Sudhakar Namdeorao Yawale vs Sau Sunita Sudhakar Yawale
2017 Latest Caselaw 3909 Bom

 0107FCA177.14-Judgment                                                                       1/25


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


                 FAMILY COURT APPEAL  NO. 177   OF    2014


 APPELLANT :-                         Sudhakar   Namdeorao     Yawale,   Aged  42
 (Org.Res.onR.A.)                     years,   Occ.   Contractor   &   Builder,   R/o   C/o
                                      Sahebrao   Kandalkar,   Near   House   of   Suhas
                                      Gonge, Rahatgaon Tq. & Distt. Amravati. 

                                         ...VERSUS... 

 RESPONDENT :-                        Sau.Sanita Sudhakar Yawale, Aged 39 years,
 (Ori.Pet.on R.A.)                    occ:   Household,   R/o   C/o   Dilip   Uttamrao
                                      Ghatol   Old   Saturna,   Sai   Nagar   Road,
                                      Amravati, Tq.& Distt. Amravati. 


 ---------------------------------------------------------------------------------------------------
                   Mr. Pravin Agrawal, counsel for the appellant. 
                 Mrs.P.M.Chandekar, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    ARUN  D. UPADHYE
                                                                     ,   JJ.

DATED : 01-03.07.2017

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

By this family court appeal, the appellant-husband challenges

the judgment of the Family Court, Amravati, dated 20/09/2011

allowing a petition filed by the respondent-wife under section 18 of the

Hindu Adoptions and Maintenance Act and directing the appellant to

pay a sum of Rs.10,00,000/- to the wife for her residence, a sum of

0107FCA177.14-Judgment 2/25

Rs.7,500/- per month as maintenance and enhanced maintenance

every year at the rate of 8% on the awarded amount so as to avoid

multiplicity of proceedings in future.

2. Few facts giving rise to the family court appeal are stated

thus :-

The appellant-husband and the respondent-wife were

married at Amravati on 30/07/1994 as per the Hindu rights and

customs. The parties have no issue from the wedlock. The parties were

residing together at Amravati till the year 2007 and are staying

separately since then. It is pleaded by the wife in the petition filed by

her for maintenance under section 18 of the Hindu Adoptions and

Maintenance Act that the wife was harassed by the husband both

mentally and physically. It is pleaded that the husband used to tell the

wife that the marriage should be dissolved so that he could remarry. It

is pleaded that the husband used to threaten her that he would kill her

if she did not agree for his remarriage. It is pleaded that the husband

tried to burn her by throwing a burning towel, on her. It is pleaded that

on 30/06/2008 the husband fought with the wife for trifle reason and

left the residential house along with the mother, leaving her alone in

the house. It is pleaded that from that day, the husband started residing

separately. It is pleaded that proceedings were filed by the wife for

0107FCA177.14-Judgment 3/25

restitution of conjugal rights and in those proceedings, the husband had

informed the court that he wanted to sell his flat and therefore the wife

should reside with him where he was residing with his mother. It is

pleaded that the family court had directed the husband to pay a sum of

Rs.2,00,000/- to the wife as security before passing the order of

restitution of conjugal rights. It is pleaded that when the wife went to

reside with the husband in his house, she found some other woman in

his house, who behaved rudely with her and informed her that she was

the wife of Sudhakar Yawale, i.e., her husband. It is pleaded that the

husband is working as a builder and has constructed some flat schemes.

It is pleaded that he is in possession of two agricultural fields bearing

survey No.23, admeasuring 1.77 HR and survey No.21, admeasuring

1.01 HR. It is pleaded that the husband is earning more than

Rs.50,000/- per month. It is pleaded that since the wife is legally

wedded to the husband, she would require a sum of Rs.10,00,000/-. On

the aforesaid pleadings, the wife sought a decree for grant of lump-sum

maintenance amount of Rs.10,00,000/- for her residential

accommodation, medical treatment and her livelihood. The wife further

sought monthly maintenance of Rs.10,000/- for maintaining herself.

3. The husband filed the written statement and denied the

claim of the wife. The husband denied all the adverse allegations that

0107FCA177.14-Judgment 4/25

were levelled by the wife against him in regard to his behaviour. The

husband admitted that the court had ordered that he should pay a sum

of Rs.2,00,000/- to the wife for her accommodation and that he had

paid the same to her. The husband pleaded that due to the illegal

demand of Rs.2,00,000/- by the wife, he was required to sell the flat.

