Vijay S/O Baldeo Bhise vs Mrs. Shubha W/O Vijay Bhise
2021 Latest Caselaw 969 Bom

                                                                                 fca. 75-2015..odt
                                                   1

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


                         FAMILY COURT APPEAL NO. 75 OF 2015


              Vijay s/o Baldeo Bhise
              Aged about 59 yrs, Occ. Retired,
              R/o : Gokul Colony, Jawahar Nagar,
              Akola, District - Akola                                     .... APPELLANT

                                         // VERSUS //

              Mrs. Shubha w/o Vijay Bhise,
              Aged about 56 yrs, Occ. Pvt.
              Tutorial classes, R/o - Plot No.177,
              Shastri Layout, Nagpur,
              C/o - Nitin Deshkar                                         .... RESPONDENT

     ----------------------------------------------------------------------------------------------
                       Shri. A. Dhawas, Advocate for appellant.
                       Shri R.D. Bhuibhar, Advocate for respondent.
     ----------------------------------------------------------------------------------------------


     CORAM             : A.S. CHANDURKAR AND N.B. SURYAWANSHI, JJ.

DATE : 15th JANUARY, 2021.

ORAL JUDGMENT: [PER: N.B. SURYAWANSHI, J.]

1. The husband, by filing the present appeal under Section

19 of the Family Courts Act, 1984 assails the judgment of Family

Court, Nagpur in Petition No. C-77 of 2012, whereby the Family

Court awarded maintenance to the respondent wife.

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2. Facts in brief are that the respondent/wife filed a

petition under Section 18 r/w Section 25 of the Hindu Adoptions

and Maintenance Act, 1956 (for short 'the Act of 1956') seeking

past, present and future maintenance, residential allowance, food

expenses, contending that marriage of appellant-Vijay and

respondent-Shubha was solemnized on 05/05/1986 (hereinafter

referred as "the husband" and "the wife", respectively) as per Hindu

Rites and Rituals. Daughter Anuja was born out of the wedlock on

13/11/1987. At the time of marriage, the wife was serving as a

Lecturer in Fulsingh Naik College, Pusad and the husband was

working as a Lecturer in Shri Shivaji College of Arts, Commerce and

Science, Akola. The wife was, therefore, residing with her parents

at Pusad and the husband was residing with his parents at Akola.

The wife used to visit Akola to reside with the husband on several

occasions and during holidays. The wife, out of her own income,

purchased a plot at Akola in the joint name with the husband. On

the insistence and pressure of the husband, the wife executed

Transfer Deed of the said plot in favour of the husband. The wife in

that behalf filed Criminal Case No.35 of 1996 in the Court of learned

Judicial Magistrate, First Class, Akola against the husband for the

offences punishable under Sections 420, 406 of the Indian Penal

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Code, which resulted in acquittal by giving benefit of doubt. Though

the husband was working as a Lecturer and earning handsome

salary, he used to demand money from the wife and the wife used to

virtually hand over all the salary to him. On the insistence and

pressure of the husband, the wife resigned from her job in the

month of August 1991 and shifted to Akola to reside with the

husband. The husband and his parents started ill-treating the wife

and her daughter as soon as they started residing with them. On

07/02/1993, the wife was beaten mercilessly as she refused to give

consent for divorce by mutual consent, fist blows were inflicted on

her and by snatching her Mangalsutra the wife was driven out of

matrimonial house alongwith daughter.

3. The wife gave details of proceedings filed by her against

the husband i.e. under Section 498-A of the Indian Penal Code i.e.

Regular Criminal Case No. 475 of 1993 and private complaint i.e.

Regular Criminal Case No. 1178 of 1993 which resulted into

acquittal of the husband. Special Civil Suit No. 22 of 1996 for

recovery of ornaments and 'Stridhan' articles, gifts which was partly

decreed and the husband was directed to deliver silver and gold

ornaments and articles to the wife or in the alternative to pay an

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amount of Rs.61,900/-. Regular Civil Suit No. 444 of 1999 for

maintenance wherein on 09/07/2001 maintenance at the rate of

Rs.1,500/- per month to wife and Rs.500/- per month to the

daughter for past three years was awarded and future maintenance

at the rate of Rs.1,500/- per month to wife and Rs.1,000/- per

month to daughter was awarded. Miscellaneous Criminal Case No.

