Andhra Pradesh High Court - Amravati

Sri Mathala Chandra Sekhara Rao, vs Mathala Shirisha on 17 February, 2022

         HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                          AND
         HON'BLE DR. JUSTICE K. MANMADHA RAO

                           F.C.A No.38 of 2021

JUDGMENT :       (Per Hon'ble Dr. Justice K.Manmadha Rao)



      The present appeal came to be filed, under Section

19 of the Family Courts Act, 1984 [for short, "F.C. Act"],

challenging the order dated 18.02.2020 passed in F.C.O.P.

No.60 of 2018 by the Judge, Family Court-cum-III Additional

District Judge, Vizianagaram (for short "the trial Court").

By way of the said order, the Court below granted

maintenance to the respondents herein @ Rs.9,000/- and

Rs.5,000/- per month respectively from the date of the said

order.

2. The respondents herein filed the above mentioned

F.C.O.P. No.60 of 2018 against the appellant herein for the

following reliefs:

"... (a) Directing the appellant to pay maintenance @ Rs.25,000/- per month towards maintenance to the respondents herein (i.e., Rs.15,000/- to the 1st respondent and Rs.5,000/- to the 2nd respondent) towards food, clothes shelter, medicines and education;

(b) Directing the appellant to pay past maintenance to both the respondents @ Rs.6,20,000/- from May 2016 till the date of that petition; and

CPK,J & Dr. KMR,J FCA No.38 of 2021

3. For the sake of convenience, the parties are

hereinafter referred to, as they are arrayed before the trial

Court.

4. The brief facts of the case are that :

The 1st petitioner is legally wedded wife of the

respondent. Their marriage was solemnized on 30.06.2015 as per

Hindu rites and Caste custom at Khargpur. At the time of

marriage, her parents spent Rs.2,00,000/- towards marriage

expenses, gave Rs.6,00,000/- dowry, Rs.1,00,000/- towards

vehicle, Rs.60,000/- towards Adapaduchu katnam and also sare

samans worth Rs.1,00,000/- besides present two tulas of gold to

the respondent as demanded by them. They lived together one

and half years and out of their wedlock, they blessed with a baby

girl i.e., the 2nd petitioner on 26.8.2016. According to her, from

the beginning, the respondent, his parents, his brother and aunt

Sarada started harassing her both physically and mentally

demanding her to bring more amount from her parents. She

pleaded that the parents of the respondent advised her to leave

him permanently. She further pleaded that after their marriage,

only on four occasions, she went to her parents' house.

Subsequently, her parents invited the respondent on the occasion

of their first marriage anniversary, but he refused and insulted by

using filthy language, stating that it is to worst to come to their

house. After birth of the 2nd petitioner, none came from the

house of the respondent and even did not make a phone call for

courtesy. Thereafter, so many requests were made by the mother

of the 1st petitioner to the respondent to take back his wife and

CPK,J & Dr. KMR,J FCA No.38 of 2021

baby girl, but the respondent ignored their words as he was not

interested to take her along with girl child and postponed the

same on one pretext or the other. Though the respondent refused

to take them back, she did not lodge any report before the police

about their harassment and desertion. She also pleaded that she

is an un-employee and herself and her daughter are depending

upon her parents, who are more than 70 years old and that she

has no movable or immovable properties and has no means for

their livelihood. The 1st petitioner mainly pleaded that her

husband/the respondent has been working in Indian Railways as

a Technician, Grade-II in Wagon Shop at Kharagpur and drawing

Rs.60,000/- per month as salary and further he is earning

Rs.30,000/- on finance business, in total, he is getting

Rs.90,000/- per month and leading lavish life, but intentionally

neglecting them to their fate. Hence, she filed the above FCOP for

the above said relief.