The husband denied that the wife was living at the mercy of her

brother. It is pleaded by the husband that the wife was running tuition

classes and was also working as a LIC agent and was earning a sum of

Rs.8,000/- to Rs.10,000/- per month for her livelihood. The husband

denied that two field properties were owned by him and that he was

earning a sum of Rs.50,000/- per month from his business and his

properties. The husband denied that flat schemes were being

constructed by him. The husband pleaded that he was a diploma holder

and was working with an engineer, Sanjay Sune. The husband denied

the claim of the wife for a sum of Rs.10,00,000/-. The husband pleaded

that the wife was not willing to reside in the joint family and since the

husband was the only son of his old aged parents, who were bedridden,

the parties could not pull on together. The husband sought for the

dismissal of the petition filed by the wife with costs of Rs.10,000/-.

4. In support of her claim, the wife tendered her evidence on

affidavit. The wife stated in her evidence on affidavit that a direction

0107FCA177.14-Judgment 5/25

be issued against the husband to pay a sum of Rs.10,00,000/- to her in

lump-sum towards full and final settlement for her future needs. The

wife was cross-examined on behalf of the husband. The wife admitted

in her cross-examination that apart from the said proceedings, she had

also filed proceedings under the provisions of the Protection of Women

From Domestic Violence Act and had claimed a sum of Rs.15,000/- per

month towards maintenance. The wife stated in her cross-examination

that the husband pays the income tax and when the income tax returns

of the husband for the year 2007-2010 were brought to the notice of the

wife, the wife stated that she was not aware of the said returns and the

contents thereof. The wife admitted that she was previously working in

Savitribai Fule Vidyalaya. The wife however denied the suggestion that

she had left her job on her volition. The wife denied the suggestion that

the police did not take the cognizance of her complaint dated

03/06/2009 as it was false. The wife admitted that the husband had

purchased the flat in which the parties were residing by taking loan.

The wife further admitted that they had received notices as the loan

could not be repaid. The wife stated that the loan was not repaid as the

wife was residing in the flat. The wife stated that she has a doubt that

her husband has illegally entered into a marriage with the woman with

whom he was residing. The wife admitted that she had not lodged any

report against the husband in this regard. When a question was posed

0107FCA177.14-Judgment 6/25

to the wife that she had not filed any documents to show that the

husband earns a sum of Rs.40,000/- to Rs.50,000/- per month as he

does not earn that amount, the court prevented the counsel for the

husband from posing that question. The wife denied the suggestion

that she was taking tuition classes, was working as a LIC agent and that

she was earning a sum of Rs.8,000/- to Rs.10,000/- per month for her

livelihood. The wife denied the suggestion that the husband was

earning a sum of Rs.3,000/- to Rs.4,000/- per month. The wife denied

the suggestion that false documents were filed to show that the

husband was in the construction business.

5. The husband entered into the witness box and reiterated the

facts pleaded by him in his evidence on affidavit and prayed for the

dismissal of the petition filed by the wife by claiming that the wife earns

a sum of Rs.8,000/- to Rs.10,000/- per month for her livelihood. In his

cross-examination, the husband admitted that he was paying income tax

and that he had filed the returns for the assessment year 2007-2010.

The husband admitted that when he left the matrimonial home on

30/06/2008, the husband, the wife and his mother were residing in

Swapna-Shilpa Apartment. The husband stated that he was compelled

to leave the house along with his mother. The husband admitted that

there was a meeting between the parties after 7 to 8 days from the

0107FCA177.14-Judgment 7/25

separation. The husband admitted in his cross-examination that he had

sold the flat in which the parties were residing. The husband denied the

suggestion that after selling the flat, he had taken two houses on rent.

