Bombay High Court
Shri Gajanan Ramdas Rumkar vs Sau. Jyoti Gajanan Rumkar on 11 July, 2017
Bench: V.A. Naik
27-J-FCA-342-14-Judgment 1/25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO.342 OF 2014
APPELLANT :- GAJANAN RAMDAS RUMKAR
Aged about 46 years, Occ. Service,
R/o Shridhar Nagar, Plot,
Bhat Colony, Badnera Road,
Amravati.
...VERSUS...
RESPONDENT :- JYOTI GAJANAN RUMKAR
Aged about 36 years, Occ. Business,
R/o C/o Namdev Madhav Lohar,
Plot No.205/B, Ranapratap Housing
Society, Old Airport, Chalisgaon,
Dist. Jalgaon.
---------------------------------------------------------------------------------------------------
Shri G. G.Mishra, counsel for the appellant.
Ms Ira P. Khisti, counsel for the respondent.
WITH
FAMILY COURT APPEAL NO.43 OF 2015
APPELLANTS :- 1. JYOTI GAJANAN RUMKAR
Aged about 36 years, Occ. Business,
R/o C/o Namdev Madhav Lohar,
Plot No.205/B, Ranapratap Housing
Society, Old Airport, Chalisgaon,
Dist. Jalgaon.
2. KAJAL GAJANANA RUMKAR
aged about 17 years, Occ. Student.
3. DHANRAJ GAJANAN RUMKAR,
aged about 17 years, Occ. Student.
Appellant Nos.2 and 3 being minor, through
Guardian mother Jyoti Gajanan Rumkar
::: Uploaded on - 19/07/2017 ::: Downloaded on - 28/08/2017 09:53:59 :::
27-J-FCA-342-14-Judgment 2/25
...VERSUS...
RESPONDENT :- GAJANAN RAMDAS RUMKAR,
Aged about 46 years, Occ. Service,
R/o Shridhar Nagar, Plot,
Bhat Colony, Badnera Road,
Amravati, Tq. & Dist. Amravati,
At present posted at Akola as assistant
Mechanic c/o Police Inspector, Police
Wireless office, In front of S.P.office,
Akola.
---------------------------------------------------------------------------------------------------
Ms Ira P. Khisti, counsel for the appellants.
Shri G. G.Mishra, counsel for the respondent.
---------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 11.07.2017
COMMON JUDGMENT (Per Smt.Vasanti A Naik, J.)
Since the parties to the appeals are the same and since
both the Judgments of the Family Court that are challenged in these
appeals are based on the evidence tendered by the parties in the two
petitions, one for maintenance under Section 18 of the Hindu Adoption
and Maintenance Act and the other for a decree of divorce under
Section 13 of the Hindu Marriage Act, they are heard together and are
decided by this common Judgment.
2. Few facts giving rise to the appeals are stated thus :-
27-J-FCA-342-14-Judgment 3/25
The appellant in First Appeal No.342/2014 was married
to the appellant in First Appeal No.43/2015 as per Hindu Rites and
Custom at Chalisgaon on 12/05/1995. We may refer to the parties as
the 'husband' and the 'wife' in this Judgment for the sake of
convenience. The wife is the daughter of the real maternal uncle of the
husband and the mother of the husband is the elder sister of the father
of the wife. The parties were closely related and they were aware about
each other's background. It is pleaded in the petition filed by the
husband for a decree of divorce on the ground of cruelty and desertion
that the wife behaved well with him only for a period of one year from
the marriage and thereafter the wife started behaving very arrogantly
with the husband and his family members. Since the husband was
residing in a joint family, the wife asked the husband that they should
reside separately and away from the joint family. It is pleaded by the
husband in his petition that the wife was neglecting her matrimonial
duties and was always talking to the husband and his family members
in an abusive and insulting language and tone. The husband pleaded
that a girl child was born from the wedlock on 19/10/1997. According
to the husband, the wife had left the matrimonial home along with her
belonging on the occasion of Dipawali festival on 02/11/1997. It is
pleaded that though the husband and his family members tried to
ensure that the wife returns to the matrimonial home, the wife did not
27-J-FCA-342-14-Judgment 4/25
accede to their request and stated that she would come to the
matrimonial home only if the husband resides away from his parents. It
is pleaded that the husband issued a notice to the wife asking her to
return to the maternal home or else to dissolve the marriage between
the parties. It is pleaded that since the wife did not return, the
husband filed a petition for divorce in the year 2000 but during the
pendency of the petition, since the husband was transferred to Wardha,
the wife started residing with the husband at Wardha and hence, the
petition was not proceeded with. The wife delivered a male child on
05/04/2002. It is pleaded that on 03/07/2003, the wife went to her
parental home at Chalisgaon along with the children and all her
belongings and wife told the husband that she would not return to the
matrimonial home unless he resides with her in a nuclear family. It is
