Bombay High Court
Radhika W/O Anand Deshpande vs Anand S/O Madhav Deshpande on 3 March, 2017
Bench: V.A. Naik
fca141.14.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.141/2014
WITH
FAMILY COURT APPEAL NO.153/2014
---------------------------------------------------------------------------------------------------
FAMILY COURT APPEAL NO.141/2014
APPELLANT: Radhika w/o Anand Deshpande,
Aged about 32 years, Occ : Nil,
R/o C/o Justice M.R. Waikar (Retd.),
K-46, Bharat Nagar, Amravati Road,
Nagpur.
(on R.A.)
...VERSUS...
RESPONDENT : Anand s/o Madhav Deshpande,
Aged about 36 years, Occupation : Service,
R/o C/o Madhav Deshpande, Vasundhara,
Plot No.30, Prosperity Society, Karve Nagar,
Pune
(on R.A.)
-----------------------------------------------------------------------------------------------------
Mrs. Jyoti Dharmadhikari, Advocate for appellant
Shri A.S. Jailwal, Sr. Adv. with Shri M.R. Rajkondwar, Adv. for respondent
-----------------------------------------------------------------------------------------------------
WITH
FAMILY COURT APPEAL NO.153/2014
APPELLANT: Anand Madhav Deshpande,
Aged 36 years, Occupation : Service,
R/o Vasundhara, Plot No.30, Prosperity
Society, Karve Nagar, Pune - 52.
...VERSUS...
::: Uploaded on - 20/03/2017 ::: Downloaded on - 27/08/2017 18:41:35 :::
fca141.14.odt
2
RESPONDENT : Radhika Anand Deshpande,
Aged 30 years, Occupation Nil,
R/o K-46, Bharat Nagar, Amravati Road,
Nagpur - 33.
-------------------------------------------------------------------------------------------------
Shri A.S. Jailwal, Sr. Adv. with Shri M.R. Rajkondwar, Adv. for appellant
Mrs. Jyoti Dharmadhikari, Advocate for respondent
-----------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 03.03.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Since the two appeals, one filed by the husband and the
other filed by the wife, arise from the judgment of the Family Court, dated
19.8.2010, they are heard together and are decided by this common
judgment.
2. The appellant in Family Court Appeal No.153/2014 is the
husband (hereinafter referred to as 'Anand Deshpande') and the appellant
in Family Court Appeal No.141/2014 is the wife (hereinafter referred to
as 'Radhika' for the sake of convenience). Anand Deshpande has
challenged the part of the judgment of the Family Court directing him to
pay a sum of Rs.25,000/- to Radhika and their daughter Gauri towards
monthly maintenance. Radhika has filed the family court appeal against
the part of the judgment that directs Anand Deshpande to hand over the
fca141.14.odt
articles (Stridhan) of Radhika that are lying with him, as according to
Radhika, she has proved the list of articles that were gifted to her and a
specific direction ought to have been issued against Anand Deshpande to
return the specified articles.
3. Anand Deshpande and Radhika were married according to
Hindu rites and customs on 15.2.2002 at Pune. A girl child, named, Gauri
was born from the wedlock. The parties resided together at Pune for
about four years after the marriage and were separated in May, 2006.
Anand Deshpande filed a petition for a decree of divorce and Radhika
also filed a petition for a decree of divorce. The matter was compromised
and a divorce decree was passed with consent. In the proceedings filed by
Radhika, she had sought the return of her Stridhan articles and a
direction against Anand Deshpande for payment of monthly maintenance
of Rs.30,000/- to Radhika and Gauri. The parties tendered the evidence
and on an appreciation of the same, the Family Court, by the judgment
dated 19.8.2010 partly allowed the claim of Radhika for grant of
maintenance and directed Anand Deshpande to pay a sum of Rs.25,000/-
per month to Radhika and Gauri towards maintenance. The claim of
Radhika for return of specific articles was not granted and the Family
Court directed Anand Deshpande to return the ornaments and the articles
that are possessed by him. Radhika has challenged the part of the
fca141.14.odt
judgment that directs Anand Deshpande to return the articles that are
available with him, as according to her, the articles specified by her in the
list of articles annexed with the application at Exh.6 should have been
returned to her. Anand Deshpande has challenged the part of the order
that directs him to pay a sum of Rs.25,000/- towards monthly
maintenance for Radhika and Gauri, as according to him, the grant of
maintenance at the said rate is on a higher side.
