Tuesday, September 10, 2013

wife refuses to join husband, live in joint famly, still awarded small value maintenance!! Pity? bad precedent? you decide ; what will happen IF husband leaves wife and goes away ? will he get moolah ??

  

wife refuses to join husband, live in joint famly, still awarded small value maintenance!! Pity? bad precedent? you decide 
****************************************************
  
"...........We have observed that the tenor of the cross  examination of the wife goes to suggest that she was reluctant to stay with the husband in a joint family and that she left the house allegedly of her own wish and took the small child with her and stayed with her parents. Apparently father of the wife was also a Government servant having presentable quarters as compared to the quarters allotted to the husband which was situated in a chawl like structure. It is also brought to our notice that some attempts were made by the husband to bring back his wife for cohabitation, but, none of these letters were answered by her. Though this fact is admitted by the wife in her cross­ examination, still fact remains that the husband stopped then and there and did not file any application for restitution of conjugal rights. As such, said inaction on the part of the parties lead to the present situation that since the year 2000, the parties are staying apart and the small child, which has now grown up into a girl aged about 13 years, remained with the wife and all along wife provided for all the necessities and needs of the child that also in a sum of Rs.1000/­ per month awarded by the trial Court, without there being any maintenance allowance in favour of the wife......"
  
So
***********
"........... [ii] The impugned judgment and order is modified to the following extent and it is further directed that the respondent­husband to pay maintenance of Rs.750/­ per month to the appellant­wife from the date of the original application i.e. from June, 2001. Rest of the order of the trial Court shall sustain. 
  
[iii] Costs of the present appeal are awarded to the appellant­ wife to be paid by the respondent­husband......."
  

  
*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE 
******************************************************************
  
Bombay High Court
  
FCA.17-05.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.17 OF 2005
  
Shobha Sanjay Jadhav, ]
Occ. Housewife, Adult of ]
Mumbai, Hindu Indian Inhabitant, ]
Age 27 years, residing at New ]
Airport Colony, C 12/4, ]
Hanuman Road, Vile Parle (W), ]
Mumbai – 400 099. ] ..Appellant       [Orig.Petitioner]
  
Versus
  
Sanjay Ramchandra Jadhav, ]
Adult of Mumbai, Hindu Indian ]
Inhabitant, Age 27 years, ]
occ. Service, Residing at Shivneri ]
Chawl No.1, Room No.5, Durganagar, ]
Vikroli, Link Road, Jogeshwari (W), ]
Mumbai – 400 065. ] ..Respondent      [Orig.Respondent]
****
Mr. V.S. Kapse, Advocate for the Appellant.
Mr. Machindra Patil, Advocate for the Respondent.
*****
  
FCA.17-05.doc
  
 CORAM :  NARESH H. PATIL, & 
 A. R. JOSHI, JJ. 
  
DATE OF RESERVING JUDGMENT : 04TH FEBRUARY, 2013
  
DATE OF PRONOUNCING OF JUDGMENT : 8TH FEBRUARY, 2013
  
ORAL JUDGMENT: [PER A. R. JOSHI, J.] 
  
1. Present appeal is preferred by the wife/original petitioner challenging the judgment and order passed in Family Court Petition No.C 140/2001 by Family Court No.3, Bandra, Mumbai. The impugned judgment and order was passed on 17.7.2004 by which the prayer of wife for maintenance was rejected, however, the maintenance of Rs.1,000/  per month was granted to the minor child, to be paid by the husband present respondent from the date of the order i.e. from 17.7.2004. The respondent husband was also directed to pay Rs.1000/  towards the litigation expenses to the petitioner wife. The appellant wife is hereinafter referred to as the wife and the respondent husband is referred to as the husband for the sake of brevity. 
  