pleaded that on 28/10/2005, the wife came along with the husband to
the matrimonial home and she was accompanied by her father also. It is
pleaded that the wife resided with the husband for a few days and again
started quarrelling with him. It is pleaded that the wife also threatened
the husband and his parents that she would implicate them in false
cases, if they did not fulfill her demand. It is pleaded that the wife had
lodged a false complaint against the husband and her in-laws on
22/12/2005 in the Police Station at Rajapeth for the offences
punishable under Sections 498-A, 323 read with Section 34 of the Penal
27-J-FCA-342-14-Judgment 5/25
Code. It is pleaded that the husband and his parents are acquitted in the
said proceedings. It is pleaded that it was not possible for the husband
and the wife to stay under one roof and though the husband had tried
his level best, his efforts had gone in vain. The husband sought for a
decree of divorce. In the petition, though a reference is made to Section
13-1 (ib) of the Hindu Marriage Act, on a reading of the pleadings, it
appears that the husband has filed the petition for a decree of divorce
on the ground of desertion and cruelty.
3. The wife filed the written statement and denied the claim
of the husband. The wife denied all the adverse allegations that were
levelled against her. The wife denied that she went to her parental
house along with her belongings on 03.07.2003. The wife denied that
the husband had been to her parental house at Chalisgaon and had
informed her that her mother was seriously ill and, therefore, the wife
went along with the husband to the matrimonial home after
28.10.2005. The wife denied that after 28.10.2005, the wife did not
mend her ways and quarrelled with the husband and ill-treated him.
The wife admitted that she had lodged a police complaint against the
husband and his family members for an offence punishable under
Section 498-A of the Penal Code. The wife admitted that since the filing
of the report in the police station she is residing in her parental house.
In her additional statement, the wife stated that the real elder sister of
27-J-FCA-342-14-Judgment 6/25
her father is the mother of the husband. The wife pleaded that since
the mother of the husband and the husband were aware that the wife is
the only daughter to her father and that he will do anything for his
daughter, the marriage was fixed. It is pleaded that at the time of the
marriage, the husband's mother had demanded gold ornaments from
the father of the wife. The wife stated that her father had given a
mangalsutra, two gold bangles, ear-rings, a locket and a gold ring to the
wife. It is pleaded that the husband and his family members did not
treat the wife with love and affection. It is pleaded that within four
months from the marriage, the husband started demanding a sum of
Rs.18,000/- from the father of the wife for purchasing a motorcycle. It
is pleaded that the wife was beaten up mercilessly by the husband in
the year 1995 and was driven out of the husband. The wife pleaded
that her father had paid a sum of Rs.18,000/- to the husband. It is
pleaded that in 1997, the parents of the husband used to beat her by
fists, kicks, chappals, sticks and used to threaten her that she would be
set on fire by pouring kerosene on her. The wife pleaded that the ill-
treatment meted out to her for for obtaining Rs.18,000/- which was the
balance required to be paid from the amount that was demanded
towards dowry at the time of the marriage. It is pleaded that on
25.09.2000, the wife was beaten up mercilessly by her mother-in-law
and, therefore, she lodged a complaint in regard to the said incident in
27-J-FCA-342-14-Judgment 7/25
the police station. It is pleaded that the wife was beaten up mercilessly
in the year 2000 and, hence, the parties started residing separately.
The wife pleaded that after the husband sent a notice on 14.02.2000
demanding a divorce and he filed a petition for divorce, the matter was
compromised between the parties and she again started residing with
the husband. It is pleaded that in 2003 also, the wife was again beaten
up by the husband in view of his demand of Rs.7,000/- from the father
of the wife. The wife pleaded that the wife went to reside with the
husband in October-2005 but, since she was beaten up mercilessly by
the husband and his parents by kicks and fists on the road, their
neighbour Mr.Munje informed the father of the wife on telephone and
the wife and her father went to Chalisgaon on 23.12.2005. It is pleaded
that before going to her parental house, the wife and her father lodged
separate reports in the police station at Amravati. The wife sought for
the dismissal of the petition filed by the husband.
