Shrirang Rambhau Garad vs Gandharibai Shrirang Garad And ...
2021 Latest Caselaw 13462 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                            SECOND APPEAL NO.599 OF 2013
                                        WITH
                         CIVIL APPLICATION NO.10687 OF 2013


                               SHRIRANG RAMBHAU GARAD
                                       VERSUS
              GANDHARIBAI W/O SHRIRANG GARAD AND OTHERS
                                         ...
    Mr. A.V. Lavte, Advocate h/f Mr. S.J. Salunke, Advocate for the appellant
                                         ...

                                    CORAM :     SMT. VIBHA KANKANWADI, J.
                                    DATE :      20th SEPTEMBER, 2021


ORDER :

1 Present appellant is the original defendant No.1, who is

challenging the Judgment and Decree passed by both the Courts below.

Present defendant No.1 is the original plaintiff, who had filed Regular Civil

Suit No.36/2008 for maintenance under Section 18 of the Hindu Adoption

and Maintenance Act. The said suit was filed before Second Joint Civil Judge

Junior Division, Beed. The said suit came to be allowed. Defendant No.1

was directed to pay maintenance @ Rs.3,000/- per month from the date of

the suit i.e. 25.01.2008. The charge of maintenance was kept on the land

2 SA_599_2013

Gat No.244, 250, 257 and House Nos.46 and 52. The present defendant

No.1 filed Regular Civil Appeal No.158/2010 before District Court, Beed.

The appeal was heard by learned District Judge-1, Beed and it was partly

allowed. The maintenance amount was reduced and the defendant No.1 was

directed to pay maintenance @ Rs.2,700/- per month from the date of the

suit. The order of keeping charge on the properties of the defendant No.1

passed by the learned Trial Judge was confirmed. Hence, this Second Appeal.

2 Heard learned Advocate Mr. A.V. Lavte holding for learned

Advocate Mr. S.J. Salunke for the appellant. In order to cut short, it can be

said that he has argued in support of his contentions.

3 At the outset, it is to be noted that the relationship between the

parties is not denied. Defendant No.1 and plaintiff are the husband and wife.

Their marriage had taken place about 43 years prior to the suit. Defendant

No.1 is admittedly the owner of agricultural land Gat Nos.244, 250, 257

situated at village Pargaon Shiras and he has two houses; House No.46 and

House No.52 in the same village. Plaintiff contended that during the

cohabitation with defendant No.1 for about 7-8 years, she had begotten

daughter by name Sagarbai. Now that daughter is married. According to the

plaintiff, after some period, the defendant No.1 used to beat her and gave her

mental as well as physical ill-treatment and driven out of the house.

3 SA_599_2013

Thereafter, he performed second marriage in the year 1973 with a lady by

name Seetabai and defendant Nos.2 and 3 are the sons begotten to defendant

No.1 and Seetabai and there are four daughters to them. Plaintiff had filed

Criminal Miscellaneous Application No.37/1981 for maintenance and initially

it was granted @ Rs.100/- per month. Thereafter, it has been enhanced lastly

to Rs.300/-. She contended that since she has no source of income and now

she is unable to maintain herself, maintenance be granted to her.

4 According to the defendants, when plaintiff refused to cohabit

with defendant No.1, there was customary divorce between them and then

the defendant No.1 performed marriage with Seetabai. Further, defendant

No.1 had come with a case that the agricultural lands are partitioned

between the defendant Nos.1 to 3.

5 It is to be noted that from the evidence, that is adduced, it can be

seen that the defendant No.1 has failed to prove that he had obtained

customary divorce. This fact has been decided by two Courts, that is, the

Court which was dealing with the application under Section 125 of the Code

of Criminal Procedure, 1973 and also the present Trial Court. It need not be

elaborated once again. Further, when the defendant No.1 himself is

admitting that he had performed second marriage and he is admitting that

defendant Nos.2 and 3 are sons, now, there is reasonable cause/reason

4 SA_599_2013

available to the plaintiff to stay away from the defendant No.1. Since the

relationship between the plaintiff and the defendant No.1 as husband and

wife is still existing, it is the duty of the defendant No.1 to maintain plaintiff.

The learned Trial Court had granted maintenance @ Rs.3,000/- per month.

The First Appellate Court found that the amount, that has been granted by

the Criminal Court under Section 125 of the Code of Criminal Procedure, was

not considered by the Trial Court and, therefore, that amount has been made

less and the defendant No.1 has been directed to pay maintenance @

Rs.2,700/- per month. In fact, it can be still said that the said amount

appears to be meagre, if a person has to survive in present day. Yet, when the

respondent has not challenged the said Judgment and Decree, we cannot go

into that aspect. However, as regards the present appeal is concerned, the

appellant has failed to show any substantial question of law, as contemplated

under Section 100 of the Code of Civil Procedure, 1908. Therefore, the

Second Appeal stands dismissed. Pending Civil Application No.10687 of

2013 stands disposed of.

( Smt. Vibha Kankanwadi, J. )

agd