Mrs. Kanta W/O Annasaheb Dhabekar vs Annasaheb S/O Vitthalrao ...
2021 Latest Caselaw 2668 Bom

  914FCA 17.2017.odt                                1



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

                   FAMILY COURT APPEAL NO. 17 OF 2017

  Mrs. Kanta w/o Annasaheb Dhabekar,
  aged about 55 years, Occ. Nil,
  R/o C/o Yadavrao Bansod, Chitnis Park,
  Bhadarpura, Nagpur.
                                                                ...APPELLANT

                    Versus

  Annasaheb s/o Vithalrao Dhabekar,
  aged about 60 years, Occ. Retired,
  R/o Plot No. 109, Mahatma Gandhi Nagar,
  Hudkeshwar Road, Nagpur.
                                                            ...RESPONDENT

  Shri A.A. Sambaray, Advocate for the appellant.
  Shri D.G. Paunikar, Advocate for the respondent.
                     .....

                                 CORAM : A.S. CHANDURKAR AND
                                         PUSHPA V. GANEDIWALA, JJ.

DATED : FEBRUARY 10, 2021.

ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.) :

Heard.

2. The challenge in the present appeal is to the order

dated 11/04/2016 passed by the Judge, Family Court No. 2,

Nagpur in Petition No. C-79/2012, whereby the

respondent/husband was directed to pay an amount of

Rs.1,800/- (rupees one thousand eight hundred) per month,

including the maintenance amount granted to the

appellant/wife under Sections 125/127 of the Code of Criminal

Procedure (hereafter "the Code", for short).

3. The appellant/wife filed a petition under Section 18

of the Hindu Adoptions and Maintenance Act, 1956 (hereafter

"the Act of 1956", for short) for grant of maintenance before

the Family Court, Nagpur. She pleads that her marriage with

the respondent was solemnized on 11/05/1990 at Nagpur.

However, after marriage, due to differences cropped up

between the parties, she was constrained to live at her parental

house. Thus, the respondent/husband withdrawn himself from

her society for no valid reasons, and thereby neglected and

refused to maintain her.

She further states that at the time of marriage, the

respondent/husband was working as an 'Upper Division Clerk'

in the Office of the Deputy Collector, Nagpur, and was earning

salary of Rs.7,800/- (rupees seven thousand eight hundred)

per month, and was leading a lavish and luxurious life, while

she was living at the mercy of her relatives and well-wishers

without any fault on her part. She preferred a petition under

Section 125 of the Code for grant of maintenance bearing

petition No. E-829/1996 wherein the Principal Judge, Family

Court, Nagpur, was pleased to allow her petition, and granted

her maintenance @ Rs.500/- (rupees five hundred) per month

vide order dated 09/09/1996.

                    She        further   states   that       thereafter,         the

  respondent/husband               was   promoted     as     S.I.     Foodgrains

Distribution in Food and Grains (Rationing) Office at Mahal

Division, Nagpur, and was drawing a salary of Rs.15,686/-

(rupees fifteen thousand six hundred eighty six) per month. As

she was not able to maintain herself within a meager amount

of Rs.500/- (rupees five hundred), she filed an application

under Section 127 of the Code for enhancement of

maintenance vide application No. E-187/2000. The Family

Court, Nagpur, was pleased to enhance the same up to

Rs.1,500/- (rupees one thousand five hundred) per month vide

order dated 03/06/2003.

She further states that in the meantime, the

respondent/husband filed a petition for divorce vide petition

No. A-218/1998. The same was dismissed vide judgment dated

03/06/2003, and the appeal against the said judgment is

pending consideration before this Court.

She further states that the respondent/husband was

retired from service on 11/05/2010, and getting pension of

Rs.12,000/- (rupees twelve thousand) per month. Apart from

receiving pension, the respondent/husband sold out his

ancestral property situated at Ruikar Road, Near Ram Bhandar,

Badkas Chowk, Mahal, Nagpur, for a valuable consideration of

Rs.50,00,000/- (rupees fifty lakh). That out of the said sale

proceeds, the respondent/husband has purchased a new house

situated at Plot No. 109, Mahatma Gandhi Nagar, Hudkeshwar

Road, Nagpur. That he is also receiving rent of Rs.5,000/-

(rupees five thousand) per month from the said house. As she

was facing difficulty in managing her livelihood within a

meager amount of Rs.1,800/- (rupees one thousand eight

hundred), as the cost of living is increasing day-by-day, she

filed the present petition, and claimed maintenance @

Rs.5,000/- (rupees five thousand) per month.