4. On similar pleadings, the wife sought a decree for grant of
maintenance at Rs.15,000/- per month for herself and her two children.
In the said petition, the wife had pleaded that the husband was working
in the Wireless Department and was earning a monthly salary of
Rs.21,900/-. The wife had pleaded that nobody was dependent on the
husband as his mother was getting family pension at the relevant time.
27-J-FCA-342-14-Judgment 8/25
5. On the aforesaid pleadings of the parties, the Family Court
framed the issues and common evidence was tendered by the parties in
the petition filed by the husband for a decree of divorce and the petition
filed by the wife for maintenance under Section 18 of the Hindu
Adoptions and Maintenance Act. On an appreciation of the evidence on
record, the Family Court dismissed the petition filed by the husband for
a decree of divorce and partly allowed the petition filed by the wife and
directed the husband to pay a sum of Rs.9,000/- to the wife and the
children every month towards maintenance. The husband has
challenged the part of the judgment that rejects his prayer for grant of a
decree of divorce. The wife has filed the appeal seeking enhanced
maintenance.
6. Shri Mishra, the learned counsel for the husband
submitted that the Family Court was not justified in dismissing the
petition filed by the husband for a decree of divorce. It is submitted
that the wife has not only deserted the husband but had also treated
him with cruelty. It is stated that the wife had left the matrimonial
home on 23/12/2005 without any just or reasonable excuse. It is stated
that since 23/12/2005, the husband and the wife are residing
separately. It is stated that on earlier occasion also, the wife had left
the matrimonial home along with her belongings but had returned to
the same after the husband requested her to come back and had also
27-J-FCA-342-14-Judgment 9/25
issued a notice that she should start residing with him. It is stated that
the wife had lodged false complaints in the police station against the
husband and his family members for the offence punishable under
Section 498-A of the Penal Code. It is submitted that the husband and
his family members have been acquitted in the said case. It is submitted
that the wife tried to create evidence to show that the husband was
treating her with cruelty though the husband had not treated the wife
with cruelty. It is submitted that although it is admitted by the wife
and her father that on a number of occasions, the father was called by
the husband and his relatives and also his neighbours on the telephone,
the wife and her father tried to send a couple of telegrams to depict that
the husband had sent those telegrams to the father of the wife after he
had allegedly beaten up the wife. It is submitted that if the husband
had really assaulted the wife and if she was injured, the husband would
not have asked the father of the wife to come to the matrimonial home
to see her with injuries. It is submitted that though the wife was not
residing in the matrimonial home during the period when some of the
communications at Exhibits-92 to 96 had been addressed by the wife to
her father, the communications were created by the wife and her
father so as to ensure that their case that the husband had treated the
wife with cruelty could be proved. It is submitted that though it was
the case of the wife that the husband was demanding only a sum of
27-J-FCA-342-14-Judgment 10/25
Rs.18,000/- from the father of the wife, the father of the wife has
stated in his evidence that the husband was demanding gold ornaments
also. It is stated that the parties were very closely related to each other
before marriage and it is not possible to believe the case of the wife that
the husband had treated her with cruelty.
7. Ms Khisti, the learned counsel for the wife has supported
the judgment of the Family Court. It is submitted that the wife has not
deserted the husband but was compelled to leave the matrimonial
home. It is submitted that the husband was demanding a sum of
Rs.18,000/- from the parents of the wife and since the said demand was
not fulfilled, the wife was abused and beaten up by the husband and
his family members. It is submitted that the letters written by the wife
to her father and the telegrams sent to the father of the wife by the
husband would clearly prove that the wife was treated by the husband
with cruelty. It is submitted that the wife was residing separately from
the husband because of the cruelty inflicted by the husband and his
relatives on her. It is submitted that the wife desired to reside with the
husband but was unable to reside with him under one roof because of
the ill-treatment. The learned counsel sought for the dismissal of the
Family Court Appeal filed by the husband and sought enhanced
maintenance, at Rs.15,000/- per months for the wife and the children.
27-J-FCA-342-14-Judgment 11/25
8. On hearing the learned counsel for the parties and on a
perusal of the original record and proceedings, it appears that the
following points arise for determination in this Family Court Appeal :
(i) Whether the husband has proved that the wife had treated him
with cruelty and had deserted him without any just and
reasonable excuse ?
