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2021 Supreme(Bom) 484
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SHRIKANT D. KULKARNI, J.
Khurshid Chandsab Shaikh - Appellant
Versus
Bibi W/o. Khurshid Shaikh - Respondent
Second Appeal No. 601 of 2021 with Civil Application No. 12810 of 2021
Decided On : 13-12-2021
Advocate Appeared:
For the Appellant : Mr. Gaurav L. Deshpande.
Point of Law: Clause 278 of Mahomedan Law speaks about order for maintenance. It provides that if husband neglects or refuses to maintain his wife without any lawful cause, wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless claim is based on a specific agreement. Or she may apply for an order of maintenance under provisions of Code, 1973, Section 488, in which case court may order husband to make a monthly allowance in whole for her maintenance not exceeding five hundred rupee.
Headnote:
Code of the Civil Procedure, 1908 - Section 96 and 100 - Code of Criminal Procedure, 1973 - Section 488 - Mahomedan Law - Order of maintenance - Whether judgment can be said to be defective in eye of law only because of incorrect clause of Mahomedan Law is mentioned - Appellant / original defendant appeared in the suit and filed written statement. The respondent / original plaintiff produced her evidence in support of her prayer for maintenance. The appellant / original defendant failed to adduce any evidence.
Finding of the Court: It is duty of husband to maintain his wife unless she is too young for matrimonial intercourse and so long as she is faithful to her husband and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to her husband or is otherwise disobedient, unless refusal or disobedience is justified by non-payment of prompt dower or she leaves husband’s house on account of his cruelty. According to above referred provision of Mahomedan Law, it is duty of husband to maintain his wife - It clear that there are provisions under Mahomedan Law for awarding maintenance to the wives. Judgment cannot be set aside only because the trial Court has referred incorrect provision in judgment. It is not case that there is no provision under Mahomedan Law to award maintenance to wives. There is provision under Mahomedan Law to provide maintenance to wives if husband neglects or refuses to maintain his wife without any lawful cause. Trial Court has considered facts of case and evidence of respondent / wife and awarded maintenance of Rs.3,000/- per month. The respondent / wife aggrieved by amount of maintenance granted by trial court, preferred an appeal before District Court under Section 96 of Code of Civil Procedure. Learned District Court / appellate Court has considered facts of case and evidence on record and argument advanced by both sides, and modified amount of maintenance from Rs.3,000/- to Rs.5,000/- per month from date of institution of suit - Appreciation of evidence recorded finding that respondent / wife is entitled to get maintenance. Amount of maintenance fixed by District Court / appellate Court at Rs.5,000/- per month appears to be reasonable. Appellate Court has awarded maintenance from date of institution of the suit, which cannot be said to be against the Clause of 278 of Mahomedan Law. The so called questions of law framed by the learned counsel for appellant in the appeal memo, more particularly in para XXI (A to H) cannot be said to be substantial questions of law.
Result: Second appeal dismissed.
ORDER :
1. Mr. Gaurav L. Deshpande, learned counsel for the appellant assures that he would remove the office objections during the course of the day. His statement is accepted. He seeks leave to place on record the private paper book.
2. Leave granted. Private paper book is taken on record.
3. The challenge in the second appeal is to the judgment and decree passed in R.C.S. No. 262/2015 by the 2nd Jt. Civil Judge, Senior Division at Latur and confirmed in R.C.A. No.114 of 2017 with modification to the extent of quantum of maintenance at the hands of District Judge - 2 at Latur.
4. The respondent / original plaintiff has filed a suit for maintenance against her husband / appellant by taking aid of provisions of Mahomedan Law.
5. The appellant / original defendant appeared in the suit and filed written statement. The respondent / original plaintiff produced her evidence in support of her prayer for maintenance. The appellant / original defendant failed to adduce any evidence.
6. The learned Judge, after taking into consideration the facts of the case and evidence on record, was pleased to decree the suit partly and awarded maintenance to the respondent / wife at Rs.3,000/- per month from the date of institution of the suit. The charge of maintenance amount ordered to be kept on the landed property of the appellant / original defendant to the extent of his share.
7. The respondent / wife feeling aggrieved by the amount of maintenance awarded by the trial Court, preferred an appeal before the District Court at Latur by taking the aid of Section 96 of the Code of Civil Procedure.
8. The appellant / husband appeared in the appeal and contested the claim for maintenance put forth by his wife.
9. Learned District District Judge-2, Latur after considering the facts of the case, evidence on record and arguments advanced on behalf of both the sides was pleased to allow the appeal partly. The appellate Court / District Court was pleased to modify the decree to the extent of quantum of monthly maintenance. The amount of monthly maintenance came to be enhanced from Rs.3,000/- to Rs.5,000/- from the date of institution of the suit.
10. The appellant / original defendant, is thereafter, before this Court by way of second appeal in view of Section 100 of the Code of the Civil Procedure.
11. Heard Mr. Gaurav L. Deshpande, learned counsel for the appellant on the point of admission of second appeal.
12. Mr. Gaurav Deshpande, learned counsel for the appellant vehemently submitted that the trial Court has committed a grave error in the eye of law while allowing the claim of maintenance of wife under Clause 180 of the Mahomedan Law. He submitted that Clause 180 of the Mahomedan Law relates to objects partly valid and partly invalid where wakf is created for mixed purposes. The trial Court has decreed the suit under the wrong provisions of law. It is a clear case of non application of mind by the court below. On this sole ground, the second appeal needs to be admitted. The appellate Court / District Court has also committed the same error. It is nowhere stated by the District Court while allowing the appeal under which provision the maintenance is awarded to the wife / respondent. The appellant / husband is a labour and has no source of income. The findings recorded by the courts below are erroneous and bad in law.
13. According to Mr. Gaurav Deshpande, the core issue in the matter is not properly adjudicated. As such, the appeal needs to be admitted and during the pendency of this appeal, the impugned judgment and decree passed by the courts below need to be stayed including the execution proceedings.
14. Perused the impugned judgment and decree passed in R.C.S. No.262/2015 by the Civil Judge, Senior Division at Latur and confirmed by the District Court / appellate Court in R.C.A. No.114/2017 with slight modification while partly allowing the appeal preferred by the wife / respondent.
15. I have gone through the private paper book furnished by Mr. Gaurav Deshpan
