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CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

 

 

Form No. J (1)

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Ashim Kumar Roy

C.R.R. NO. 399 of 2007

Amal Mukherjee

versus

Pranati Mukherjee & Anr.

For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas

Mr. Soumya Chakraborty

Ms. Sasita Halder

Heard On : August 26th, 2008.

Judgment On : 12-11-2008.

In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrear maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot beattached.

2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.

3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.

4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, wecannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”

5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.

6. The impugned order is thus set aside and accordingly the criminal revision is allowed.

The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

 

( Ashim Kumar Roy, J. )

SC:- Employed Wife not entitle for Maintenance u/s 24 of HMA even if the Husbands Salary is 4 times higher.

Wife employed and earning a salary is NOT entitled to interim maint u/s 24 HMA, even though husband is earning four times MORE than the wife. Child – Daughter gets interim maintenance. Husband does NOT even attend the Supreme court hearing but still wife DENIED interim maintenance !

 

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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 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.

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.

…………………………………J. [ TARUN CHATTERJEE ]

…………………………………J. [ H.L. DATTU ]

New Delhi,

March 23, 2009.

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Categories: HMA 24 Tags: ,

Bombay HC : Wife or husband’s attorney cannot appear in family courts u/s 13 of Family Courts Act.

August 29, 2013 Leave a comment

Bombay High Court

Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale on 17 February, 2010

Bench: R. S. Dalvi

1

Amk

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner Vs.

Dadasaheb Bandu Shewale .. Respondent Mr. Milind N. Jadhav i/b Mr. Sagar G. Talekar for the Petitioner. Mr. R. T. Lalwani for the Respondent.

CORAM : MRS. R. S. DALVI, J.

DATE : 17TH FEBRUARY, 2010

JUDGMENT:

 

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife’s application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

 

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband’s name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

 

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :

ORDER III :

1. Appearances, etc., maybe in person, by recognized agent or by pleader. – Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

(emphasis supplied)

 

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and cross-examine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be “appearing, applying or acting” on his behalf. 7

 

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney 8

could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

 

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and 9

the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

 

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought 10

permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

 

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

 

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

Mumbai High Court:- WIFE OR HER PARENTS Cannot claim Marriage expense. Also the right to claim permanent alimony is dependent on the conduct and the circumstances involved.

December 14, 2012 Leave a comment

Mumbai High Court

Sudha Suhas Nandanvankar vs Suhas Ramrao Nandanvankar

on 15/9/2004

JUDGMENT                                               S.B. Mhase, J.

1. This appeal is directed against the Judgment and Order passed in    Misc. Application No. 60 of 2000 on 5-8-2000 by the Family Court,    Bandra in an application preferred under Sections 27 and 25 of the    Hindu Marriage Act, inter alia, making prayer that the stridhan of the    applicant be returned and also permanent alimony be granted. The said    application was partly allowed by the Family Court. However, in respect    of part rejection of the application, this appeal has been preferred.

2. The applicant was married with the opponent on 21-5-1995 according    to Hindu Laws. The said marriage has been annulled by a-decree of    nullity dated 16-3-1996 on a ground that the applicant-wife was    suffering from epilepsy at the time of marriage. Even though the said    decree was ex-parte, the said decree was not challenged by the    applicant-wife. However, after passing of the said decree, the notice    was issued by the applicant for return of the articles which were    presented to her at the time of marriage by her parents as per the    list. It is further claimed that the expenses incurred for the said    marriage of Rs. 31,876/- be returned. During the pendency of this    application the applicant-wife further submitted the application    (Exh.16) for return of the articles and jewellery which was presented    to her by her in-laws at the time of marriage. She has further claimed    permanent alimony. The Family Court has rejected the claim of Rs.    31,876/- which was incurred by the parents of the’ applicant-wife for    the purposes of marriage expenses on the ground that there is no    provision to return such amount. At the time of argument of this    matter, the learned Counsel for the appellant-wife fairly conceded that    there is no provision for return of such marriage expenses and    therefore, unless there is a provision to that effect, the trial Court    was justified in rejecting the claim for the marriage expenses to the    extent of Rs. 31,876/-. The trial Court has also rejected the claim in    respect of the golden articles and jewellery as listed in (Exh.16).    This appeal is mainly directed against the said finding of the trial    Court. We need not go to list of those articles but what we find that    all these articles, as per the claim made by the applicant-wife, have    been presented to her by the in-laws viz. mother-in-law, sister-in-law    i.e. (sister of the husband), another sister-in-law i.e. the wife of    the brother of the husband and so on. Naturally, as these Articles have    been presented by the in-laws, the applicant has not produced any    evidence to demonstrate that these articles were purchased by her    in-laws at any point of time. However, she had entered into witness box    and stated that these articles were presented to her. In order to    support her testimony, she has produced the photographs which were    taken at the time of marriage wherein these articles were reflected as    having been put on her and thereby claiming that these articles were    with her and they have not been returned by the husband. Since they    found to be stridhan, she is entitled to return of the same. The    husband has denied that such articles were ever presented to the    applicant-wife. According to him these articles were not presented at    any point of time and he further made a suggestion in the    cross-examination that these articles were of the parents of the    appellant-wife which were put on by her parents in order to have a show    of the presentation of such articles and he calls it as a “mandap    show”. Such suggestion has been denied by the applicant-wife. However,    it is pertinent to note that if these articles were presented to her,    she should have examined some witnesses who were present at the time of    marriage in the presence of whom these articles were presented by her    in-laws. However, she has not examined her father and mother. She has    not examined any friend who may be accompanied her at the time of said    marriage ceremony to demonstrate that such articles were presented    during the marriage ceremony to her. As against this, what we have    noticed that the respondent-husband has entered into witness box to    depose that such articles were not presented. Apart from that    respondent-husband has examined his parents. The parents have also    stated that such articles were not presented to the appellant-wife and    therefore, the respondent has brought on record the primary evidence to    demonstrate that such articles were never presented. Learned Counsel    for the applicant tried to submit that since these articles will have    to be returned to the appellant-wife, the respondent and his parents    are making statements that such articles were not presented. However,    what we find that in that eventuality, these witnesses have been    cross-examined and nothing have been brought in the cross-examination    to demonstrate that these witnesses were supressing the truth. We have    gone through the evidence of the parents and noticed that the evidence    is convincing one and the trial Court has rightly appreciated the    evidence. Therefore, we find that appellant has failed to establish    that such articles were presented by her in-laws in the marriage    ceremony.