(ii) Whether the husband is entitled to decree of divorce ?
(iii) Whether the wife is entitled to enhanced maintenance ?
(iv) What order ?
9. To answer the aforesaid points for determination, it is
necessary to consider the pleadings of the parties and the evidence
tendered by them. The husband has examined himself in support of his
case and the wife has examined herself and her father. The husband
has reiterated the facts pleaded by him in the petition in his evidence
on affidavit. The husband was cross-examined on behalf of the wife.
The husband admitted that he was related to the wife before the
solemnization of marriage as the father of the wife is the real maternal
uncle of the husband. The husband denied the suggestion that he had
demanded a sum of Rs.18,000/- from the parents of the wife for
purchasing a motorcycle. The husband denied the suggestion that in
the first week of September 1995, he had beaten up the wife and sent
27-J-FCA-342-14-Judgment 12/25
her to her parental home along with her father. The husband denied
that he was not aware whether the wife had lodged a complaint against
the husband on 07/09/1995 in the police station at Chalisgaon. The
husband denied the suggestion that when the wife used to leave the
company of the husband and reside with her parents, her father had
dropped her to the matrimonial home. The husband volunteered that
he used to bring the wife to the matrimonial home from her parental
house. The husband denied the suggestion that when he was staying
at Wardha, he had asked the wife to bring gold ornaments and money
from her parents. The husband denied that he had issued any telegram
to the father of the wife. The husband denied that he had beaten up the
wife and the wife had become unconscious as a result of which he had
sent a telegram to her father. The husband denied that he had driven
the wife out of the matrimonial home. The husband denied that he
had never gone to the parental house of the wife to bring her back to
the matrimonial home. The husband denied that he had filed a false
case against the wife.
10. The wife had tendered her evidence on affidavit. The wife
stated in her examination-in-chief that she was taking care of the
husband and her in-laws but her in-laws started beating her with
chappals, fists, kicks, sticks etc. because she had given birth to a girl
27-J-FCA-342-14-Judgment 13/25
child. It is stated that the in-laws had threatened her that they would
pour kerosene oil on her and set her on fire. It is stated that the
husband and his parents continued to beat her and had driven her out
of her matrimonial home. It is stated that in 2000 she rejoined the
company of the husband but on 25/09/2000 she was again beaten up
by her mother-in-law and hence she was required to file a report in that
regard in the police station. It is stated that after the said incident, the
husband again quarreled with her and sent a telegram to the father of
the wife that he should rush to Wardha as the wife had become
unconscious due to the beatings by the husband and his family
members. The wife stated that she was ill-treated by the husband till
she left the matrimonial home on 23/12/2005. The wife was cross-
examined on behalf of the husband. The wife admitted in the cross-
examination that the mother of the husband is the real elder sister of
her father. The wife admitted that the husband and his father were in
service even before her marriage. The wife further admitted that by
considering the fact that the parties were related to each other and the
husband and his father were in service, the marriage was settled by her
father. The wife admitted that the financial position of the husband
and his family was good. The wife admitted that before the marriage,
she was residing with her father, mother and brothers in her parental
home. The wife admitted that she filed a complaint against the
27-J-FCA-342-14-Judgment 14/25
husband and his family members in the police station at Amravati on
22/12/2015. The wife admitted that her mother-in-law had also made
a complaint against her in the police station at Amravati on the said
date. The wife denied the suggestion that her father used to write the
letters that were posted by her to her father. The wife admitted that the
husband and his family members were acquitted in the trial for the
offence punishable under Section 498-A of the Penal Code. The wife
admitted that since 22/12/2005, she was residing in her parental home
and the parties were residing separately since then. The wife admitted
that the husband is the only son of his parents and has three sisters.
The wife denied the suggestion that she was fighting with the husband
as she was not interested in marrying him. The wife admitted that she
had never sent a notice to the husband that he should take her to the
matrimonial home. The wife denied that she had prepared false
documents in support of her case.
