Kalpana Prakash Nimaje And 1 Anor vs Prakash Pundlik Nimaje
2021 Latest Caselaw 3764 Bom

  902CAO 1508.2019.odt                               1



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

               CIVIL APPLICATION (O) NO. 1508 OF 2019 IN
                FAMILY COURT APPEAL NO. 88 OF 2014 (D)

  Kalpana w/o Prakash Nimje,
  aged about 43 years, Occ. Household,
  R/o C/o Ramaji Hedaoo,
  At Kotewada, District Nagpur.
                                           ...APPLICANT/APPELLANT

                    Versus

  Prakash s/o Pundlik Nimje,
  aged about 48 years, Occ. Govt. Service,
  R/o Near Chhatrapati Sahu Maharaj Wachanalaya
  and house of Liladhar Manapure,
  Chitnavispura, Mahal, Nagpur.
                                                         ...RESPONDENT

  Shri S.P. Hedaoo, Advocate for the applicant/ appellant.
  Shri Yuvraj Khobragade, Advocate for the respondent.
                     .....

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

ARGUMENTS WERE HEARD ON : FEBRUARY 24, 2021.

ORDER IS PRONOUNCED ON : MARCH 01, 2021.

ORDER : (PER : PUSHPA V. GANEDIWALA, J.)

This is an application by the appellant/ wife

seeking modification of the order dated 07/07/2015 passed in

Family Court Appeal No. 88/2014.

Before adverting to decide this application, the brief

facts with regard to various orders for maintenance in various

proceedings passed by the Courts need to be noted.

2. The marriage of the appellant/ wife with the

respondent/ husband was solemnized on 17/05/1997, and out

of the said wedlock, they have a son, viz., Kartik, born on

11/07/1999. Since November - 1998, the couple is residing

separately. The custody of the child (now major) is with the

appellant/ wife.

3. At the time of marriage, the respondent/ husband

was serving as a Research Assistant in Maharashtra Institute of

Labour Studies, Parel, Mumbai. Feeling aggrieved with the act

of desertion by the respondent/ husband, the appellant/ wife

filed a petition bearing No. A-69/2003 for restitution of

conjugal rights under Section 9 of the Hindu Marriage Act,

1955 (hereafter "Act of 1955", for short) before the Principal

Judge, Family Court, Nagpur, and the same was decided in

favour of the appellant/ wife vide judgment dated 29/04/2008

directing the respondent/ husband to resume cohabitation and

to pay her the permanent alimony of Rs.3,500/- (rupees three

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

thousand five hundred) to the child, total Rs.5,000/- (rupees

five thousand) per month from the date of judgment and

decree.

4. Instead of complying with the decree of restitution

of conjugal rights by the respondent/ husband, he filed a

petition bearing No. A-487/2009 for divorce under Section

13(1-A)(ii) of the Act of 1955, which came to be dismissed on

merits. During the pendency of this petition, an application

under Section 24 of the Act of 1955 filed by the appellant/ wife

came to be rejected on the ground that she is already getting

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

for herself and her minor son Kartik in Petition No. A-69/2003.

In the said order, the Family Court directed that the payment of

permanent alimony in Petition No. A-69/2003 shall be deemed

to have been the payment made pursuant to the interim

maintenance as well.

5. Thereafter, on 18/10/2013, the appellant/ wife

filed an application below Exh. 62 in divorce Petition No. A-

487/2009 for enhancement of interim maintenance. This

application came to be rejected by the Family Court, Nagpur

vide order dated 26/05/2014. In Writ Petition No. 5895/2014

against the order below Exh. 62, this Court vide order dated

10/08/2015 remanded the matter for afresh consideration

directing the Family Court to decide Exh. 62 in the light of the

documents filed by the appellant/ wife and also the order

dated 07/07/2015 passed by this Court in the Family Court

Appeal No. 88/2014. It was also observed by this Court that

the claim of the appellant/ wife for the period till 30/06/2015

is required to be considered.

