Citation : 2026 Latest Caselaw 192 Bom
Judgement Date : 9 January, 2026
2026:BHC-NAG:302-DB
Judgment 1 fca57.24+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 57/2024
WITH
FAMILY COURT APPEAL NO. 58/2024
AND
CRIMINAL REVISION APPLICATION (REVN) NO. 194/2024
FAMILY COURT APPEAL NO. 57/2024
Sahil Sanjay Rathod,
Aged about 33 years, Occ.
Business and Agriculture,
Resident of Tilakwadi, in front
of Tarak Hospital, Yavatmal,
Taluka and District Yavatmal
.....APPELLANT(S)
// VERSUS //
Swati Sahil Rathod,
Aged about 31 years, Occ.
Housewife, Resident of
Shubham Colony, Plot No. 27,
Lohara Waghapur Bypass Road,
Yavatmal, Taluka and District
Yavatmal
.....RESPONDENT(S)
..𝓐..
Judgment 2 fca57.24+.odt
WITH
FAMILY COURT APPEAL NO. 58/2024
Sahil Sanjay Rathod,
Aged about 33 years, Occ.
Business and Agriculture,
Resident of Tilakwadi, in front
of Tarak Hospital, Yavatmal,
Taluka and District Yavatmal ....APPELLANT(S)
// VERSUS //
Sou. Swati Sahil Rathod,
Aged about 31 years, Occ.
Housewife, Resident of
Shubham Colony, Plot No. 27,
Lohara - Waghapur Bypass
Road, Yavatmal, Taluka and
District Yavatmal
.....RESPONDENT(S)
AND
CRIMINAL REVISION APPLICATION (REVN) NO. 194/2024
Sahil Sanjay Rathod,
Aged about 33 years, Occ.
Business and Agriculture,
Resident of Tilakwadi, in front
of Tarak Hospital, Yavatmal,
Taluka and District Yavatmal .....APPLICANT(S)
..𝓐..
Judgment 3 fca57.24+.odt
// VERSUS //
Swati Sahil Rathod,
Aged about 31 years, Occ.
Housewife, Resident of
Shubham Colony, Plot No. 27,
Lohara - Waghapur Bypass
Road, Yavatmal, Taluka and
District Yavatmal
.....RESPONDENT(S)
●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
Shri R.R. Deo, Advocate for the Appellant/Applicant(s)
Respondent in person
●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
CORAM : M.S. JAWALKAR & M.W. CHANDWANI, JJ.
CLOSED FOR JUDGMENT ON :- DECEMBER 11, 2025
JUDGMENT PRONOUNCED ON :- JANUARY 09, 2026
JUDGMENT:
- (PER:- M.S. JAWALKAR, J.)
. ADMIT. Heard finally by consent of learned Counsel
for the Appellant and the Respondent in person.
(2) By all these matters, the Appellant - Husband is
challenging the common judgment and order dated 30/08/2024
passed by the learned Judge, Family Court, Yavatmal in Petition
No. A-126/2022 (for restitution of conjugal rights), Petition
No. C-4/2022 (for maintenance under Section 18 of the Hindu ..𝓐..
Judgment 4 fca57.24+.odt
Adoptions and Maintenance Act, 1956) and Petition
No. E-74/2022 (for maintenance under Section 125 of the Code
of Criminal Procedure, 1973) filed by the Respondent - Wife by
which all the Petitions were allowed, the Respondent - Wife
was directed to resume cohabitation with the Appellant -
Husband and the Appellant - Husband was directed to pay
maintenance of Rs. 20,000/- per month to the wife in each
Petition for maintenance.
(3) Since Family Court Appeal No. 57/2024 is treated as
main matter, the facts and contentions stated in the said Appeal
are set out for adjudication of the issues involved in all the
matters and they are being decided by this common judgment.
(4) The facts giving rise for filing of the present matters
are as under:-
(5) The Appellant is the husband of the Respondent.