5. Counter came to be filed by the respondent therein

admitting the relationship in between himself and the 1st

petitioner therein, but refuting the other allegations made in the

1st petitioner inter alia contending that he studied 10th class, his

father and the father of the 1st petitioner worked in Railway

department at Kharagpur. There was acquaintance between

them, after his father took voluntary retirement, due to his ill-

health, he got Class-IV job under compassionate ground as a

Welder in Railway department. After the retirement of the father

of the 1st petitioner, she did her Post Graduation and also doing a

private job at Vizianagarm. After some time, one Krishan Rao

and Nageswara Rao, who were also working in Railway

CPK,J & Dr. KMR,J FCA No.38 of 2021

department, Kharagpur negotiated the marriage between them.

Both parents agreed in their presence that the expenses of the

marriage shall be borne by the parents of the 1st petitioner and

the parents of the respondent were adorn her 5 tulas of gold

articles Nallapusalu, Pustalathadu and two rings. Accordingly,

the marriage took place at Kharagpur on 30.06.2015. It is

further stated that on the nuptial night itself, the 1st petitioner

requested him to shift the family from Kharagpur to Viziangarm

or Visakhapatnam by applying for transfer. On the other hand,

the 1st petitioner stated that the husband of her sister's lead their

conjugal life as per the wish of her sister and also living

separately and for that she demanded the respondent to come to

Vizianagaram or Visakhapatnam on transfer, otherwise she will

not lead conjugal life with him. At that time, she demanded the

respondent to give Rs.1,00,000/- to her parents towards expenses

of the delivery and also Rs.10,000/- to them towards their

maintenance, for which, he refused. Meanwhile, on 01.12.2018

the father of the respondent died and the same is informed to his

wife and her parents, but they did not attend. Thereafter,

surprisingly, the respondent received notice from the Court. The

respondent denied that he never harassed 1st petitioner and her

parents in any manner and he is not willing to bring them back

and lead conjugal life with the 1st petitioner. Hence, he filed a

Matrimonial Suit No.840 of 2018 under Section 9 of Hindu

Marriage Act on the file of District Court, Paschim Medinapur,

West Bengal. It is further stated that, recently, he got promotion

as Grade-I Welder and he is getting Rs.30,000/- per month as

salary. He has no other income or other source of property and

CPK,J & Dr. KMR,J FCA No.38 of 2021

that his mother is also depending on him and she requires

Rs.5,000/- per month for her medical expenses. Hence, he prays

to dismiss the petition.

6. In order to prove her case, the 1st petitioner/wife herself

examined as PW.1 and examined her father as PW.2 and got

marked Exs.A1 to A5. On behalf of the respondent/husband, he

himself examined as RW.1 and no documents were marked on his

behalf. One P. Krishna Rao, who is the mediator of their marriage

was examined as C.W.1.

7. After analyzing the evidence produced and the

documents filed, the trial Court allowed the above FCOP granting

maintenance @ Rs.9,000/- to the 1st petitioner/wife and

Rs.5,000/- to the 2nd petitioner/baby girl from the date of filing of

the petition. Aggrieved by the same, the present appeal came to

be filed by the appellant/respondent.

8. Heard Smt. T.V. Sridevi, learned counsel appearing for

the appellant and Sri S.V.S.S. Siva Ram, learned counsel

appearing for the respondents. Perused the material available on

record.

9. Learned counsel for the respondent/appellant mainly

contended that the attitude of his wife was indifferent from the

time of marriage. According to him, on the nuptial night itself,

the 1st petitioner i.e., wife requested the respondent/appellant to

shift the family from Kharagpur to Vizianagarm or

Visakhapatnam by applying transfer, but when the appellant

refused as his parents are old and the health condition of his

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father is not good, the petitioner/wife became aggressive and

abused the appellant. On the next day, all of them came to

Vizianagarm from Kharagpur, stayed there for three days, then

returned to Kharagpur but after one week the 1st respondent

came to Vizianagaram without any intimation. Immediately the

appellant came to Vizianagarma nd broughter her from her

parents' house.

