Bombay High Court
Kiran Hiralal Popat vs Suhasini @ Swati Kiran Popat on 16 November, 2016
Bench: A.S. Oka
sng 1 fca-66n136.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
FAMILY COURT APPEAL NO.66 OF 2008
ALONG WITH
FAMILY COURT APPEAL NO.136 OF 2008
F.C.A.NO.66 OF 2008
"X" .. Appellant
Vs
"Y" .. Respondent
-
Shri Shashank C. Thatte for the Appellant Husband.
Shri Diwakar Amarnath Dwivedi for the Respondent wife.
--
F.C.A. NO.136 OF 2008
"Y" .. Appellant
Vs.
"X" .. Respondent
-
Shri Diwakar Amarnath Dwivedi for the Appellant wife.
Shri Shashank C. Thatte for the Respondent Husband.
-
CORAM : A.S. OKA & P.D. NAIK, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 6TH MAY 2016
DATE ON WHICH JUDGMENT IS PRONOUNCED: 16TH NOVEMBER 2016
::: Uploaded on - 17/11/2016 ::: Downloaded on - 18/11/2016 00:42:06 :::
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JUDGMENT ( PER A.S. OKA, J )
1. Considering the factual controversy, we have directed that
the names of the parties shall be masked in this Judgment. The
husband will be referred to as "X" and the wife will be referred to as
"Y".
2. Though the submissions were concluded on 6 th May 2016,
considering the very peculiar facts of the case, we decided to give
sufficient time to the parties to reconsider their position and to arrive at
an amicable settlement. Looking to the peculiar facts of the case, we
were of the view that an amicable settlement is the only way out to
resolve the matrimonial dispute and that is why we decided not to
pronounce the judgment for few months after conclusion of the hearing.
We had kept the matter for directions on 27 th October 2016 when the
wife and her Advocate could not appear. We gathered from the learned
counsel appearing for the husband that after submissions were
concluded, there was no progress in the settlement. Therefore, we have
no option but to pronounce the judgment.
3. These two Appeals take exception to the judgment and
decree dated 26th March 2008 passed by the learned Judge of the
Family Court at Bandra, Mumbai, on a Petition for divorce filed by the
sng 3 fca-66n136.08
husband on the ground of cruelty under Clause (ia) of Sub-section (1)
of Section 13 of the Hindu Marriage Act, 1955 ( for short "the said
Act"). By the impugned decree, the learned Judge dismissed the
Petition for divorce filed by the husband. The prayer for maintenance
made by the wife was rejected. The learned Judge directed the husband
to pay maintenance of Rs.5,000/- per month each for the benefit of the
minor daughter Hemisha and minor son Bhavik till they attain the age
of majority. The maintenance was made payable from the date of the
impugned decree. Family Court Appeal No.66 of 2008 has been
preferred by the husband. Family Court Appeal No.136 of 2008 has
been preferred by the wife, inter alia, for challenging that part of the
decree by which the maintenance was denied to her. A prayer is made
in the said Appeal for directing the husband to pay maintenance at the
rate of Rs.3,000/- per month as per the interim order dated 3 rd March
2006 passed by the Family Court.
4. The marriage between the parties was solemnized on 9 th
November 1986 in accordance with Hindu Vedic Rites. There are three
children born to the wife. The son Hemal was born on 22 nd May 1988.
The daughter Hemisha was born on 1st May 1989 and the youngest
child Bhavik was born on 5 th July 1995. The Petition was filed by the
husband on 26th December 1997. As far as the grounds of cruelty are
concerned, the husband has specified the said grounds in Paragraph 5
of the Petition. The said grounds read thus:
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"(a) That after initial period i.e. about 1 year or so of
the marriage, the Respondent started picking up
false quarrels with the parents of the Petitioner
for no reason whatsoever;
(b) That the Respondent never wanted to mix up
with the family and society of the Petitioner and
always insisted upon him to get his parents
separated from him; since he refused to do so;
the Respondent also started picking up quarrels
with him also for no reason.
(c) That due to above reasons, the Respondent
adopted non-co-operative attitude in the house
by not doing or assisting his household work like
cooking and maintaining the home as she had
not to do washing, cleaning etc.
(d) That the Respondent developed habit of going
away to her parents very often without consent
or even telling to him or his mother and
especially when there are quests in the family.
(e) That the Respondent to frustrate the Petitioner,
refused to and in fact failed to take proper care
of the children also.
(f) That all her acts are not enough, the Respondent
stopped keeping warmth and material relations
with the Petitioner and also neglected him in all
aspect of life as if strangers have been staying
under the one roof; since about 12 months past.
(g) That the Petitioner, except his business and
family affairs, has no other activities still the
Respondent for no reason imaging and doubts
his character, after having 3 children and
frustrated him so much that he had to leave
the home and parents and children and
stating away from his own family at the
address given in the title hereto."
(emphasis added)
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5. In Paragraph 8 of the Petition, another ground has been
agitated. The husband addressed a letter through his Advocate on 15 th
November 1997 to the wife calling upon her either to live peaceful life
or to agree for grant of divorce. The allegation in Paragraph 8 of the
Petition is that after receiving the said letter, the wife started
threatening the husband and his parents on telephone that she would
commit suicide after poisoning the children with the object of brining
the husband and his old parents in trouble. Therefore, the husband
sought custody of three children apart from seeking a decree of divorce.
6. A written statement was filed by the wife contending that
she was employed by the husband in his Garment Factory at Malad,
Mumbai, in the year 1980. That is how she came in contact with the
husband. It is stated that they developed a love affair and ultimately
got married on 9th November 1986. It is alleged that till the year 1993,
the parties were residing at Malad in Mumbai. In the year 1994, a flat
was purchased in Saibaba Nagar, Borivali (East) in Mumbai. The
parties started residing in the said flat at Borivali. It is alleged that till
the year 1994, the matrimonial life was smooth. Thereafter, the
behavior of the husband changed considerably. In Clauses (d) to (g) of
Paragraph 2 of her written statement, the wife has stated thus:
"(d) The Petitioner started getting frequent
telephone calls from a lady and he was getting
pleasingly engaged in talk with her for long
durations. The Petitioner was also getting
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phone calls at odd hours at night. On
inquiries, the Petitioner always showered
anger on the Respondent and she was beaten
black and blue.
(e) The Respondent gave birth to son Bhavik on
5.7.1995 at her mother's place. The Petitioner
did not bother to come and see the Respondent
and the newly born baby. The Petitioner even did
not show any interest in taking the Respondent
and child back to the matrimonial home. Finally,
the Respondent returned to the matrimonial
home after a period of more than three months.
The Petitioner was not ready to keep the
Respondent in the house and wanted her to stay
ig at her mother's place. The Respondent resisted
and stayed in the house but the Petitioner's
behaviour went from bad to worse.
(f) The Respondent gathered the knowledge that
the lady who had been telephoning the
Petitioner is one Jyoti Mistry and she was
having affair with the Petitioner. The
Respondent confronted the Petitioner and the
Petitioner did admit that he has having affair
with her and the Respondent could do
whatever she wanted. He also stated that he
had no concern as to how the Respondent
takes it. The Petitioner had become
aggressive and violent on this aspect on the
various occasions. The Petitioner has physically
assaulted the Respondent and she was also
driven out of the house. The Respondent has
been driven out of the house in all for about 8 to
10 times.
(g) The Respondent has also contacted the said
Jyoti Mistry and met her for three to four
times. Said Mrs. Jyoti Mistry is a widow with
one daughter. The Respondent has requested
her not to carry on her affair with the
Petitioner and also stated that how her affair
was breaking her marriage and was also
ruining her children's life. Said Jyoti Mistry
told her that it was the Petitioner who was
running after her and she was not to be
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blamed at all. The Respondent's all requests
went vain. The situation and the Petitioner's
behaviour and conduct did not change."
(emphasis added)
7. Before we deal with the subsequent part of the written
statement, it will be necessary to make a reference to what has
transpired during the pendency of the Petition filed by the husband.
On 12th May 1998, the husband and wife signed consent terms before
the Marriage Counsellor of the Family Court. In the consent terms, they
recorded that though they are residing under the same roof, that they
are separated from December 1996. In the consent terms, it was
recorded that the parties have agreed to take divorce by mutual
consent. In fact, on the basis of the said consent terms, an Application
was filed on 12th May 1998 jointly by both the parties for converting the
pending Petition into a Petition under Section 13B of the said Act.
However, by an Application dated 14 th August 1998 at Exhibit-7, the
wife stated that she was not desirous of agreeing divorce by mutual
consent and therefore, she was desirous of contesting the Petition. She,
therefore, sought legal aid which was granted to her. However, the
written statement was not filed by wife. Therefore, the Petition
proceeded ex parte and on 25 th October 1999, an ex parte decree of
divorce was passed by the Family Court, Bandra, Mumbai. On 23 rd
August 2001, a Misc. Application was filed by the wife for setting aside
the ex parte decree of divorce. It was stated in the said Application that
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on 27th August 1998, the husband took the wife in confidence and had
physical relationship with her. The husband expressed desire to settle
the matter. Accordingly, on 30th August 1998 at 4.00 p.m, there was a
meeting which was attended by the husband's two brothers and mother.
In the said meeting, the parties agreed to reconcile and stay together at
the place of residence at Malad in Mumbai. The husband agreed to
withdraw the Petition filed by him. Accordingly, from 31 st August 1998,
the parties started residing together at Malad residence. It is alleged by
the wife that on 16th September 1998, the husband informed her that he
had withdrawn the Petition for divorce. That is the reason why the wife
did not attend the proceedings. It is alleged by the wife that on
Saturday the 30th June 2001, she learnt that the husband had brought
one woman in the house. The wife alleged that on 13 th July 2001, the
husband revealed that he has married to the said woman. Thereafter,
the wife made inquiry in the Family Court and found that on 25 th
October 1999, an ex parte decree of divorce was passed.
8. A reply was filed by the husband to the said Application for
setting aside the ex parte decree. In the reply, he contended that after
the ex parte decree was passed on 25th October 1999, he got married on
23rd June 2001. By an order dated 9th September 2004, the learned
Judge of the Family Court allowed the Misc. Application filed by the
wife and proceeded to set aside the ex parte decree. The learned Judge
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of the Family Court accepted the case of the wife that due to the
settlement, the husband had assured the wife to withdraw the Petition.
The learned Judge of the Family Court observed that the husband
obtained the ex parte decree fraudulently. The said order setting aside
the ex parte decree has become final.
9. Coming back to the written statement of the wife, she has
narrated as to how the settlement took place on 30 th August 1998. She
has reiterated that on 16th September 1998, the husband informed her
that he had withdrawn the Petition for divorce. In the written
statement, it was contended that the income of the husband from his
business is not less than Rs.5 lakhs per month and he is leading a very
high lifestyle. She alleged that she has no source of income. She stated
that the sons Hemal and Bhavik were staying in a Boarding School at
Panchgani. She stated that she requires a sum of Rs.60,000/- per
month for maintenance of the three children who were minors. She
claimed that she is entitled to the maintenance of Rs.30,000/- per
month.
10. The husband examined himself by filing his affidavit-in-lieu
of examination-in-chief. He was cross-examined by the Advocate for
the wife. The affidavit-in-lieu of the examination-in-chief was filed by
the wife who was cross-examined by the Advocate for the husband. No
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other witnesses were examined by the parties. We may note here that
on an Application being made by the wife, an interim order was passed
on 3rd March 2006 by the learned Judge of the Family Court directing
that the maintenance of Rs.3,000/- per month shall be paid to the wife
and the maintenance of Rs.2,000/- per month each shall be paid to the
three children.
11. The learned counsel appearing for the Applicant has taken
us through the pleadings, notes of evidence and the record. He pointed
out that there was no basis for the finding recorded by the learned
Judge of the Family Court that the cruelty was not proved. He urged
that the finding of the learned Judge that the cruelty alleged was a
mere wear and tear of married life is completely erroneous as the
specific instances of cruelty were set out and proved. He submitted that
after the ex parte decree was passed, the husband has admittedly
remarried. He pointed out that notwithstanding this fact and the fact
that there was a gross delay in filing an Application for setting aside the
ex parte decree, the Family Court proceeded to set aside the ex parte
decree. His submission is that the ex parte decree ought not to have
been set aside. He submitted that the marriage between the husband
and wife has irretrievably broken down which cannot be revived. He
urged that now no purpose would be served by saving the marriage
and, therefore, the Court ought to pass a decree of divorce. Reliance
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was placed on a decision of the Andhra Pradesh High Court in the case
of Lokeshwari (Dr.) v. Srinivasa Rao (Dr.) 1. He urged that there was
no reason to grant maintenance at the rate of Rs.5,000/- per month to
the two children who have not attained the majority. He urged that as
the husband has taken care of the children, the decree of maintenance
was not warranted. The learned counsel appearing for the wife
submitted that the finding recorded against the husband on an
Application for setting aside the ex parte decree has attained finality.
He urged that now the said order cannot be assailed. He submitted that
even going by the averments made in the Petition for divorce, no case of
cruelty was made out. He submitted that the husband has a very large
income and therefore, there was no reason to deny maintenance to the
children as prayed. He submitted that there was no reason to deny
maintenance to the wife.
12. We may note here that even during the pendency of the
Appeals, there were some efforts made to bring about amicable
settlement. However, all efforts failed. We were hopeful that after the
conclusion of submissions, the parties will rethink and come to the
terms. However, notwithstanding the grant of longer time, the parties
have not settled their dispute and therefore, we have no option but to
decide the Appeals on merits by pronouncing the Judgment.
1 2000 AIR (A.P.) 451
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13. As stated earlier, the ex parte decree was passed on 25 th
October 1999 which was set aside by the learned Judge of the Family
Court by detailed judgment and order dated 9 th September 2004. In
Paragraphs 8 and 9 of the said judgment and order dated 9 th September
2004, the learned Judge of the Family Court has observed thus:
"8. It is the case of the Petitioner that on
27.8.1998 the Respondent took the
Petitioner in confidence and he desired to
settle the matter. In the presence of the
brothers and mother of the petitioner, the
matter was settled. The Respondent put a
condition that the Petitioner, who was
staying at Borivli house with her children
and in laws, should stay with him at Malad,
where the Respondent was staying at that
particular time. The said version of the
petitioner has not been challenged in her
cross-examination. The address mentioned in
the Petition A-59/1998 confirms the place of
residence of the parties during that period. The
Petitioner further submits that a meeting
was held on 30.8.1998 as decided by the
parties and the Respondent agreed to
withdraw the Petition No.A-59/1998 and the
matter was settled. Thereafter the Petitioner
and the Respondent started residing at their
Malad residence. The said version of the
Petitioner has not been shaken in the cross-
examination. The brother of the Petitioner has
supported the said version of the Petitioner and
the same has remained unshattered.
9. The Respondent has not stepped into a witness
box to substantiate his case. The case of the
Petitioner that as the Respondent assured
her that he would withdraw the case, she did
not attend the Court on his promise and
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therefore, the matter proceeded exparte
[without written statement]; appears to be
true. The Respondent thereafter married
with some other lady. However, this fact
would not protect him to proceed against
him. The Respondent has not approached
this Court with clean hands and he had
obtained the decree without written
statement fraudulently."
(emphasis added)
14. The said judgment and order dated 9th September 2004
was never challenged by the husband. It cannot be said that the said
judgment and order is an interim order or interlocutory order passed in
the main divorce petition. Therefore, the same cannot be assailed by
the husband in the Family Court Appeal preferred by him by taking
recourse to Section 105 of the Code of Civil Procedure, 1908.
Moreover, his conduct shows that he accepted the said order. He
appeared before the Family Court on 7 th October 2004 after the ex parte
decree was set aside. Thereafter, the written statement of the wife was
taken on record and an Application for maintenance was filed by the
wife which was decided on merits after a contest. The affidavit-in-lieu
of the examination-in-chief was filed by the husband and he subjected
himself to the cross-examination. Therefore, it is not permissible for the
husband now to assail the said order. Therefore, he cannot claim any
advantage or equity on the basis of the fact that he married to a lady "A"
after the ex parte decree of divorce was passed. There is an observation
made by the learned Judge of the Family Court in Paragraph 36 of the
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impugned judgment and decree that deciding the Miscellaneous
Application for setting aside the ex parte decree on affidavits is
completely superfluous. The said observation is totally uncalled for.
The Paragraph 6 of the judgment and order dated 9 th September 2004
specifically records that the wife examined herself as well as her brother
and husband did not examine himself or any other witness on his
behalf. In Paragraph 8 of the said judgment and order dated 9 th
September 2004, there is a specific observation that the wife's version
has not been shaken in the cross-examination. Therefore, it appears
that the wife and her witness were allowed to be cross-examined in the
said Application. Moreover, there is a concluded finding against the
husband that he obtained a decree of divorce by practising fraud.
15. As far as the grounds of cruelty are concerned, we have
already quoted the specific grounds set out in Clauses (a) to (g) of
paragraph 5 of the Petition filed by the husband. The allegations in
Clauses (a) to (f) are of very general nature and are very vague. Even if
the said allegations are taken as correct, at highest, they will constitute
a normal wear and tear of matrimonial life. As regards the allegation
that the wife was suspecting the character of her husband by alleging
that a particular woman used to frequently talk to the husband on
phone, it is an admitted position that the husband married to the same
lady after the decree of divorce was initially passed. Therefore, it
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cannot be said that the said allegation made by the wife was an
unsubstantiated allegation.
16. We have perused the affidavit-in-lieu of the examination-in-
chief of the husband. Apart from reiterating the allegations which we
have quoted above, he has reiterated the allegation made in Paragraph
8 of the Petition that after receiving a letter dated 15 th November 1997,
the wife has been threatening to commit suicide and administer poison
to the children. In Paragraph 8 of the Petition, the specific allegation is
that she has been threatening him and his parents on telephone. The
relevant portion of Paragraph 8 reads thus:
"8. The Petitioner submits that after receiving the
letter at Exhibit "B", the Respondent has been
threatening him on telephone and to his parents
that she shall put the Petitioner and his old parents
in trouble by committing suicide and poisoning the
children. The Petitioner submits that his father
normally remains out of the home and the Respondent,
children and his old mother are in the house during the
day. The Petitioner, therefore, apprehends that as the
counter blast to the said letter at Exhibit "B" to the
present Petition, the Respondent is likely to put them
in trouble by putting her said threat in realty."
(emphasis added)
17. The husband did not examine the parents in support of this
allegation. Moreover, it is alleged that the said threats were
administered by the wife after receiving the letter dated 15 th November
sng 16 fca-66n136.08
1997. The husband did not file any police complaint. He did not serve
any further notice through the Advocate through whom the letter dated
15th November 1997 was sent.
18. Therefore, apart from the conduct of the husband of
obtaining ex-parte decree fraudulently, it is impossible to record a
finding that any act of cruelty on the part of the wife was established by
the husband.
19. It is true that going by the evidence of the husband and
wife, there appears to be an irretrievable break down of the marriage.
The law is well settled. Unless one of the statutory grounds for divorce
set out in Section 13 of the said Act is established, a decree of divorce
cannot be passed by the Family Court or this Court. Clause (a) of Sub-
section (1) of Section 23 of the said Act lays down the same principle.
As stated earlier, remarriage of the husband will not give any advantage
to him considering the finding recorded by the learned Judge of the
Family Court. Therefore, it is not possible to pass a decree on the
ground of cruelty which is the only ground pleaded by the husband.
20. As far as the maintenance under Section 25 of the said Act
is concerned, the law is very well settled. In view of the decision of the
Apex Court in the case of Chand Dhavan v. Jawaharlal Dhavan 2,
2 (1993)3 SCC 406
sng 17 fca-66n136.08
unless a decree of divorce is passed, the matrimonial Court has no
jurisdiction to grant relief under Section 25 of the said Act. Therefore,
as we are confirming the decree rejecting the prayer for divorce, the
wife cannot be granted permanent alimony. But, a liberty will have to
be granted to the wife to take out appropriate proceedings for grant of
maintenance.
21. In the case of Chand Dhavan v. Jawaharlal Dhavan, the
Apex Court interpreted Sub-section (1) of Section 25 of the said Act
which gives power to the Court exercising jurisdiction under the said
Act to pass an order of permanent alimony and maintenance at the time
of passing any decree or at any time subsequent thereto. The Apex
Court interpreted the words "any decree" to mean a decree of nullity, a
decree of restitution of conjugal rights, a decree of judicial separation or
a decree of divorce. The Apex Court held that a decree of dismissal of
Petition seeking aforesaid reliefs will not be "any decree" within the
meaning of Sub-section (1) of Section 25 of the said Act. There is a
difference between the phraseology used in Sections 25 and 26 of the
said Act. Sub-section (1) of Section 25 of the said Act reads thus:
"25 Permanent alimony and maintenance .
(1) Any court exercising jurisdiction under this Act may, at the
time of passing any decree or at any time subsequent
thereto, on application made to it for the purpose by either
the wife or the husband, as the case may be, order that the
respondent shall 55 [***] pay to the applicant for her or his
maintenance and support such gross sum or such monthly
or periodical sum for a term not exceeding the life of the
sng 18 fca-66n136.08
applicant as, having regard to the respondent's own income
and other property, if any, the income and other property
of the applicant 56 [, the conduct of the parties and other
circumstances of the case], it may seem to the court to be
just, and any such payment may be secured, if necessary,
by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the
circumstances of either party at any time after it has made
an order under sub-section (1), it may at the instance of
either party, vary, modify or rescind any such order in such
manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an
order has been made under this section has re-married or,
if such party is the wife, that she has not remained chaste,
or, if such party is the husband, that he has had sexual
intercourse with any woman outside wedlock, 57 [it may at
the instance of the other party vary, modify or rescind any
such order in such manner as the court may deem just]."
(underline supplied)
Section 26 of the said Act reads thus:
"26 Custody of children. In any proceeding under this Act, the
court may, from time to time, pass such interim orders and make
such provisions in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible, and
may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions
with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim
orders in case the proceeding for obtaining such decree were still
pending, and the court may also from time to time revoke,
suspend or vary any such orders and provisions previously made:
58 [Provided that the application with respect to the maintenance
and education of the minor children, pending the proceeding for
obtaining such decree, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the
respondent.]"
(underline supplied)
sng 19 fca-66n136.08
22. The phraseology used in Section 26 of the said Act is very
wide. It confers power on the matrimonial Court to make such
provisions in the decree passed in the proceedings under the said Act as
it may deem just and proper for maintenance and education of minor
children. Thus, the power under Section 26 can be exercised by making
a provision in decree even if there is no decree passed of nullity,
restitution of conjugal rights, judicial separation or divorce. Therefore,
the law laid down by the Apex Court in the case of Chand Dhavan v.
Jawaharlal Dhavan will not be applicable when the matrimonial Court
exercises a power under Section 26. Section 26 provides for making a
provision in a decree passed in proceedings under the said Act for
payment of maintenance and education expenses of minor children
irrespective of the nature of the decree. The reason is when a
matrimonial dispute is filed, a provision has to be made for
maintenance and education of the children during the pendency and at
the time of conclusion of the proceedings under the said Act so that the
children should not suffer. In fact, the children are the worst victims of
the matrimonial dispute of their parents. Under Section 25, as far as
spouses are concerned, the power to grant permanent alimony can be
exercised only when the Court passes a decree of the nature specified in
the said Act.
sng 20 fca-66n136.08
23. In the case in hand, the decree of maintenance has been
passed under Section 26 of the said Act in relation to a minor daughter
Hemisha and the minor son Bhavik. Both of them have not attained the
majority. Both of them are taking education in a Boarding School at
Panchgani near Mahabaleshwar. The wife claimed that the school fees
of daughter Hemisha are Rs.65,000/- per annum and the school fees of
the son Bhavik are Rs.75,000/- per annum. She claimed monthly
expenses of Rs.20,000/- per month each for the daughter and son.
24. In the affidavit-in-lieu of the examination-in-chief, the
husband has not come out with the figures of his income for the
relevant period. He has not produced any document in that behalf. He
has stated that his income from all sources is less than the taxable limit.
He stated that he is possessing only one immovable property which is a
residential flat at Goregaon in Mumbai. He claimed that he had one
gala in Anand Shopping Centre at Malad, Mumbai. He claimed that he
has disposed of the same as his business was running into losses. He
claimed that he is earning the income by assisting his father. He
claimed that sometimes, he got brokerage. In the cross-examination, he
claimed that the daughter has completed her school education at
Panchgani who is staying with the wife and son Bhavik is staying in the
Boarding School at Panchgani. In the cross-examination, he admitted
that he had a Garment Factory at Malad in Mumbai. He denied the
sng 21 fca-66n136.08
correctness of the suggestion given to him in the cross-examination that
he had two showrooms at Malad. He admitted that he had two factories
at that time which have been sold. He denied the correctness of the
suggestion that he was the owner of four flats. He stated that he had a
Maruti Car and a two-wheeler which are sold subsequently.
25. The wife in her examination-in-chief stated that her
daughter was studying in 12th Std. in the Boarding School at Panchgani
and her son Bhavik was studying in the Boarding School at Panchgani.
She relied upon receipts produced by her. In the cross-examination, she
claimed that she used to pay Rs.25,000/- per month for both the
children. In the cross-examination, she admitted that she was carrying
on business of beautician. She claimed that she was earning Rs.1,500/-
to 2,000/- per month from her business.
26. We find from the evidence and the documents on record
that both the husband and wife have not produced any document for
showing their respective income though both of them have admitted
that they have an income. The wife produced certain receipts issued by
Triveni Hostel at Panchgani on account of certain amounts allegedly
paid by her on account of son Bhavik. She produced certain receipts
issued by the Sweet Memorial School of the amounts paid by her on
account of her son and daughter. However, no attempt is made to prove
sng 22 fca-66n136.08
the documents by examining appropriate witnesses from the school and
hostel. Atleast on two receipts, the date is kept blank. The said receipts
are in the sum of Rs.9,500/- each. No attempt is made by the wife to
procure any certificate from the school authorities regarding
expenditure incurred by her on the children. During the pendency of
the Petition, there was an interim order passed by the Family Court
directing the husband to pay maintenance of Rs.2,000/- each to the
three children and Rs.3,000/- to the wife. The said amount was made
payable from 3rd March 2006 which is the date on which the Application
was made by the wife for seeking maintenance. The wife is running a
business as a beautician. Therefore, she has also to contribute to the
expenditure incurred on education and maintenance of the children.
Admittedly, the elder son is being taken care of by the parents of the
husband. Therefore, it is very difficult to find fault with the
quantification of the amount made payable by the husband towards
maintenance of the children on the date of the impugned decree. In the
event, after the decree, the expenditure on education of the children
and cost of maintenance has increased, the wife can always seek second
part of Section 26 of the said Act and apply for variation of the decree
of maintenance and education expenses passed for the benefit of the
two children.
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27. As we are confirming the decree of dismissal of the prayer
for divorce, the wife is entitled to costs in the Appeal preferred by the
husband. The cost amount is quantified at Rs.25,000/-.
28. Accordingly, we pass the following order:
ORDER :
(a) That part of the decree by which the prayer for grant
of divorce was dismissed is hereby confirmed;
(b) Family Court Appeal No.66 of 2008 is dismissed;
(c) Family Court Appeal No.136 of 2008 is hereby
dismissed with no order as to costs;
(d) We grant liberty to the wife and the children to take
out appropriate proceedings in accordance with law
for grant of maintenance, and/or other reliefs as
observed in the judgment. If such proceedings are
taken out, the same shall be decided on its own
merits;
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(e) As the husband has failed to substantiate his case for
passing a decree of divorce, we direct the husband to
pay cost of Family Court Appeal No.66 of 2008 to the
wife quantified at Rs.25,000/-;
(f) Costs shall be paid or deposited by the husband
within a period of two months from today;
(g) Pending Civil Applications do not survive and the
same are disposed of.
( P.D. NAIK, J ) ( A.S. OKA, J )
