SC Judgement on HMA24 - Wife working no maintenance

Bench: T Chatterjee, H Dattu
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1789-1790 OF 2009
(Arising out of SLP(C) NOS. 24589-24590 of 2007) Anu Kaul ........ Appellant Versus
Rajeev Kaul ........Respondent ORDER
Leave granted.
2) In the appeal filed by the respondent-husband before the High Court of Punjab and Haryana, being aggrieved by the judgment and decree passed by Addl. District Judge (Ad-hoc), Fast Track Court No.3, Faridabad, dated 04.06.2005, the appellant herein had filed an application under Section 24 of Hindu Marriage Act, 1955, for the grant of interim maintenance of Rs. 10,000/- (Rupees Ten Thousand only) and the litigation expense of Rs. 22,000/- (Rupees Twenty Two Thousand only). The application is partly allowed by the Court by its 1
order dated 23.08.2006, by granting an amount of Rs.10,000/- towards litigation expense and a sum of Rs.2,000/- for the maintenance of the minor child living with her. The Review Petition is also dismissed by the Court vide its order dated 21.03.2007, leaving it open to the appellant/applicant to claim interim maintenance before an appropriate forum in the capacity as a Guardian of the child.
3) Challenging both the orders, the appellant-wife is before us in these appeals.
4) Though notice of special leave petition is served on the respondent- husband, for the reason best known to him, has not entered appearance either in person or through his counsel. 5) Marriage between the parties and birth of the female child Karmistha Kaul is not in dispute. The assertion of the appellant in the application filed under Section 24 of Hindu Marriage Act, 1955 that the respondent is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement.
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6) In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties. She has also stated, that, Kumari Karmisatha Kaul is now grown up and she is studying in Senior School and due to insufficient funds, her education is being hampered.
7) A sermon on moral responsibility and ethics, in our opinion for disposing of this appeal may not be necessary, since the respondent has not disputed the assertion of the appellant. However, since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the interim maintenance awarded to her by the High Court during the pendency of the appeal filed by the husband. However, taking into consideration the child being the daughter of highly placed officer, the exorbitant fee structure in good Schools and the cost of living, we deem it proper to direct the respondent to pay a sum of Rs.5,000/- per month to the applicant commencing from 1st of April, 2009 for the maintenance of the minor child during the pendency of the appeals before the High Court. 8) The appeals are disposed of accordingly

No Interim/Maintenance for Capable, Working Women- Madhya Pradesh High Court

Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24/3/2000
ORDER
   J.G. Chitre, J.
   1. The petitioner Mamta Jaiswal has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub−engineer serving in Pimampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/− as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5,852/−. The Matrimonial Court awarded alimony of Rs. 800/− to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/− per month has been awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1,500/−. The Matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever sheattends Court for hearing of them matrimorial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court.
   2. Mr. S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Mr. Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.
   3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a . prayer that she should be paid travelling expenses of one adult member of her family who would be coming to Matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the Matrimonial Court from the place where she resides or a distant place.
   4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5,852/− per month. Husband Rajesh is contending that Rs. 2,067/− out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1,000/− are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/− are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions as meagre amount remains available for his expenditure.
   5. It has been submitted that Mamta Jaiswal was getting Rs. 2,000/− as salary in the year 1994 and she has been removed from the job of lecturer. No further
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details are available at this stage. Thus, the point is in a arena of counter allegations of these fighting spouses who are eager to peck each other.
   6. In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted: Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ’dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice verssa also. If a husband well qualified, sufficient enough to earn, site idle and puts his burden on the wife and waits for a ’dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself That cannot be treated to be aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard earned income by toiling working hours.
   7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/− per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court for date of hearing. She is well qualified woman once upon time abviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ? Needless to point out that a woman who is educated herself with Master’s degree in Science, Masters Degree in Education,. would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The sumbission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.
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   8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitiorisas early as possible. The Matrimonial Courts have to keep it in mind that the quarells between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents.
   9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The Matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The Matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/− per month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e. 14.5.1998. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition. C.C.

