Mantu Mallick vs Lakhi Mallick

Appellant is husband aggrieved by enhancement of maintenance u/s 25 (2) of the Hindu Marriage Act vide judgment dated 20.8.2016 passed in

Title Matrimonial Suit No. 468 of 2011 rendered by the learned Principal Judge, Family Court, Dhanbad.

Earlier a Matrimonial Title Suit No. 312 of 2000 preferred by the husband for a decree of divorce u/s 13(1) (i-a) (i-b) of the Hindu Marriage Act,

1955 was dismissed on contest vide judgment dated 27th February, 2003Â and the husband was directed to keep the wife with all respect and dignity.

He was also directed to maintain her and her daughter throughout the life and bear and arrange the marriage expenses of the minor daughter on her

attaining the marriageable age. It was further ordered that in case the husband fails to provide suitable conjugal life to the wife at his house he shall

continue payment of maintenance to the tune of Rs. 1000/- to the wife and minor child. Â

Wife approached the learned Family Court, Dhanbad for enhancement of maintenance in Title Matrimonial Suit no. 468 of 2011 U/s 25 (2) of the

Hindu Marriage Act, 1955 stating that respondent failed to lead conjugal life with the petitioner and was making a payment of Rs. 1000/- but she is

facing great hardship and difficulty to lead her life and life of her child in such a meager amount. Her daughter was only 5 years old at the time of

granting the maintenance and now she has attained the age of 16 years and about to reach marriageable age and as such she prayed to enhance the

maintenance amount of Rs. 1000/- to Rs. 15,000/- per month.

Respondent objected by filing written statement and stated that he is simply a private mechanic working under a private Garage having a monthly

income of Rs. 4000/- only. He also referred to dismissal of Execution Case No. 02 of 2004 preferred by the wife earlier vide order dated

09.07.2004. She had again filed M.P. Case No. 187 of 2008 for the same relief which was also dismissed on 30.08.2011. Reference was also made in

Miscellaneous Case No. 82 of 2001 at Burdwan, which was dismissed by the court. Husband also made a reference to a criminal case under section

498 A of the Indian Penal Code bearing No. 181 of 2001 at Burdwan in which he was acquitted. He alleged that petitioner-wife is a litigant lady and in

the habit of filing cases one after another. Mediation failed during the proceedings before the Family Court and only one issue i.e. whether any

variance in amount of maintenance as passed in TMS No. 312 of 2000 is required or not, was framed for adjudication.Â

Petitioner-wife adduced two witnesses herself as P.W. 1 and Puja Mallick as P.W. 2. Â Husband adduced 3 witnesses, himself as D.W. 1, Laltu

Das D.W. 2 and Chandan Das D.W. 3. No documentary evidence was filed on behalf of respondent.Â

Learned Family Court analyzed the evidence on record and came to a finding from the evidence of respondent’s witnesses that the Garage,

admittedly situated at Mugma, belongs to the respondent and he is not employed as a labourer rather in the capacity of owner who employed

mechanics, namely, Shambhu, Sharda and Sapan for repair of the vehicles. In para 18 of the evidence of D.W. 1, it was stated that his daily income is

Rs. 50-60 only while at para 2 he stated his income 4000/- per month which comes to Rs. 130 per day. It, therefore, became, apparent that the

evidence of respondent himself was not fair regarding his income and unworthy of credence. Though respondent referred to number of cases filed by

the petitioner-wife but did not file any document evidencing judicial order in order to prove that petitioner-wife had filed several cases which

were found false after due adjudication. In view of the principles of law well settled that the documents must be proved to prove assertion of fact,

adverse inference was drawn against him. Finally, the learned court upon elaborate discussion of the evidence of the parties came to the following

findings:

“11. The petitioner has prayed for variance in her maintenance amount under Section 25(2) of Hindu Marriage Act which runs as follows:- “if

the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub Section (1), it may

at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.†The order of maintenance

amounting Rs. 1000/- per month in favour of petitioner was passed in the year 2003 and after elapse of thirteen years, there has been a considerable

change in the living standard and requirements of an individual human being. The petitioner has proved by evidence that it has become practically

impossible for her to survive with her children in such a meagre amount in the current scenario while on the other hand, the income of the respondent

has increased to a considerable length. The petitioner has stated that respondent has an income of Rs. 60,000/- to 80,000/- per month from the

garage and rented property. It has already been held that income of the respondent is more than what he has stated in the evidence and he is the

owner of their garage situated at Mugma and not a worker in the said garage. It is a fact that after thirteen years from the date of grant of

maintenance, the price of goods has gone up to the considerable extent and accordingly I feel satisfied that there is substantial change in

circumstances and the maintenance amount of Rs. 1000/- granted to the petitioner and her children in the year 2003 is highly insufficient to further

their livelihood in the present set-up of the society. As such some enhancement in the maintenance amount appears to be proper. Thus, I find and hold

that petitioner is entitled for enhancement of her maintenance amount. Thus this issue is decided in favour of petitioner and against the

respondent.      Â

12.  On the basis of discussion, made above, and evidence, oral and documentary, I have come to a clear conclusion that petitioner has succeeded

in proving her case to the extent of all preponderance of probabilities. Accordingly, I find and hold that she is entitled to a decree as claimed for.â€​Â

Based on these findings, the maintenance amount was modified to Rs. 7000/- per month, payable from the date of the order.

 8. Learned counsel for the respondent has supported the findings of learned court and submitted that there are no errors of law or mis-

appreciation of evidence on record, warranting interference in appeal.Â

We have considered the relevant pleadings and material evidence as discussed by the learned family court in order to come to a finding of

enhancement of maintenance amount of Rs. 1,000/- granted in the year 2003 to Rs. 7,000/- in August, 2016 after thirteen years. We hardly find any

reason to disturb the findings of the learned family court. The cost of living index has undeniably increased many folds since the year 2003. The

daughter aged about 16 years in 2016 was living with the wife and it could not be conceived that a meagre maintenance amount of Rs. 1,000/- per

month would serve their needs. Moreover, the learned family court while passing judgment dated 27.2.2003 had clearly directed the husband to

keep the wife with all dignity and maintain her and the daughter throughout the life and also bear and arrange the marriage expenses of daughter on

her attaining the marriageable age. Learned family court assessed the income of the husband/appellant herein between 60,000/- to 80,000/- per month

from the Garage and rented property. The Garage has been found to be belonging to him. His statement that he was not the owner of the Garage was

not correct. The enhancement of maintenance awarded is not excessive or exorbitant rather proper in the facts and circumstances of the case. Taking

into account all these facts, material pleadings and evidence on record, we do not see any reason to disturb the findings of the learned family court.

Accordingly instant appeal is dismissed.  Â