Occu. Education, APPELLANTS
U/G of Appellant No.1 (Orig. Petitioners)

VERSUS

Narayan s/o Raosaheb Waybhase,
Age : 37 years, Occu. Medical Officer,
R/o Waybhase Niwas, Renuka Nagar,
Behind Prakash Hotel, Bhingar, RESPONDENT
Tq. and District Ahmednagar (Orig. Respondent)

—-
Mr. V.M. Jaware, Advocate for the appellants
Mr. V.B. Jagtap, Advocate for the respondent
—-

CORAM : T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.

JUDGMENT RESERVED ON : 6th FEBRUARY, 2019
JUDGMENT PRONOUNCED ON : 21st FEBRUARY, 2019

JUDGMENT (PER : SUNIL K. KOTWAL, J.) :

Heard the learned counsel, appearing for the

parties.

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::

2 fca4-2017

2. Admit.

3. This appeal is directed by the original

petitioners against the order passed by the Principal

Judge, Family Court, Aurangabad in Petition No.C-19/2013

filed under Sections 18 and 20 of the Hindu Adoptions

and Maintenance Act, 1956. The respondent is original

respondent. Hereinafter, the parties are referred in

accordance with their status in the original

proceedings.

4. Undisputedly, petitioner No.1 married

respondent on 9th March, 2008 and petitioner No.2 is

their minor daughter. Since 2012 till today,

petitioners are residing separate from the respondent.

5. In Petition No.C-19//2013, filed by the

petitioners under Sections 18 and 20 of the Hindu

Adoptions and Maintenance Act, 1956 (“Maintenance Act”,

for short), the learned Trial Court, after considering

the evidence placed on record, held that the petitioners

have proved that respondent abandoned the petitioners

and though respondent has sufficient means to provide

maintenance to the petitioners, he did not provide any

maintenance to them. The Trial Court also held that the

respondent is guilty of desertion without reasonable

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
3 fca4-2017

cause and the petitioners are entitled to live separate

and claim maintenance from the respondent. Against that

finding, no Cross-Objection or Cross-Appeal is preferred

by the respondent. The claim of the petitioners for

maintenance is rejected by the Trial Court only on the

ground that in the proceeding under Section 20 of the

Protection of Women from Domestic Violence Act, 2005

(“D.V. Act”, for short), already sufficient maintenance

allowance has been granted by the learned Judicial

Magistrate First Class (Railway), Aurangabad in Criminal

M.A. No.1712/2012. Therefore, the only point for

consideration before this Court is whether despite

maintenance awarded under D.V. Act, petitioners can

claim maintenance under Sections 18 and 20 of the

Maintenance Act and what would be the reasonable

maintenance.

6. Shri V.M. Jaware, learned counsel for the

petitioners submits that the plain reading of Section 20

(1)(d) of the D.V. Act, makes it clear that the relief

under Section 20 regarding monetary reliefs is only

additional relief and therefore, on the ground of grant

of maintenance under Section 20 of the D.V. Act, the

Trial Court cannot refuse to award maintenance under

Sections 18 and 19 of the Maintenance Act. He has drawn

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
4 fca4-2017

our attention towards 7/12 extracts to show that the

agricultural land is recorded in the names of the

respondent, his father and brother. He submits that the

respondent even works as Medical Officer and his monthly

salary is more than Rs.30,000/- per month. Therefore,

the maintenance allowance of Rs.13,000/- per month to

both the petitioners and house rent of Rs.5000/- per

month is inadequate and can be enhanced, considering

medical expenditure of petitioner No.1 towards her

cancer treatment. He has drawn our attention towards

affidavit of the petitioners and medical certificate as

well as bills of medicines in respect of cancer

treatment given to petitioner No.1.

7. Shri V.B. Jagtap, learned counsel for the

respondent, on the other hand, submits that the

maintenance allowance enhanced by the Sessions Court,

Aurangabad in Appeal No.96/2014, is adequate considering

the earning capacity of the respondent. His next

contention is that in absence of pleading regarding

medical expenditure of petitioner No.1 for cancer

treatment, maintenance allowance cannot be enhanced.

8. We have gone through the affidavit of

petitioner No.1 filed in this appeal together with

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
5 fca4-2017

Histopathology report of petitioner No.1 issued by

Speciality Health Care Services, Aurangabad. This

report shows that in the month of November, 2015, for

the first time, right breast cancer namely “Invasive

Ductal Carcinoma Grade-3” was diagnosed to petitioner

No.1. The bills of medicines and treatment issued by

Manik Hospital and Research Centre, Aurangabad make it

clear that for the medical treatment of petitioner No.1

in the year 1916, she had spent about Rs.2,54,478/-.

These receipts and medical reports on record indicate

that even till today, petitioner No.1 needs medical

treatment towards her breast cancer. Otherwise also, it

is a matter of common sense that cancer is a very costly

ailment and it requires continuous treatment for number

of years for full recovery. Therefore, obviously the

petitioners are entitled to enhanced maintenance. In

Appeal 96/2014, the maintenance is enhanced to the tune

of Rs.13,000/- per month for petitioner Nos.1 and 2 and

house rent is enhanced to the extent of Rs.5000/- per

month.

