Bombay High Court
Triveni W/O Kailas Kothari And Anr vs Kailas S/O Durgadasji Kothari on 17 July, 2017
Bench: V.A. Naik
1707FCA72.15-Judgment 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 72 OF 2015
APPELLANTS :- 1] Triveni W/o Kailas Kothari, Aged About 34
(Ori. Petitioners years, Occupation : House wife,
(On R.A.)
2] Shiv S/o Kailas Kothari, Aged About 21
Years, Occupation : Student, Through
natural guardian Mother (Appellant No.1
herein)
Both R/o C/o Gopaldas Zanwar, Behind
Savitri Bhawan, Khaparde Garden, Amravati,
Tah.& Dist. Amravati.
...VERSUS...
RESPONDENT :- Kailas S/o Durgadasji Kothari, Aged about
35 years, Occ. : Service as Textile Engineer,
R/o Through its Manager, Indorama
Synthetic India Ltd., At Post : Pithampur,
Dist. : Dhar (M.P.)
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Mr. R.D.Wakode, counsel for the appellants.
None for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 17.07.2017
1707FCA72.15-Judgment 2/6
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this family court appeal, the appellants challenge the
judgment of the family court dated 27/12/2010 in so far as it rejects the
prayer of the appellants for grant of maintenance at the rate of
Rs.10,000/- per month.
2. The marriage between the appellant No.1 and the
respondent was solemnized at Khamgaon on 15/05/1997 as per Hindu
rites and customs. A son named Shiv was born from the wedlock on
27/04/1998. It is the case of the appellant No.1 that the respondent
deserted the appellants and neglected to maintain them. The appellants
therefore filed Special Civil Suit No.11 of 2003 for grant of maintenance
for the appellant Nos.1 and 2 at Rs.10,000/- per month. According to
the appellants, the respondent was employed as a textile engineer in
Indorama Synthetic India Limited and was getting a net salary of
Rs.16,000/- per month. It was pleaded in the suit filed by the
appellants that the appellant No.2 was suffering from bronchitis and
asthmatic allergy and hence the appellants required at least a sum of
Rs.10,000/- per month towards their maintenance.
3. The respondent filed the written statement and denied the
claim of the appellants. The respondent denied that he was getting of
1707FCA72.15-Judgment 3/6
the net salary of Rs.16,000/-. It was denied that the husband could pay
a sum of Rs.10,000/- to the appellants. It was pleaded by the
respondent that on an average he was earning a salary of Rs.6,000/- per
month. The respondent sought for the dismissal of the suit filed by the
appellants.
4. The family court framed the issues and on an appreciation
of the evidence on record, held that the respondent was liable to pay a
sum of Rs.3,000/- per month to each of the appellants towards past
maintenance. The family court directed the respondent to pay
maintenance at the rate of Rs.8,000/- per month for the appellants from
15/01/2003. The appellants have filed the appeal seeking the
enhancement of maintenance.
5. Shri Wakode, the learned counsel for the appellants,
submitted that the family court was not justified in rejecting the claim
of the appellants for maintenance at the rate of Rs.10,000/- per month.
It is submitted that in the circumstances of the case, the family court
ought to have allowed the civil suit filed by the appellants in the
entirety. It is submitted that the appellants had pleaded that the
respondent was working as a textile engineer in Indorama Synthetic
India Limited and was getting a salary of Rs.16,000/- per month. It is
1707FCA72.15-Judgment 4/6
submitted that the family court was not justified in relying on the pay
slip of January, 1999 to determine the amount of maintenance that was
liable to be paid by the respondent to the appellants. It is submitted
that the appellant No.2 suffers from bronchitis and has to expend a lot
of amount towards medicines. The learned counsel sought monthly
maintenance at the rate of Rs.10,000/- for the appellants.
6. On hearing the learned counsel for the appellants and on a
perusal of the record and proceedings, it appears that the following
points arise for determination in this family court appeal:-
(I) Whether the appellants are entitled to maintenance at the
rate of Rs.10,000/- per month?
(II) What order?
On a reading of the evidence tendered by the parties and
the judgment rendered by the family court, we find that the appellants
have unnecessarily filed this family court appeal though the trial court
had granted a much larger amount to the appellants towards
maintenance than that could have been ordinarily granted on the basis
of the evidence tendered by the parties. Though it was the case of the
appellants that the respondent was working as a textile engineer in
Indorama Synthetic India Limited and getting a net salary of
Rs.16,000/-, nothing was placed by the appellants on record to show
1707FCA72.15-Judgment 5/6
that the respondent was earning an amount of Rs.16,000/- towards the
salary when the appellants had filed the suit. Merely because the
respondent had stated in the bio-data that was allegedly tendered by
him to the appellant No.1 and her family members that he was earning
a sum of Rs.10,000/-, the family court held that the respondent must be
earning a sum of Rs.10,000/-. The appellants had produced a pay slip
at exhibit-79 which showed that the salary of the respondent in the year
1999 was Rs.11,000/-. If the respondent was drawing gross salary of
Rs.11,000/-, it is difficult to gauge as to how he could have saved a sum
of Rs.8,000/- per month for paying maintenance to the appellant Nos.1
and 2. The family court had directed the respondent to pay a sum of
Rs.4,000/- to each of the appellant from 15/01/2003 though the trial
court has observed that the monthly income of the respondent is
Rs.10,000/-. The family court has observed that the respondent belongs
to a well to do family and since he is earning more than Rs.10,000/- per
month, he would be liable to pay a sum of Rs.8,000/- for the
maintenance of the appellants from 15/01/2003. We find that the
grant of maintenance to the appellants at Rs.8,000/- per month when
the respondent was drawing gross salary of Rs.11,000/- is on an
extremely higher side. The trial court has not considered as to what
was the take home salary of the respondent. Instead of being satisfied
with the amount of Rs.8,000/- that was directed to be paid by the
1707FCA72.15-Judgment 6/6
respondent to the appellants towards maintenance, the appellants have
unnecessarily filed this family court appeal seeking enhanced
maintenance. When we find that the grant of maintenance at Rs.8,000/-
per month is on the higher side, there is no question of enhancing the
maintenance amount any further. The trial court not only directed the
respondent to pay monthly maintenance at Rs.8,000/- from the date of
filing of the suit but further directed the respondent to pay past
maintenance for three years at Rs.6,000/- per month for the appellants.
We find that the order of the family court is indeed very harsh and the
respondent ought to have challenged it. There is no reason whatsoever
for enhancing the maintenance amount.
In the result, the family court appeal fails and is dismissed
with no order as to costs.
JUDGE JUDGE
KHUNTE