4. Mrs. Dharmadhikari, the learned Counsel for Radhika
submitted that the judgment of the Family Court, so far as it directs
Anand Deshpande to return the articles (Stridhan) of Radhika, as
possessed by him is bad in law. It is stated that after the Family Court
came to a conclusion that the articles belonging to Radhika were
possessed by Anand Deshpande and his mother, a specific direction
should have been issued against Anand Deshpande to return the articles
mentioned by Radhika in the list annexed to Exh.6. It is submitted that
Radhika has proved her case in respect of the return of the Stridhan
articles by examining herself and also her grandmother. It is submitted
that with the help of the Court Commissioner, that was appointed, the
lockers of the four Almirahs in the house of Anand Deshpande were
opened and the articles of Radhika that were lying in the same were
returned to her and certain other articles including gold ornaments were
fca141.14.odt
also returned to her by Anand Deshpande and his family as mentioned in
Exh.48 but several other gold ornaments and silver articles are still not
returned to her. It is submitted that it is apparent from the cross-
examination of Anand Deshpande that Radhika had handed over the gold
ornaments to the mother of Anand Deshpande, i.e., her mother-in-law
and they have a locker in one of the Banks in Pune, of which a reference
is made in the cross-examination of Anand Deshpande. It is submitted
that in the circumstances of the case, when the Family Court has recorded
a finding that Radhika has proved that gold and silver ornaments were
presented by her parents and also from the side of Anand Deshpande to
her during and after the marriage, the Family Court was not justified in
directing Anand Deshpande to return the articles that are lying with him.
It is submitted that the Family Court was not justified in directing Anand
Deshpande to pay monthly maintenance of Rs.25,000/- to Radhika and
Gauri from the date of the judgment, i.e., 19.8.2010. It is submitted that
since there is a vast difference between the interim maintenance that was
granted to Radhika and Gauri @ Rs.5,000/- per month and the
permanent alimony, i.e., @ Rs.25,000/- per month, the grant of
maintenance should not have been from the date of the judgment, but
from the date of filing of the petition for maintenance by Radhika.
fca141.14.odt
5. Shri Anand Jaiswal, the learned Senior Counsel appearing
for Anand Deshpande has supported the judgment passed by the Family
Court, so far as it directs Anand Deshpande to return the articles that may
be lying with him. It is stated that though Radhika may have proved that
certain articles were gifted to her by her parents and also from the side of
Anand Deshpande, she has not successfully proved that the said articles
are still lying with Anand Deshpande or his family members. It is
submitted that whatever was found after opening of the four Almirahs in
the presence of the Court Commissioner was returned to Radhika and the
Deshpandes, i.e., Anand Deshpande and his parents have also returned
the gold articles that were presented to Radhika by the Deshpandes, by
her parents as also the gold articles belonging to her father and mother,
to Radhika on their own. It is submitted that it is apparent from the list at
Exh.48 that the gold ornaments and silver articles were returned to
Radhika. It is submitted that Anand Deshpande had admitted that
Radhika had given some of the ornaments to her mother-in-law but the
said ornaments were returned to Radhika as could be seen from Exh.48.
It is submitted that the judgment of the Family Court cannot be interfered
with in the family court appeal filed by Radhika. It is then submitted on
behalf of Anand Deshpande that the grant of maintenance from the date
of the judgment is justified. It is submitted that under Section 25 of the
fca141.14.odt
Hindu Marriage Act, while passing a decree of divorce, the Court is
empowered to pass an order granting maintenance to the wife as it deems
fit. It is stated that the order directing the payment of Rs.25,000/- per
month is passed under the provisions of Section 25 of the Hindu Marriage
Act. It is submitted that the liability to pay permanent alimony is rightly
directed from the date of the judgment of the Family Court and not from
the date of the petition filed by Radhika.
6. It is submitted on behalf of Anand Deshpande while
pressing the prayer made in Family Court Appeal No.153/2014 that the
Family Court was not justified in granting monthly maintenance to
Radhika and Gauri at Rs.25,000/-. It is submitted that the Family Court
committed a serious error in holding that the monthly income of Anand
Deshpande was about Rs.1,50,000/- to Rs.2,00,000/-. It is submitted that
there is no material on record to substantiate the said finding. It is further
submitted that though the gross salary of Anand Deshpande, at the
relevant time, was Rs.80,703/-, the take-home or net salary of Anand
Deshpande was Rs.61,684/- and considering the said fact, the Family
Court could not have directed Anand Deshpande to pay a sum of
Rs.25,000/- per month as permanent alimony for Radhika and Gauri. It is
submitted that the grant of maintenance @ Rs.25,000/- per month is on a
very higher side and this Court may reduce the said amount and direct
fca141.14.odt
Anand Deshpande to pay a lesser sum to Radhika and Gauri towards
maintenance.
