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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE

FAMILY COURT APPEAL NO.150 OF 2011

Swati Ninad Jadhav

... Appellant

Vs.

Ninad Marutrao Jadhav

.... Respondent

Mr.Mandar Soman for the Appellant

Mr.A.A. Basutkar for the Respondent

CORAM: A.M. KHANWILKAR &

A.R. JOSHI, JJ.

DATED: JUNE 21, 2012

P.C.:

1.

Heard Counsel for the parties. This Appeal is directed

against common judgement passed by the Family Court No.5,

Pune dated 30^th August, 2011. The respondent husband had filed

petition bearing Petition No.A-803/2005 for decree of divorce on

the ground of cruelty and desertion u/s 13 of the Hindu Marriage

Act, 1955. The Family Court, however, has rejected that petition.

The respondent husband has not challenged that decision and has

acquiesced of the same. He is personally present in Court and has

instructed his advocate that he is not interested in pursuing his

relief of divorce on the ground of cruelty and desertion. The

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controversy that needs to be decided in the present appeal filed by

the wife, therefore, is in respect of grant of maintainance amount to

her u/s 18 of the Hindu Adoption and Maintainance Act. That claim

was set up by her during the pendency of the petition before the

Family Court itself. By way of interim maintainance, she was

granted Rs.10,000/- per month.

2.

In the written statement and counter claim, she prayed for

grant of Rs.20,000/- per month by way of permanent maintainance.

The Family Court by the impugned decision has, however,

awarded alimony of only Rs.15,000/- per month to the appellant

wife for the reasons recorded in paragraph 41 onwards. The

appellant, in the present appeal, however, prays for grant of

permanent alimony @Rs.30,000/- per month. Since that was not

the claim in the written statement or counter claim, as the case

may be, no fault can be found with the Family Court for having

proceeded on the basis of the averments and claim in the written

statement for awarding permanent alimony of Rs.20,000/- per

month. The Appellant, therefore, cannot be permitted to ask for an

amount more than Rs.20,000/- per month towards the permanent

alimony in the present appeal. Indeed, it would be open to the

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appellant to apply for enhancement of permanent alimony amount,

if so advised, on the grounds as may be permissible in law. If such

a claim is filed by the appellant before the appropriate Court, that

will have to be considered on its own merits in accordance with

law.

3.

As aforesaid, in the present Appeal, the only question is

whether the Family Court was right in limiting the permanent

alimony amount to Rs.15,000/- per month, as against the claim of

Rs.20,000/- per month in the written statement/counter claim filed

by the appellant before the Family Court. In view of stand taken by

the respondent before this Court, we do not intend to record

reasons in support of enhancing the amount to Rs.20,000/- per

month towards permanent alimony payable to the appellant wife.

4.

Accordingly, this Appeal succeeds and the operative order

passed by the Family Court is modified to the extent that the

respondent husband is directed to pay permanent alimony of

Rs.20,000/- per month to appellant - wife from May, 2008.

5.

This order is passed by consent of the parties. The

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respondent undertakes to pay the arrears within three months from

today. The respondent also undertakes to pay the future monthly

permanent alimony amount on or before 5^th of every English

cal