No Maintenance For Working Women

Madras High Court

Manokaran @ Ramamoorthy vs M. Devaki on 21 February, 2003

Equivalent citations: AIR 2003 Mad 212, I (2003) DMC 799, (2003) 1 MLJ 752

Author: P Sathasivam

Bench: P Sathasivam

ORDER P. Sathasivam, J. 1. Aggrieved by the order of the Principal Family Court, Madras dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000, granting interim maintenance at the rate of Rs.750/- per month and litigation expenses of Rs.1,500/-, the husband has preferred the above Revision under Article 227 of the Constitution.
2. The petitioner/husband has preferred the said O.P. for divorce under Section 13(1)(1a) and (1b) of the Hindu Marriage Act. Pending the said petition, the wife/respondent herein has filed I.A. No. 1058/2001 claiming interim maintenance at the rate of Rs.2,000/- per month and Rs.5,000/- towards litigation expenses under Section 24 of the Hindu Marriage Act. The said application was resisted by the husband stating that she is working in a private concern and drawing a salary of Rs.4,500/- per month. It is also stated that he is earning only Rs.2000/- per month. Before the Family Court, salary certificate of the husband dated 10-6-2002 has been marked as Ex.R-1. Based on Ex.R-1, after finding that he is earning Rs.70/- per day by working in Senthil Auto Garage, the Family Court has concluded that the wife is entitled to interim maintenance at the rate of Rs.750/- per month from the date of petition till the disposal of O.P. and also awarded Rs.1,500/- towards litigation expenses.
3. The only question to be considered in this Revision is whether the wife/respondent herein has made out a case for interim maintenance in terms of Section 24 of the Hindu Marriage Act.
4. Mr. N. Manokaran, learned counsel for the petitioner, after drawing my attention to Section 24 of the said Act and the admission of the wife in the counter statement filed in the main petition viz., O.P. No. 1310/2000, would contend that since she is earning sizeable income and in view of the fact that the petitioner/husband is getting only Rs.2000/- per month, the Family Court has committed an error in granting interim maintenance and litigation expenses.
5. There is no dispute that the petition has been filed by the respondent/wife claiming maintenance pendente lite and expenses of the proceedings under Section 24 of the Hindu Marriage Act. Section 24 reads thus:
"24. Maintenance pendente lite and expenses of proceedings.- Where in any proceedings under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
The above provision would show that for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per Section 24 of the Act. While construing the very same provision in similar circumstance, A.S. Venkatachamoorthy, J., in KUMARESAN v. ASWATHI [(2002) 2 M.L.J. 760 has arrived a similar conclusion. Now I shall consider whether the respondent/wife has any independent income which is sufficient for her survival and for the proceedings. In para 10 of the counter statement filed by the wife in O.P. No. 1310/2000, she herself admitted that, .....Now the respondent (wife) had got her present job in private body and running her life with the salary and staying with her brother...". The above statement shows that she is employed in a private concern, getting salary and staying with her brother. In the application for interim maintenance, the husband has filed a counter affidavit wherein he has specifically stated that his wife is drawing a salary of Rs.4,500/- from a private concern. In para 5 of the counter affidavit it is stated that, "5. The respondent denies all the allegations in para 5 and put the petitioner strict proof of the same. The averment about I am liberally suffering without financial assistants is put to strict proof since this petitioner is working in the organization Kumari Neruvanam at No. 40, Venkat Narayanan Road, T. Nagar, Chennai 600 017, and drawing a salary of Rs.4500/- she also disclosed this before the All Women Police Station, Thousand Lights, and this petitioner also admitted in her counter statement that she is working in private and running her life. But contradictory to her statement in counter statement now this petitioner come forward with a plea that she is without financial assistance. This petitioner is working as typist and main organizer for a programme in Neingalum Pachalar Agalam a programme telecaste in RAJ TV during Sunday 8.00 A.M, from her company Kumari Neruvanam. The averment about that this respondent is owner of the "Venkataswari Turning Works" at Muthumariamman Koil Street, Anna Nagar, Chennai-600 040 is put to strict proof since this respondent is not the owner of the said company and A. Loganathan is the owner of the said Turning works and this respondent is working in Senthil Auto Garage at Annai Sathya Nagar, Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2000/- and this respondent need not to give any monetary assistance to the petitioner for her claim."
The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect.
6. In the light of what is stated above, the impugned order of the Principal Family Court dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000 is set aside and the Civil Revision Petition is allowed. No costs. It is made clear that pending the divorce proceedings at any point of time if the applicant/wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite. Consequently, C.M.P. No. 16264/2002 is closed.