7. On hearing the learned Counsel for the parties, it appears
that the following points arise for determination in these family court
appeals :-
(1) Whether the grant of maintenance at
Rs.25,000/- per month for Radhika and Gauri is on a higher
side and/or it needs to be reduced ?
(2) Whether the permanent alimony -
maintenance @ Rs.25,000/- per month should have been
granted from the date of the petition and/or whether the
same should have been granted from the date of judgment ?
(3) Whether the Family Court should have
directed Anand Deshpande to return the articles (Stridhan)
as per the list of articles annexed to Exh.6 or whether the
Family Court was justified in directing Anand Deshpande to
return the articles that were possessed by him ?
(4) What order ?
8. To answer the aforesaid points for determination, it would
be necessary to consider the pleadings of the parties. The pleadings of the
parties on all these issues are extremely brief and in fact there are no
pleadings by Radhika in respect of Stridhan in the petition filed by her for
a decree of divorce. However, there are some pleadings in the petition in
regard to the claim of Radhika for grant of monthly maintenance for
fca141.14.odt
herself and for Gauri. Though there are no pleadings in the petition in
respect of the prayer for return of Stridhan articles, much less any specific
pleadings in that regard, we find that an application is filed by Radhika
under Section 27 of the Hindu Marriage Act for return of the articles that
are included in the list annexed to the said application. In the said
application, it is stated by Radhika that the articles mentioned in the list
annexed to the application are lying with Anand Deshpande and that he
should return the same. In respect of the claim for maintenance, Radhika
has pleaded that Anand Deshpande is a Software Engineer and he is
working in SAS Computers and is drawing a salary of at least Rs.60,000/-
per month. On the basis of the said pleadings, Radhika has sought
maintenance @ Rs.35,000/- per month for herself and Gauri.
9. The claim of Radhika for return of gold ornaments, silver
articles and the other articles mentioned in the list appended to Exh.6 is
disputed by Anand Deshpande. It is pleaded by Anand Deshpande in the
written statement that all what was received by Radhika from her parents
and from his parents was returned to her and everything is lying with
Radhika herself. Anand Deshpande has pleaded in the written statement
that he is not answerable to the issue in regard to the return of the articles
as all the articles that are mentioned in the list are in possession of
Radhika. In regard to the pleading of Radhika, in respect of the monthly
fca141.14.odt
salary earned by him, he had nothing much to say. However, it was
pointed out in the written statement filed by Anand Deshpande that
Radhika is the owner of a Bungalow on a big plot admeasuring 6000 sq.
ft. in Nagpur and the upper floor of the said Bungalow was rented to a
Bank and a sum of Rs.10,000/- was received by Radhika as monthly rent.
It was further pleaded that Radhika had received a sum of Rs.13,00,000/-
after the death of her father and she has invested the same in a Bank and
is receiving the monthly interest of Rs.9,500/- on the same. It is pleaded
that while Radhika was in Pune, she was in service and she has saved her
salary. It is further pleaded that even before her marriage and after she
left the matrimonial home, Radhika was in service and the claim for
monthly maintenance was liable to be rejected.
10. In support of her pleadings, Radhika had entered into
witness box. She had reiterated the statements pleaded by her in the
petition. Radhika was cross-examined on behalf of Anand Deshpande.
Radhika had denied the suggestions made to her from the side of Anand
Deshpande in regard to the receiving of rent of Rs.20,000/- to
Rs.25,000/- per month from the property at Nagpur. She had however
admitted that she had invested an amount of Rs.12,00,000/- in the Bank.
She had admitted in the cross-examination that she had not mentioned
about the weight of her ornaments in the list filed by her along with
fca141.14.odt
application at Exh.6. Radhika admitted that she had not mentioned about
the weight of the gold ornaments or specified ornaments in the notice
issued by her to Anand Deshpande. Radhika further admitted that she had
received the gold and silver ornaments and the other articles mentioned
in Exh.48 and she had signed the said document. She had admitted that
out of the two gold chains mentioned by her in the list annexed to Exh.6,
one of the gold chains was gifted by her parents to Anand Deshpande and
not to her. Radhika admitted that she had not submitted the receipts
pertaining to the purchase of gold ornaments that were mentioned in the
list. She admitted that there was no specification of the valuable articles
mentioned by her in her petition and for the first time a mention of the
same was made in the application. Radhika admitted that there was no
pleading as to how she was entitled to a sum of Rs.35,000/- towards
maintenance.
11. In support of her claim, Radhika examined her grandmother
Shashikala. Shashikala stated in her evidence that Radhika had told her
that she had kept the entire jewellery gifted by her to her daughter Shaila
(Radhika's mother). She has stated in her examination-in-chief that except
the articles that are mentioned in the list of articles that were returned to
Radhika, all the other gold and silver articles were not returned to
Radhika. She stated in her evidence that she did not find the gold chain of
fca141.14.odt
12 grams that was gifted by her as a marriage gift to Radhika in the
articles received from Anand Deshpande. Shashikala was cross-examined
on behalf of Anand Deshpande. Shashikala admitted in her evidence that
after the list at Exh.48 was shown to her by Radhika, she has prepared her
deposition, that is, her evidence on affidavit at Exh.89 on the information
of Radhika that some of the articles are missing. She admitted that she
was a degree-holder. She admitted in her evidence that the glasses
mentioned in paragraph 8 were purchased for Gauri on the occasion of
her naming ceremony, but she had given it in the hands of Radhika,
Gauri, Anand Deshpande and his father. She, however, denied the
suggestion that the four glasses were returned to Radhika.
12. Anand Deshpande filed his evidence on affidavit. He
reiterated the facts pleaded by him in the written statement, in his
evidence on affidavit. He stated in the evidence on affidavit that every
article that was in their possession was handed over to Radhika as per list
at Exh.48 and not a single article of any nature is left with him for
returning to Radhika. It is stated in the affidavit that the claim of Radhika
that some of the gold ornaments are still lying with him is false and
baseless. Anand Deshpadne was cross-examined on behalf of Radhika.
Though he denied the other suggestions made on behalf of Radhika, he
admitted in his cross-examination that the ornaments that were brought
fca141.14.odt
by Radhika from Baroda were handed over to his mother. He further
admitted that there was one locker in the name of his mother and father
with the Bank of Maharashtra, Pune. He stated that he however does not
know whether the ornaments were put in the locker owned by his
parents. On an appreciation of the aforesaid evidence tendered by the
parties, the Family Court came to a conclusion that though Radhika was
successful in proving that certain articles were gifted to her at the time of
marriage from the side of her parents and also from the side of Anand
Deshpande, it is not proved by Radhika that the articles mentioned in the
list annexed to Exh.6 were not returned to her and they were still lying
with Anand Deshpande and his parents. The Family Court held that
certain articles were handed over by Radhika to her mother-in-law and
Anand Deshpande had admitted that his parents have a locker in the Bank
at Pune. The Family Court, therefore, held that it was possible that some
of the ornaments and other articles were in possession of Anand
Deshpande or his parents and that he should return the articles that were
available with him, to Radhika.
13. We have perused the lists of articles at Article - A and
Exh.48. The articles in Article-A are the articles that were removed from
the cupboards in the house of Anand Deshpande, that were opened in the
presence of the Court Commissioner. Admittedly, all the said articles are
fca141.14.odt
received by Radhika. So also, Exh.48 is a list of gold ornaments, silver
articles and several other articles that are returned by Anand Deshpande
and his family members to Radhika. We find that there is an inclusion of
several gold ornaments in Exh.48. Some of the gold ornaments are the
ornaments which were owned and possessed by Anand Telpande, who
was the father of Radhika. We find from the list at Exh.48 that some gold
ornaments and silver articles that were gifted by Telpandes (parents of
Radhika) and Deshpandes and certain articles that belong to Telpandes
were also returned to her as per Exh.48. It would be rather difficult in the
circumstances of the case to hold that certain gold and silver ornaments
are still in possession of Anand Deshapnde or his parents. Every person,
even a person belonging to a middle class family would have a locker in
the Bank. So also, the parents of Anand Deshpande would also have a
locker in the Bank. Anand Deshpande has stated in his cross-examination
that he does not know whether his parents had put some of the
ornaments given by Radhika to his mother in that locker. Be that as it
may, after the parties are separated and during the pendency of the
proceedings, Deshpandes' have returned several gold ornaments and
silver articles to Radhika. It is not possible to hold on the basis of the
evidence tendered by the parties and in the circumstances of the case that
the ornaments, if at all they were placed by Deshpandes in their locker
fca141.14.odt
were not returned by them to Radhika as per the list Exh.48. The Family
Court, therefore, rightly came to a conclusion that though Radhika had
proved on the basis of the photographs and certain other evidence that
certain gold and silver ornaments were gifted to her by the Telpandes and
Deshpandes, it was not possible to come to a conclusion whether the said
articles were in possession of Radhika or were in possession of Anand
Deshpande. The Family Court has therefore rightly not directed Anand
Deshpande to return any specific articles to Radhika. In the circumstances
of the case, specially when several articles that are mentioned in the list at
Exh.48 and Article -A are returned to Radhika, it cannot be said that
several other articles are still lying with Anand Deshpande and his
parents. It is also possible that Radhika may have removed some articles
while she left the matrimonial home. Though it is stated that Radhika was
compelled to leave the matrimonial home in May, 2006 without any
preparation, since she had carried the keys of all the four Almirahs along
with her, it is quite possible that she may have carried some of her articles
along with her. It is, therefore, not possible in the circumstances of the
case to direct Anand Deshpande to return any specific articles mentioned
in the list annexed to Exh.6 to Radhika.
14. During the pendency of the petitions filed by Radhika and
Anand Deshpande, Anand Deshpande was directed to pay a sum of
fca141.14.odt
Rs.5,000/- per month towards interim maintenance. The said amount was
paid by Anand Deshpande to Radhika till the judgment was rendered by
the Family Court on 19.8.2010. In the judgment, a direction was issued by
the Family Court against Anand Deshpande to pay a sum of Rs.25,000/-
per month to Radhika and Gauri, under Section 25 of the Hindu Marriage
Act. At the time of passing of the judgment, the Family Court or a Court
granting a decree of divorce is empowered to exercise jurisdiction under
Section 25 of the Hindu Marriage Act and direct the husband to pay to the
wife for her maintenance and support such a gross amount, monthly or
periodically, having regard to the income of the husband, the income of
the wife, the property of the husband and the property of the wife. On an
appreciation of the material on record, the Family Court has passed the
order directing Anand Deshpande to pay a sum of Rs.25,000/- to Radhika
and Gauri towards maintenance. An order granting interim maintenance
is normally given effect from the date of the application or petition, but
the order directing the grant of permanent alimony under Section 25 of
the Act of the Hindu Marriage Act is normally given effect from the date
of the judgment as the said order is passed at the time of passing of the
decree. We do not therefore find any merit in the submission made on
behalf of Radhika that the grant of permanent alimony should have been
effected from the date of filing of the petition and not from the date of the
fca141.14.odt
judgment.
15. While dismissing the appeal filed by Radhika, it would also
be necessary to dismiss the appeal filed by Anand Deshpande with a
prayer for reducing the amount of maintenance payable to Radhika and
Gauri. The Family Court has wrongly held that Anand Deshpande must be
earning a sum of Rs.1,50,000/- to Rs.2,00,000/- per month, though it is
not supported by evidence. It is apparent from the evidence on record that
Anand Deshpande was receiving a monthly salary of Rs.80,703/- and his
take-home salary was Rs.61,684/-. The Family Court considered that
Radhika is the owner of a double storied house in Nagpur on a plot
admeasuring 6000 sq. ft and is earning a sum of Rs.6,000/- per month by
renting the upper floor of the house to a Bank. The Family Court further
found that Radhika had invested a sum of Rs.12,00,000/- in the Bank and
was receiving the interest on the same. However, on a consideration of
the standard of the living of the parties and their position in life, in our
view, the Family Court rightly directed Anand Deshapnde to pay a sum of
Rs.25,000/- to Radhika and their daughter Gauri towards monthly
maintenance. Even assuming that Radhika was earning a sum of nearly
Rs.15,000/- or Rs.20,000/- from the sources of income available to her,
still she was entitled to a sum of Rs.25,000/- per month towards the
maintenance of herself and Gauri as both the parties belong to respectable
fca141.14.odt
families and the standard of living of both Radhika and Anand Deshpande
was considerably high. Hence, though the Family Court has wrongly
observed that Anand Deshpande must be earning a sum of Rs.1,50,000/-
to Rs.2,00,000/- per month, the Family Court was justified in directing
Anand Deshpande to pay a sum of Rs.25,000/- to Radhika and Gauri
towards monthly maintenance, as admittedly, at the relevant time, the
take-home salary of Anand Deshpande was Rs.61,000/-.
16. Since we do not find any merit in both the appeals, the
family court appeals are dismissed with no order as to costs.
JUDGE JUDGE
Wadkar
