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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.11/2015
with
CROSS OBJECTION NO.43/2014
AND
FAMILY COURT APPEAL NO.12/2015
with
CROSS OBJECTION NO.44/2014
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FAMILY COURT APPEAL NO.11/2015
APPELLANT: Bharat Kishor Bundele,
Ori. Respondent aged about 42 years, Occupation : service,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.
...VERSUS...
RESPONDENT: Sau. Sima w/o Bharat Bundele,
Ori. Petitioner aged about 37 years, occupation : service,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.
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Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent
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WITH
CROSS OBJECTION NO.43/2014
APPELLANT: Bharat Kishor Bundele,
aged about 38 years,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.
...VERSUS...
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RESPONDENT: Sau. Sima w/o Bharat Bundele,
(CROSS OBJECTOR) aged about 32 years,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.
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Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent/cross-objector
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AND
FAMILY COURT APPEAL NO.12/2015
APPELLANT: Bharat Kishor Bundele,
Ori. Respondent aged about 42 years, Occupation : service,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.
...VERSUS...
RESPONDENT: Sau. Sima w/o Bharat Bundele,
Ori. Petitioner aged about 37 years, occupation : service,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.
--------------------------------------------------------------------------------------------------
Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent
--------------------------------------------------------------------------------------------------
WITH
CROSS OBJECTION NO.44/2014
APPELLANT: Bharat Kishor Bundele,
aged about 38 years,
r/o c/o Shobhabai Gaur, Bundelpura,
Tq. Achalpur, District : Amravati.
...VERSUS...
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RESPONDENT: Sau. Sima w/o Bharat Bundele,
(CROSS OBJECTOR) aged about 32 years,
r/o c/o M.K. Maliye, Kishor Nagar, Amravati,
Tq. and District Amravati.
--------------------------------------------------------------------------------------------------
Shri J.B. Kasat, Counsel for appellant
Mrs. S.P. Kulkarni, Counsel for respondent/cross-objector
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 18.07.2017 ORAL JUDGMENT (PER : ARUN D. UPADHYE, J.)
1. Being aggrieved by the common judgment and decree dated 4/4/2013, passed by the Principal Judge, Family Court, Amravati in Petition Nos.C-5/2011 and C-9/2012, the appellant-husband has preferred two separate appeals against the respondent - wife. (The parties are referred to as per their original status).
2. The brief facts of the family court appeals are stated as under :-
Petition No.C-5/2011 is filed by Sau. Sima for enhancement of the maintenance under Section 25 of the Hindu Adoption and Maintenance Act. Petition No.C-9/2012 is filed by Bharat for cancellation of maintenance amount. The wife - Sima has averred that she is legally wedded wife of husband - Bharat and their marriage took place on 20/6/2004 at Amravati according to Hindu rites and customs. She pleaded that after the marriage, both were residing together at Achalpur. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:10:30 :::
fca11.15.odt 4 She pleaded that her husband was demanding Hero Honda motorcycle and fridge from her father and on that count abusing her in filthy language. She further contended that on 3/10/2004 she was forcibly driven out of the house. She pleaded that she started residing with her parents at Amravati. According to her, thereafter, compromise took place on 9/11/2004 and she resumed cohabitation with her husband. She further pleaded that on 31/1/2006 she came to her parents' house for delivery purpose and gave birth to a male child on 24/2/2006. According to her again her husband picked up quarrel with her and abused her in filthy language and mercilessly beat her. She further pleaded that she constrained to file Regular Civil Suit No.433/2006 which came to be decided on 26/6/2007 in which maintenance was granted to her @ Rs.800/- per month from the date of the application. The wife further pleaded that since the price of the essential commodities has risen and expenses towards the education of child Bhagyesh has also risen she required more amount of maintenance. According to her, the respondent was working as an Assistant Teacher and receiving the amount of Rs.12,000/- per month by way of salary. According to her, her husband now is working as full fledged teacher and receiving salary of Rs.30,000/- per month. She therefore claimed maintenance of Rs.10,000/- per month. According to her, she has no independent source of income. She showed ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:10:30 ::: fca11.15.odt 5 her willingness to resume cohabitation but her husband had not allowed her to resume cohabitation. She thus, claimed enhanced maintenance @ Rs.10,000/- per month.
3. The husband filed say at Exh.13 and resisted the claim of the petitioner - wife. He admitted the relations of the parties. He also admitted filing of Regular Civil Suit No.433/2006 in which maintenance was granted @ Rs.800/- per month. However, he denied all other adverse allegations made in the application. According to him, his salary was only Rs.12,000/- at the time of grant of maintenance in Regular Civil Suit. However, he denied that his salary is Rs.30,000/-, as alleged by the wife. According to him, at present the petitioner - wife is working as an Assistant Teacher in Suryakanta Devi Pote Public School, Amravati and earning salary of Rs.5,000/- per month. According to him, his wife is in a position to maintaining herself and child Bhagyesh in the maintenance granted to her. According to him, he has filed a petition for restitution of conjugal rights bearing Hindu Marriage Petition No.76/2006 before the Civil Judge (Senior Division), Achalpur in which a decree of restitution of conjugal rights is passed in his favour. According to him, the petitioner- wife had never resumed cohabitation with him. Hence, she is not entitled to claim maintenance rather than enhanced maintenance. ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:10:30 :::
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4. After recording the evidence in the matter and after hearing both the sides, the learned Principal Judge, Family Court Amravati allowed the Petition No.C-5/2011 and granted enhanced maintenance @ Rs.2,000/- per month instead of Rs.800/- per month from the date of the order. The learned Judge of the Family Court however dismissed the Petition No.C-9/2012 filed by the husband.