The husband admitted that he had taken a house on rent for the wife

after the parties separated, but it was not true that in the said house,

the entry of a cupboard was not possible. The husband admitted that he

had taken one house on rent in Keval Nagar. He stated that it was

taken on rent as he was residing with his mother. He further stated that

a helper woman was also residing along with his mother in the said

house. The husband denied that his mother was residing in Chaitanya

Colony. The husband stated that the helper woman was his cousin

sister and she has a son. The husband stated that he was not aware

whether the helper woman was pregnant. The husband stated that he

has no information about the personal life of the wife after the

separation. The husband denied that Mukta Associates was his firm and

that he was working as a consulting engineer. The husband stated that

he was working with an engineer as his helper. The husband denied

that he is the owner of two fields but admitted that his father owns a

house in Salora (Khurd). The husband denied that the wife always

wanted to reside with him but he had refused to stay with her. The

husband admitted that proceedings were filed by the wife against him

for the offences punishable under section 498-A and section 494 of the

0107FCA177.14-Judgment 8/25

Penal Code. The husband admitted that the wife does not have a house

for her residence. The husband denied that the wife does not have any

source of income other than the maintenance amount. The husband

denied the suggestion that his monthly income was Rs.40,000/- to

Rs.50,000/-. The husband also denied that he could pay a sum of

Rs.10,00,000/- to the wife towards maintenance. On an appreciation of

the evidence on record, the family court allowed the petition filed by

the wife and directed the husband to pay Rs.10,00,000/- to the wife for

her residence and Rs.7,500/- per month towards maintenance. The said

judgment is challented in this family court appeal.

6. Shri Agrawal, the learned counsel for the husband, submitted

that the family court was not justified in directing the husband to pay a

sum of Rs.10,00,000/- to the wife for residential accommodation in the

proceedings filed by her under Section 18 of the Hindu Adoptions and

Maintenance Act. It is submitted that the family court was also not

justified in directing the husband to enhance the monthly maintenance

by 8% at the end of every year commencing from 1 st of September. It is

submitted that the part of the order of the family court that directs the

payment of the amount of Rs.10,00,000/- in lump-sum for making the

provision for the accommodation for the wife and the issuance of the

direction to pay 8% more amount every year towards maintenance is

0107FCA177.14-Judgment 9/25

clearly illegal. It is submitted that after the Court decides the petition

under Section 18 of the Hindu Adoptions and Maintenance Act, the

parties have a right to approach the Court in future, for modification of

the order granting maintenance, as per the change in circumstances. It

is submitted that in view of the provisions of Section 25 of the Act, a

party to the proceedings is entitled to approach the Court that fixes the

amount of maintenance to alter the maintenance at a subsequent stage,

if there is a material change in the circumstances justifying the

alteration. It is submitted that without considering the provisions of

Section 25 of the Act to which the parties could have resorted to, for

modification of the decree granting maintenance under Section 18 of

the Act, the family court illegally directed the husband to pay an

amount which is 8% more than the amount that is paid, during the

previous year. It is stated that in a given case, it could be possible that

the husband's income could be diminished at a subsequent stage

because of a number of factors and a husband could file an application

under Section 25 of the Act for reducing the amount of maintenance

that was directed to be paid in the proceedings under Section 18 of the

Act by filing an application under Section 25 of the same. It is

submitted that the part of the order of the family court directing the

husband to pay additional maintenance every year is bad in law. It is

submitted that the family court could not have granted a sum of

0107FCA177.14-Judgment 10/25

Rs.10,00,000/- to the wife for her accommodation as the husband had

already paid a sum of Rs.2,00,000/- to her for securing an

accommodation in the proceedings filed by the wife. It is submitted

that the family court should have considered the needs of the wife and

the capacity of the husband to pay maintenance and should have then

determined the amount that is liable to be paid to the wife towards

monthly maintenance. It is submitted that the judgment of the family

court is totally one sided and the family court has not considered the

case of the husband at all. It is submitted that even the Income Tax

returns that are produced by the husband on record are disbelieved by

the family court and the family court has wrongfully observed that the

returns filed by the husband are false. It is stated that such

observations could not have been made by the family court in the

proceedings between the parties for grant of maintenance as it would be

for the Income Tax authorities to consider whether the returns filed by

the assessee are true or false.

7. Mrs. Chandekar, the learned counsel for the Wife, has

supported the order of the family court. It is submitted that the family

court has rightly directed the husband to pay a sum of Rs.10,00,000/-

to the wife for her accommodation. It is submitted that the husband

had sold the flat in which the parties were residing and, hence, with a

0107FCA177.14-Judgment 11/25

view to make a provision for the residence of the wife, the family court

has rightly directed the husband to pay a sum of Rs.10,00,000/- to her.

