A wife can seek enhancement of maintenance under Section 25(2) of the Hindu Marriage Act based on changed circumstances, despite prior agreements.

JUDGMENT :

A.Y. KOGJE, J.

1. The present appeal under Section 19 of the Family Courts Act is directed against the judgment and order dated 26.11.2018 passed Civil Misc. Application No.90 of 2010 by the Family Court No.3, Ahmedabad. The appellants before the Court is the wife and daughter of the respondent herein. It is a case where the appellant No.1 and respondent had undergone judicial separation and final decree and judgment was passed for dissolution of marriage.

2. The family suit was filed by the appellant No.1. It appears that the judgment and decree of dissolution of marriage was passed on the basis of compromise which contained a provision for maintenance of the appellant No.1-wife, daughter, appellant No.2 (now married) and the then minor son (now major). The agreement was for payment of maintenance to the tune of Rs.3,000/- per month i.e. to say Rs.1,000/- for the wife and Rs.1,000/- each for two children. This decree was drawn on 27.01.2003 and thereafter, in the year 2010, the appellants preferred Civil Misc. Application No.90 of 2010 seeking an enhancement of the maintenance by filing an application under Section 25(2) of the Hindu Marriage Act.

3. The Family Court by the impugned judgment and order, rejected the application primarily on the ground that both minor children have now attained majority. The then son is major and is now serving in Government Health Department and maintaining appellant No.1-mother, whereas appellant No.2 has already married and that at the relevant time both the parties had arrived at an amicable settlement for maintenance of Rs.3,000/- per month for all the family members and therefore, such application came to filed.

4. Learned advocate for the appellants has argued that there is a change in the circumstances, where her expenditure has increased and her medical treatment cost has also increased and the Family Court has failed to take into consideration such increase in the expenditure of the appellant No.1. At the same time, the Family Court has also not taken into consideration the fact that the earning capacity of the respondent-husband has increased with the passage of time. Learned advocate has argued that the Family Court has applied a wrong principle of estoppel invoking Section 115 of the Evidence Act by holding that the compromise and settlement at the time of dissolution of marriage will act as an estoppel for the appellants to claim enhancement of maintenance.

4.1 It is submitted that an erroneous finding is given by the Family Court that the documents produced by the appellants on the record would not indicate any increase in the income of the respondent-husband. It is submitted that in this regard, Family Court has failed to take into consideration the admission of the respondent-husband in his deposition that present salary of the husband was increased from Rs.6,000/- per month at the relevant time to Rs.38,000/- at present and in view of such admission, the Family Court ought not to have concluded that the appellants have failed to bring on record the increase in the income of the respondenthusband. Learned advocate has thereafter, argued that an error is committed by the Court in framing issue No.2, which is for the purpose of whether the petitioners Nos.2 and 3 are entitled to the maintenance, particularly when petitioners Nos.2 and 3 were already ordered to be deleted in the original proceedings. Therefore, the Family Court has misdirected itself in framing issue No.2 at the behest of the respondenthusband and then answering the same.

4.2. Learned advocate has relied upon the decision of the Apex Court in case of Sanju Devi v/s. State of Bihar, reported in, 2018 (2) CivCC 123 to support the argument that the judicially separated wife is entitled to maintenance. Reliance is also placed on the decision of the Apex Court in case of Kalyan Dey Chowdhury v/s. Rity Dey Chowdhury Nee Nandy, reported in, AIR 2017 SC 2383 in support of his argument that where there is an increase i