Their marriage was solemnized on 24/05/2021 as per the Hindu
Rites and Customs in Yavatmal. For sake of convenience, the
parties are referred to as, "husband" and "wife". It is the
contention of the husband that after residing peacefully at the ..𝓐..
Judgment 5 fca57.24+.odt
matrimonial house for a very brief period, the wife started
harassing the husband and his family members. On 30/09/2022,
the wife filed a Petition for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955 before the learned
Judge, Family Court, Yavatmal bearing Petition No. A-126/2022.
On 23/01/2023, the husband refuted all the allegations made in
the Petition by filing a comprehensive reply-cum-written
statement. Two weeks prior to the institution of the aforesaid
Petition, the wife had lodged an FIR bearing Crime No.
187/2022 at the local Police Station for the offence punishable
under Section 498-A read with Section 34 of the Indian Penal
Code, 1860. The husband preferred Criminal Application (APL)
No. 1436/2022 for quashing of the said FIR in which, this
Hon'ble Court, by the order dated 20/10/2022, issued notices to
the Respondents and granted interim relief by directing not to
file final report against the husband.
(6) It is the contention of the husband that the wife had
attempted to harass him by instituting multiple proceedings
claiming multiple reliefs against him and his family members.
Apart from the DV proceedings, the wife had also preferred a
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Judgment 6 fca57.24+.odt
Petition bearing No. C-4/2022 for grant of maintenance under
Section 18 of the Hindu Adoption and Maintenance Act, 1956,
which was in addition to the Petition filed for grant of
maintenance under Section 125 of the Code of Criminal
Procedure, 1973. Since the wife had broadly made common
allegations against the husband in all the proceedings, by the
order dated 09/02/2023, the learned Judge, Family Court
directed that the Petitions for maintenance be tagged along with
the Petition for restitution of conjugal rights.
(7) It is further contended that the wife had suppressed
that she was running a private teaching institute, which
generated substantial income, which is evident from a
matrimonial register published in the year 2020, which was
placed on record before the learned Judge, Family Court. She
had further suppressed that she was suffering from physical
disability, which is evident from the response filed under the
Right to Information Act, 2005 along with the disability
certificate. On 30/08/2024, the learned Judge, Family Court,
Amravati allowed all the Petitions filed by the wife. The said
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Judgment 7 fca57.24+.odt
order dated 30/08/2024 is the subject matter of challenge in the
present matters.
(8) Learned Counsel for the Appellant - Husband
submitted that the learned Judge, Family Court has failed to
appreciate that the wife had concealed her physical condition
and source of income and granted an exorbitant sum as
maintenance to the wife on a mere surmise or guesswork. The
wife had made false allegations against the husband and his
family members in all the proceedings filed by the wife. It is
contended that the wife, by her own, left the matrimonial house
after creating a ruckus. The findings recorded by the learned
Judge, Family Court is totally erroneous, perverse and contrary
to the factual position, and hence, the common impugned
judgment and order dated 30/08/2024 passed by the learned
Judge, Family Court, Yavatmal is liable to be quashed and set
aside.
(9) Learned Counsel for the Appellant - Husband, in
support of his contentions, relied on the following citations:-
(a) Anil Yashwant Karande vs. Mangal Anil Karande, (2016) 2 Mh.L.J. 166;
..𝓐..
Judgment 8 fca57.24+.odt
(b) Lawrence Philimone Daniel vs. Pranali
Lawrence Daniel, 2022(2) Mh.L.J. 415; and
(c) K. Shrinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226;
(10) On the contrary, the Respondent - Wife, who is
appearing in person, denied the contentions of the husband
made in the present matters. She submitted that she left her
matrimonial house for preparation of her Master of Engineering
examination, after which, she attempted to return, but her
husband and his family members refused to take her back. She
always intended to cohabit with her husband, despite the past
incidents of cruelty meted out to her. She further submitted that
she is not disabled. As the allegation of disability is baseless and
does not amount to permanent incapacity affecting marriage
obligation, the disability certificate was not accepted to be true
by the learned Family Court. Even assuming for the sake of
argument that the Respondent - wife's eyes were impaired,
which is not a fact, it cannot be considered as a permanent
disability to claim divorce or make other allegations.