11. The wife examined her father as her witness. The father
of the wife, Narayan Lohar tendered his evidence on affidavit. Narayan
stated in his evidence that he had given a mangalsutra, two bangles,
earrings to the wife and a gold ring and locket to the husband. Narayan
stated in his evidence that he does not have the receipts pertaining to
the said ornaments. Narayan stated in his evidence that he had paid a
27-J-FCA-342-14-Judgment 15/25
sum of Rs.18,000/- to the husband on his demand. It is stated that the
wife had filed a report against the husband at Chalisgaon on
07/09/1995. It is stated that when he received the telegram that he
should immediately rush to Wardha on 10/10/2000, he came to the
matrimonial home to see that the wife was sleeping as she had sufferred
injuries due to the beating by the husband and his family members. It
is stated that after he gave a gold chain and a locket to the wife in the
year 2001, the husband took her back to the matrimonial home.
Narayan stated in his evidence that on 22/12/2005 he was called by
Shri Munje, the neighbour of the husband and wife who informed him
that the wife was severely beaten up by the husband. It is stated that
when he rushed to matrimonial home, he was informed by the husband
that he should take back the wife to her parental home or he would kill
her. It is stated that in view of the aforesaid, he had lodged a report
against the husband and his family members in the police station at
Amravati. Narayan was cross-examined on behalf of the husband. He
admitted in his cross-examination that the wife had lodged a complaint
against the husband and his family members under Section 498-A of the
Penal Code and his family members are acquitted by the trial Court.
Narayan stated in his evidence that he had paid Rs.18,000/- to the
husband. He volunteered that he had paid Rs.18,000/- on three
occasions. He admitted that the wife has lodged a report against the
27-J-FCA-342-14-Judgment 16/25
husband on 07/06/1995 in the police station. Narayan admitted that
his son had job at Nasik and that he had divorced his first wife. He
admitted that they have paid sum of Rs.3,50,000/- to the first wife of
his son while seeking a decree of divorce. Narayan denied that he had
tendered false evidence in support of the case of the wife.
12. On an appreciation of the material on record, the Family
Court has held that the wife had just and reasonable excuse for residing
away from the husband. While holding so, the Family Court has relied
on the evidence of the wife and her father Narayan. The Family Court
also gave some weightage to the telegrams purportedly issued by the
husband to the father of the wife and the letters purportedly written by
the wife to her father. While considering the question whether the
husband had treated the wife with cruelty and whether she had a
reasonable excuse for staying away from the husband, it would be
necessary to consider the background in which marriage was settled.
Admittedly the father of the wife is the real younger brother of the
mother of the husband. It is stated in the evidence of the parties that
the father of the wife being the younger brother of the mother of the
husband had resided with his elder sister, i.e. the mother of the
husband for a long time when he was young. The parties knew each
other very well. Infact, the parties were very closely related to each
27-J-FCA-342-14-Judgment 17/25
other before marriage. The wife has admitted in her cross-examination
that the financial position of the husband was very good even before the
solemnization of the marriage. The wife has further admitted that
considering their relationship and the fact that the husband and his
father were in government service as also the fact that they were
financially well off, her father had settled her marriage with the
husband. If that is the background in which the marriage between the
parties was settled, it is difficult to believe the case of the wife and her
father that the husband started harassing the wife only for a sum of
Rs.18,000/-. In the written statement, it is categorically pleaded by the
wife that the husband was behaving badly with her and treating her
with cruelty as her father could not fulfill his demand of making the
payment of Rs.18,000/-. The wife has not pleaded in her written
statement that the husband was demanding a substantial amount from
her parents or that he was demanding gold ornaments. There is an
improvisation in the case of the wife by the evidence of Narayan, her
father. He has stated in his examination-in-chief that the husband and
his family members were demanding gold ornaments after the
solemnization of the marriage. Unfortunately, that is not the case of
the wife in her written statement. Also, we find that the father of the
wife was a retired school teacher whereas the husband and his father
were in police department and were earning much better than what was
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being received by the father of the wife who was a retired school
teacher, as pension. It is difficult to believe the case of the wife that
she was beaten up by the real sister of her father that is her 'Aatya' only
because their demand of Rs.18,000/- was not fulfilled by her father. It
is conspicuous that the father of the wife has stated in his evidence that
he had paid sum of Rs.18,000/- to the husband on his demand. If the
case of the wife is that she was ill-treated because the demand of
Rs.18,000/- was not fulfilled and if it is the case of the father that he
had paid a sum of Rs.18,000/- to the husband, we fail to gauge as to
why the husband would continue to harass the wife after the amount is
paid. Narayan has gone to the extent of saying in his cross-examination
that he had not given Rs.18,000/- to the husband only once but he has
given Rs.18,000/- to the husband on three occasions. We find that this
is an absolutely false statement. It is nobody's case, much less the case
of the wife that the husband and his family members had demanded a
sum of Rs.18,000/- on three occasions. The wife had filed a report
against the husband in the police station immediately after her marriage
in the year 1995 and had also filed a report in the police station on
22/12/2005 when she left the matrimonial home. The husband and his
family members have been acquitted in the criminal trial.
