Nandana Chandrakant Mehta vs Chandrakant P. Mehta

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1973 Supreme(Bom) 110

IN THE HIGH COURT OF BOMBAY
G.N. Vaidya, J.
Nandana Chandrakant Mehta.... Appellant.
Versus
Chandrakant P. Mehta .... Respondent.
First Appeal No. 246 of 1971, decided on 12/13-9-1973.
Advocates appeared :
M.N. Morje, for M/s. A.V. Dalvi G.D. Dave, for Appellant.
H.H. Yajnik with Mr. Shirish T. Parikh, for respondent.

Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 23(2), 25 - HINDU ADOPTION AND MAINTENANCE ACT, 1956 - SECTION 18, 20, 23, 25 - MAINTENANCE - QUANTUM - DATE FROM WHICH MAINTENANCE PAYABLE - COSTS - DUTY OF COURT UNDER SECTION 23(2) OF THE HINDU MARRIAGE ACT - PRINCIPLES GOVERNING QUANTUM OF MAINTENANCE AND THE DATE FROM WHICH MAINTENANCE IS TO BE AWARDED BY THE COURT - PROCEDURE FOLLOWED IN TRIAL COURT - WIFE'S PLEA FOR HIGHER MAINTENANCE - HUSBAND'S PLEA AGAINST ENHANCEMENT - QUANTUM OF MAINTENANCE - DATE FROM WHICH MAINTENANCE PAYABLE - COSTS - CONCLUSION.
Fact of the Case:

The wife filed a petition for judicial separation on the ground of desertion and cruelty. The husband filed a petition for restoration of conjugal rights on the ground that the wife had separated herself without any reasonable cause. The wife took out a notice of motion for interim maintenance at the rate of Rs. 1,338/- per month. The husband filed an affidavit in reply to the Notice of Motion taken out by the wife. The trial Court passed an order directing the husband to pay a sum of Rs. 400/- p.m. as permanent alimony towards the maintenance of the wife and the two children after recording the consent of the parties to the effect that the husband will be entitled to visit the house of the wife every Saturday and take both children at 5 p.m. agreeing, however, to bring them back to the wife's house at 7 p.m. The wife filed an appeal against the said order of maintenance submitting that it is inadequate.
Finding of the Court:

The Court held that the learned Judge in the City Civil Court failed to notice the provisions of section 23(2) of the Hindu Marriage Act in dealing with this case. The Court also held that the trial Court erred in not granting alimony with effect from February 19, 1969 as prayed for by the wife in her notice of motion and in not ordering the husband to pay costs.
Issues: 1. Whether the amount of alimony and maintenance of Rs. 400/- p.m. granted by the learned Judge in the City Civil Court is utterly inadequate? 2. Whether the learned Judge erred in law in not granting alimony with effect from February 19, 1969 as prayed for by the wife in her notice of motion? 3. Whether the learned Judge erred in not ordering the husband to pay costs?
Ratio Decidendi: 1. The quantum of maintenance and the date from which it is to be made payable are, according to the matrimonial law, in the discretion of the Court. 2. The Court has power to determine the arrears of maintenance and this discretion has to be exercised in accordance with the well-settled principles in the light of the aforesaid decision of the privy Council. 3. The Court has discretion to award maintenance from a date prior to the date of the petition.
Final Decision: The appeal is accordingly allowed with costs throughout and the order passed by the trial Court is modified by directing that the husband should pay with effect from February 19, 1969 and shall continue to pay until a final order is passed on an application made by the wife for enhancement or made by the husband for decreasing the amount of maintenance under section 25(2) of the Hindu Marriage Act or section 25 of the Hindu Adoption and Maintenance Act, the sum of Rs. 500/- to the wife as alimony and the sum of Rs. 250/- for Deepak and the sum of Rs. 250/- for Udaya as maintenance.

JUDGMENT - G.N. VAIDYA, J.:---The above first appeal is filed by the wife against her husband challenging an order of maintenance directing payment of Rs. 300/- to her and Rs. 50/- each to her two sons, Deepak and Uday, on the ground that having regard to the position and status of the parties, reasonable wants and the grounds of the decree for judicial separation passed in her petition and the needs of the children, the sum of Rs. 400/- ordered to be paid by the husband is inadequate.

2. The marriage was celebrated on May 10, 1955 at Umreteh, according to Hindu Vadic rits. Deepak was born on December 7, 1962 Uday was born on December 25, 1966. A third son was born but unfortunately he died a day after his birth. The appellant had described the circumstances in which the husband and wife came to love each other and married. It seems that the appellant and the respondent came to know each other in or about the year 1952 on the occasion of the thread ceremony of the wifes cousin. The husbands house in Umreteh was opposite to the wifes mothers house. The appellants mother was at that time a teacher in primary school in Umreth. The husband was studying in L.M. Pharmacy College at Ahmedabad. The wife also went to Ahmedabad for further prospects of her studies and joined S.N.D.T. College.

3. It is not necessary to set out all other circumstances which let to the marriage because on account of disputed between husband and wife, the wife filed a petition for judicial separation on the ground of desertion and cruelty. It was not opposed by the husband and a decree for judicial separation was passed on October 7, 1970.

4. In the meanwhile, the husband had also filed a petition for restoration of conjugal rights on October 14, 1967 on the ground that the wife had separated herself without any reasonable cause. In that petition, on a notice of motion taken out by the wife, interim maintenance of Rs. 500/- for the wife and Rs. 500/- for the two sons was ordered on June 18, 1968. The husband had filed an appeal against that order in this Court but he withdraw the appeal on February 18, 1969. He also withdrew the petition which he had filed on February 18, 1969.

5. The wife, therefore, took out a notice of motion in her petition on February 3, 1970 for interim maintenance at the rate of Rs. 1,338/- per month the particulars of which were supplied by her attorneys to the husbands Advocate as follows :---

Statement of Expenses required

Rs. 162.00 milk.

Rs. 21.00 Eggs.

Rs. 300.00 Vegetables, ghee, Spices, etc.

Rs. 100.00 Fresh Fruits.

Rs. 100.00 Dry Fruits.

Rs. 100.00 Doctors bills, medicines, tonics.

Rs. 100.00 Transport.

Rs. 50.00 Dhobi Washing charges.

Rs. 100.00 Entertainment, toys, etc.

Rs. 20.00 Electricity.

Rs. 25.00 Fuel.

Rs. 50.00 Flat maintenance charges.

Rs. 50.00 Servant.

Rs. 15.00 books.

Rs. 100.00 Miscellaneous and unforeseen expenses.

..........................

Rs. 1,338.00

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In that notice of motion affidavits and counter affidavits were filed by the husband and wife.

6. During the pendency of this notice of motion and the wifes petition for judicial separation, the husband lost his job with Indian Scherring Limited, who terminated and called upon him a vacate the Companys flat and to return the companys car. The wife then filed a counter affidavit stating that the husband manoeuvred the situation with a view to avoid the liability to pay maintenance. The wife is a graduate of S.N.D.T. university. The husband is a graduation Pharmacy. On October 7, 1970 on hearing the parties and recording the evidence of the wife which was not challenged, the learned Judge in the City Civil Court first passed a decree in favour of the wife for judicial separation and giving her custody of the two minor sons Deepak and Udaya.

7. Thereafter the learned Judge proceeded to deal with the notice of motion for maintenance and passed an order on the same day directing the husband to pay a sum of Rs. 400/- p.m. a

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