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2009 Supreme(UK) 368
2009 (2) UAD 603
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant and Hon’ble Mr. Justice B.S. Verma
First Appeal No. 75 of 2007
SMT. JAYA KANDWAL –Appellant
Versus
SHRI KHUSHIRAM KANDWAL – Respondent
Decided on : 15.07.2009
For the Appellant :Mr. Lalit Sharma, Advocate.
For the Respondent:Mr. R.P. Nautiyal, Advocate.
Headnote:Hindu Adoption and Maintenance Act, 1956, Secs. 18, 20 — Claim of wife for her and her minor daughter's maintenance — Wife compelled to leave her matrimonial home and to live in her parental house with her daughters — Wife having no source of income of her own — Husband employed in a Bank and drawing Rs. 22,000/- p.m. as lumpsum salary — Award of Rs. 3,000/- p.m. as maintenance allowance by Family Court — Held to be insufficient and having considered the deductions on account of provident fund and income tax — Amount of maintenance allowance enhanced to Rs. 5,000/- p.m. from Rs. 3,000/-. (Paras 9, 10)
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[Per : Hon’ble Prafulla C. Pant, J. (Oral)]
This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 16th of May 2007, passed by Principal Judge, Family Court, Dehradun, in Suit No. 355 of 2005, whereby the said court has awarded maintenance at the rate of Rs. 3,000/- per month to the appellant and her daughter. The appellant has sought enhancement of the maintenance awarded by the trial court under Section 18 of the Hindu Adoptions and Maintenance Act, 1958.
2. Heard learned counsel for the parties and perused the lower court record.
3. Brief facts, giving rise to this appeal, are that the appellant got married to respondent on 25.05.1994, at Dehradun. After the marriage, she started living with her husband at Haridwar, i.e. place of his posting. Out of the wedlock a female child was born on 16.10.1995. The appellant has alleged in the petition moved under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, for maintenance at the rate of Rs. 20,000/- per month that her husband (respondent) treated her with cruelty. She was forced to leave along with the daughter on 02.05.1997 house of the respondent and started living in her parental house in Delhi. It is further alleged by the appellant/petitioner that income of the respondent is Rs. 30,000/- per month. It is also pleaded that the petitioner (appellant) has no source of income.
4. The respondent contested the petition before the trial court and filed his written statement. He admitted having married to the appellant. It is also not disputed that a daughter (named Shatakshi) born out of the wedlock. However, as to the rest of the contents of the petition, the same are denied. It is pleaded by the respondent that it was the appellant who used to quarrel with him. He has alleged that appellant used to hurl abuses at him and she used to give threat to kill the respondent. It is also alleged by the respondent that though the respondent is employed in a bank and has a lump sum salary of Rs. 21,000/- per month, but after deductions he is getting only Rs. 4,442/- per month. It is also alleged by the respondent that the appellant is earning Rs. 10,000/- per month. It is also alleged that without any sufficient reason the appellant has left the company of the respondent.
5. On the basis of the pleadings of the parties, the trial court framed following issues:
(i) Whether, the petitioner is unable to maintain herself and her daughter?
(ii) Whether, the petitioner is entitled to maintenance for herself and her daughter? If so, of what amount?
(iii) To what relief, if any, the petitioner is entitled?
6. After recording the evidence and hearing the parties, the trial court found that the petitioner is unable to maintain herself and her daughter. It also found that the respondent is working in a bank and his approximate salary without deductions is Rs. 21,986/- per month. The trial court further found that the petitioner/appellant has sufficient reason to live separately from her husband. It is further found that the appellant is not an earning member. With these findings, vide impugned order dated 16.05.2007, passed in Suit no. 355 of 2005, the trial court (Principal Judge, Family Court, Dehradun) awarded Rs. 3,000/- per month as maintenance. Aggrieved by said order, this appeal has been filed by the petitioner for enhancement of the amount of maintenance.
7. Admittedly, appellant got married to respondent on 25.05.1994. It is also admitted to the parties that they lived together in Haridwar and a female child (named Shatakshi) born out of the wedlock on 16.10.1995, at Dehradun. It is also not disputed between the parties that since 02.05.1997, appellant is living separately from her husband (respondent) along with Km. Shatakshi in Delhi, with her mother. It is proved on the record that respondent Khushiram Kandwal is employed in a bank and his monthly earning without deduction is around Rs. 22,000/- per m