Maintenance not granted as it is proved no reason to leave husbands - Bombay High Court

Bombay High Court

Sanjay Sudhakar Bhosale vs Khristina W/O Sanjay Bhosale on 8 April, 2008

Author: V Kingaonkar

Bench: V Kingaonkar

JUDGMENT V.R. Kingaonkar, J. 1. By this revision petition, petitioner seeks immunity from liability to pay maintenance allowance as per Judgment rendered in Criminal Revision Petition No. 60 of 2000, by learned Additional Sessions Judge, Shrirampur, to respondent. He challenges the said Judgment reversing order of dismissal of the respondents application for maintenance passed by learned Judicial Magistrate (First Class), Shrirampur.
2. It would be useful to first note the admitted facts. The spouses belong to Christian community. Their marriage was performed on 14.5.1998 in accordance with tenets of Christian religion. The petitioner is employed as Wardboy in Yerwada Mental Hospital, at Pune. He resides in one of the Government quarters, out of nine such quarters, which are in one row, situated at back side of the mental hospital. He was a divorcee when he performed marriage with the respondent. She went to reside with him after the marriage. His parents and two brothers reside with him in the same residential quarter. The marriage was shortlived. The spouses are incompatible.
3. The respondent (wife) filed application under Section 125 of the Cr.P.C. for separate maintenance allowance. She asserted that for about six months, she was somehow treated alright in the matrimonial home. Thereafter, the husband started mental and physical harassment to her at instigation of his parents and brothers. Her in-laws used to express dissatisfaction regarding gifts given in the marriage. They used to abuse her. The husband (petitioner) used to beat her in drunken condition. He used to make unlawful demand of gold locket weighing 15 gms., a T.V. set and a mixer, which she was asked to bring from the parents. Her parents attempted to convince and plead with her husband. Still, however, he and his relatives continued the unlawful demand, which her parents were unable to meet out. He used to suspect her fedility. She apprehended danger to her life in the matrimonial home. He mercilessly beaten up her on 21.2.1999 and drove her out of the matrimonial home. She lodged a complaint at the Police Station. She is unable to maintain herself. The husband (petitioner) has got sufficient means to provide separate maintenance. Consequently, she demanded separate maintenance allowance at rate of Rs. 1,500/- (Rs. One thousand five hundred) from him.
4. By filing written statement (Exh. 14), the husband (present petitioner) denied truth into all the material allegations made by the wife. He denied that she was being ill-treated or harassed in the matrimonial house. He submitted that on 5th October, 1998, maternal uncle of the respondent (wife) visited his house and pretended that her another maternal uncle, who is inhabitant of Ahmednagar, was seriously ill. Lateron she went with her brother. She did not return home after 2/3 days as per the assurance and hence, he visited her parents house on 25th October 1998. They assured him to send her after the "Natal" festival. Thereafter, they avoided to send her and she refused to accompany him. He was ready and willing to maintain her. She deserted him without any substantial reason. He denied that she was neglected by him. He urged, therefore, to dismiss the application.
5. The parties went to the trial before the learned Judicial Magistrate (F.C.), Shrirampur in the proceedings (Criminal M.A. No. 85 of 1999). The respondent examined herself in support of her application. The present petitioner also examined himself and adduced evidence of two neighbours in support of his defence. On appreciation of their evidence, the learned Magistrate came to the conclusion that the respondent (wife) failed to prove that she was neglected and refused to be maintained by the husband. The learned Magistrate held that within a short span of five months of the marriage, she left his company, probably because she wanted separate residence without domestic chore in respect of his parents and the brothers. The learned Magistrate held that allegations of matrimonial cruelty are invented by the respondent (wife) and were unacceptable. In keeping with such findings, her application was dismissed.