4. The respondent/husband, in his reply, does not

deny about the fact of his marriage, service, promotion, salary

and the orders of maintenance under Sections 125/127 of the

Code. He also does not dispute that he was retired from his

service on 31/05/2010. However, he states that he is receiving

Rs.7,605/- (rupees seven thousand six hundred five only)

towards pension, and also disputed the sale consideration of

Rs.50,00,000/- (rupees fifty lakh). He specifically states that it

was an ancestral property, and that he received his share of

Rs.4,12,500/- (rupees four lakh twelve thousand five hundred)

only. He further states that the appellant/wife has sufficient

means, as she has been given the possession of the properties

of her father, which includes agricultural land/s, after his

death.

5. Furthermore, the respondent/husband states that

he is suffering from various illness over which he is required to

spent Rs.4,000/- to Rs.5,000/- per month.

6. The Family Court, Nagpur, after framing necessary

issues, recorded evidence as adduced by the parties. The Family

Court, after considering the evidence on record, passed the

order directing the respondent/husband to pay Rs.1,800/-

(rupees one thousand eight hundred) towards maintenance,

inclusive of the maintenance amount granted under Sections

125/127 of the Code, to the appellant/wife. This judgment is

impugned in this appeal.

7. Shri Sambaray, learned Counsel for the

appellant/wife, submits that considering the financial resources

available at the disposal of the respondent/husband, i.e.,

pension around Rs.15,000/- (rupees fifteen thousand) per

month, house rent around Rs.5,000/- (rupees five thousand)

per month, and that he received substantial amount of retiral

benefits also, the appellant/wife too is entitled to live her

livelihood as per the standard which the respondent/husband

is enjoying.

He further submits that Rs.1,800/- (rupees one

thousand eight hundred) per month towards maintenance is

too meager an amount, considering the present cost of living.

Lastly he submits that the respondent/husband has not

specifically stated as to which of the ailments he is suffering

from, and thus prayed for increasing the amount of

maintenance.

8. As against this, Shri Paunikar, learned Counsel for

the respondent/husband, opposing the appeal submits that

considering the age of the respondent/husband, so also

considering the fact that the appellant/wife is residing in her

own house, the amount of maintenance, as has been granted

by the Court below, is just and proper, and need not warrant

any interference.

9. We have heard the submissions put forth on behalf

of both the sides.

10. The following point arose for determination of this

Court :

"Does the quantum of maintenance, as has been granted by the Court below, is just and proper ?"

11. At the outset, the affirmative findings, with regard

to the justifiable reason for the appellant/wife to live apart

from the respondent/husband without forfeiting her claim of

maintenance, and that her entitlement for maintenance under

the Act of 1956, have attained finality, as the

respondent/husband has not preferred any appeal against

these findings. Therefore, this Court has only to consider the

quantum of maintenance on the basis of financial position of

the parties which is brought on record.

12. A perusal of the evidence on record would reflect

that the respondent/husband does not deny the fact that he

was getting an amount of Rs.16,816/- (rupees sixteen

thousand eight hundred sixteen) per month towards pension in

March, 2016. Today, we are in 2021. By now, undoubtedly, the

pension amount of the respondent/husband must have been

increased by not less than 10-15%.

13. On a query being put to the learned counsel for the

respondent/husband with regard to his current pension, he

could not answer the query for want of instructions.

14. In the given facts, so also considering the fact that

the cost of living is increasing exponentially day-by-day, in the

considered opinion of this Court, Rs.3,000/- (rupees three

thousand) per month, inclusive of the maintenance amount

granted under Sections 125/127 of the Code, would be

sufficient. Also, we are of the opinion that the said increased

maintenance amount must be paid to the appellant/wife from

01/01/2021, since undisputedly, the respondent/husband has

already been retired from service wayback in 2010. Hence, the

following order :

ORDER.

  i.                The appeal is partly allowed.

  ii.               The judgment and order dated 11/04/2016 passed

by the Judge, Family Court No. 2, Nagpur, in petition No. C-

79/2012 stands modified to the extent that the

respondent/husband shall pay Rs.3,000/- (rupees three

thousand) per month to the appellant/wife, inclusive of the

maintenance amount granted under Sections 125/127 of the

Code, with effect from 01/01/2021.

iii. In addition, the respondent/husband shall pay

Rs.5,000/- (rupees five thousand) to the appellant/wife

towards litigation expenses.

                    (JUDGE)                         (JUDGE)

                                      ******

  Sumit