G.Kavitha vs G. Madhusudhan Rao
2022 Latest Caselaw 3695 Tel

                * THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                                + A.S.NO.4500 OF 2004

% 14.07.2022


# G.KAVITHA AND ANOTHER

                                                     .. APPELLANTS
          And

$ G.MADHUSUDHAN RAO S/O G. BABU SRINIVAS RAO

                                                          .. RESPONDENT
                                                          .
! Counsel for the appellants:     SRI B.Nalinkumar

Counsel for respondents         : None appeared.

< Gist                             :
> Head Note :
? Citations:

     1.   Crl.W.P.No.295 of 2017 dated 16.03.2018
     2.   2005(3)MH. L.J. 137
     3.   2013 CRI.L.J. 3153
     4.   1985 SCC OnLine Bom 200
     5.   1991 SCC OnLine P & H 693
     6.   2018 SCC OnLine Bom 7039

DATE OF JUDGMENT PRONOUNCED                   : 14--07--2022



SUBMITTED FOR APPROVAL:

                THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

1.        Whether Reporters of Local Newspapers : Yes / No
           may be allowed to see the Judgments ?
2.        Whether the copies of judgment may be : Yes / No
          marked to Law Reporters/Journals
3.        Whether Their Lordship wish to        : Yes / No
          see the fair copy of the Judgment ?
                                              2

              THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                                  A.S.NO.4500 OF 2004

                                      JUDGMENT

The 1st appellant is the wife of the respondent, and the 2nd appellant is their

daughter.

2. The appellants as plaintiffs, filed O.S.No.108 of 2003 against the

respondent - defendant, on the file of Family Court, Hyderabad under Sections 18 and

20 of the Hindu Adoptions and Maintenance Act, 1956 claiming past maintenance of

Rs.2,55,000/-, and future maintenance at the rate of Rs.15,000/- per month i.e.,

Rs.10,000/- to the first plaintiff and Rs.5,000/- per month to the second plaintiff.

3. The trial court vide judgment and decree dated 28.10.2004 rejected the

claim of the 1st plaintiff for maintenance by relying on the matrimonial settlement

deed dated 28.12.2002, stated to have been executed between the 1st plaintiff / wife

and the defendant/husband, and in respect of 2nd plaintiff / daughter, awarded an

amount of Rs.4,000/- per month towards maintenance, payable by the defendant from

the date of filing of the suit.

4. Aggrieved by the judgment and decree of the trial court in rejecting the

claim of the 1st plaintiff for maintenance at the rate of Rs.10,000/- per month, and in

awarding only an amount of Rs.4,000/-, as against the claim of Rs.5,000/- towards

maintenance to the 2nd plaintiff, the present appeal is filed.

5. For the sake of convenience, the parties will be referred to as arrayed in the

original suit.

6. The case of the 1st plaintiff is that her marriage with the defendant took

place on 18.11.2011 in Hyderabad as per Hindu rites and customs and at the time of

marriage, her parents gave dowry of Rs.3,00,000/- along with other presentations to

the defendant and that since beginning, the defendant has been harassing her for

additional dowry, and in that process necked her out from the matrimonial house on

16.04.2022, when she was pregnant, and that she gave birth to the 2nd plaintiff on

02.09.2002, and as the defendant has neglected her and refused to maintain her, and

also as she has no independent source of income and that the defendant is earning an

amount of Rs.50,000/- per month, by working as Consultant in Computer Software

Industry at Singapoor, filed the present suit for past and future maintenance against

the defendant, as noted above.

7. The defendant filed counter affidavit and denied the allegations of

harassment and demand of additional dowry made against him in the plaint, and

stated that it is the plaintiff No.1, and his family members behaved rudely with him.

His case is that the 1st plaintiff informed him several times that she was forced by her

parents to marry him, and that she wanted to get separated from him. That when the

1st plaintiff filed a false criminal case in C.C.No.302 of 2003 for the offence under

Section 498(A) IPC, there was a matrimonial settlement between the parties, and a

deed was executed on 28.12.2002. As per the said deed, he and the 1st plaintiff

decided to take divorce by consent and that he agreed to pay Rs.3,00,000/- to the

1st plaintiff towards full and final settlement, and that out of the said amount, he paid

Rs.1,00,000/-, vide cheque No.059626 on 28.12.2002, as part payment, and agreed to

pay the balance amount of Rs.2,00,000/- at the time of filing divorce petition by

consent, and on obtaining divorce, but contrary to such settlement, the 1st plaintiff

filed the present suit with false allegations. Therefore, he sought to dismiss the suit.

8. Based on the above pleadings, the trial court framed the following issues

for trial?

1. Whether the plaintiffs are entitled for maintenance against the

defendant and if so, at what rate?

2. To what relief?

9. In support of the case of the plaintiffs, the 1st plaintiff was examined as

P.W.1 and the father of P.W.1, was examined as P.W.2. On behalf of the plaintiffs

Exs.A-1 and A-2 were marked.

10. On behalf of the defendant, no evidence, either oral or documentary was

adduced.

11. The trial court, believing the matrimonial settlement dated 28.12.2002

pleaded by the defendant, and also considering the fact of encashment of cheque of

Rs.1,00,000/- by the 1st plaintiff, which was issued by the defendant on 28.12.2002,

and by holding that the 1st plaintiff has given a go-bye to the said settlement; rejected

her claim for maintenance, and in respect of the 2nd plaintiff granted an amount of

Rs.4,000/- from the date of filing of the suit.

12. As already noted above, assailing the above judgment and decree of the

trial court, the present appeal is filed by the plaintiffs.

13. In the appeal, appellants / plaintiffs filed ASMP.No.16149 of 2004 for a

direction to the respondent / defendant to pay a sum of Rs.10,000/- per month to the

1st petitioner / 1st plaintiff, and a sum of Rs.5,000/- per month to the 2nd petitioner / 2nd

plaintiff towards interim maintenance pending the disposal of the appeal.

14. This court vide interim order dated 05.09.2005 granted interim direction

as prayed for.

15. Seeking to vacate the interim order dated 05.09.2005, the respondent /

defendant filed ASMP.No.2120 of 2005. Vide order dated 05.12.2005, the interim

order dated 05.09.2005 was made absolute, and thus resulting in dismissal of the

vacate petition.

16. Learned counsel appearing for the appellants / plaintiffs while reiterating

the averments made in the plaint, further submits that before the trial court the

respondent / defendant has relied on an alleged matrimonial settlement deed dated

28.12.2002 stated to have been executed between the parties, when the plaintiff No.1

filed C.C.No.302 of 2003 for the offence punishable under Section 498-A IPC.

17. He submits that the case of the defendant is that under the alleged

settlement deed dated 28.12.2002, stated to have been signed by both the parties, the

defendant has agreed to pay Rs.3,00,000/- towards full and final settlement and that in

pursuance of the same, he had given cheque to plaintiff No.1 for Rs.1,00,000/- and the

same has been en-cashed by the plaintiff No.1, and the balance was agreed to be paid

on filing of the petition for divorce on consent, but instead of filing the said petition,

filed the present maintenance case, and hence the same is not maintainable.

18. Learned counsel for the appellants / plaintiffs further submits that during

the course of cross-examination, a suggestion was put to the plaintiff No.1, who was

examined as P.W.1 that the said cheque of Rs.1,00,000/- was en-cashed by her, and

she has admitted the same. On the ground that plaintiff No.1 has not given proper

explanation for en-cashing the cheque, and further the trial court on examining her

signature on the vakalat and also on the alleged agreement, found that they are

similar, and considering these circumstances, has drawn an adverse inference, and

held that the plaintiff No.1 has given a go-bye to the settlement and accordingly

rejected her claim for maintenance.

19. He submits that the respondent / defendant has not even entered into

witness box and he also did not get the said document marked as an exhibit. When

the same was confronted to the plaintiff No.1 during her cross-examination, she has

specifically denied the same. Therefore, the court below is not justified in relying on

a document, which has not been proved by the defendant. Even assuming that the

plaintiff No.1 has en-cashed the cheque, that will not disentitle her to claim

maintenance, since as on today she is the wife of defendant and no divorce has been

granted, and further due to the harassment of the defendant for additional dowry, the

plaintiff No.1 was forced to leave his company, and she is unable to maintain herself

and the child. In these circumstances, the court below is not justified in rejecting the

claim of the plaintiff No.1 for maintenance. Therefore, he seeks to grant maintenance

to the plaintiffs as claimed.

20. On behalf of the respondent, there was no representation. As the matter

underwent several adjournments and the appeal is of the year 2004, this court is

inclined to dispose of the appeal on merits. However, in this appeal, the respondent /

defendant has filed counter affidavit and stated with regard to the alleged matrimonial

settlement deed executed between the parties dated 28.12.2002 and the en-cashing of

cheque of Rs.1,00,000/- by the plaintiff No.1. Further, supporting the impugned

judgment of the trial court, he sought for dismissal of the appeal.

21. Having regard to the facts and circumstances of the case, and the rival

contentions of both the parties, the issues that arises for consideration is:

1. Whether the plaintiff No.1 is entitled to maintenance, and if so to what

extent?

2. Whether the maintenance granted by the trial court to the 2nd plaintiff

requires to be increased, and if so to what extent?

3. Whether the impugned judgment of the trial court requires to be interfered

with?

22. From the above material on record, there is no dispute that plaintiff No.1

is the wife of the defendant and plaintiff No.2 is born to them out of their wedlock.

However, the allegations of the plaintiff No.1 with regard to harassment meted out by

her at the hands of the defendant for additional dowry, and the counter allegations in

this regard, are the subject matter of the criminal case, which is stated to be pending

adjudication, and hence this court is not entering into the said arena, and is confining

to the aspect of maintenance. However, the fact remains that the plaintiff No.1 is not

living with defendant and she is living separately along with plaintiff No.2, Her case

is that she has no independent source of income and unable to maintain herself and the

2nd plaintiff. This averment has not been disproved by the defendant by leading any

evidence.

23. The trial court has mainly relied on the alleged matrimonial settlement

deed dated 28.12.2002 executed between the parties. It has also undertaken the job of

comparing the signature on the plaintiff No.1 on the disputed settlement deed, and on

the vakalat, and came to the conclusion that they are similar. Further, the trial court

has taken into consideration the encashment of cheque of Rs.1,00,000/- given by the

defendant to the plaintiff No.1, to draw adverse inference against her.

24. It is to be noticed that when the said agreement has been confronted to the

plaintiff No.1 in her cross-examination, she has specifically denied the same. The

defendant has only filed the alleged agreement dated 28.12.2002 along with the

written statement, but he has not proved the same by adducing any evidence and

further the document is not marked. He has not even entered into the witness box. In

these circumstances, the trial court is not justified in comparing the admitted signature

of the plaintiff No.1 on the vakalat, and on the alleged agreement, which has not even

been marked, and which has been specifically denied by the plaintiff No.1.

25. Coming to the aspect of en-cashing of the cheque of Rs.1,00,000/- by the

plaintiff No.1, as contended by the learned counsel for the plaintiffs, as on today

plaintiff No.1 is the wife of the defendant and no material is brought before the court

that any petition for divorce is pending adjudication between the parties. It is a fact

that plaintiff No.1 is living separately, and has no independent source of income, and

in these circumstances, mere en-cashing of the cheque, does not disentitle her from

claiming monthly maintenance, and this circumstance also cannot be considered to

hold that parties have entered into agreement. Further there is no proof that this

cheque was en-cashed pursuant to the alleged agreement and no balance sheet is filed

to show that the cheque is en-cashed in this regard.

26. The law on the aspect of maintenance is no longer res integra. The High

Court of Bombay in the decision reported in RAMESHWAR S/O SANDU

KACHKURE vs. STATE OF MAHARASHTRA1, held that "an agreement, by

which the wife relinquishes her right to receive maintenance any time in future, is

contrary to public policy and consequently unenforceable." Similar is the view

expressed by different High Courts in TEJASWINI D/o ANANDRAO TAYADE

AND ANR. Vs. CHANDRAKANT KISANRAO SHIRSAT AND ANR2, RAJESH

R. NAIR vs. MEERA BABU3, SHAHNAZ BANO v. BABU KHAN4 , RANJIT

Crl.W.P.No.295 of 2017 dated 16.03.2018

2005(3) MH. L.J. 137

2013 CRI.L.J. 3153

1985 SCC OnLine Bom 200

KAUR v. PAVITTAR SINGH5, RAMCHANDRA LAXMAN KAMBLE v.

SHABHA RAMACHANDRA KAMBLE6.

27. Thus from the above judgments, it is clear that even if the wife executes

an agreement relinquishing her right to receive any maintenance in future, that would

be contrary to the public policy and unenforceable, and that she would be entitled to

seek for maintenance, if she is unable to maintain herself. In the present case,

however the husband failed to prove the alleged agreement, and it is a fact that wife is

living separately with the girl child, and is unable to maintain herself, and hence is

claiming maintenance. In these circumstances, and in the light of the settled legal

position, which is noted above, the judgment of the trial court in totally rejecting the

claim of the plaintiff No.1 for maintenance, is highly deplorable, and cannot be

sustained.

28. Further it is an admitted fact on record that the husband is a software

professional working at Singapoor at the time of marriage. The case of the defendant

/ husband is that subsequently he lost job and that presently he is an un-employee.

When it is fact that he is a software professional, it is clear that he is sufficiently

qualified, and that when he is pleading that he is unemployed, he has to prove the

same, which he failed. In these circumstances, that irresistible conclusion that has to

be drawn is that the defendant having sufficient means, failed to maintain the

plaintiffs.

1991 SCC OnLine P & H 693

2018 SCC OnLine Bom 7039

29. The plaintiff No.1 claimed maintenance of Rs.10,000/- for herself and

Rs.5,000/- for the 2nd plaintiff. Having regard to the present cost of living and

inflation, and also having regard to the fact that the defendant is a software

professional, the maintenance amount claimed by the plaintiffs is reasonable and the

same requires to be granted.

30. In fact, as already noted above, this court vide interim order dated

5.9.2005 has allowed the interim prayer of the plaintiffs in this regard and

subsequently vide the interim order dated 5.12.2005 made the said order absolute.

31. Though the plaintiffs have claimed the maintenance prior to the filing of

the suit, as they have not filed proof to show that they have made any demand by

issuing any notice, the trial court has rightly restricted the same from the date of filing

of the suit in the case of the plaintiff No.2. Having regard to the above discussion,

this court is of the considered view that the plaintiff No.1 is also entitled to

maintenance at the rate claimed by her from the date of filing of the suit.

32. Having regard to the above facts and circumstances of the case, the

plaintiff No.1 is granted maintenance at the rate of Rs.10,000/- per month from the

date of filing of the suit, and the 2nd plaintiff is also granted maintenance at the rate of

Rs.5,000/- per month, (i.e., the amount granted by the trial court is increased by

Rs.1,000/-) from the date of filing of the suit. Thus, in all they are entitled to

Rs.15,000/- per month from the date of filing of the suit i.e., 09.10.2003.

33. Since the plaintiff No.1 has admitted that she has en-cashed the amount of

Rs.1,00,000/-, the said amount shall be given credit to in the amounts to be paid by

the defendant, and the amounts paid by the defendant pursuant to the interim order of

this court also shall be given credit to. In case of 2nd respondent also, amounts

already paid by the defendant shall be given credit to.

34. Thus for the foregoing reasons, all the issues framed are answered in

favour of the appellants / plaintiffs and the appeal is accordingly allowed to the extent

indicated above.

----------------------------------------

M.G.PRIYADARSINI,J DATE:14 --07--2022

AVS

Note: L.R. copy to be marked.

B/O