9. While determining the quantum of maintenance

allowance payable to the petitioners, the earning

capacity of respondent, his status and reasonable need

of the petitioners play important role. Before touching

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
6 fca4-2017

this point, we would examine whether despite grant of

maintenance under Section 20 of the D.V. Act, the

petitioners can claim maintenance under Sections 18 and

19 of the Maintenance Act.

10. Section 20(1) (d) of the D.V. Act reads as

under :-

“20. Monetary reliefs.-

(1) While disposing of an application under
sub-section (1) of section 12, the Magistrate
may direct the respondent to pay monetary
relief to meet the expenses incurred and losses
suffered by the aggrieved person and any child
of the aggrieved person as a result of the
domestic violence and such relief may include
but is not limited to –

(a) *****

(b) *****

(c) *****

(d) the maintenance for the aggrieved person
as well as her children, if any, including an
order under or in addition to an order of
maintenance under section 125 of the Code of
Criminal Procedure, 1973 or any other law for
the time being in force.”

11. A bare glance at above provision makes it clear

that the monetary relief under Section 20 of the D.V.

Act is a relief, which is in addition to an order of

maintenance under Section 125 of the Code of Criminal

Procedure, 1973 or any other law for the time being in

force. Thus, after plain reading of Section 20 (1)(d)

of the D.V. Act, it becomes clear that grant of monetary

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
7 fca4-2017

relief under Section 20 of the D.V. Act cannot be a

hurdle or legal impediment to award maintenance to both

the petitioners under Sections 18 and 19 of the

Maintenance Act. Thus, obviously the Trial Court

committed error while rejecting the petition for

maintenance under Sections 18 and 19 of the Maintenance

Act, only for the reason that already, under Section 20

of the D.V. Act, sufficient maintenance is awarded to

the petitioners. We hold that despite grant of

maintenance under Section 20 of the D.V. Act, the

petitioners are entitled to maintenance under Sections

18 and 19 of the Maintenance Act.

12. Now question arises as to what would be

reasonable and just maintenance which can be awarded in

favour of the petitioners.

13. Undisputedly, the respondent works as Medical

Officer, though his appointment is temporary.

Therefore, a direction was given to the respondent by

this Court, by order dated 25th January, 2019, to file

his monthly salary slip and copy of appointment order to

ascertain whether the respondent has become permanent

employee of the State and what is his gross salary so

that the quantum of maintenance can be determined

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
8 fca4-2017

properly. However, despite this direction given to the

respondent, he did not produce copy of his appointment

order and salary certificate/slip till the date of

conclusion of final hearing of the appeal. Therefore,

considering the approximate gross monthly salary of

Medical Officer, adverse inference is drawn against the

respondent that he is a permanent Government servant and

his gross monthly income is more than Rs.40,000/-,

excluding compulsory deduction of taxes. In addition to

this, it cannot be ignored that the respondent being

well qualified doctor can also earn handsome amount even

by practising in medicine. In addition to this source

of income, the Record of Rights placed on record by the

petitioners also indicates that more than two Acres of

land is owned by the respondent. This Court also cannot

ignore that in the names of father and two brothers of

the respondent, above 66 Acres and 25 gunthas of

agricultural land is recorded. Thus, except the

petitioners, none of family members of the respondent

are depending on him. Therefore, considering the status

of the respondent as Medical Officer in Government

service, his earning capacity as Doctor as well as

Agriculturist and the reasonable need of the petitioners

in the background of medical treatment of petitioner

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
9 fca4-2017

No.1 towards her cancer and sky touching prices of

essential commodities and the required expenditure of

petitioner No.2 for her education, petitioner No.1 is

entitled to maintenance of Rs.15,000/- per month and

petitioner No. 2 is entitled to Rs.6000/- per month from

the date of filing of the petition for maintenance.

14. In the result, the appellants/petitioners would

be at liberty to recover the maintenance either under

the provisions of the Protection of Women from Domestic

Violence Act, 2005 or the Hindu Adoptions and

Maintenance Act, 1956, as per the findings arrived at by

us in the foregoing paragraphs of this Judgment.

15. The respondent shall pay Rs.10,000/- to the

appellants/petitioners towards cost of this appeal.

16. The appeal accordingly stands allowed and

disposed of.

[SUNIL K. KOTWAL] [T.V. NALAWADE]
JUDGE JUDGE

17. The execution of decree passed by this court is

stayed for the period of four weeks, subject to

::: Uploaded on – 22/02/2019 20/03/2019 22:29:33 :::
10 fca4-2017

condition of deposit of entire arrears of maintenance by

the respondent within a period of fifteen days from the

date of passing of this order.

             Sd/-                            Sd/-
[SUNIL K. KOTWAL] [T.V. NALAWADE]
JUDGE JUDGE

npj/fca4-2017

::: Uploaded on - 22/02/2019 ::: Downloaded on - 20/03/2019 22:29:33 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation