Bombay High Court
Rajesh S/O. Motiramji Gaikwad vs Yogita W/O. Rajesh Gaikwad on 8 March, 2021
Bench: A.S. Chandurkar, Pushpa V. Ganediwala
211FCA 45.2016.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
FAMILY COURT APPEAL NO. 45 OF 2016
Rajesh s/o Motiramji Gaikwad,
aged about 50 years, Occ. Nil,
R/o 6/1, Rambag Colony,
Medical Square, Nagpur.
...APPELLANT
Versus
Yogita w/o Rajesh Gaikwad,
aged about 38 years,
Occ. Business Pallai Super Shopee,
R/o Manish Nagar, Besa Road,
Nagpur.
...RESPONDENT
Shri J.M. Shamkuwar, Advocate for the appellant.
Shri A.K. Choube, Advocate for the respondent.
.....
CORAM : A.S. CHANDURKAR AND
PUSHPA V. GANEDIWALA, JJ.
ARGUMENTS WERE HEARD ON : MARCH 04, 2021.
JUDGMENT IS PRONOUNCED ON : MARCH 08, 2021.
JUDGMENT : (PER : PUSHPA V. GANEDIWALA, J.)
This is the husband's appeal filed under Section 19
of the Family Courts Act, 1984 (hereafter "Act of 1984", for
short) challenging the judgment and decree dated 28/07/2015
passed by the Family Court - 2, Nagpur in Petition No. C-
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211FCA 45.2016.odt 2
86/2010, which was filed under Section 18 of the Hindu
Adoptions and Maintenance Act, 1956 (hereafter "the Act of
1956", for short) for the grant of maintenance.
The brief facts necessary to decide the present
appeal are as under :
2. The marriage between the parties was solemnized
on 28/02/2002 at Nagpur as per the custom prevailing in their
community. Out of this wedlock, they are blessed with two
sons, viz., Mihir and Chirag, born on 27/11/2002 and
02/12/2006 respectively, who are presently in the custody of
the appellant/ husband. The couple is residing separately since
2010.
3. The respondent/ wife filed three petitions before
the Family Court, Nagpur ;
i) Petition No. D-19/2020 under Section 25 of the
Guardians and Wards Act, 1890, for custody of the children;
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ii) Petition No. C-86/2010 under Section 18 of the
Act of 1956 for maintenance of Rs. 20,000/- (rupees twenty
thousand) per month and ;
iii) Petition No. E-356/2010 under Section 125 of
the Code of Criminal Procedure, 1973 (hereafter "the Code",
for short) for maintenance of Rs. 1500/- (rupees one thousand
five hundred) per month.
All the three petitions were tried together, and by
way of a common judgment and decree dated 28/07/2015, the
Family Court - 2, Nagpur, partly allowed Petition No. D-
19/2010 for custody and Petition No. C-86/2010 for
maintenance and granted amount of Rs.4,000/- (rupees four
thousand) per month to the respondent/ wife against her claim
of Rs.20,000/- (rupees twenty thousand) per month. The
Family Court preferred not to consider the Petition No. E-
356/2010 for maintenance under Section 125 of the Code, as it
considered the petition under Section 18 of the Act of 1956 for
her maintenance.
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211FCA 45.2016.odt 4
The appellant/ husband only challenged the
quantum of maintenance to the respondent/ wife in this
appeal.
4. We have heard Shri Shamkuwar, learned Counsel
for the appellant/ husband, and Shri Choube, learned Counsel
for the respondent/ wife. Perused the record. The following
point arises for our consideration :
"Whether the maintenance amount of Rs.4,000/- per month
is just and reasonable ?"
5. At the outset, needless to say that during the
pendency of this appeal, while staying the effect and operation
of the judgment and decree of the Family Court, this Court
allowed interim maintenance @ Rs.2,500/- (rupees two
thousand five hundred) per month to the respondent/ wife.
6. It is not disputed that the couple is residing
separately since 2010, and both the sons are in the custody of
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the appellant/ husband since the time of their separation.
There is nothing on record about the proof of income of the
appellant/ husband. On the basis of guess work, the trial Court
decided the maintenance amount @ Rs.4,000/- (rupees four
thousand) per month. It is evident from the record of the trial
Court that the respondent/ wife has no source of income, and
therefore, the custody of the children was not granted to her.
Shri Shamkuwar, learned Counsel for the appellant/ husband
brought to the notice of this Court some photographs showing
one lady sitting on the counter of a daily needs shop, purported
to be his wife. However, he could not show that the shop is
owned by the respondent/ wife, and further details about the
said shop. Shri Choube, learned Counsel for the respondent/
wife stated that the shop is owned by her relative. The
appellant/ husband has not brought on record his true income.
Evidently, he is working as a representative of the film
distributors, and prior to that, he had also worked as a real
estate broker and as a share broker. As per his case, he is
earning Rs.10,000/- (rupees ten thousand) per month.
However, he could not prove the same.
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7. In the absence of proof of income of the appellant/
husband, we do not see any impropriety, if the trial Court
decided the amount of maintenance on the basis of some guess
work. Some amount of guess work is permissible in law.
However, considering the facts that the appellant/ husband is
having responsibility to maintain his two sons and an old aged
mother, in our considered opinion, Rs.3000/- (rupees three
thousand) per month towards maintenance for the respondent/
wife, would be just and reasonable. The Family Court allowed
the maintenance amount from the date of judgment. Had it
been the appeal/ cross objection preferred by the respondent/
wife, we would have considered the grant of maintenance from
the date of application. Furthermore, it emerges from the
record that during pendency of the petition before the Family
Court, she was receiving interim maintenance of Rs.1,000/-
(rupees one thousand) per month by an order dated
09/05/2011.
8. In the result, we modify the order of the Family
Court accordingly and pass the following order :
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211FCA 45.2016.odt 7
ORDER
i. The appeal is allowed in part.
ii. The judgment and decree of the Family Court is
modified to the extent that the respondent/ wife shall be
entitled to receive maintenance @ Rs.3000/- (rupees three
thousand) per month from the date of order of the Family
Court.
iii. It is informed that the appellant/ husband has not
paid maintenance amount to the respondent/ wife since
March-2020. We, therefore, direct the appellant/ husband to
deposit the arrears of maintenance within a period of three
months from today.
iv. In the circumstances, the parties to bear their own
costs.
JUDGE JUDGE
******
Sumit
