Bombay High Court
Anand Fakirchand Gaikwad vs Kavita Anand Gaikwad And Ors on 26 February, 2016
Bench: S.V. Gangapurwala
(1) F.C.A. No. 20 of 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Family Court Appeal No. 20 of 2012
District : Aurangabad
Anand s/o. Fakirchand Gaikwad,
Age : 38 years,
Occupation : Education,
R/o. Buddha Nagar,
Jawahar Colony, .. Appellant
Aurangabad. (Original respondent)
versus
1. Kavita w/o. Anand Gaikwad,
Age : 29 years,
Occupation : Household,
R/o. C/o. Raghunath Khotkar,
House No.5, Mitmita, Behind
Municipal Corporation School,
Aurangabad.
2. Kirtiratna s/o. Anand Gaikwad,
Age : Minor,
Occupation : Nil.
3. Aparna D/o. Anand Gaikwad,
Age : Minor,
Occupation : Nil.
Both respondent nos.2 & 3 being
Minor under guardian of .. Respondents
Respondent no.1 (Original petitioners)
.........................
Mr. Rajendra S. Deshmukh, Advocate, for the appellant.
Mr. Mahesh K. Bhosle, Advocate, holding for
Mr. P.V. Barde, Advocate, for respondent nos.1 to 3.
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(2) F.C.A. No. 20 of 2012
..........................
CORAM : S.V. GANGAPURWALA &
A.M. BADAR, JJ.
DATE : 26TH FEBRUARY 2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1. The respondent had filed petition under Sections 18 and 20 of
the Hindu Adoption and Maintenance Act 1956, seeking maintenance for
herself, son and daughter. The daughter is aged 8 years and the son is
aged 11 years. The Family Court partly allowed the said application,
granted maintenance of Rs. 2,000/- per month to the wife and Rs. 1,000/-
per month, each to son and daughter, totalling Rs. 4,000/- per month. The
husband has assailed the said order in the present appeal.
2. Mr. Deshmukh, the learned Counsel for the appellant,
strenuously contends that the Court while deciding the said petition, has
lost sight of the elementary principle. The wife had earlier filed
application under Section 125 of the Code of Criminal Procedure 1973,
wherein she was awarded maintenance of Rs. 1,000/- per month and son
and daughter each were awarded maintenance of Rs. 500/- per month i.e.
totalling Rs. 2,000/- per month. Subsequently, the wife had filed the
present petition under Section 18 of the Hindu Adoption & Maintenance
Act. Subsequent petition was certainly not maintainable as maintenance
was already granted. The respondent - wife had also filed proceedings
under the Domestic Violence Act wherein she is also awarded maintenance
of Rs. 700/- per month. The learned Counsel relies on the judgment of
(3) F.C.A. No. 20 of 2012
Division Bench of Orissa High Court in the case of Bansidhar Mohanty Vs.
Smt. Jyoshnarani Mohanty, reported in AIR 2002 Orissa 182. The learned
Counsel submits that when earlier proceedings is filed, subsequent
proceedings was required to be stayed and the proceedings under Section
18 and 20 of the Hindu Adoption & Maintenance Act could not have been
proceeded further. The learned Counsel relies on the judgment of the
learned Single Judge of this Court in the case of Ravindra Haribhau
Karmarkar Vs. Mrs. Shaila Ravindra Karmarkar and another , reported in
1992 Cri.L.J. 1845. The learned Counsel further submits that the amount
awarded under Section 125 of the Cr.P.C. is to be adjusted while
considering maintenance in other proceedings i.e. proceedings under
Section 18 of the Hindu Adoption & Maintenance Act. The learned
Counsel relies on the judgment of the Hon'ble Apex Court in the case of
Sudeep Chaudhary Vs. Radha Chaudhary , reported in AIR 1999 SC 536.
According to the learned Counsel, there is absolutely no iota of evidence
on record to substantiate the case of the respondent about earning of the
present appellant. The appellant is jobless. Though he has qualification of
Ph.D., the appellant could not succeed in getting any job and, as such, is
without any source of income. The Family Court has presumed the
income of the appellant from agricultural land and has also presumed that
the appellant might be taking tuitions. The same is not in consonance with
the evidence on record. It is the wife who had deserted the company of the
present appellant and this fact is also admitted by the wife in her
deposition. According to the learned Counsel, in the light of aforesaid
factual matrix, the order passed by the Family Court is not in consonance
with the statutory provisions and the evidence on record.
(4) F.C.A. No. 20 of 2012
3. The learned Counsel for the respondents supports the
judgment and order of the Family Court and submits that the Family Court
has considered the income of the present appellant and the maintenance
awarded in the proceedings under Section 125 of the Code of Criminal
Procedure.
4. We have considered the submissions canvassed by the learned
Counsel for respective parties, so also the evidence.
5. The argument that, subsequent proceedings could not have
been proceeded further when maintenance under Section 125 of the
Cr.P.C. is granted, cannot be considered. Even the Hon'ble Apex Court in
the case of Sudeep Chaudhary, referred supra, has observed that the
maintenance awarded under Section 125 of the Cr.P.C. is adjustable
against the amount awarded in matrimonial proceedings under Section 24
of the Hindu Marriage Act 1955.
6. The learned Judge of the Family Court was aware of the
factum of maintenance being granted under Section 125 of the Cr.P.C.
However, the learned Judge has considered that the said amount is too
meagre and after considering the amount of maintenance under Section
125 of the Cr.P.C. granted by the Court, has granted the present amount of
maintenance. It shows that the learned Judge has adjusted the
maintenance awarded under Section 125 of the Cr.P.C. while awarding
maintenance under Sections 18 and 20 of the Hindu Adoption &
Maintenance Act.
(5) F.C.A. No. 20 of 2012
7. It is not disputed that the appellant is possessing qualification
of Ph.D. It is also not disputed that the appellant is doing any job. It was
for the appellant to bring on record his income. It cannot be digested that
the appellant would be idle more particularly when he is possessing
qualification of Ph.D. The amount of maintenance awarded under Section
125 of the Cr.P.C. and the instant petition if clubbed, it would be only Rs.
6,000/- per month which would be maintenance for wife, son and
daughter. The son and daughter are school going children. Naturally for
their education also, expenses will be required to be incurred. The
husband cannot shirk away his responsibility. It has been brought on
record, that the appellant possesses agricultural land and the appellant was
also taking private tuitions. Be that as it may, the amount of maintenance
awarded under Section 125 of the Cr.P.C., even if it is clubbed with the
amount of maintenance awarded in the present proceedings, the amount is
reasonable considering the present day scenario. It is submitted that the
challenge to the order passed under the Domestic Violence Act has failed.
8. Considering the aforesaid conspectus of the matter, no case
for interference is made out. The Appeal is accordingly dismissed. No
costs.
( A.M. BADAR ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
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puranik / FCA20.12