269 of 1997 filed under Section 125 of Code of Criminal Procedure

wherein maintenance at the rate of Rs.450/- per month each was

awarded to wife and daughter. In Miscellaneous Criminal Case No.

555 of 1999 filed under Section 127 of Code of Criminal Procedure,

the maintenance was enhanced to Rs.1,000/- each per month.

Daughter Anuja filed petition for maintenance under Section 20

read with Section 25 of the Act of 1956, wherein educational

expences of Rs.1,00,000/- and maintenance at the rate of Rs.3,000/-

per month was awarded. The quantum was challenged by Anuja by

filing First Appeal No. 43 of 2010 which was compromised and the

husband agreed to pay Rs.1,85,000/- towards educational expenses

and Rs.4,000/- per month towards maintenance allowance.

4. It was further averred that since the daughter had

secured admission in B.E. course at Nagpur, the wife shifted to

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Nagpur along with her daughter in July 2005 and since July 2005

till May 2010 they resided in the house owned by one Mrs. Nimgade

at Income Tax Colony, Pratap Nagar, Nagpur by paying Rs.4,000/-

per month rent. Between June 2010 till May 2012, the wife resided

in the flat owned by Shri Raosaheb Chithore at Surve Nagar,

Nagpur by paying rent at the rate of Rs.5,000/- per month. Since

June 2012, the wife was residing at plot No.177, Shastri Layout,

Nagpur owned by Shri Nitin Deshkar wherein she was paying rent at

the rate of Rs.6,800/- per month (excluding electricity charges).

Electricity charges of Rs.800/- per month were being paid by her.

The wife therefore claimed that since December 2009 till the date of

filing the petition, she had paid Rs.1,74,400/- towards rent.

It was further contended that since December 2012, the

wife was suffering from abdominal pain and severe pain in neck,

stiffness and pain in left leg, pain in left knee etc. and she was

advised to undergo various tests like X-ray of Cervical spine, MRI,

Sonography, Doppler Study of Left leg, X-ray of Left knee etc. The

wife, therefore, claimed that she had incurred expenditure of

Rs.26,000/- towards doctor's fees, medical investigation charges and

for medicines. The wife gave list of the medicines prescribed to her

along with its price in the petition. The details of monthly expenses

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to the tune of Rs. 8000/- incurred by her towards grocery,

vegetables, milk, conveyance etc. was claimed by her as food

expences. She further claimed that since daughter Anuja after

completion of her engineering had secured admission in M.B.A. in

Lokmanya Tilak Pune University, Nagpur in August 2012, the wife

and daughter were required to stay at Nagpur. It was further

contended that though the wife and daughter were residing

separately from the husband since 07/02/1993, the husband had

never made any provision for residence of the wife, she was unable

to bear the expenses required towards residence at Nagpur and the

wife and daughter were solely depandant on the husband for their

maintenance. She therefore, contended that taking into

consideration the fact that the husband earned salary of Rs.55,000/-

per month and his father was a pensioner, hence nobody was

dependent on him except the wife and daughter. Considering the

share of the husband in the ancestral agricultural land, he owned a

flat and an open plot and taking into consideration the status of the

parties, the husband was in a position to pay maintenance at the

rate of Rs.17,500/-(Rs.8,000/- towards residential allowance +

Rs.8,000/- for food expenses + Rs.1,500/- towards medical

attendance). The wife further claimed an amount of Rs. 1,74,400/-

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towards past residence allowance, Rs.26,000/- towards past medical

attendance and Rs.25,000/- towards litigation expences.

5. The husband filed written statement and admitted the

marriage and the birth of the daughter, however denied rest of the

contentions of the wife. He claimed that since past and future

maintenance was granted to the wife in suit bearing No.444 of 1999

the petition of the wife was not maintenable. He claimed that the

wife and her daughter were residing separately at Nagpur on their

own accord, without there being any reasonable excuse. He pleaded

that the separate residence of wife in such a costly rented house was

not justified and that the claim of wife was time barred. There was

no material change in the circumstances for the wife to institute the

present petition. He claimed that house wherein he stayed required

yearly maintenance and he had to pay the electricity bill and the tax

of Municipal Corporation. The land which was in his share was not

being cultivated by him. He did not get any income from the same.

He therefore, claimed that the petition filed by the wife was liable to

be dismissed.