6. Feeling aggrieved, the wife preferred revision application (Cri. Revision Petition No. 60 of 2000), which was allowed under the impugned order. The revisional Court reversed findings of the learned Magistrate and came to the conclusion that the version of the wife could not be discarded in the set of circumstances. The revisional Court awarded maintenance allowance at rate of Rs. 700/-(Rs. Seven hundred) p.m. in her favour from date of the application. The husband impugns Judgment rendered by the learned Sessions Judge in the revisional jurisdiction whereby the criminal revision petition No. 60 of 2000 was allowed.
7. Clinching question is as to whether the findings of the learned Judicial Magistrate could be regarded as perverse, arbitrary and patently erroneous so as to warrant interference by the learned Sessions Judge in the exercise of revisional jurisdiction. It is well settled that, normally, the revisional Court will not reappreciate the evidence. The impugned Judgment does not show that the learned Sessions Judge recorded finding that the appreciation of the evidence, as done by the learned Magistrate suffered from vice of arbitrariness, perversity or capriciousness.
8. In the above background, I would briefly take survey of the evidence tendered by the parties. PW-1 Khristina (wife) testified that after six months of the marriage, the husband and his relatives started giving cruel treatment to her on account of demand of money. This part of her statement is discripant with allegations in the pleadings. In her application, she alleged that a gold locket, weighing 15 gms, a T.V. set and a mixer were demanded by the husband from her parents. There is no whisper of any such demand throughout her oral statement before the learned Magistrate. She stated that on 21st February 1999, the husband beaten up her and drove her out of the house. She lodged a complaint at the Yerwada Police Station, Pune. Her version shows that she had written two letters and narrated her plight in the matrimonial home to her father. Her brother used to visit her matrimonial home. Neither of them entered the witness box nor the letters sent by her or copy of Police complaint lodged by her, have been placed on record. Her real married sister, by name, Archana resides in Yerwada locality at Pune. Her maternal uncle resides at Akurdi, Pune. She admits that she never informed her sister or any other relative about the ill-treatment meted out to her at hands of the husband and his relatives, except and save to her father. This conduct of the respondent was duly noticed by the learned Magistrate. She admitted that on 5th October 1998, her brother and maternal uncle visited the house of her husband to inform that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from illness. This admission corroborates contention of the husband that she was allowed to go to Ahmednagar to meet her ailing maternal uncle.
9. The learned Magistrate also noticed that the two neighbours, namely, DW-2 Shubhangi and DW-3 Bashid corroborated version of the husband. The version of DW-1 Sanjay (husband) would show that there was no ill-treatment given to the wife. He states that on 5th October 1998, brother of the wife and her maternal uncle visited his house and informed that her another maternal uncle, who is inhabitant of Ahmednagar, was suffering from illness and they requested him to send her with them. His version shows that he allowed them to take her away after 2/3 days. Thereafter, on 11th October 1998, her brother took her to Ahmednagar. His version shows that he made attempts to fetch her back but it was invain. The version of DW-Shubhangi reveals that the petitioner and his wife were never seen quarrelling with each other. Her version reveals that the respondent (wife) resided with the petitioner only for five months after the marriage and he is not addicted to any vice. There is only a middle wall between the residential quarter of the petitioner and DW-Shubhangi. She has no reason to speak lie nor any tangible material is gathered during her cross-examination. Similarly, DW-3 Bashid deposed that after five months of the marriage, the wife left house of the petitioner - Sanjay. In other words, the version of petitioner -Sanjay stands corroborated by the versions of two neighbours.
10. There is solitary and interested version of PW-Khristina in support of her application for separate maintenance allowance. Her version gives inconsistent account about so-called unlawful demand. She deviated from her pleadings. The findings of the learned Magistrate are based on due appreciation of the evidence. The further development may be noticed. The petitioner filed an application for restitution of conjugal rights in the Family Court at Pune. His application (P.A. No. 500 of 2002) is allowed by the Family Court on 21st July 2003. So far, the respondent (wife) has not challenged the Judgment of the Family Court. The Family Court raised a specific issue as follows:
Whether the petitioner proves that the respondent without any reasonable excuse has withdrawn from the society?
The learned Judge of the Family Court recorded an affirmative finding on the said issue. It is manifest, therefore, that not only the learned Judicial Magistrate, on appreciation of the evidence tendered by the spouses, came to the conclusion that she left his house, probably under burden of the domestic chores, but the civil Court also found that she is guilty of deserting him without any reasonable excuse.
11. The impugned Judgment reveals that the learned Sessions Judge undertook reassessment of the entire evidence though he was supposed to exercise the revisional jurisdiction. The learned Sessions Judge did not find any particular fault in the process of appreciation of evidence, as done by the learned Magistrate. The relevant observations of the learned Sessions Judge may be reproduced as follows:
14. On carefully scrutinising the evidence of the applicant and opponent it will reveal that the matrimonial life of the applicant was not smoothly going on due to some quarrel and ultimately, it was resulted into leaving the house of opponent, by the applicant. Observations made by the lower Court that the applicant had stayed for short period in the house of the opponent and therefore, there is no possibility of ill-treatment, does not appear to be proper and legal in the circumstances of the case. When the applicant has positively stated that she was subjected to ill-treatment not only that but she has lodged complaint in Yerwada Police Station, this will prima-facie give rise that she was ill-treated and, therefore, she has left the house of the opponent. Provisions of Section 125 of Code of Criminal Procedure need not require that there must be a strict proof of cruelty.
The above observations of the learned Sessions Judge would indicate that he accepted version of the wife only because she gave positive statement that she was subjected to ill-treatment and had lodged the complaint at Yerwada Police Station. As stated before, there is no scintilla of evidence to show that really she had lodged a complaint about the matrimonial cruelty. Nor her so-called positive statement finds support from her pleadings. In this view of the matter, it is difficult to countenance the findings of the learned Sessions Judge. Her mere statement could not have been taken as gospel truth as regards neglect and refusal of the husband to maintain her. It is overlooked by the learned Sessions Judge that within a short span of the marriage, the wife left his company and no notice was given within a reasonable time by her, seeking restitution of the conjugal rights.
12. The Apex Court, in Deb Narayan Halder v. Smt. Anushree Halder 2003 (3) B Cr C 286, held that the appellate Court or revisional Court while setting aside findings recorded by Court below must notice those findings and where the findings are of facts, evidence on record must be discussed, which should justify reversal of findings recorded by the Court below. The Apex Court held that when the maintenance application of the wife was rejected by the learned Magistrate, holding that she had on her own left the matrimonial home, the High Court was not justified in reversing such findings recorded by the trial Court and to grant maintenance to the wife.
13. In view of foregoing discussion, it will have to be said that the findings of the learned Magistrate should not have been interfered with by the revisional Court and for the reasons, which are recorded by it. The inferences drawn by the learned Sessions Judge are improper and incorrect. There is misinterpretation of the evidence by the learned Sessions Judge. Under these circumstances, the impugned Judgment is unsustainable and liable to be interfered with.
14. In the result, the petition is allowed. The impugned Judgment is set aside and the Judgment rendered by the learned Magistrate in Criminal Misc. Application No. 85 of 1999 is restored. The wifes application under Section 125 of the Cr.P.C. is dismissed. However, the payment of maintenance allowance, if any, during the intervening period, is not refundable by her. No costs.

Maintenance not granted as it is proved that wife wants to reside separately- Bombay High Court

Bombay High Court

Mrs. Meena Dinesh Parmar vs Shri Dinesh Hastimal Parmar on 4 February, 2005

Equivalent citations: AIR 2005 Bom 298, 2005 (4) BomCR 672, 2005 (2) MhLj 305

Author: R Mohite

Bench: H Gokhale, R Mohite

JUDGMENT R.S. Mohite, J. 1. This appeal has been filed by the appellant Mrs. Meena Dinesh Parmar (hereinafter referred to as "wife") against the respondent Dinesh Hastimal Parmar (hereinafter referred to as "husband") seeking to quash and set aside the Judgment and order passed by the Judge, Family Court, Pune on 26.2.2001 In Petition No. A-354 of 2000 and Petition No. E/810/1998. Petition No. A/354/2000 is a petition filed by the husband for grant of divorce on the ground of cruelty and desertion under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The Petition No. E-810/1998 was filed by the wife claiming maintenance under Section 125 of the Code of Criminal Procedure, 1973. By the impugned Judgment and order the Judge, Family Court granted dissolution of marriage by decree of divorce on both the grounds and granted Rs. 500/- per month as maintenance to a son Bhushan who was born out of the marriage, while rejecting the claim of the wife for grant of maintenance.
2. The case of the husband as made out in his petition filed in the Family Court was as under:
a) That, both the parties belonging to Hindu community had entered into an arranged marriage on 24.2.1995. The marriage was performed as per the Hindu Vedic rites. At the time of marriage the husband was a bachelor and the wife was a spinster.
b) After the marriage the newly wedded couple started residing in a family residence of the husband at Bhandup. A few days after the marriage the wife started picking up quarrels with the husband and other family members on trifle matters. She started insisting for separate accommodation. According to the husband even before the marriage, he had asked his wife as to whether she was ready to stay in a joint family and she had agreed to do so. The husband reminded her of this consent given by her but the wife continued to insist that they should move to a separate accommodation. The husband move to a separate accommodation. The husband tried to persuade her not to be adamant but the wife respondent by denying him physical contact, thus, causing him mental and physical torture. The husband further found that his wife was not carrying out household duties. She used to sit in a corner in the room and was not helping other family members in carrying out other household duties.
c) That the parents of the wife used to reside at Yogita Building, Daulat Nagar, Borivali (E). The wife used to frequent her parents house. She had a maternal uncle staying at Pune. This maternal uncle was a divorcee and the petitioner's wife used to visit her maternal uncle also. The husband was required to go and search for her and he used to find her at her parents' home.
d) That, on 15.5.1996, the husband sent his wife to her parents' house at Borivali for delivery as she was then seven months pregnant. However, to the dismay of the husband and his family, his wife went to the house of her maternal uncle at Pune for delivery instead of staying at her parents house at Borivali. She went to the house of her maternal uncle without informing the husband. Inspite of such action by his wife, upon master Bhushan being born at Pune, the husband and his family members had gone to see the newly born baby at Pune. At Pune, the husband asked the wife to return with him to the matrimonial home at Bhandup but the wife refused to do so. Her maternal uncle Babulal Dhoke also refused to send her to Mumbai alongwith the husband. Quarrel took place between the wife and her maternal uncle on one hand and the husband and his family members on the other and the wife clearly told her husband that she will never return to her matrimonial home and she will live with her maternal uncle at Pune. She also told the husband that she wanted a divorce from him.
e) Since the husband found that his wife was completely adamant about having a separate accommodation, in the month of April, 1997, in order to save his matrimonial life, he purchased a separate premises. Thereafter, husband and his family members went to Pune on several dates to persuade the wife to return but she refused to do so. On 3 to 4 occasions maternal uncle even assaulted the husband and tried to drive him out of the house.
f) On the occasion of the first birth day of the child,master Bhushan, husband had gone to Pune with some sweets, clothes and presents. However, the wife and her maternal uncle refused to accept the presents and threw the same towards the husband. Husband then collected the same and kept them in a corner of the room. However, the wife sent back sweets, clothes and presents to the husband by courier on the very next day.
g) On 26.9.1997 the husband filed a petition in the Family Court at Pune for restitution of Conjugal rights.
h) As a counter move to the said petition, wife filed police complaint against the husband and his family members at Pune (Ramoshi Gate) Police Station and the husband and his family members were required to go to the police station at least thee times and due to the harassment caused to them and likelihood of harassment they also applied for anticipatory bail which was granted to the husband and his family members by the court.
i) On 1.6.1998 wife then filed a maintenance application in the Family Court at Pune. In her application, she contended that due to harassment caused by her husband and his family members she had to leave for her parental home when she was pregnant. But as the harassment continued, her parents sent her to the house of her maternal uncle at Pune. Inspite of her delivery on 29.7.1996 she continued to be neglected by her husband. That, because of continued harassment and the sending of a false notice by her husband she had to file criminal case in Khadki Police Station at Pune. She claimed maintenance at the rate of Rs. 500/- p.m. for herself and Rs. 500/- for her son. She also filed Civil Misc. Application in the High Court of Mumbai for transfer of the husband's petition for restitution of conjugal rights. Seeing that there was no hope of her return, the husband withdrew his petition for restitution of conjugal rights by filing an application dated 5.11.1998 in the family Court at Bandra. The wife also filed a private complaint under Section 498A of the Indian Penal Code at Pune Court. As a result of these proceedings it has become clear that his wife was not interested in living with him.
j) In the circumstances, on 10.11.1998, the husband filed a petition for grant of divorce on the ground of desertion and cruelty.
3. On 8.10.2000, the wife filed her written statement. In the written statement she denied the allegations made by the husband. She also came out with a positive case that her parents had given 33 tolas of gold ornaments and 4-K.G. of silver ornaments to her on the demand made by her husband. That her parents had spent four to five lacs at the time of the marriage. That, after the marriage the husband and his family members had asked money from time to time from her parents and therefore, her parents were constrained to sell their flat for fulfilling the demand of her husband and her family members. She was harassed and ill-treated by the petitioner and his family members. Her husband tired to compel her to give a divorce in writing on stamp paper. Her parents were not in a position to fulfil such exorbitant and continuous demands because they were not financially sound. That, she was never provided with medical aid during her pregnancy and therefore, she became weak. That, as a result of such harassment she had to return to her parents house at Borivali. Since her husband and his family members continued to harass her, her parents sent her to Pune for her safety. At Pune she delivered her child and since she was very weak she was admitted in Meera Hospital where she took treatment for 2.1/2 months. That, her husband neither performed his duty as her husband or as father of the child nor had he visited her after her delivery. That, her husband was making false allegations against her for adultery. That, her maternal uncle was a respectable person in society and was just like her father to her. He had brought up her just like a daughter. That, these allegations made by her husband against her and her maternal uncle amounted to cruelty to her and her maternal uncle. She denied that she had made any demand for a separate residence and denied that she had caused any mental and physical torture by denying physical relations to her husband.
4. At the trial the husband examined himself as P.W.No. 1, his brother Dr. Naresh Parmar as P.W.2 and one Kantilal Ranka who claims to be the employer of the husband as P.W.3. The wife examined herself as R.W.1, her mother Bhavaribai Surana as R.W.2, her other uncle Devraj Dhoka as R.W.3 Both the sides produced documentary evidence. Upon considering all the evidence on record, the Family Court, Pune passed the impugned judgment and order which is the subject matter of challenge in this appeal. It may be stated here that since no stay to the decree of divorce was granted pending this appeal, the husband married again and has by now two children from his second marriage.
5. We have heard both the sides exhaustively. We have also perused the entire evidence on record. We made serious attempts to see that the parties to be brought together but our efforts have failed. It is the admitted position before us that the parties have been staying separately since 15.5.1996 i.e. for a period of more than 6 years and 8 months. Since all attempts of reconciliation failed, we have looked into the evidence in order to decide the matter on merits. We find from the evidence of the husband that the main reason given by him as to why his wife was unhappy was that she was seeking a separate accommodation and desired to stay away from the joint family. He has stated that his wife denied physical relations with him and caused him physical and mental torture. That,after she left her matrimonial home on 15.5.1996, though she initially went to her parental house at Borivali within two days he came to know that she had gone to her maternal uncle's house at Pune. He deposed that he had gone to the house of her maternal uncle and had been abused by him. His wife had informed him that she wanted to stay at Pune. That, in April, 1997 he had made arrangement for a separate residence at Bhandup and had intimated about it to the parents of his wife but inspite of this she did not return. We have noted that the wife took the contention that she was willing to stay in a joint family. If this be so, then one of the main reason for acrimony between the parties would not exist and there was no reason for her not to return to her husband. We find that she has contended that she was harassed and ill-treated by the petitioner and his family members. Her contentions in this regard are vague. There is no date mentioned in respect of any particular incident of harassment. So also particulars of harassments are also not given. She had stated that she was never provided with any medical aid during her pregnancy. Apart from her bare statement, there is nothing on record to substantiate this contention. It is noted that she had gone to her parents place at Borivali for delivery however, within two days she left for her uncle's place at Pune. In the police enquiry her own father had given a statement that his consent and permission was not taken for leaving his house at Borivali. We find no justification in the contention of the wife for staying at Pune with her maternal uncle, even though her husband had purchased a separate place for their exclusive residence. Such an act on her part of staying at Pune alongwith her newly born son does amount to both cruelty as well as desertion and no fault can be found in the impugned judgment and order granting divorce on the ground of cruelty and desertion.
6. So far as question of maintenance is concerned, in view of our aforesaid finding, maintenance cannot be granted to the wife. In so far as the child is concerned, we find that an amount of Rs. 500/- which is awarded is too meagre looking to the present requirements of a growing child. The evidence indicates that the husband had sufficient money to purchase his own flat. He cannot be said to be a person of no means. No doubt, he contended that he had borrowed monies from his friends to purchase the new flat but he candidly admitted that he had not taken any such contention about borrowing of monies from his friends in his petition nor had he led any evidence in this regard. Taking an over all view of the matter, we feel that ends of justice will be met if an amount of Rs. 3000/- per month is granted as maintenance to the child. The husband will have an option of making lumpsum payment of Rs. 5,00,000/- towards the maintenance of his son and if he makes such lumpsum payment in full, then his liability to pay maintenance at the rate of Rs. 3000/- per month will cease from the date of full payment. He will also have an option to make a lumpsum payment of Rs. 2,50,000/- at the first instance and if he does so then the maintenance payable to the son will stand reduced to Rs. 1500/- per month from the date of such payment. The maintenance amount/amount in lieu of maintenance as aforesaid would be payable to the son till the son attains the age of majority. In the circumstances, the appeal is partly allowed with costs in the aforesaid terms.