Dolly and Others vs Arvind

A.M. Badar, J—Admit. By consent of the learned counsel for the parties, the family court appeal is taken up for final hearing.

This is an appeal by original petitioner No. 1/wife and original petitioner No. 2/daughter challenging the judgment and order dated 28-8-2014 passed by the learned Judge of Family Court No. 4, Nagpur, in Petition No.C-10/2009, by which the learned Judge of the Family Court has partly allowed their petition under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 by directing the respondent/husband to pay maintenance at the rate of Rs. 3,000/- per month to petitioner No. 1/wife, and at the rate of Rs. 4,000/- per month to petitioner No. 2/daughter from the date of the judgment. For the sake of convenience, the parties shall hereinafter be referred to in their original capacity.

Appellants are principally aggrieved by the impugned judgment and order of the learned Family Court directing payment of maintenance from the date of the judgment instead of from the date of the presentation of the petition claiming maintenance. There is faint challenge to the quantum of maintenance awarded by the learned Family Court with an averment that the same is meagre.

Facts, in nutshell, leading to the presentation of the instant appeal can be summarized thus :

After solemnization of the marriage of petitioner No. 1/wife with the respondent/husband on 22-5-2002 as per the rites and customs prevailing in their community, petitioner No. 1/wife started cohabiting with the respondent/husband. According to petitioner No. 1/wife, after seven days of the marriage, the respondent/husband started quarreling with her for various reasons. She was driven away from the house with a warning that unless and until she brings an amount of Rs. 3,000/- from her parents which was received as a gift to her in the marriage, she will not be permitted to enter in the house. According to petitioners, the respondent had quarreled with petitioner No. 1/wife over the issue of missing of electric press and had even beaten her. Petitioners further alleged that in December, 2002, when petitioner No. 1/wife was pregnant, the respondent picked up a quarrel with her and had beaten her with leg blows, causing miscarriage. According to petitioners, when petitioner No. 1/wife again became pregnant in the year 2004, the respondent had assaulted her, requiring her to seek medical treatment at Ajinkya Maternity & Surgical Nursing Home. Petitioners further pleaded that thereafter petitioner No. 1/wife went to her parental house and delivered a female child -petitioner No. 2 on 15-1-2005. According to petitioners, on 18-12-2008, the respondent again quarreled with petitioner No. 1/wife over a petty matter and had assaulted her by means of fist and leg blows. The respondent/husband asked petitioner No. 1/wife to bring an amount of Rs. 10,000/- from her parents, and threatened to kill her, and, therefore, she lodged a report to Police Station Panchpaoli, Nagpur. Since then, she started residing with her parents along with her minor daughter, i.e. petitioner No. 2.

According to petitioners, the respondent had subjected petitioner No. 1/wife to cruelty and had neglected to maintain her. Petitioners pleaded that the respondent is working as a Senior Clerk with the Maharashtra Electricity Distribution Company Limited at Hingna and is getting the salary of Rs. 15,000/- per month. Petitioners further pleaded that the respondent is doing the business and is having a shop, named "Janseva Traders" and is earning Rs. 10,000/- per month from that business. Petitioners further pleaded that the respondent is also having a "Kandap Machine" and is earning Rs. 5,000/- per month from that business. According to petitioners, the respondent is having his own house and is not having any other liability. With these averments, petitioners prayed for direction to the respondent to pay maintenance at the rate of Rs. 4,000/- per month to petitioner No. 1/wife, and at the rate of Rs. 4,500/- to petitioner No. 2/daughter from the date of filing of the petition under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956.