2. The wife preferred petition for maintenance to herself as per the provisions of Section 18 and maintenance for her own daughter then aged about three years, as per the provisions of Section 20 of the Hindu Adoptions and Maintenance Act, 1956. An amount of Rs.1500/  was claimed by the wife for herself and an amount of Rs.1000/  for minor girl child, by name Priyanka. In the petition, it was also prayed that custody of the minor child shall be given to the wife permanently. Rs.4000/  was asked towards the litigation expenses. 
  
3. In order to ascertain the merits of the present appeal, certain factual position is narrated as under along with the brief facts of the matter :
  
Marriage between the parties took place on 6.5.1996 as per the Hindu vedic rights. After marriage, both the parties started residing at Andheri, Mumbai at the Government Quarters of husband who was and is a Constable working in the Reserved Police Force. After the marriage, there used to be quarrels on flimsy ground as to the wife not preparing good food and very often visiting her parents. Even husband used to doubt the character of his wife. He was giving threats of dire consequences to the wife. At times, he used to assault her with fist blows and was not giving sufficient food. According to the wife, he used to give the ration items and was not allowing the wife to go out and purchase anything of her own. As such, she was compelled to maintain the family and carry out the daily needs regarding food, clothes etc. on the meager material brought by the husband. In such scenario of disputes and quarrels, one child was born on 27.8.1997, however, it was a premature delivery.
  
According to the wife, this happened because of malnourishment of her and immediately after the birth, said child expired. Thereafter also there was no change in the treatment given to the wife. Again for the second time, she became pregnant and gave birth to a female child on 18.7.1999. This is the child by name Priyanka, for whom the maintenance was asked.
  
4. According to the wife, because of giving birth to a female child, the husband became hostile and became more rude and did not approve that his wife had given birth to a female child. He continued quarreling with his wife on small issues and also used to assault her. Sometime on 9.9.2000 there was more outburst of conduct of the husband and he started assaulting wife. She pleaded that she would not tolerate such beating any further. On this, husband gave more abuses to the wife and continued the beating. On that night at about 11 O'clock, he dropped the wife and the small child at the house of her parents. Since then, he did not bother to look after the wife and the child. As such, since September 2000 the wife started residing with her parents where her sister and brother were also staying. Except father nobody else was earning in the family of her parents and as such, it was difficult to bring the child. However, with the help of her parents, she could manage to survive.
  
5. It is a factual position that the Petition for maintenance was preferred sometime in June, 2001 and it was disposed of in July, 2004 and the said order is challenged by the wife, mainly asking for maintenance to herself and enhancement of the maintenance to the minor girl. Present Family Court Appeal is preferred in the year 2005 and is being disposed of by this judgment and order in the year 2013 when the minor girl has now attained the age of 13 years, being adolescent teenage girl, prosecuting her studies in school and brought up by her mother with the help of her parents. Admittedly, during all these years, the husband, father of the child, had not bothered to enquire for at least for the child. It is still an admitted position that the marriage between the parties is still subsisting as none of the parties had preferred any petition for dissolution of marriage by decree of divorce. Even admittedly during all these years, there is no application preferred by the wife for enhancement of the amount of maintenance to the child on the ground of changed circumstances. Presumably by passage of time, it must be said that the amount required to maintain the child has increased manifold as compared to the maintenance of a child of the age of three years or so. However, the fact remains that there is no application for enhancement, as mentioned above. Only present appeal is preferred by the wife.
  
6. We have heard the rival arguments and perused the substantive evidence of the husband and the wife and mainly the cross examination of the wife. We have also perused the reasoning given by the learned trial Court in partly allowing the petition of the wife for maintenance.
  
7. We have observed that the tenor of the cross  examination of the wife goes to suggest that she was reluctant to stay with the husband in a joint family and that she left the house allegedly of her own wish and took the small child with her and stayed with her parents. Apparently father of the wife was also a Government servant having presentable quarters as compared to the quarters allotted to the husband which was situated in a chawl like structure. It is also brought to our notice that some attempts were made by the husband to bring back his wife for cohabitation, but, none of these letters were answered by her. Though this fact is admitted by the wife in her cross  examination, still fact remains that the husband stopped then and there and did not file any application for restitution of conjugal rights. As such, said inaction on the part of the parties lead to the present situation that since the year 2000, the parties are staying apart and the small child, which has now grown up into a girl aged about 13 years, remained with the wife and all along wife provided for all the necessities and needs of the child that also in a sum of Rs.1000/  per month awarded by the trial Court, without there being any maintenance allowance in favour of the wife.
  