The learned counsel relied on the judgment reported in 2011 (6)

Mh.L.J. 280 (Sanjeev v. Meghna) to substantiate her submission that

an amount of Rs.10,00,000/- could have been directed to be paid to the

wife in the proceedings filed by the wife under Section 18 of the Act. It

is submitted that there is nothing wrong with the part of the order of

the family court that directs the payment of additional amount of 8%

every year as monthly maintenance, considering the rise in the prices of

the commodities. The learned counsel submitted that the husband was

a builder and developer and there is ample material on record in

support of his business activities. It is submitted that in the

circumstances of the case, the family court appeal is liable to be

dismissed.

8. On hearing the learned counsel for the parties and on a

perusal of the original Record & Proceedings, it appears that the

following points arise for determination in this family court appeal :-

(I) Whether the family court was justified in directing the husband to pay a sum of Rs.10,00,000/- to the wife for accommodation?

(II) Whether the family court was justified in directing the

0107FCA177.14-Judgment 12/25

husband to pay enhanced maintenance to the wife by 8% every year?

(III) What order?

To consider the aforesaid points for determination, it would

be necessary to consider the pleadings of the parties and the evidence

tendered by them. We have narrated the pleadings of the parties in the

earlier part of the judgment. The wife had tendered the evidence on

affidavit in support of her case. The wife was cross-examined on behalf

of the husband. In her evidence on affidavit, the wife has reiterated the

facts pleaded by her in the petition filed under Section 18 of the Act. In

her cross-examination, the wife admitted that she had filed proceedings

against the husband for grant of maintenance under Section 125 of the

Code of Criminal Procedure and the provisions of the Protection of

Women from Domestic Violence Act. The wife admitted that the

husband had paid a sum of Rs.2,00,000/- to her during the pendency of

the proceedings under the provisions of the Act of 2005. The wife

admitted that she had placed the said amount in a fixed deposit account

in the post office. The wife admitted that she had claimed an amount of

Rs.15,000/- towards the maintenance in the proceedings filed by her

under the provisions of the Act of 2005. A wife admitted that the

husband was paying income tax. The wife, however, stated that she

was not aware of the income tax returns for the year 2007-08 to 2009-

0107FCA177.14-Judgment 13/25

10, which was brought to her notice at the time of the cross-

examination. The wife admitted that she was serving in Savitribai Fule

Vidyalaya but, she had left the job. The wife admitted that the husband

had purchased the flat by securing a loan. The wife admitted that since

the husband had not repaid the loan, he had received notices from the

concerned Bank. The wife stated that it was correct to say that the wife

has a doubt that the husband had married a woman and that he was

residing with her. The wife stated that she had not tendered any

document on record to show that the monthly income of the husband is

Rs.40,000/- to Rs.50,000/-. When a query was posed to the wife that

she could not produce the documents in support of her claim that the

income of the husband was Rs.40,000/- to Rs.50,000/- per month as he

was not earning the said amount, the family court did not permit the

said question. The family court observed while rejecting the question of

the husband that it was not possible for the wife to possess the

documents pertaining to the business income of the husband. The wife

denied the suggestion that she falsely stated that the monthly income of

the husband is Rs.40,000/- to Rs.50,000/-. The wife denied that she

was working as a L.I.C. agent and was also conducting classes and her

monthly income was Rs.8,000/- to Rs.10,000/-. The wife denied that

she had filed a false case against the husband.

0107FCA177.14-Judgment 14/25

9. The husband tendered his evidence on affidavit and

reiterated the statements pleaded by him in his written statement. The

husband was cross-examined on behalf of the wife. The husband

admitted in his cross-examination that he was paying income-tax and

that he had filed the returns on record. The husband admitted that he,

his mother and the wife were residing together in Swapna-Shilpa

Apartment before he left the house along with his mother and started

residing separately from 30/06/2008. The husband stated that he was

compelled to leave the matrimonial home and therefore he had left the

same. The husband admitted that the flat in Swapna-Shilpa Apartment

was sold by him. The husband however denied that he took two houses

on rent after the flat was sold. The husband admitted that he took a

house on rent in Kewal Nagar. The husband admitted that he was

residing with his mother and a woman was residing along with the

mother to take care of her as his mother was more than 70 years of age

and was ill. The husband admitted that in the documents marked as

articles the phone number of the husband finds place. It is stated by the

husband that in the documents at articles 'C, D, E and F' his name and

his phone number finds place, as he is concerned with the marketing of

the said flats. The husband denied that he was building the said

apartment in partnership. The husband admitted that he had signed on

the receipts acknowledging the amount received from the customers but

0107FCA177.14-Judgment 15/25

not as a builder and promoter. The husband denied the suggestion that

the wife did not have a source of income other than the amount that

she received towards maintenance. The husband denied that the wife

had left the job, in view of his request. The husband denied that he was

a builder-cum-developer and his monthly income was Rs.40,000/- to

Rs.50,000/-. The husband denied that he could pay a sum of

Rs.10,00,000/- to the wife towards maintenance in lump-sum.

10. On a reading of the evidence of the parties and on a perusal

of the documents produced by the parties on record, it appears that the

family court was not justified in directing the husband to pay a sum of

Rs.10,00,000/- to the wife for her accommodation. The wife had filed

proceedings against the husband under the provisions of the Protection

of Women From Domestic Violence Act and for restitution of conjugal

rights. In those proceedings, the husband had paid a sum of

Rs.2,00,000/- to the wife as the husband desired to sell the flat in

Swapna-Shilpa Apartment, where the wife was residing after the

husband and his mother had left the place. It is an admitted position

that the flat in Swapna-Shilpa Apartment was purchased by the

husband by securing loan from the bank. The said fact is clearly

admitted by the wife in her cross-examination. The wife has further

admitted in her cross-examination that the husband was receiving

0107FCA177.14-Judgment 16/25

demand notices from the bank as he could not repay the loan secured

by him for the purchase of the said flat. It is also brought on record that

the husband received the consideration of Rs.9,50,000/- after selling

the flat in Swapna-Shilpa Apartment. The said flat was sold as the

installments could not be paid by the husband. If that is so, it is difficult

to gauge as to how the family court could have directed the husband to

pay a sum of Rs.10,00,000/- to the wife only for her accommodation,

specially when the flat sold by the husband did not fetch the said

amount. Also, the husband had to repay the loan secured by him from

the bank after the sale of the said flat. It is necessary to note that

though in the petition filed by the wife under section 18 of the Act, the

wife has sought a sum of Rs.10,00,000/- for her residence, medical

treatment and for her livelihood, the family court has granted a sum of

Rs.10,00,000/- to the wife for her residence only. In the evidence

tendered by the wife on affidavit, the wife has not claimed any monthly

maintenance from the husband. The wife has stated in her examination-

in-chief that a direction be issued against the husband to pay a sum of

Rs.10,00,000/- to the wife towards her present and future needs, in

lump-sum. If that be so, we fail to fathom as to how the family court

could have directed the husband to pay a sum of Rs.10,00,000/- to the

wife for her residence and then a sum of Rs.7,500/- per month towards

maintenance. The claim of the wife in her evidence is only for the sum

0107FCA177.14-Judgment 17/25

of Rs.10,00,000/- in lump-sum and she had not claimed any monthly

maintenance. In the aforesaid background, it would be necessary to

consider as to whether the family court was justified in directing the

husband to pay a sum of Rs.10,00,000/- to the wife and also pay a sum

of Rs.7,500/- to her every month with a yearly raise in the maintenance

amount by 8%. The wife has produced certain documents to prove that

the husband is a builder and developer. However, those documents are

not exhibited. The family court has however relied on the said

documents that are marked as articles and has held on the basis of the

same that the husband is having many houses and the wife is

shelterless. The family court, took into consideration the documents

that were marked as articles A, B, C, D, E and F to hold that the

husband was a builder and developer. The family court relied on the

receipts at exhibits-55/2 to 55/7 to hold that the amount mentioned in

the receipts was handed over to the husband by the purchasers of the

flat. The family court observed that though none of the purchasers were

examined on behalf of the wife, since the husband had admitted his

signature on the said receipts, it could be said that those receipts

pertain to the sale of the flats by the husband. The family court did not

consider the evidence of the husband in his examination-in-chief and

also in his cross-examination, where he had clearly denied that he had

signed on the receipts as a builder and developer. The husband had

0107FCA177.14-Judgment 18/25

stated that the receipts were not only signed by him but were signed by

several others whose names are mentioned in his cross-examination.

The documents tendered by the wife, even if they are believed, do not

show that the husband was singly running the business of building and

developing, as along with the husband the names of four others are also

mentioned in the said documents. Even assuming that the husband was

a partner along with others in the construction business, there is

nothing on record to show that he was earning a particular income from

the said business. The income tax returns of the husband were placed

on record at exhibits-41 to 43. The family court, however did not

believe that the husband had correctly stated the income in his returns.

The family court observed that the income shown by the assessee in the

previous year could not have been reduced in the subsequent year. The

family court observed that in one year the income was more, in the next

year it was lesser and in the third year it was still less and this would

show that the returns did not relate to the income that the husband was

earning from his business. The family court observed that it was not

possible that the income could be reduced in the next year. We are

afraid that the family court should not have made such observations, as

rightly submitted on behalf of the husband. It is for the Income Tax

Department to decide whether the income could have been reduced in

the next year or not and/or whether the return filed by an assessee was

0107FCA177.14-Judgment 19/25

true or false. The family court however scanned the income returns

filed by the appellant to disbelieve the returns and also to disbelieve his

case in regard to his income. The family court discarded the income tax

returns as the husband had a mobile handset and a four wheeler. We

are afraid that the observations made by the family court in this regard

are unwarranted. In these days, a mobile handset is available even with

maids, who are employed for petty household work. Merely because a

person has a four wheeler and a mobile handset, it cannot be said that

the said person would be earning in lakhs or for that matter a sum of

Rs.40,000/- or Rs.50,000/- as claimed by the wife. It is an admitted

position that the husband had purchased the flat in which the parties

were residing only after securing loan from the bank and the bank was

issuing notices to the husband as he could not repay the loan amount.

The said flat was sought to be put to auction as the husband could not

repay the loan amount. The flat was sold for the consideration of

Rs.9,50,000/- and the family court has directed the husband to pay a

sum of Rs.10,00,000/- to the wife as the flat was sold by him.

11. Normally, in a petition filed by a wife under section 18 of the

Hindu Adoptions and Maintenance Act, maintenance is not awarded to

the wife or to the person claiming the maintenance under section 18 of

the Act, in lump-sum. Normally, the requirements of the claimant for a

0107FCA177.14-Judgment 20/25

month are considered by a court and the non-applicant or the

respondent is directed to pay the maintenance to the claimant as per

the requirements of the claimant, who is unable to maintain herself

after considering the earning capacity of the person against whom the

claim is made. Even assuming that the wife required an accommodation

and also required some amount towards her maintenance, i.e. for food,

shelter and clothing, the family court should have considered as to what

would have been the reasonable needs of the wife and should have

directed the husband to pay the amount needed by the wife every

month, for her survival, considering the earning capacity of the

husband. In our considered view on a reading of the evidence tendered

by the parties on record, it cannot be said that the husband was earing a

sum of Rs.40,000/- to Rs.50,000/- per month. There is no evidence in

this regard. Merely because the term builder or developer is used for a

person constructing one or two flat schemes, it cannot be presumed that

the builder or developer would be earning in lakhs and would be a very

rich and affluent man. Sometimes it is seen that even builders and

developers do not earn profit and they are in doldrums. Some builders

may be rich, some financially sound and some may not be earning well.

Be that as it may, we are not required to consider these aspects of the

matter. Suffice it to state that there is no evidence on record to show

that the husband was earning a sum of Rs.40,000/- to Rs.50,000/- per

0107FCA177.14-Judgment 21/25

month. For proving the financial capacity of a party, cogent and reliable

evidence should be placed on record. We find some force in the

submission made on behalf of the husband that the judgment of the

family court is totally one sided and the family court went out of the

way to help the wife, without considering the case of the husband. We

find some support to this submission from the objection of the court to a

query put by the counsel for the husband to the wife. The counsel for

the husband had posed a query to the wife that she could not file the

documents in support of her claim that the husband earns a sum of

Rs.40,000/- to Rs.50,000/- per month as he does not earn that amount.

The family court had rejected the said question posed by the counsel

for the husband, before the wife could answer the same. The family

court could not have objected to the suggestion on the side of the

husband. In fact, it was a valid suggestion given by the counsel for the

husband to the wife. The wife may have answered the suggestion in the

negative. We find that the court has posed certain queries to the

husband in his cross-examination on its own and had wrongfully

disallowed some suggestions and queries posed from the side of the

husband to the wife.

12. The family court has not recorded any specific finding on the

basis of the evidence on record that the husband must be earning a

0107FCA177.14-Judgment 22/25

particular amount every month. The family court has not arrived at a

clear finding in regard to the earning capacity of the husband. The

family court has only observed that the wife should also have the same

facilities as are enjoyed by the husband and that she would be entitled

for a sum of Rs.10,00,000/- in lump-sum in lieu of residence. The

family court has then observed that apart from the amount that was

liable to be paid by the husband to the wife in lieu of residence, he was

liable to pay a sum of Rs.7,500/- as monetary aid for her survival, every

month. After having held so, the family court held that to avoid

multiplicity of proceedings, it would be proper to give a further

direction to the husband to enhance the quantum of maintenance every

year, with effect from 1st September of every year, at the rate of 8% per

annum on the amount that was paid to the wife in the previous year.

We are surprised that such an order is passed by the family court when

section 25 of the Hindu Adoptions and Maintenance Act gives a right to

either of the parties to approach the court for modification of the decree

granting maintenance in view of the altered or changed circumstances.

We have already stated herein above and we reiterate that it is possible

that in a given case even the husband's income would be lowered in the

next year, may be if he is in any business or for that matter a husband

may even be incapacitated after the decree granting maintenance is

passed. In view of the provisions of section 25 of the Hindu Adoptions

0107FCA177.14-Judgment 23/25

and Maintenance Act, providing for the alteration or modification of the

decree granting the maintenance amount, it is difficult to gauge as to

how the family court could direct the husband to grant 8% additional

maintenance to the wife every year, starting from 1st September of the

next year. If the parties live for 30 more years, the amount would be

increased every year by 8% for the next 30 years without considering as

to what is the earning capacity of the husband and/or what are the

needs or the earning capacity of the wife in future. The family court was

surely not justified in directing the husband to pay the sum of

Rs.10,00,000/- to the wife towards accommodation and a sum of

Rs.7,500/- per month with additional increase at 8% every year. It is

pertinent to note that though the wife had claimed monthly

maintenance and lump-sum in the petition, in her evidence on affidavit,

the wife had only sought the amount of Rs.10,00,000/- in lump-sum.

The family court, ought to have considered the income of the husband

and the needs of the wife while deciding the petition filed by the wife

under section 18 of the Act. In the circumstances of the case, the

judgment reported in 2011 (6) Mh.L.J. 280 and relied on by the

counsel for the wife cannot be applied to this case, as admittedly, the

husband is residing in a rented house and the house in which the

parties were residing was purchased by the husband on loan and the

same is sold by the husband only for a sum of Rs.9,50,000/-. If that is

0107FCA177.14-Judgment 24/25

so, the husband could not have been directed to pay a sum of

Rs.10,00,000/- to the wife in lump-sum, specially when the loan of the

bank was liable to be repaid and the house was sold for the sum of

Rs.9,50,000/-. On a consideration of the evidence on record, specially

the income tax returns and the other documents, it would be necessary

to hold that the monthly income of the husband must be approximately

Rs.25,000/- and considering the fact that the old aged mother of the

husband is residing with the husband, it would be necessary to direct

the husband to pay a sum of Rs.9,000/- per month to the wife towards

maintenance. Though the wife possesses a graduates degree and also

training qualification which could have entitled her to a job, like the

one she was doing earlier and could have taken some private tuitions

considering her training qualification, we are surprised that the wife is

doing nothing. Be that as it may, it would be necessary in the

circumstances of the case to modify the order of the family court and

direct the husband to pay a sum of Rs.9,000/- to the wife towards

monthly maintenance. If by chance, any amount is paid by the husband

to the wife over and above the amount of Rs.9,000/- per month in the

past, the husband would not be entitled to recover the said amount

from the wife or adjust the said amount while paying the present and

future maintenance to the wife.

0107FCA177.14-Judgment 25/25

13. Hence, for the reasons aforesaid, the family court is partly

allowed. The judgment of the family court is modified. The part of the

judgment that directs the husband to pay a sum of Rs.10,00,000/- to

the wife for her residential accommodation is hereby set aside. We

make it clear that the husband would not be entitled to recover the sum

of Rs.2,00,000/- that was paid to the wife for her accommodation

during the pendency of the other proceedings filed by the wife. The part

of the order which directs the husband to pay 8% more maintenance

every year, commencing from 1st of September is also set aside. The

husband is directed to pay a sum of Rs.9,000/- per month to the wife

towards maintenance. Order accordingly. No costs.

                        JUDGE                                                  JUDGE 




 KHUNTE