The respondent opposed this petition by filing the written statement, denying each and every averment. The respondent has not disputed the fact that petitioner No. 1 is his wife and out of the wedlock, petitioner No. 2 was born on 15-1-2005. He has also not disputed the fact that since 18-12-2008, they are living separately. The respondent denied that he had subjected petitioner No. 1 to cruelty. He denied the allegations of assaulting petitioner No. 1, when she was pregnant. According to the respondent, petitioner No. 1 is an educated lady, holding a degree in Science -B.Sc. The respondent further pleaded that petitioner No. 1 is serving as a Teacher as well as a Laboratory Assistant in Dr. Babasaheb Ambedkar School at Hanuman Nagar, Nagpur. According to the respondent, petitioner No. 1 is earning more than Rs. 6,000/- per month from that job, apart from earning an amount of Rs. 2,500/- per month from the tuition classes. The respondent admitted that he is working in the Maharashtra Electricity Distribution Company Limited, but denied that he is getting the salary of Rs. 15,000/- per month. He also denied that he is running a shop in the name and style "Janseva Traders" or that he is having a business of "Kandap Machine". According to the respondent, petitioner No. 1/wife had been to Mumbai for commercial laboratory training and she is a highly ambitious lady. According to the respondent, on 25-12-2008, the father of petitioner No. 1 came to his house and took petitioners with him. He had also taken all valuable articles, including the LIC policies and share certificates. When the respondent/husband tried to contact petitioner No. 1/wife on telephone, her brother and father abused him. The respondent pleaded that he filed a petition for restitution of conjugal rights as well as a petition for custody of his minor daughter. He contended that a false report under Section 498A of the Indian Penal Code came to be filed against him by petitioner No. 1/wife.

In support of her claim, petitioner No. 1/wife tendered her evidence on affidavit at Exhibit 35 and relied on the documentary evidence, such as the report lodged by her as well as the salary certificate of the respondent. She also examined her father Ramesh Mate as P.W.2. In rebuttal, the respondent tendered his evidence on affidavit at Exhibit 69 and relied on the documents of his medical treatment, his salary slip and other documents.

After hearing the parties, the learned Family Court, by its impugned judgment and order dated 28-8-2014, came to the conclusion that petitioner No. 1/wife proved that the respondent had treated her with cruelty and had also neglected to maintain petitioners. Resultantly, the Family Court directed the respondent to pay maintenance to petitioner No. 1 at the rate of Rs. 3,000/- per month, and to petitioner No. 2 at the rate of Rs. 4,000/- per month from the date of the judgment, apart from Rs. 5,000/- towards the costs of litigation.

Shri Upadhyay, the learned counsel appearing for appellants, vehemently argued that the petition claiming maintenance was pending before the Family Court, Nagpur, from the year 2009, and as such the learned Judge of the Family Court was not justified in awarding maintenance from the date of the judgment and order. According to the learned counsel for appellants, because of this order, appellants are deprived of maintenance for a period of about five years, because the petition was presented in the year 2009 whereas the order awarding maintenance came to be passed on 28-8-2014. By placing reliance on the rulings in the matters of Jaiminiben Hirenbhai Vyas Vs. Hirenbhai Rameshchandra Vyas, (2014) 4 CCR 517 : (2014) 3 DMC 737 : (2015) 1 JCC 355 : (2015) 1 RCR(Civil) 40 : (2015) 1 RCR(Criminal) 84 : (2015) 1 SCJ 216 ; and Mrs. Seema Subhash Shrigondekar Vs. Mr. Subhash Gunaji Shrigondekar, (2013) 3 ALLMR 47 , the learned counsel for appellants vehemently argued that the impugned judgment and order is not in accordance with the settled legal position of awarding maintenance from the date of the petition. He further submitted that the learned Judge of the Family Court has not given any reason for awarding maintenance from the date of the impugned judgment and order, and as such the impugned judgment and order needs to be corrected at the hands of this Court by directing payment of maintenance from the date of the petition. Though it is a specific ground in the memo of appeal that the learned Family Court erred in awarding meagre maintenance and that the same needs to be enhanced up to Rs. 15,000/- per month, the learned counsel for the appellants has not advanced arguments on this aspect.

Shri Gupta, the learned counsel appearing for the respondent, supported the impugned judgment and order by contending that the learned Judge of the Family Court was right in awarding maintenance from the date of the impugned judgment and order, as the facts that the respondent is also required to pay maintenance under the Protection of Women from Domestic Violence Act, 2005 and that he was required to pay interim maintenance during the pendency of the petition, were duly considered by the learned Family Court. Hence, according to the learned counsel for the respondent, the order awarding maintenance from the date of the impugned judgment and order cannot be faulted with.

This Court will have to examine whether the quantum of maintenance fixed by the learned Family Court is just and proper and whether the order directing payment thereof from the date of judgment of the learned Family Court is legal. After considering the rival submissions and on going through the record and proceedings, we are of the opinion that for the reasons to follow, the impugned judgment and order passed by the Family Court is perfectly legal and needs no interference at the hands of this Court.

It is well-settled that quantum of maintenance is within the discretion of the Court and if it is found that such discretion is exercised on sound judicial principles by considering all the relevant material on record, then such order cannot be interfered with. In the case in hand, the learned Judge of the Family Court has considered the salary slip filed by petitioner No. 1, which is reflecting gross salary of the respondent/husband as Rs. 25,994/- per month. Considering the statutory deductions therefrom, the learned Judge of the Family Court arrived at a right conclusion that the net salary of the respondent/husband comes to Rs. 22,024/- per month. The learned Judge of the Family Court also considered the salary slip at Exhibit 54 produced by the respondent/husband showing his gross salary as Rs. 22,723/-. Taking this salary of the respondent into consideration, the learned Judge of the Family Court also considered the fact that petitioner No. 1 as well as the respondent are suffering from AIDS and both of them are required to spend some amount on their medical treatment. The learned Judge of the Family Court was alive to the fact that the respondent is also required to pay an amount of Rs. 3,000/- per month to petitioner No. 1 under the provisions of the Protection of Women from Domestic Violence Act, 2005. The learned Judge of the Family Court also considered the fact that as per the interim order passed in the instant proceedings, the respondent was directed to pay maintenance at the rate of Rs. 1,500/- per month to petitioner No. 2. After considering all these aspects apart from take home salary of the husband, the learned Judge of the Family Court assessed the quantum of maintenance at Rs. 3,500/- to petitioner No. 1, and at the rate of Rs. 4,000/- per month to petitioner No. 2. This exercise undertaken by the learned Judge of the Family Court cannot be said to be perverse, as it is based on the appreciation of evidence on record in right perspective. The learned Judge of the Family Court duly considered the income of the respondent as well as the order of maintenance suffered by the respondent in the proceedings under the Protection of Women from Domestic Violence Act, 2005. As such, we are satisfied that the impugned judgment and order, so far as it relates to quantum of maintenance fixed by the learned Judge of the Family Court, needs no interference.

Now the only question which remains to be considered, is whether the learned Judge of the Family Court erred in awarding maintenance from the date of the impugned judgment and order, i.e. from 28-8-2014, in the petition for maintenance presented in the year 2009. According to the learned counsel for the appellants, the impugned judgment and order does not contain any reason for awarding maintenance from the date of the judgment and order. In the matter of Jaiminiben Hirenbhai Vyas & Anr. v. Hirenbhai Rameshchandra Vyas & Anr (Supra), relied on by the learned counsel for the appellants, while considering the provisions of Section 125 along with Section 354 of the Criminal Procedure Code, the Hon''ble Supreme Court has held that Section 125 of the Criminal Procedure Code impliedly requires the Court to consider making the order of maintenance effective from either of the two dates, having regard to the relevant facts. It is held therein that the Court may choose to award maintenance either from the date of the application or from the date of the order, but the Court should record reasons in support of the order passed by it, in both eventualities. Taking assistance from this ruling, it is sought to be canvassed that the impugned judgment and order is bereft of such reasons. However, perusal of the impugned judgment and order makes it clear that this contention is devoid of merit. On a perusal of paragraph 38 of the impugned judgment and order, it is seen that the learned Judge of the Family Court has considered the fact that the respondent was under direction to pay Rs. 3,000/- per month to petitioner No. 1 towards maintenance under the Protection of Women from Domestic Violence Act, 2005, so also the fact that he was under direction to pay Rs. 1,500/- towards interim maintenance. Apart from this, the learned Judge of the Family Court has also considered that the respondent/husband being a patient of AIDS, has to spend some amount on his medical treatment. On this factual backdrop, the learned Judge of the Family Court directed that the amount of maintenance, so finally assessed, shall be payable from the date of the impugned judgment and order, apart from the payment of Rs. 5,000/- towards the costs of litigation. It is thus clear that the reasons for awarding maintenance from the date of the impugned judgment and order are reflected in the judgment and order. The possible view is taken by the learned Family Court on the basis of material on record. As such, there is no infirmity in the impugned judgment and order passed by the learned Judge of the Family Court.

In the result, we pass the following order :

The family court appeal is dismissed with no order as to costs.