6. It is pertinent to mention here that the appellant/

wife challenged the decree of restitution of conjugal rights and

permanent alimony before this Court to the extent of grant of

permanent alimony in Family Court Appeal No. 88/2014 (Old

First Appeal No. 708/2008). In this appeal, the parties entered

into the terms of settlement and requested the Court to pass

the decree in terms of settlement. Accordingly, this Court vide

order dated 07/07/2015 disposed of Family Court Appeal No.

88/2014 in terms of settlement. It was settled between the

parties that the respondent/ husband will pay Rs.10,000/-

(rupees ten thousand) per month towards permanent alimony

for both mother and son from 01/07/2015 and also to bear the

educational expenses of the child.

7. As per directions of this Court in Writ Petition No.

5895/2014, the Family Court, Nagpur reconsidered the

application below Exh. 62 and rejected the same vide order

dated 12/01/2016 specifically observing that as the parties

have settled the terms for grant of permanent alimony @

Rs.10,000/- (rupees ten thousand) per month, the appellant/

wife is not entitled for enhancement.

8. This order of rejection below Exh. 62 was

challenged by the appellant/ wife before the Single Bench of

this Court in Writ Petition No. 5467/2016. The learned Single

Bench of this Court vide order dated 07/06/2019 disposed of

the petition observing that since the petitioner/ wife was

seeking enhancement in the amount of maintenance and in the

light of the fact that the proceedings for divorce were not

pending, the petitioner/ wife is at liberty to make an

application for modifying the terms of settlement in the Family

Court Appeal No. 88/2014.

9. This is how the appellant/ wife filed the present

application. It is pertinent to note here that in the meantime,

on 26/05/2014, the appellant/ wife has also filed an

application before the Family Court, Nagpur under Order 21

Rule 33 of the Code of Civil Procedure, 1908 (hereafter

"C.P.C.", for short) seeking directions for periodical payment @

Rs.20,000/- (rupees twenty thousand) per month from

01/05/2008 till compliance of the decree as the

respondent/husband has failed to obey the decree of restitution

of conjugal rights against him.

10. Now, the question before us is whether the

appellant/ wife is entitled for modification in the order dated

07/07/2015 passed by this Court in Family Court Appeal No.

88/2014 as per the terms of settlement between the parties ?

11. We have heard Shri Hedaoo, learned counsel for

the appellant, and Shri Khobragade, learned counsel for the

respondent.

12. The learned counsel for the appellant/ wife

submitted that at the time of settlement between the parties on

07/07/2015, the amount was fixed as per the salary of the

respondent/ husband at the relevant time. It is submitted that

thereafter, the respondent/ husband, being in government

service, his salary got enhanced as per seventh pay commission

and therefore, there is a need to enhance the amount of

maintenance which was fixed between the parties in the year

2015.

13. As against this, the learned counsel for the

respondent/ husband opposed the application by placing on

record his reply and submitted that the respondent/ husband is

already paying Rs.15,000/- (rupees fifteen thousand) per

month since the period 2014-15 and therefore, the learned

counsel urged to reject the application.

14. We have considered the submissions on behalf of

both the parties and also perused the record.

15. At the outset, the change in circumstances is a valid

ground to modify the decree of maintenance/ alimony. In the

instant case, the petition for divorce filed by the respondent/

husband came to be dismissed and the finding recorded in the

judgment has reached its finality. If this be so, as the

petitioner/ husband was not granted any relief under the

provisions of the Act of 1955, as per Section 25 of the said Act,

he is not liable to pay alimony to the respondent/ wife and

therefore, whatever alimony is being paid by the respondent/

husband herein to the appellant/wife is in the petition for

restitution of conjugal rights.