5. Being aggrieved by the common judgment and decree dated 4/4/2013 passed by the Principal Judge, Family Court, Amravati the appellant has filed two separate family court appeals before this Court. The wife has also filed Cross Objection Nos.43/2014 and 44/2014 and prayed for dismissal of both the family court appeals and confirm the judgment and decree dated 4/4/2013 passed by the Principal Judge, Family Court, Amravati in Petition No.C-9/2012 and prayed for enhanced maintenance to the tune of Rs.10,000/- per month.
6. We have heard the learned Counsel for the parties at length. Shri Kasat, the learned Counsel for the appellant in both the family court appeals has vehemently submitted that the Civil Judge, Senior Division, Achalpur has passed a decree on 8/2/2017 in Hindu Marriage Petition No.26/2014 and granted a decree of divorce against the wife. He further submitted that the wife has not resumed the cohabitation and deserted her husband, therefore, she was not entitled to maintenance. He further ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:10:30 ::: fca11.15.odt 7 submitted that the enhancement of amount of maintenance of Rs.2,000/- from Rs.800/- is also not justified. He therefore prayed to allow both the family court appeals.
7. Mrs. Kulkarni, the learned Counsel for the wife has submitted that the Family Court has granted the enhanced maintenance @ Rs.2,000/- per month to the wife which is meagre one. She therefore prayed that the enhanced maintenance be granted to the wife @ Rs.10,000/- per month. She also submitted that the wife has filed Cross Objections in both the family court appeals and the same be allowed.
8. Considering the above facts and circumstances of the case, following points arise for our consideration :-
(1) Whether the wife is entitled for
enhanced maintenance ? If yes, at what rate ?
(2) What order ?
9. Considering the submissions of the respective parties and having gone through the pleadings of the parties and the evidence which is on record, it shows that the relationship between the parties is not disputed. The marriage of the parties was solemnized on 26/6/2004 at Amravati as per Hindu rites and customs. Regular Civil Suit No.433/2006 filed by the wife was decreed and an amount of Rs.800/- per month w.e.f. 17/5/2006 towards maintenance was granted to her. Thereafter, the wife has filed petition for enhancement of maintenance. The husband has also ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:10:30 ::: fca11.15.odt 8 filed petition for cancellation of maintenance. The wife has tendered her evidence by way of affidavit and reiterated the contents made in the petition on oath. She was cross-examined at length by her husband. In the cross-examination, she has stated that when the petition was filed by her for maintenance under Section 25 of the Hindu Adoption and Maintenance Act, she was not serving but now she got job with Suryakanta Devi Pote Public School and earning salary of Rs.5,000/- per month, but according to her actually she is getting Rs.3,000/- only. She also stated that thereafter a decree of restitution of conjugal rights was passed and she was directed to resume the cohabitation with her husband. However, she denied that she is not entitled for enhanced maintenance.
10. The respondent also tendered his evidence by way of affidavit and stated on oath that there is no increase in salary. He also stated that his wife is earning Rs.5,000/- by working as an Assistant Teacher and therefore she is not entitled for enhanced maintenance. He was cross-examined by wife. It was suggested to him that he is earning salary of Rs.30,000/- to Rs.40,000/- per month but he denied the said suggestion. However, he has admitted that his gross salary was Rs.23,463/-.
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11. Considering the evidence of both the sides, we are of the considered view that there is sufficient increase in the salary of the husband compared to year 2007. There is no material on record to show that there is increase in the salary of wife. The amount of Rs.2,000/- per month increased by way of enhancement compared to the salary of husband is meagre one and the same needs to be enhanced. The wife has rightly filed Cross Objections in these family court appeals for enhancement. The wife is therefore entitled for enhancement of amount of Rs.3,500/- per month from Rs.2,000/- granted by the learned Principal Judge, Family Court, Amravati from the date of order, i.e. 4/4/2013. The submission is put forth on behalf of the husband that the Civil Judge Senior Division, Achalpur has passed a decree of divorce in favour of the husband by the order dated 8/2/2017 in Hindu Marriage Petition No.26/2014 and therefore the wife is not entitled for enhanced maintenance. The learned Counsel for the respondent -wife has made a statement that the appeal is filed against the said order before the Ad hoc District Judge, Achalpur and the same is pending. If that is so, the submission put forth on behalf of the respondent therefore cannot be accepted. It is to be noted that in the earlier proceedings in Regular Civil Suit No.433/2006 the learned Civil Judge, Junior Division, Amravati has recorded a finding that the husband has deserted and neglected the wife ::: Uploaded on - 21/07/2017 ::: Downloaded on - 22/07/2017 00:10:30 ::: fca11.15.odt 10 so also refused to maintain the wife and she is entitled for separate maintenance. The said finding has attained finality. Therefore, the wife is justified to claim maintenance and also enhanced maintenance from her husband. Hence, both the family court appeals filed by the husband are liable to be dismissed and the Cross Objections filed by the wife deserve to be partly allowed. Hence, we pass the following order.
O R D E R
(i) Family Court Appeal Nos.11/2015 and 12/2015 are hereby dismissed.
(ii) Cross Objection Nos.43/2014 and 44/2014 are partly allowed.
(iii) The decree passed by the Principal Judge, Family Court, Amravati in Petition No.C-5/2011 is modified. The maintenance amount of the wife is enhanced @ Rs.3,500/- (instead of Rs.2,000/-) per month from the date of the judgment and decree, dated 4/4/2013 passed by the Principal Judge, Family Court, Amravati.
(iv) In the circumstances of the case, there would be no order as to costs.
Decree be drawn up accordingly.
JUDGE JUDGE
Wadkar
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