13. It appears from the circumstances of the case and the
evidence tendered by the parties on record that all was well between
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the parties for sometime after they married each other. It appears that
the relationship between the parties soured after the solemnization of
the marriage. The reason for the soured relationship is not known. It
is the case of the husband that after a few months of the marriage, the
wife started behaving with the husband very rudely and arrogantly.
According to the husband the wife was consistently pestering the
husband that he should reside with her in a nuclear family and away
from his parents. According to the husband, the bone of contention
between the parties was the consistent demand by the wife to stay
separately from the joint family. Whereas it is the case of the wife that
the husband and his parents were ill treating her after the
solemnization of the marriage in view of the non-fulfilment of their
demand of Rs.18,000/-. According to the wife, the mother of her
husband, who is her real aunt had beaten her up till she became
unconscious because she had given birth to a girl child. We do not find
any truth in the allegations made by the wife against the husband and
his parents. The father of the wife was residing for several years with
his elder sister, i.e., the mother of the husband. There was no reason
for the mother of the husband, i.e., aunt of the wife to behave
inhumanly with her, that too for not bringing a sum of Rs.18,000/-
and Rs.7000/- from her father. It appears that the parties were not
pulling well in view of the differences between them and the wife
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created evidence only with a view to ensure that she would be able to
prove her case that she was treated by the husband and his family
members with cruelty. The husband has specifically denied that he had
issued the telegrams to the father of the wife. We believe the case of
the husband that he might not have issued the telegrams to the father of
the wife. The reason being that at that time, admittedly the father of
the husband had a telephone as in his evidence, he has stated that he
had received a phone call from Shri Munje, the neighbour of the
husband and the wife, on 22/12/2005 that the wife was being ill-
treated. If the husband had a telephone or a cellphone and the father of
the wife also possessed one, it is difficult to fathom as to why the
husband would send telegrams to the father of the wife that he should
immediately rush to the matrimonial home after the wife was beaten up
by him. The wife has not proved that the telegrams were indeed
issued by the husband to her father. Also, no husband would send a
telegram to the father of the wife when she is serious because of the
beating given by him to her. If the husband had really beaten up the
wife and if she had sufferred injuries because of the beating and was
bedridden, the husband would not have called the father of the wife so
that he should see his daughter in that condition. Apart from the fact
that we find that the telegrams are not sent by the husband, we further
find that when one of the letters was purportedly sent by the wife to her
27-J-FCA-342-14-Judgment 21/25
father, she was residing with her father only and not residing in the
matrimonial home. It appears that the father of wife has created
evidence to prove that his daughter was being illtreated by his nephew
and his real elder sister. It is also surprising that when the relationship
between the parties had soured and Narayan, the father of the wife had
lodged a report against the husband and his family members in the
police station on 22/12/2005, he has admitted in his cross-examination
that his relationship with his elder sister, that is the mother of the
husband, is very good and he even goes to her house to meet her.
There are glaring contradictions in the evidence of the wife and her
father. The contradictions on the material aspects make us believe that
the wife has cooked up the story in regard to the illtreatment by the
husband and his family members. It is possible that since the
relationship between the parties was strained, the parties may have
abused each other and even lodged complaints against each other in the
police station but we do not find any truth in the complaints filed by the
wife that she was beaten up by the husband and his parents till she
became unconscious only because her father did not fulfill their
demand of Rs.18,000/-. If the husband and his father were in
government service and were financially sound as per the evidence of
the wife, it is difficult to believe as to why they would demand only a
sum of Rs.18,000/- or Rs.7000/- from the parents of the wife. The
27-J-FCA-342-14-Judgment 22/25
amount for which the demand is stated to have been made makes us
further believe that the case sought to be made out by the wife is not
true. The husband has satisfactorily proved that the wife has treated
him with cruelty and had deserted him without any just or reasonable
excuse. In the circumstances of the case, after having held that the
wife has failed to prove that she had sufficient cause to reside
separately from the husband with effect from 23/12/2005, it would be
necessary to hold that the wife has deserted the husband on the said
date without any just and reasonable excuse. The parties are residing
separately for more than twelve years. The parties were very closely
related even before the solemnization of the marriage and it is not likely
in view of the counter complaints lodged by them against each other
that they would reside happily under one roof.