6. Before the Family Court, the wife filed an affidavit of

evidence reiterating her pleadings in the petition, she filed on

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record her saving bank account statements, for the period

18/12/2009 to 20/05/2010 and for the period 12/10/2012 to

14/07/2014, 24 rent receipts, 45 medical bills, 13 bills of food and

other expenses, salary certificate of the husband. She also filed on

record certified copies of sale-deeds by which the husband and his

mother sold lands belonging to them, 7/12 extract of lands in the

name of the husband and his father. Her medical reports and

prescriptions were also filed on record which were exhibited.

7. In the cross examination she accepted that she did not

issue any notice in writing to the husband for enhancement of

maintenance. She denied the suggestion that she was running

coaching classes and earning Rs.50,000/- per month. She admitted

that till the year 2009 there was a Maruti four wheeler in her name.

She denied that at the time of deposition she was getting income of

Rs.15,000/- per month from that vehicle. She further stated that the

vehicle was owned by her father and after his death she inherited it

and thereafter she transferred it for want of money. She admitted

that she was aware that the husband would retire in December,

2014. She denied that after retirement the husband would be

getting pension of Rs.20,000/- per month. She stated that the

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husband would be getting pension at the rate of Rs.35,000/- per

month.

8. Landlord Raosaheb Chithore, was examined on behalf

of the wife who deposed that the wife was staying along with

daughter at the first floor of the house owned by him at Surve Nagar

by paying rent of Rs.5,000/- per month, between June 2010 till May

2012. In cross-examination, he admitted that he did not file any

document to show that he was the owner of house No.253. There

was no written agreement between him and the wife. He did not

record in Nagpur Municipal Corporation that the wife was his

tenant. He denied that he issued false rent receipts.

9. The husband filed an affidavit of evidence in verbatim

reproducing the contentions in the written statement. In the cross-

examination he feigned ignorance about the rental accommodations

of wife and daughter. He denied that the wife had paid rent as

claimed by her. He further denied that medical expenses of

Rs.26,000/- were incurred by the wife. He stated that he did not

remember his gross salary at the time of retirement. When he was

confronted with his pension papers he admitted them. He denied

that as per last pay certificate, his gross salary was Rs.74,000/-. He

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deposed that he was getting pension of Rs.28,000/- per month. He

admitted that he did not file any document about his pension. He

admitted that as per page No.13 of his pension papers (Exh.87), his

pension was calculated at Rs.34,970/-. He admitted to have

received provident Fund amount of Rs.5,00,000/-. He denied that

he received gratuity of Rs.5,77,005/-. He admitted to have received

commutation amount of Rs. 7,02,562/-. He admitted that he was

residing with his mother but stated that he did not know that the

house where he resided was owned by his mother. He admitted that

he was not paying rent. He admitted that his father was a pensioner,

who died on 24/04/2014. He stated that he did not know whether

his mother was getting pension of Rs.8,500/- per month. He

admitted that facility of medical reimbursement was available to

him. He admitted that he did not have any proof to show that the

wife was earning from tuition classes. He admitted that he had

undivided share in the agricultural land at Pathardi.

10. Nitin Deshkar, the landlord of the wife was examined by

the husband, who deposed that he knew the wife since 2012 when

she came as a tenant along with her daughter. His two bed room-

hall-kitchen flat was taken on rent of Rs. 6,800/- per month by the

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wife in the year 2012, the rent was excluding water tax and

electricity charges. He stated that wife- Shubha was a house wife. He

did not issue the rent receipts. The daughter of Shubha was taking

education. In cross examination he admitted the property card

extract of his flat.

11. The Family Court after appreciating the evidence on

record awarded Rs.13,000/- including maintenance @ Rs.5,000/-,

rent @ Rs.6,800/- and medical expenses @ Rs.1,200/-, per month

from the date of petition and Rs.1,74,400/- towards past rent for

past three years and Rs.26,000/- towards past medical expanses.

The amount of interim maintenance was directed to be adjusted.

Being aggrieved by the award of maintenance, the husband has filed

present appeal.

12. Heard the learned advocates for the parties. The

learned advocate for the appellant/husband has challenged the

impugned judgment only on the point of quantum awarded by the

Family Court. He strenuously argued that the Family Court has

awarded exorbitant amount of maintenance to the wife. Taking into

consideration the standard of living of the parties and the fact that

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the husband was retired and he was getting meager pension, the

maintenance awarded by the Family Court was excessive. Further

submission is that the daughter is already in service. He further

argued that the medical bills were not proved by examining the

medical shop owner who issued the said bills, hence the Family

Court ought not to have allowed the medical expenses to the wife.

He therefore, argued that taking into consideration the facts and

material on record, at the most the Family Court could have

awarded Rs.7,500/- to the wife. He, therefore, prayed that the

appeal may be allowed and the maintenance awarded to the wife be

reduced.

13. The learned advocate for the respondent-wife on the

other hand supported the judgment of the Family Court stating that

the Family Court has rightly arrived at the quantum of maintenance

and the other amounts and no case is made out by the husband to

interfere with the same. He therefore, prayed that the appeal may

be dismissed.

14. Heard both the sides. Perused the record. In view of

the rival contentions, following point arises for determination :

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"Whether the quantum of maintenance awarded by the Family Court is proper, or the same liable to be reduced ?"

15. The wife has proved payment of past rent and present

rent by producing on record her bank statements at Exhs.36 and 38

wherein monthly debit entries of the rent amounts which were

credited in the account of landlord were reflected. By examining

landlord Chithore she has proved the payments of rent. The witness

examined by the husband namely Nitin Deshkar has also proved that

wife had taken his flat on monthly rent of Rs. 6,800/- in the year

2012. The wife has therefore proved that in the past three years she

had paid rent of Rs.1,74,400/- and at the time of deposition she was

paying the rent at the rate of Rs.6,800/- per month.

16. The wife has also proved food expenses by proving 13

bills (Exh.40) of food and other expenses. The medical expenses

incurred by her were also proved by her by placing on record 45

medical bills (Exh.39). The wife has therefore established her claim

of maintenance amount by leading cogent and reliable evidence.

The wife therefore has also proved on record the change in the

circumstances, justifying the alteration in the maintenance amount

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as contemplated by Section 25 of the Act of 1956. We do not agree

with the submission of the learned counsel for the appellant-

husband that since the medical shop owner who issued medical bills

was not examined, the bills should not have been admitted and

taken into consideration by the learned Family Court. In view of

Section 14 of the Family Courts Act, 1984, the Family Court is

entitled to take into consideration documents which in its opinion

deals effectually with the dispute whether or not the document

would be otherwise relevant or admissible under the Indian

Evidence Act, 1872. Therefore, the Family Court was justified in

considering the medical bills while awarding medical expenses to

the wife. Nothing damaging to the claim of wife could be brought on

record during her cross examination. Evidence on record also

indicates that the husband was getting pension at the rate of

Rs.34,970/- and he received pensionery benefits i.e. Provident Fund

Rs.5,00,000/-, commutation Rs.7,00,000/- and gratuity

Rs.5,77,005/- in view of admitted pension papers (Exh.87). The

husband has further admitted that he was residing in the house of

his mother. It appears from the record that his mother must be

getting pension after the death of his father who was a pensioner.

The husband has admitted that he was entitled for reimbursement

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of the medical expenditure incurred by him. It is therefore obvious

that except the wife nobody is dependent on the husband. The

daughter is major now and admittedly has started earning, therefore

the husband is not required to pay maintenance of Rs.4,000/- per

month to the daughter. In view of the evidence on record, we are of

the considered view that the wife has proved her case under

Sections 18 and 25 of the Act of 1956 by leading cogent evidence of

change in circumstances and the fact that the husband had sufficient

means to pay the enhanced maintenance. Taking into consideration

the standard of living of the parties, we are of the opinion that the

Family Court was justified in awarding Rs.13,000/- per month

maintenance (including maintenance @ Rs.5,000 + rent @

Rs.6,800/- + medical expenses @ Rs.1,200/-) from the date of

petition and Rs.1,74,400/- towards rent of past three years and

Rs.26,000/- towards past medical expenses. We, therefore, answer

the point accordingly.

17. We find no merit in the appeal filed by the husband and

according to us the husband has failed to make out any case to

interfere in the order passed by the Family Court. The Family Court

has passed a well reasoned order on the basis of evidence produced

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before it and no fault can be found with the orders passed by the

Family Court. The present appeal being meritless, the same is

dismissed. Parties to bear their own costs.

                        JUDGE                                JUDGE




     J.Pethe..