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High Court of Judicature at Bombay
A.R. JOSHI & NARESH H. PATIL, J.
Shobha Sanjay Jadhav
Versus
Sanjay Ramchandra Jadhav
Family Court Appeal No.17 of 2005
Decided on: 08-02-2013
Where there was substantive evidence on record led by wife as to husband assaulting her on flimsy ground and was putting lot of restrictions on wife therefore wife entitled to get maintenance under Section 18 of Act.
Hindu Adoption and Maintenance Act, 1956 - Sections 18 and 20 - Claim for maintenance by wife for herself and her daughter a ged 3 years.
Since husband is working in police department at time of filing of petition for maintenance and drawing salary of Rs. 7,000/- p.m. hence by passage of time about 13 years claim of Rs. 1,500/- for wife and Rs. 1,000/- for child maintenance just and proper. - Admittedly, the husband is working in Police Department in Reserved Police Force and at the time of filing of the petition for maintenance, he was drawing salary of about Rs. 7000/- and odd per month. By passage of time, definitely there must have been an increase in his salary as long period of 13 years has lapsed as on today, and period of five years had lapsed at the time of filing of the present appeal. Considering these circumstances and mainly considering that there is no cross- examination on the substantive evidence of the wife as to husband assaulting her on flimsy ground and also on the ground that he was of suspicious nature and was putting lot of restrictions on the wife, it must be said that the trial Court had erred in coming to the conclusion as to non-entitlement of the wife for getting maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
There is definitely a case made out on behalf of the wife to interfere in the impugned judgment and order so far as the aspect of maintenance to the wife. Court may mention that in the petition preferred in the year 2000, the wife had prayed for maintenance of Rs. 1,500/- to herself and Rs. 1,000/- for the small child. Court may also mention that on the interim application during pendency of the present appeal directions were given by the Bench to the husband to pay interim maintenance of Rs. 750/- to the wife and continue to pay Rs. 1,000/- to the daughter.
During the arguments in this appeal, it is prayed on behalf of the appellant-wife that the compensation amount granted to the daughter may be increased and the wife may be given compensation even more than that was asked in the original petition. On this aspect, initially in the petition before the Family Court an amount of Rs. 1,000/- per month was demanded for the daughter and an amount of Rs. 1,500/- was demanded for the wife herself. Court also makes it clear that in future on changed circumstances, the appellant-wife can make an application for requisite relief of enhanced compensation for herself and/or for her daughter considering the exigencies. Needless to mention that such application, if made, the same shall be dealt with by the concerned Court on its own merits and in accordance with law.
In view of the above and also considering the merits of the appeal, the appeal is required to be partly allowed and following order would meet the ends of justice. Hence, present appeal is partly allowed with following order :
"(i) Family Court Appeal No. 17 of 2005 is partly allowed.
(ii) The impugned judgment and order is modified to the following extent and it is further directed that the respondent- husband to pay maintenance of Rs. 750/- per month to the appellant-wife from the date of the original application i.e. from June, 2001. Rest of the order of the trial Court shall sustain.
(iii) Costs of the present appeal are awarded to the appellant- wife to be paid by the respondent-husband.
(iv) The amount which is already paid by the respondent-husband to the wife in view of the impugned judgment and order, shall be adjusted towards the amount which is payable as per this order. The arrears of the amount is to be paid within three months from today and the maintenance amount as per the present order shall be paid within 10th day of each month directly to the appellant- wife.
(v) The present order of maintenance shall be effective till remarriage of the appellant-wife if such situation arise, so far as maintenance to the wife. So far as the maintenance granted to the daughter Priyanka, it shall be effective till the girl gets married or till she earns her livelihood of her own, whichever is earlier."
(A.R. Joshi, J.)
1. Present appeal is preferred by the wife/original petitioner challenging the judgment and order passed in Family Court Petition No.C140/ 2001 by Family Court No.3, Bandra, Mumbai. The impugned judgment and order was passed on 17.7.2004 by which the prayer of wife for maintenance was rejected, however, the maintenance ofRs.1,000/- per month was granted to the minor child, to be paid by the husband present respondent from the date of the order i.e. from 17.7.2004. The respondent-husband was also directed to pay Rs.1000/- towards the litigation expenses to the petitioner wife. The appellant-wife is hereinafter referred to as the wife and the respondent-husband is referred to as the husband for the sake of brevity.
2. The wife preferred petition for maintenance to herself as per the provisions of Section 18 and maintenance for her own daughter then aged about three years, as per the provisions of Section 20 of the Hindu Adoptions and Maintenance Act, 1956. An amount of Rs.1500/- was claimed by the wife for herself and an amount of Rs.1000/- for minor girl child, by name Priyanka. In the petition, it was also prayed that custody of the minor child shall be given to the wife permanently. Rs.4000/-was asked towards the litigation expenses.
3. In order to ascertain the merits of the present appeal, certain factual position is narrated as under along with the brief facts of the matter : Marriage between the parties took place on 6.5.1996 as per the Hindu vedic rights. After marriage, both the parties started residing at Andheri, Mumbai at the Government Quarters of husband who was and is a Constable working in the Reserved Police Force. After the marriage, there used to be quarrels on flimsy ground as to the wife not preparing good food and very often visiting her parents. Even husband used to doubt the character of his wife. He was giving threats of dire consequences to the wife. At times, he used to assault her with fist blows and was not giving sufficient food. According to the wife, he used to give the ration items and was not allowing the wife to go out and purchase anything of her own. As such, she was compelled to maintain the family and carry out the daily needs regarding food, clothes etc. on the meager material brought by the husband. In such scenario of disputes and quarrels, one child was born on 27.8.1997, however, it was a premature delivery. According to the wife, this happened because of malnourishment of her and immediately after the birth, said child expired. Thereafter also there was no change in the treatment given to the wife. Again for the second time, she became pregnant and gave birth to a female child on 18.7.1999. This is the child by name Priyanka, for whom the maintenance was asked.
4. According to the wife, because of giving birth to a female child, the husband became hostile and became more rude and did not approve that his wife had given birth to a female child. He continued quarreling with his wife on small issues and also used to assault her. Sometime on 9.9.2000 there was more outburst of conduct of the husband and he started assaulting wife. She pleaded that she would not tolerate such beating any further. On this, husband gave more abuses to the wife and continued the beating. On that night at about 11 O'clock, he dropped the wife and the small child at the house of her parents. Since then, he did not bother to look after the wife and the child. As such, since September 2000 the wife started residing with her parents where her sister and brother were also staying. Except father nobody else was earning in the family of her parents and as such, it was difficult to bring the child. However, with the help of her parents, she could manage to survive.
5. It is a factual position that the Petition for maintenance was preferred sometime in June, 2001 and it was disposed of in July, 2004 and the said order is challenged by the wife, mainly asking for maintenance to herself and en
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