8. During the arguments, it is submitted that the wife was not happy to cohabit with the husband and even was not willing to maintain the small child. Though it was so argued, the factual position speaks otherwise,  inasmuch as, admittedly the small child   then aged 3 years and now became an adolescent girl of 13 years, is all along staying with her mother and in fact there is no petition for divorce preferred by either side to the marriage.
  
9. Admittedly, the husband is working in Police Department in Reserved Police Force and at the time of filing of the petition for maintenance, he was drawing salary of about Rs.7000/  and odd per month. By passage of time, definitely there must have been an increase in his salary as long period of 13 years has lapsed as on today, and period of five years had lapsed at the time of filing of the present appeal. Considering these circumstances and mainly considering that there is no cross examination on the substantive evidence of the wife as to husband assaulting her on flimsy ground and also on the ground that he was of suspicious nature and was putting lot of restrictions on the wife, it must be said that the trial Court had erred in coming to the conclusion as to non entitlement of the wife for getting maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. 
  
10. In our considered view, there is definitely a case made out on behalf of the wife to interfere in the impugned judgment and order so far as the aspect of maintenance to the wife. We may mention that in the petition preferred in the year 2000, the wife had prayed for maintenance of Rs.1500/  to herself and Rs.1000/  for the small child. We may also mention that on the interim application during pendency of the present appeal directions were given by the Bench to the husband to pay interim maintenance of Rs.750/  to the wife and continue to pay Rs.1000/  to the daughter.
  
11. During the arguments in this appeal, it is prayed on behalf of the appellant wife that the compensation amount granted to the daughter may be increased and the wife may be given compensation even more than that was asked in the original petition. On this aspect, we make it clear that initially in the petition before the Family Court an amount of Rs.1000/  per month was demanded for the daughter and an amount of Rs.1500/  was demanded for the wife herself. We also make it clear that in future on changed circumstances, the appellant wife can make an application for requisite relief of enhanced compensation for herself and/or for her daughter considering the exigencies. Needless to mention that such application, if made, the same shall be dealt with by the concerned Court on its own merits and in accordance with law. 
  
12. In view of the above and also considering the merits of the appeal, in our view the appeal is required to be partly allowed and following order would meet the ends of justice. Hence, present appeal is partly allowed with following order :
  
** O R D E R **
  
[i] Family Court Appeal No.17 of 2005 is partly allowed.
  
[ii] The impugned judgment and order is modified to the following extent and it is further directed that the respondent husband to pay maintenance of Rs.750/  per month to the appellant wife from the date of the original application i.e. from June, 2001. Rest of the order of the trial Court shall sustain. 
  
[iii] Costs of the present appeal are awarded to the appellant  wife to be paid by the respondent husband.
  
[iv] The amount which is already paid by the respondent  husband to the wife in view of the impugned judgment and order, shall be adjusted towards the amount which is payable as per this order. The arrears of the amount is to be paid within three months from today and the maintenance amount as per the present order shall be paid within 10th day of each month directly to the appellant wife.
  
[v] The present order of maintenance shall be effective till remarriage of the appellant wife if such situation arise, so far as maintenance to the wife. So far as the  maintenance granted to the daughter Priyanka, it shall be effective till the girl gets married or till she earns her livelihood of her own, whichever is earlier.
  
    (A. R. JOSHI, J.)          (NARESH H. PATIL, J.)
  
P.P. Deshmane, (PS)
  


*****************

FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/  FOR 100s of high court and supreme court cases
  
  
regards
  
Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist