Chandradev vs Rekha

The present appeal has been filed by appellant - Chandradev husband of the respondent against the order dated 11.10.2019 passed by the learned Family Court, Sirohi (afterwards referred as 'Trial Court'), whereby, the trial court while allowing the application under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (afterwards referred as the 'Act of 1956') has awarded Rs. 2,250/- per month in favour of the respondent- wife as maintenance from the date of application.

Brief facts of the case are that respondent - Smt. Rekha filed an application under Section 18 of the Act of 1956 before the learned District Judge, Sirohi on 13.12.2012. Thereafter, it was transferred to the Family Court on 15.01.2018. It was stated in the application that the marriage between the parties was solemnized as per Hindu rites and customs on 28.04.1998; out of their wedlock two daughters Kavita and Kajal were born.

It was alleged in the application that non-petitioner (appellant herein) treated his wife with cruelty and deserted her. It was also alleged that he is living in adultery; non-petitioner denied the allegations levelled against him by way of filing reply.

The trial court after framing the issues and adducing the evidence has allowed the application and awarded the maintenance as enumerated above.

Aggrieved by the impugned order, the present appeal has been filed on the ground that the respondent is engaged in the business of soft drinks run by her father and earning a sum of Rs. 10,000/- per month. It is also stated in the appeal that respondent-wife deserted him for last 14 years. It is stated that the he is earning Rs. 7,200/- per month only and he is saddled with responsibility of his old aged parents. It is prayed on behalf of the appellant to set aside the impugned order.

We have heard learned counsel for the appellant and perused the material available on record.

As per the provisions of Section 18 of the Act of 1956 a Hindu wife shall be entitled to be maintained by her husband during her life time.

As per sub-clause (2) of Section 18 of the Act of 1956 a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance, if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.

The word 'maintenance' has been defined in Section 3 of the Act of 1956, which includes provision for food, clothing, residence, education and medical attendance and treatment.

As per provisions of Section 23(2) of the Act of 1956 in determining the amount of maintenance to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to the position and status of the parties; the reasonable wants of the claimant; if the claimant is living separately, whether the claimant is justified in doing so; the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source.

Coming to the facts of the present case, it is not in dispute that the respondent is wife of the appellant - Chandradev. It is also not in dispute that she is living separately from her husband with her two daughters. Daughters are getting separate maintenance as per the order of the trial court. It is also not in dispute that the parties could not reconcile their dispute through amicable settlement.

The respondent in her statement recorded before the trial court has specifically alleged against her husband regarding ill treatment with her. She specifically stated that her husband willfully deserted her and is living in adultery with 'S'. It is stated that she is living in a rented house and she has no source of income. In her cross-examination her statement could not be rebutted.

Appellant - Chandradev in his cross-examination admitted that previously he had filed a divorce petition against her wife, which was settled by compromise. He admitted that compromise was made on the condition that he will treat her wife in a good manner. He stated that he is earning Rs. 7,000/- per month. The appellant in his affidavit has nowhere stated that Rekha is a working and earning woman.

Having appreciated the arguments advanced on behalf of the parties and looking to the facts of the case as well as evidence available on record, the impugned order passed by the trial court cannot be faulted with. The trial court after examining the evidence meticulously came to the conclusion that the appellant is living in adultery. The issue of cruelty and desertion was also decided in favour of the wife on cogent evidence. The impugned order does not warrant interference of this Court regarding entitlement of maintenance.

As far as quantum of maintenance is concerned, Rs. 2,250/- per month has been awarded to be paid by the husband, the same cannot be termed to be excessive by any stretch of imagination looking to the status of the parties and requirements of the wife.

Consequently, this appeal is dismissed at the admission stage. However, it is made clear that this order of dismissal will not adversely affect the legal rights of the wife regarding enhancement of the maintenance amount, if any cross appeal is filed.