(11) It is submitted that the Respondent - Wife has fully
disclosed her assets and liabilities by way of affidavit before the
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Judgment 9 fca57.24+.odt
Family Court and had not concealed anything. It is submitted
that the phone number of the wife and all social media accounts
were blocked by the husband and his family members after
16/08/2021. Moreover, the jewelries of the wife worth Rs. 1 lakh
are with Anutai Bhopidas Rathod, grandmother of the Appellant
- Husband.
(12) It is further submitted that the husband is working as
a Professor in the Vasantrao Naik Secondary and Higher
Secondary School, Lalkheda, Taluka Dharwad, District Yavatmal
and is earning Rs. 1 to 1.5 lakhs per month. However, the
husband has admitted in the cross-examination before the
learned Judge, Family Court, Yavatmal that he is earning Rs. 5
lakhs per year. Considering the income and assets and liabilities
of the husband, the learned Family Court has granted just and
proper maintenance to the wife. She supports the impugned
judgment and order of the learned Judge, Family Court and
submitted that the said judgment is fully reasoned and does not
warrant any interference, and hence, prays that the Appeals and
Revision filed by the husband be dismissed with costs.
..𝓐..
Judgment 10 fca57.24+.odt
(13) The Respondent - Wife, in support of her
contentions, relied on the following citations:-
(a) Manish Jain vs. Akansha Jain, (2017) 15 SCC 108;
(b) Indra Sarma vs. V.K.V. Sarma, (2013) 15 SCC 755;
(c) Rina Kumari @ Rina Devi @ Reena vs. Dinesh Kumar Mahto, 2025 INSC 55;
(d) Mohd. Abdul Samad vs. The State of Telangana & another, 2024 INSC 506 (Criminal Appeal No. 2842/2024);
(e) Rajnesh vs. Neha & another, (2021) 2 SCC 324;
(f) S.P. Chengalvaraya Naidu vs. Jagannath, AIR 1994 SC 853; and
(g) ABC vs. XYZ, 2025 INSC 129.
(14) Heard both the parties at length, perused the
common impugned judgment and order passed by the learned
Judge, Family Court, Yavatmal and considered the citations
relied on by both the parties.
(15) It is an admitted fact that the marriage between the
husband and wife was solemnized on 24/05/2021 at Yavatmal.
Out of the said wedlock, there is no issue. The main grievance of
the wife was that she had resided with the joint family and the
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Judgment 11 fca57.24+.odt
grandmother of the husband used to harass her mentally and
used to taunt and insult her. On 16/08/2021, she left her
matrimonial house for pursuing her education. After her
examination, she had expressed her desire to resume
cohabitation with her husband, however, her husband refused to
resume cohabitation with her.
(16) As against this, the contention of the husband was
that the wife was not happy because her marriage was
solemnized against her will and she wanted to make her career.
She has 40% disability. However, this fact was suppressed by the
wife. The wife used to give threat of commission of suicide.
Though she left the matrimonial house on 16/08/2021 along
with her maternal uncle, she lodged report with the Police
Station on 12/07/2022 for no valid reason. The wife filed Petition
No. C-4/2020 and claimed maintenance of Rs. 1 lakh per month
under Section 18 of the Hindu Adoptions and Maintenance Act,
1956. In this Petition for grant of maintenance, based on the
other contentions, both the parties denied their income as
claimed. There is one Petition bearing No. E-74/2022 for grant
of maintenance under Section 125 of the Cr.P.C. In the said
..𝓐..
Judgment 12 fca57.24+.odt
Petition, the wife claimed Rs. 50,000/- per month on the basis of
same facts. The husband denied the contentions of the wife.
