Umabai W/O Babulal Rawat vs Babulal S/O Dindayal Patel Rawat
2021 Latest Caselaw 2792 Bom

9.FCA20.15(j)                                                                        1/5


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


                            FAMILY COURT APPEAL NO.20/2015



Umabai w/o Babulal Rawat,
Aged about 56 years, Occ-Nil.
R/o. Dattawadi, Nagpur-23.                                   ... Appellant

-vs-

Babulal s/o Dindayal Patel Rawat,
Aged about 62 years, Occ.Retired
R/o At Post Gorakher, Baitul,
District and Tahsil-Baitul-484440(MP).                       ..Respondent

                                       ...
Shri S.Raisuddin, Advocate for appellant.
Shri S.D.Khati, Advocate for respondent.
                                       ...

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

Dated : 11th February, 2021.

Oral Judgment : (Per A.S.Chandurkar, J.)

The challenge raised in this appeal filed under Section 19 of

the Family Courts Act, 1984 is to the judgment dated 09.06.2014 passed

in Petition No. C-30 of 2013 by the Family Court, Nagpur. By that order

the proceedings for grant of medical expenses stands dismissed.

2. The parties to the present proceedings were married on

17.05.1982. During subsistence of the said marriage the appellant-wife

was required to initiate proceedings for grant of maintenance. In Petition

bearing No. C-47 of 2011 the Family Court on 03.12.2012 enhanced the

9.FCA20.15(j) 2/5

amount of maintenance to Rs.3,000/- per month. On 01.11.2012 the

appellant underwent 'Cataract' operation and thereafter filed the present

proceedings on 04.04.2013 for grant of medical expenses. These

proceedings were opposed by the respondent-husband on the ground that

as the amount of maintenance had been enhanced from Rs.2,000/- to

Rs.3,000/- per month, it was not necessary to further grant medical

expenses. After considering the evidence on record, the learned Judge of

the Family Court accepted the stand taken by the respondent and

dismissed the petition. Hence this appeal by the wife.

3. Shri S.Raisuddin, learned counsel for the appellant submitted

that while deciding the earlier proceedings that is Petition No. C-47 of

2011 the documents pertaining to an eye operation conducted in 2009

had been considered. Shortly before those proceedings were decided on

03.12.2012, the appellant was again operated on 01.11.2012 and she was

required to spend an amount of Rs.30,000/- towards medical expenses.

He submitted that those documents were not placed on record in the

earlier proceedings and therefore the medical expenses as claimed for the

operation conducted on 01.11.2012 ought to have been allowed. In

support of his contentions the learned counsel placed reliance on the

decision in Ajay Saxena Vs. Smt. Rachna Saxena AIR 2007 Delhi 39 .

9.FCA20.15(j) 3/5

4. Shri S.D.Khati, learned counsel for the respondent opposed the

aforesaid submissions. According to him, by taking into account the

medical expenses of the appellant, the amount of maintenance was

enhanced from Rs.2,000/- to Rs.3,000/- per month. When the earlier

proceedings were decided on 03.12.2012 the appellant was operated on

01.11.2012, those documents ought to have been placed on record in the

earlier proceedings. He further submitted that as the amount of

maintenance was enhanced, there was no reason to further grant medical

expenses. Moreover the doctor who operated the appellant had not been

examined. He therefore submitted that there was no reason to interfere

with the impugned judgment.

5. In the light of the rival submissions, the following point arises

for determination :

Whether the appellant is entitled to be granted medical

expenses ?

6. We have heard the learned counsel for the parties at length and

with their assistance we have perused the records of the case. It is not

disputed that initially the appellant was operated in November 2009 as

per documents at Exhibits 20-1 and 20-2. By considering these

documents along with other material on record, the Family Court in the

earlier proceedings enhanced the amount of maintenance from Rs.2,000/-

9.FCA20.15(j) 4/5

to Rs.3,000/- per month. This enhancement was payable from the date of

the order which was dated 03.12.2012. As per the documents at Exhibits

20-3 and 20-4 the other eye of the appellant was operated and she had to

pay Rs.30,000/- towards medical expenses. It is for claiming these

expenses that the present proceedings have been filed.

7. In the impugned order the learned Judge of the Family Court

has rightly observed that the testimony of the appellant was sufficient

to prove that her right eye was operated on 01.11.2012 and that it was

not necessary to examine the concerned doctor. However on the ground

that the earlier proceedings were decided on 03.12.2012 which was after

the appellant was operated on 01.11.2012, the Court refused to grant the

medical expenses. We find that shortly prior to the earlier proceedings

being decided, the appellant was operated on 01.11.2012. Those

documents were not placed on record in the earlier proceedings. The

appellant was therefore justified in seeking reimbursement of those

medical expenses. The learned counsel for the appellant has rightly

placed reliance on the decision in Ajay Saxena (supra) which has

considered the definition of the expression 'maintenance' under Section

3(b) of the Hindu Adoptions and Maintenance Act, 1956 to grant medical

expenses. Moreover the amount of maintenance being Rs.3,000/- per

month that too payable from 03.12.2012 is a factor which cannot be

9.FCA20.15(j) 5/5

ignored. We find that the appellant has proved that her right eye was

operated on 01.11.2012 and she had to spend an amount of Rs.30,000/-

towards medical expenses. She is therefore entitled to receive the same.

The point as framed is answered by holding that the appellant is entitled

to receive the medical expenses.

8. Accordingly for the aforesaid reasons, the judgment of the

Family Court dated 09.06.2014 in Petition No. C-30 of 2013 is set aside.

The respondent is directed to pay an amount of Rs.30,000/- towards

medical expenses to the appellant within a period of six weeks from today.

On failure to pay such amount to the appellant within a period of six

weeks, the amount would carry interest @6% per annum after expiry of

the period of six weeks. Family Court Appeal No.20 of 2015 is allowed in

aforesaid terms.

                      JUDGE                       JUDGE




Andurkar