16. In the appeal before this Court, i.e., Family Court

Appeal No. 88/2014, in which the present application came to

be filed, the appellant/ wife had challenged the amount of

alimony, i.e., Rs.5,000/- (rupees five thousand) granted by the

trial Court in the petition for restitution of conjugal rights for

herself and her minor son. During the pendency of this appeal,

the parties entered into the terms of settlement and the

amount of alimony was fixed at Rs.10,000/- (rupees ten

thousand) per month from 01/07/2015 and accordingly, the

appeal came to be disposed of.

17. Undisputedly, in addition to Rs.10,000/- (rupees

ten thousand), the appellant/ wife is also getting Rs.5,000/-

(rupees five thousand) per month since 26/05/2014 in her

separate proceedings filed under Order 21 Rule 33 of the C.P.C.

seeking periodical payment for want of compliance of the

decree for restitution of conjugal rights, as per judgment dated

10/02/2020 passed by the learned Single Bench of this Court

in Writ Petition No. 1630/2019.

18. Without going into the question of entitlement of

the appellant/ wife for permanent alimony under Section 25 in

the petition filed under Section 9 of the Act of 1955 and at the

same time, by virtue of the periodical payment as contemplated

under Order 21 Rule 33 of the C.P.C., in our considered view,

the appellant/ wife is getting enhanced amount of maintenance

to the tune of Rs.5000/- (rupees five thousand) per month.

19. It is pertinent to note here that the present

application came to be filed in August-2019 and thereafter, the

learned Single Bench of this Court in Writ Petition No.

1630/2019 decided on 10/02/2020 while allowing the Writ

Petition directed the respondent/ husband to pay periodical

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

Order 21 Rule 33 of the C.P.C. from the date of application, i.e.,

26/05/2014.

20. In this view of the matter, in our considered view,

due to aforesaid subsequent development, the appellant/ wife

is receiving total amount of maintenance of Rs.15,000/-

(rupees fifteen thousand) per month from the year 2014-15.

21. We may hasten to add that recently in the case of

Rajnesh Vs. Neha (Criminal Appeal No. 730/2020 decided on

04/11/2020), the Hon'ble Apex Court after considering the

overall gamut of the provisions on maintenance under different

enactments and after considering the entire case law on the

subject, observed that the Civil Courts/ Family Courts, while

deciding the quantum of maintenance in the subsequent

proceedings, shall take into account the maintenance awarded

in any previously instituted proceedings and determine the

maintenance payable to the claimant. It is also observed that a

wife can make a claim for maintenance under different

statutes, however, it would be inequitable to direct the husband

to pay the maintenance under each of the proceedings

independent of the relief granted in the previous proceedings.

It is further observed that after the maintenance is awarded to

the wife in a previously instituted proceedings, she is under a

legal obligation to disclose the same in a subsequent

proceeding for maintenance, which may be filed under another

enactment.

22. In addition, the son of the couple, who is born on

11/07/1999, now must have reached the age above 21. The

pleading of the appellant/ wife in her application is silent with

regard to his current education. Therefore, there is no reason

to consider this aspect. It emerges from the record that the

original order of maintenance of Rs. 5000/- (rupees five

thousand) per month included the maintenance for the minor

son too. Considering the date of birth of the minor son, i.e.

11/07/1999, he is now of age more than 21 years. We have

doubt about his entitlement to receive the maintenance. The

pleading in the application is silent with regard to his need for

educational or other legitimate expenses. Given these facts, the

appellant/ wife in her individual capacity would be receiving

Rs.15,000/- (rupees fifteen thousand) towards her

maintenance.

23. In the light of the aforesaid discussion, considering

the subsequent development, i.e., order dated 10/02/2020 in

Writ Petition No. 1630/2019 granting her additional periodical

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

26/05/2014 under Order 21 Rule 33 of C.P.C., and the age of

the son, we do not find any rational ground to modify the

order dated 07/07/2015. The Civil Application thus being

devoid of merits deserves to be dismissed and is accordingly

dismissed. No costs.

                    JUDGE                         JUDGE
                               ******
  Sumit