(17) On perusal of the examination-in-chief of the wife, it
appears that she deposed as per her pleadings. Her contention
was that all her attempts to resume cohabitation with her
husband were failed, so also the orders passed under the DV Act
were not followed. In her cross-examination, she has admitted
that she has made a wrong statement that she has filed only one
application for maintenance. The allegations of cruelty and
mental harassment were against the grandmother of the
husband. She has also admitted that the grandmother of the
husband i.e. Anutai Rathod, is having good reputation and
prestige in the society. She held many political positions and
people do give respect to her. She has also admitted that said
grandmother of the husband might be around 89 years old,
when she went to her matrimonial house after marriage. From
her cross-examination, it reveals that on 16/08/2021, she along
with her parents and maternal uncle, who was a Police Inspector
at Wadgaon Police Station, returned back to her parents' house
along with her clothing and other articles. She also admitted that
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Judgment 13 fca57.24+.odt
on 15/08/2021, she gave a phone call to her parents and asked
them to come to her matrimonial house. As there was
examination of Master of Engineering, she went to her parents'
house.
(18) Though she deposed that, thereafter, she along with
her grandfather went to the matrimonial house on 03/10/2021
on her own, there is no pleading to that effect. She has also
admitted that till filing of the various Petitions, she has not given
any notice for cohabitation to her husband. It also reveals from
Paragraph No. 26 of her evidence, that if the husband would
have shown willingness to cohabit with the wife, there was no
reason to lodge a criminal complaint against the husband or his
relatives. In her cross-examination, she was put to a question
that as she was suffering from fever and tonsil, she returned to
her parents' house. In answer to this question, she has submitted
that as the husband has not taken her to the doctor, she went to
her parents' house for treatment. However, this fact is nowhere
pleaded in her Petitions, which she has admitted after verifying
the contents in the Petitions. She has also admitted in the DV
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Judgment 14 fca57.24+.odt
proceedings that this Court remanded the matter back to the
District Judge for reconsideration.
(19) She has also admitted that her first birthday after
marriage on 22/07/2021 was celebrated by her husband and
family members. Insofar as the maintenance is concerned, the
wife has admitted that she is having an account in the State Bank
of India since 2011-12, however, she has not mentioned it in her
affidavit of assets and liabilities. She has denied that she is
running any tuition classes by name "Joy Engineering Classes".
(20) As per the pleadings in the reply of the husband, it is
alleged that his wife was career-minded. She was insisting on
residing separately from the parents of the husband. After she
had left the house, she has posted messages to her husband on
WhatsApp on 22/08/2021, 23/08/2021, 01/09/2021 and
07/09/2021. The details of the said WhatsApp messages are given
in Paragraph Nos. 4, 5 and 6 of the evidence on affidavit of the
husband. After going through the said WhatsApp messages, it
appears that the wife had expressed regrets for the situation &
for her behaviour. It was her expectation that her husband
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Judgment 15 fca57.24+.odt
should come to take her back. From all these messages, one fact
is clear that she was not harassed by any of the family members,
but what is probable is that she wanted to pursue her studies
further. Therefore, she left her matrimonial house.
(21) From the perusal of the evidence, it reveals that
nobody has forced the wife to leave her matrimonial house. So
far as her contention that she has made attempts to resume
cohabitation with her husband is concerned, the same is not
established, as there was no pleading to that effect. The FIR was
lodged after 11 months wherein the allegations were made
against the family members, which are not there in any of the
WhatsApp messages. Even in the FIR also, she has not
mentioned anywhere that she attempted to resume cohabitation
before lodging of the FIR.
(22) It is also admitted by the wife that she was possessing
two SIM cards, and it was not established that both the cards
were blocked by the husband. From the admission of the wife
that she would not have lodged the complaint in the Police
Station if the husband would have consented for cohabitation,
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Judgment 16 fca57.24+.odt
clearly goes to show that the allegation made in the said
complaint is an afterthought. There was no allegation against the
husband. The learned Judge, Family Court has not properly
appreciated the evidence on record and gave weightage to the
evidence of the wife. If the WhatsApp messages are read, the
wife has clearly expressed regrets for her behavior in many
words. However, the learned Judge, Family Court only referred
the said WhatsApp messages as her love and affection towards
her husband. The WhatsApp messages are at Exhibit 139. There
are specific questions put to the wife and she has admitted that
she has two SIM cards. The learned Judge, Family Court
observed in Paragraph No. 37 of the impugned judgment and
order as under:-
"37. If the initial withdrawal from the company of the another spouse was with consent, but later on the spouse denied the opportunity to rejoin or reconcile without a valid reason, it can be stated that the withdrawal is now without any reasonable excuse. On 16/08/2021 the petitioner had gone to her parental home for her studies of Master of Engineering and her examination was scheduled in September-2021, but thereafter she was not allowed to rejoin the company of the respondent......"