10. Learned counsel for the petitioners/respondents

argued that at the time of marriage of the appellant and the 1st

respondent, as demanded by the appellant and his family, her

father gave Rs.6,00,000/- dowry, Rs.1,00,000/- towards vehicle,

Rs.60,000/- as Adapaduchu Katnam, sare samans worth

Rs.1,00,000/- and presented two tulas of gold to the appellant

and after their marriage, they lived together only for 1 ½ years.

But from the beginning, the appellant and his family members

used to harass the 1st respondent both physically and mentally

demanding her to bring more amount and even during her

pregnancy, they did not provide proper food and medicines,

insulted her parents and used to come late nights and further

used to talk to others. Even during pregnancy also, they did not

allow her to speak to her parents over phone. Accordingly, both

the counsels raised rival contentions.

11. Further, perused the evidence on record that, PW.1, in

her evidence deposed that, her husband is working in Indian

Railways as a Technician and he is drawing Rs.50,000/- as salary

and also getting Rs.30,000/- from finance business and after

their marriage, they lived together only for 1 ½ years and her

CPK,J & Dr. KMR,J FCA No.38 of 2021

husband and his family members started harassing both

physically and mentally to bring more amount, even during

pregnancy they did not provide proper food and medicines; her

husband insulted her parents and used to come late nights and

further used to talk to others. She further deposed that even her

mother requested the appellant and his parents to take them

back but the appellant refused to do so as they have no interest

on girl child. She further deposed that though he has not

provided food and medical aid to them, the appellant demanding

additional dowry of Rs.5,00,000/-.

12. PW.2, who is the father of the 1st respondent/wife

deposed that as if the appellant and his family members directly

demanded Rs.5,00,000/- he expressed his inability. But during

his cross-examiantion, he categorically stated that the appellant

did not demand him to give additional dowry of Rs.5,00,000/-

and it is her daughter informed him. Therefore, the evidence of

PW.2 with regard to demand of dowry is a hearsay.

13. CW.1, who is the mediator of both parties, deposed

that he is the elder to their marriage and he was present

throughtout the negotiations for the marriage. But nothing was

elicited from him by the respondents about giving of dowry,

adapaduchu lanchanams or amount for bike or sare samans.

14. RW.1, who is the appellant herein, deposed in his

evidence that the 1st respondent and her family members

demanded him to live separately and try for transfer from

Kharagpur to Vizianagaram or Visakhapatnam, but he refused.

He also deposed that the 1st respondent is not willing to lead

CPK,J & Dr. KMR,J FCA No.38 of 2021

conjugal life at Kharagpur. Even informed each and everything to

the elder Krishna Rao-CW.1, he negotiated with the 1st

respondent and her family members by phone and he informed

that she is not willing to lead conjugal life at Kharagpur and her

parents also supported her. In April, 2017 the appellant again

came to Vizianagaram and requested to jon him, but the 1st

respondent/wife refused and demanded to get transfer either

Vizianagaram or Visakhapatnam and also demanded

Rs.1,00,000/- from her parents for delivery expenses and

Rs.10,000/- per month for their maintenance.

15. From the above evidence and the answers elicited in

the examination, it is clear that the appellant is working in Indian

Railways as a Technician and he is drawing Rs.50,000/- as salary

and also getting Rs.30,000/- from finance business. According to

the appellant, he recently got promotion as Grade-I Welder and

getting Rs.30,000/- per month as salary and he has no other

source of income or no other property. His mother also

depending on him and Rs.5,000/- per month is required for her

medical expenses.

16. It is an admitted fact that the 1st respondent is the

wife of the appellant and their marriage was solemnized on

30.06.2015 at Kharagpur and out of their wedlock, they were

blessed with the 2nd respondent on 26.08.2016. It is also an

admitted fact that the father of the appellant was a Railway

employee residing at Kharagpur and due to his ill-health, he took

voluntary retirement. Thereafter, the appellant got employment

in Railway and working at Khargapur. It is also an admitted fact

CPK,J & Dr. KMR,J FCA No.38 of 2021

that the father of the 1st respondent was also a retired Railway

employee and before his retirement he was also a resident of

Kharagpur. After his retirement, he came down to Viziangaram.

It is an admitted fact that at the time of the marriage of the 1st

respondent and the appellant, her father was retired and though

it is a custom in their caste to perform the marriage at the place

of the bride, since due to the sickness of the father of the

appellant, on the request of the family of the bridegroom, the

marriage was performed at Kharagpur and the expenditure of the

marriage was incurred by the bride family.

17. It is pertinent to mention here the scope of Section 18

of the Hindu Adoptions and Maintenance Act, 1956

(hereinafter referred to as the "Act"), which reads as under:

18. Maintenance of wife. --

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time;

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance--

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying living separately.

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(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

18. As per Section 18(1) of the Act, as a general rule, a

Hindu wife shall be entitled to be maintained by her husband

during her life time. She can live separately without foregoing her

claim for maintenance under the circumstances enumerated

under clauses (a) to (g) of sub Section (2) of Section 18 of the Act.

19. In the case on hand, admittedly, the 1st respondent is

claiming maintenance by living separately from the appellant.

Therefore, only point to be considered is, whether her claim would

fall under any of the grounds enumerated under clauses (a) to (g)

of sub-section (2) of Section 18 of the Act.

20. It is not the case of the 1st respondent/wife that the

appellant/husband is suffering from a virulent form of leprosy or

that he has any other wife living; that he keeps a concubine in

the same house in which she is living or habitually resides with a

concubine elsewhere; or ceased to be a Hindu by conversion to

another religion. Hence, clauses (c) to (f) of the Act, will not get

attracted to the facts of the case. The appellant is not contesting

the matter on any of the grounds enumerated under sub-section

(3) of the Act. Therefore, what is to be considered is, whether the

case of the 1st respondent falls under clauses (a), (b) and (g) of

sub-section (2) of the Act.

21. On the other hand, the contention of the appellant is

that on the nuptial night itself, the 1st respondent asked him to

come to Vizianagaram or Visakhapatnam by getting transfer, but

CPK,J & Dr. KMR,J FCA No.38 of 2021

he refused, and thereafter, she joined him, she came to

Vizianagaram without informing anybody. On that, the appellant

came to Vizianagaram and brought her back. But when he came

to Vizianagaram, the 1st respondent and her parents insisted him

to take separate house and come to Vizianagaram or

Visakhapatnam by applying transfer.

22. This Court observed that both parties are making

allegations against each other with regard to joining each other.

But none of parties has taken any steps for restitution. No doubt,

the appellant filed a Matrimonial Suit No.840 of 2018 before the

District Court, Paschim Midnapur, West Bengal for restitution of

conjugal rights and subsequently, it was transferred to the Court

below and re-numbered as FCOP No.26 of 2019. But it is

admitted by RW.1 that he filed the said case subsequent to

receipt of notice in that case. Had really the 1st respondent did

not join after delivery, there is no proper circumstance or

explanation from him, why he has not taken any steps to get her

back under due process of law until she filed the above OP.

23. The Law is well settled that it is not only moral

obligation, but a legal duty cast upon the husband to maintain

his wife and children under Sections 18 and 20 of Hindu

Adoptions and Maintenance Act. The Madras High Court in a

decision in Vasantha Vs. Chandran1, held that :

"When the husband did not take any effort to take the wife back to matrimonial home, wife is entitled to maintenance."

2003 Madras 214

CPK,J & Dr. KMR,J FCA No.38 of 2021

24. Admittedly, the 2nd respondent is residing with the 1st

respondent. Therefore, both the respondents are entitled for

maintenance.

25. Coming to the quantum of maintenance, it is an

admitted fact that the appellant is working in Indian Railways as

a Technician. According to the respondents, the appellant is

drawing Rs.50,000/- as salary and also getting Rs.30,000/- from

finance business. But, according to the appellant, he recently got

promotion as Grade-I Welder and getting Rs.30,000/- per month

as salary and he has no other source of income or no other

property and that his mother is also depending on him and

Rs.5,000/- per month is required for her medical expenses.

PWs.1 and 2 on one hand and R.W.1 on the other hand deposed

on the lines of their respective versions. During cross-

examination, P.W1/1st respondent denied that she is doing a

private job. The respondents filed Ex.A5 - the information

obtained as to the pay particulars of the appellant, under the

Right to Information Act, 2005 from the employer of the

appellant. As per the same, by November, 2019, the appellant's

Gross salary was Rs.40,942/- and Net salary being Rs.35,460/-.

26. Learned counsel for the appellant mainly argued that

the trial Court without appreciating the material on record,

passed an order by way of maintenance to the respondents, is not

at all sustainable under law and raised the objections on

determining the quantum of maintenance and placed reliance on

a judgment of the Hon'ble Apex Court reported in Kalyan Dey

CPK,J & Dr. KMR,J FCA No.38 of 2021

Chowdhury Versus Rita Dey Chowdhury Nee Nandy2, wherein

it was held in para-15, as under:

"15. The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2.2.20153 awarding a maintenance of Rs.16,000/- to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs.63,842/- after deduction of Rs.24,000/- on account of GPF and Rs.12,000/- towards income tax. In February 2016, the net salary of the appellant is stated to be Rs.95,527/-. Following Kulbhushan Kumar v. Raj Kumari4 in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs.95,000/- per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs.23,000/- to Rs.20,000/- per month as maintenance to the respondent wife and son."

27. The said order was passed while dealing with the

Review petition filed under Order 47 Rule 1 CPC basing on the

facts in that particular case and there is no ratio laid down as

such. In view of the above, the facts of the above case are not

helpful to the case of the appellant in the present case on hand.

28. Learned counsel for the appellant mainly contended

that the trial Court ought to have seen that as per Section 23(2) of

(2017) 14 Supreme Court Cases 200

2015 SCC Online Cal 10447

(1970) 3 SCC 129

CPK,J & Dr. KMR,J FCA No.38 of 2021

the Hindu Adoption and Maintenance Act while determining the

amount of maintenance, (a) the Court has to see the position and

status of the parties; (b) reasonable wants of the claimant and (c )

if the claimant is living separately, whether the claimant is

justified in doing so, but the Court below failed to consider the

same while determining the quantum of maintenance and erred

in awarding more than 40% of the appellant's income and that

erred in awarding Rs.9,000/- and Rs.5,000/- to the respondents

no.1 and 2 towards maintenance without assigning any reasons.

29. The objections raised by the appellant are not

maintainable in view of the recent judgment of the Hon'ble Apex

Court reported in Rajnesh v. Neha and another5, wherein, the Apex

Court has categorically laid down the criterion for determining the

quantum of maintenance. The Apex Court observed as under:

"III. Criteria for determining quantum of maintenance

The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing,

(2021) 2 SCC 324

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and looking after adult members of the family; reasonable costs of litigation for a non-working wife

Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source."

30. The appellant has not been able to point out any

illegality or irregularity in the impugned order. The appellant

is working in Indian Railways as a Technician and recently got

promotion as Grade-I Welder and as per the same, his Gross

salary is Rs.40,942/- and Net salary is Rs.35,460/-. It is an

admitted fact that the appellant is residing in the quarter

provided by the Railway authorities. He admitted during

cross-examination that his brother is an employee and his

mother is a family pensioner and they are not financially

depending on him. Therefore, except the maintenance of the

respondents and himself, he has no other financial burdens.

Though the respondents pleaded as if the appellant is doing