14. It would now be necessary to consider the appeal filed by
the wife for enhancement of maintenance. The wife had claimed a sum
of Rs.15,000/- per month towards maintenance for herself and her
daughter and son. During the pendency of this appeal, the husband is
said to have cleared the arrears of maintenance which were liable to be
paid to the wife @ Rs.9000/- per month from the date of the judgment
of the Family Court. We are, however, not deciding whether the
entire arrears are cleared by the husband or not in these appeals. It
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appears that the wife is not in service and has no income for supporting
herself and her son and daughter. According to the wife, at the relevant
time, the husband was receiving the salary of Rs.27,000/- per month,
as per the salary certificate produced by her before the Family Court.
Though the Family Court has not recorded a clear finding in regard to
the exact income of the husband, the Family Court, on an overall
appreciation of the evidence on record has directed the husband to pay
sum of Rs.9000/- per month to the wife towards the maintenance of the
wife and the son and daughter. The Family Court has held that the
amount of Rs.9000/- would include the amount of maintenance granted
to the wife in all the other proceedings. Though the Family Court has
not recorded a finding as to what was the actual income of the husband
at the relevant time, it could be said on the basis of the evidence on
record, specially the salary certificate produced by the wife that the
husband must have been earning gross salary of Rs.27,000/- per month.
It is fairly stated by the learned counsel for the husband, on instructions
from the husband, that the husband is now receiving a sum of
Rs.34,000/- per month as gross salary. If that be so, in the
circumstances of the case and in the interest of justice, it would be
necessary to direct the husband to pay maintenance to the wife, son and
daughter at the rate of Rs.9000/- per month from 30/06/2014 i.e. from
the from date of judgment of the Family Court till the appeal filed by
27-J-FCA-342-14-Judgment 24/25
the wife was admitted on 23/03/2015. The husband would be liable to
pay a sum of Rs.12,000/- per month towards maintenance for the wife
and his minor children from 23/03/2015 onwards. Since Writ Petition
No.4742/12, filed by the husband against the order of the Family Court
dated 13/07/2012 directing the husband to pay a sum of Rs.8000/-
p.m. towards interim maintenance was partly allowed by this Court and
this Court had modified the said order by directing the husband to pay
Rs.6000/- per month to the wife towards maintenance for the wife and
his minor children, it is made clear that from the date of filing of the
petition by the wife before the Family Court for grant of maintenance
till the date of judgment of the Family Court i.e. 30/06/2014, the
husband would be liable to pay a sum of Rs.6000/- p.m. towards
maintenance for the wife and minor children. The Family Court has
also granted maintenance at the rate of Rs.6000/- per month from the
date of institution of the petition till the date of judgment of the Family
Court. We make it clear that the said amount would be inclusive of
the amount that is liable to be paid by the husband to the wife and their
children towards maintenance in the proceedings filed under the
provisions of the other enactments. If there is a change in the
circumstances i.e. the earning capacity of the husband or for that matter
the capacity of the wife to earn or the growing needs of the wife and the
children, the parties would be entitled to take up appropriate
27-J-FCA-342-14-Judgment 25/25
proceedings under Sectin 25 of the Hindu Adoption and Maintenance
Act.
15. In view of the aforesaid, Family Court Appeal No.43 of
2015 filed by the wife is partly allowed. Family Court Appeal No.342 of
2014, filed by the husband is allowed. The marriage solemnized
between the parties on 12/05/1995 is dissolved by a decree of divorce.
The husband would be liable to pay a sum of Rs.9000/- per month
towards maintenance of the wife, daughter and son from 30/06/2014,
i.e, the date of the judgment of the Family Court till the appeal filed by
the wife was admitted on 23/03/2015. The husband would be liable to
pay a sum of Rs.12,000/- per month for the maintenance of wife,
daughter and son from 23/03/2015 onwards. The arrears of
maintenance should be paid by the husband to the wife within three
months. The husband should continue to deposit a sum of Rs.12,000/-
towards maintenance for the wife, daughter and son every month
regularly from the date of the judgment.
Order accordingly. No costs.
JUDGE JUDGE
Asmita