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Judgment 17 fca57.24+.odt
(23) However, the learned Judge, Family Court failed to
appreciate that there is no pleading to the effect as to what steps
the wife has taken for resuming cohabitation. As she left the
matrimonial house on her own for examination, she ought to
have returned back after the examination was over, but for a
long period of 11 months, no attempts were made by her. On the
contrary, she has lodged an FIR after 11 months of cruelty and
harassment at the hands of the family members of the husband.
(24) Learned Counsel for the Appellant - Husband, in
support of his contention that if a false criminal complaint is
preferred by either of the spouse, it would constitute
matrimonial cruelty, relied on the judgment in Anil Yashwant
Karande (supra). This Court in the said judgment, held in
Paragraph No. 38 as under:-
"38. The Supreme Court as well as this Court in the aforesaid judgments have consistently held that if the false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. In my view, the respondent having filed a false complaint alleging offence under section 498-A, 323, 504 and 506 of IPC in which the
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Judgment 18 fca57.24+.odt
appellant and his family members were acquitted and thus the appellant was entitled to seek divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act."
(25) Learned Counsel for the Appellant - Husband placed
reliance on the judgment in Lawrence Philimone Daniel (supra)
wherein this Court, in Paragraph No. 10, held as under:-
"10. The perusal of the provision would show that before granting the decree of restitution of conjugal rights, the Court must be satisfied of the truth of the statements made in the petition that either the husband or wife has, without reasonable excuse withdrawn from the society of the other. In other words, if the Court is satisfied that there is reasonable excuse to withdraw either by the husband or wife from the society of other then, it would be very difficult for the Court to record satisfaction with regard to the truth of the statement made in the petition......"
(26) If at all the wife left for her studies on 16/08/2021,
and till filing of the FIR, she was residing with her parents, there
is no any question of any cruelty and harassment, as there was
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Judgment 19 fca57.24+.odt
no allegation during this period of any cruelty or harassment.
On the contrary, the WhatsApp messages of the wife show that
she asked to forgive for her behavior. Though she has stated that
she along with the grandfather on her own went to the house of
the husband, however, she has admitted that there is no
reference of this fact in any of the Petitions. Moreover, her
admission that she could not have filed a criminal complaint if
the husband would have consented for cohabitation clearly goes
to show that the FIR was lodged simply to pressurize the
husband and his family members.
(27) Learned Counsel for the Appellant - Husband also
placed reliance on the judgment in K. Shrinivas Rao (supra)
wherein the Hon'ble Apex Court held that making unfounded
indecent defamatory allegations against the spouse or his or her
relatives in the pleadings, filing of complaints or issuing notices
or news items which may have adverse impact on the business
prospect or the job of the spouse and filing repeated false
complaints and cases in the court against the spouse would, in
the facts of a case, amount to causing mental cruelty to the other
spouse, which would warrant grant of divorce.
..𝓐..
Judgment 20 fca57.24+.odt
(28) The Respondent - Wife, in support of her contention
that the wife's education/ability to earn does not negate
entitlement to maintenance, relied on the judgment in Manish
Jain (supra), wherein the Hon'ble Apex Court, in Paragraph
No. 15, held as under:-
"15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."
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Judgment 21 fca57.24+.odt
(29) In our considered opinion, in the matter before the
Hon'ble Apex Court, there was an issue of maintenance in
pendente lite. In the present matter, it has already been granted along with the cost of litigation.
(30) The Respondent - Wife also placed reliance on the
judgment in Indra Sarma (supra) in support of her contention
that coercion or family pressure preventing cohabitation is
relevant for Section 9 of the Hindu Marriage Act. As already
discussed, the wife herself left her matrimonial house to pursue
her post-graduation in engineering. However, there is nothing
on record, so also in the pleading that she has made any attempt
till filing of the FIR to return back to her matrimonial house. So
far as the judgment relied on by the wife in Rina Kumari (supra)
is concerned, the same is not applicable in present set of facts. In
fact, in present matter, there was no just cause not to return to
the matrimonial house after her examination was over. Till filing
of the criminal complaint, there were no efforts made by the
wife on record, nor there are any pleadings about the said
attempts to resume cohabitation with her husband. It is also not
established that the grandmother of the husband, in any way,
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Judgment 22 fca57.24+.odt
influenced or insisted to the husband not to resume cohabitation
with the wife.
(31) Insofar as the maintenance is concerned, in our
considered opinion, the learned Judge, Family Court, Yavatmal
has not appreciated the evidence in its proper perspective. It is
the contention of the husband that the wife is running tuition
classes named as "Joy Engineering Classes" and he has duly
established that the phone number for contact which was given
in the advertisement is admittedly the phone number of the
wife. The wife has admitted that she has two sim cards having
numbers 8446651821 and 9359564611 respectively. The former
number is reflected in the advertisement of the Joy Engineering
Classes, although she has denied that she has Joy Engineering
Coaching Institute. She has also denied that her maiden name is
'Swati Vilas Jadhav', however, the same is reflected in the
matrimonial register published in the year 2020 as well as in the
mark-lists of her degree course and the disability certificate are
placed on record. The learned Judge, Family Court has not given
any consideration to this piece of evidence and also not
considered that the wife was having an account in the State
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Judgment 23 fca57.24+.odt
Bank of India. She has not mentioned it in her affidavit of assets
and liabilities.
(32) In our considered opinion, the grant of maintenance
to the extent of Rs. 20,000/- per month is on the basis of
insufficient evidence. In view of the above discussion, the
common judgment and order dated 30/08/2024 passed by the
learned Judge, Family Court, Yavatmal in Petition
No. A-126/2022 on Exhibit 163, Petition No. C-4/2022 on
Exhibit 28 and Petition No. E-74/2022 on Exhibit 35 are liable to
be quashed and set aside. The matters are required to be
remanded back to learned Judge, Family Court, Yavatmal for
fresh consideration to the extent of maintenance.
(33) Hence, we proceed to pass following order:-
ORDER
(a) The Family Court Appeals and Criminal
Revision Application are partly allowed.
(b) The common judgment and order dated
30/08/2024 passed by the learned Judge, Family ..𝓐..
Judgment 24 fca57.24+.odt
Court, Yavatmal in Petition No. A-126/2022 on
Exhibit 163 is hereby quashed and set aside.
(c) Insofar as the common judgment and order
dated 30/08/2024 passed by the learned Judge, Family
Court, Yavatmal in Petition No. C-4/2022 on Exhibit
concerned, the same is also hereby quashed and set
aside, however, the matters are remitted back to the
learned Judge, Family Court, Yavatmal to decide the
same afresh by directing the parties to file fresh
affidavits of assets and liabilities, as on today.
(d) The payments already made towards the
maintenance is not recoverable from the wife,
however, the learned Judge, Family Court, Yavatmal
is directed to reconsider the claim of maintenance by
calling upon the parties to file fresh affidavits of assets
and liabilities. Both the parties are at liberty to rely on
additional evidence, if any, and their respective
citations to the extent of grant of maintenance.
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Judgment 25 fca57.24+.odt
The Family Court Appeals and Criminal Revision
Application stand disposed of in the above terms. Pending
Application(s), if any, stand(s) disposed of.
(M.W. CHANDWANI, J.) (M.S. JAWALKAR, J.)
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