3. Apart from this, we have taken into consideration that when the    first notice was given the articles mentioned in the list Exh.16 were    not demanded. Not only that when the application was filed, in the said    application there was no demand for the articles. It is during the    pendency of the application, the Exh.16 was submitted to the Family    Court making claim towards specific articles. Those articles were    golden and jewellery articles and such important stridhan will not be    forgotten by the appellant-wife till the pendency of the application.    In that context it is reflected that it is a after thought decision to    claim the articles and we find that the observation and finding    recorded by the Family Court are proper and justified one and we find    that there is no merit in the submission of the learned Counsel that    the Family Court should have allowed the list (Exh.i6).

4. So far as the articles which are directed to be returned to the    appellant-wife, we find that the findings have been rightly recorded    and no interference is called for. Apart from that there was a counter    appeal filed by the first party challenging the said order. The said    appeal is withdrawn by the respondent-husband as not pressed and    therefore, we confirm that part of the Family Court’s order.

5. The last question which requires consideration is in respect of the    alimony. It is an admitted fact that the decree for nullity has been    passed under Section 5(ii)(c) since the appellant was suffering from    epilepsy. Since the learned Advocate for the appellant submits that    under Section 25 the alimony has to be paid at the time of passing of    the final decree. He relied on the decision in the case of Shantaram    Tukaram Patil and anr. vs. Dagubai Tukaram Patil and ors. reported in    1987 Mh.LJ. 179. He further pointed out that the said Judgment is    relied upon by the single Judge in a subsequent Judgment in the case of    Krishnakant vs. Reena reported in 1999 (1) Mh.LJ. 388 and submitted    that even though the decree of nullity was passed the petitioner is    entitled to claim alimony under Section 25.

The learned Counsel for the respondent submitted that both these Judgments have considered the    aspect that the entitlement of the party for permanent alimony and more specifically right of the wife. However, he submitted that the said    right is available on condition that taking into consideration the conduct and the circumstances of case the Court is satisfied that    alimony shall be granted. According to him after marriage, immediately    there was a “Satyanarayan Pooja” and for the first time husband and    wife came together. The respondent-husband found that the appellant-wife is a patient of epilepsy and on the next day, he has    called on to the parents of appellant-wife and the father of the appellant came along with the Doctor to discuss. Learned Counsel    further stated that the father requested respondent to allow the appellant to stay with respondent and the medical expenses will be    borne by the father of the appellant. He submitted that thus the fact    that the appellant was suffering from epilepsy was not disclosed at the    time of settlement of marriage and till the marriage is performed. He    further submitted that even though on 1 or 2 occasions, prior to the    marriage there was a meeting of respondent husband and appellant-wife,    still the appellant wife has not disclosed that she is a patient of    epilepsy. Thus he submitted that the conduct of the appellant and her    parents in not disclosing that the appellant wife is suffering from    epilepsy is itself a fraudulent and therefore, the party which takes    the benefit of it, shall not be allowed to take such benefit and this    circumstance may be taken into consideration. Relevant portion of    Section 25 of the Hindu Marriage Act, 1955 is as follows :-       Section 25.- Permanent alimony and maintenance – (1) Any Court      exercising jurisdiction under this Act may, at the time of passing      any decree or at any time subsequent thereto, on application made to      it for the purpose by either the wife or the husband as the case may      be, order that the respondent shall pay to the applicant for her or      his maintenance and support such gross sum or such monthly or      periodical sum for a term not exceeding the life of the applicant      as, having reward to the respondent’s own income and other property,      if any, the income and other property of the applicant, (the conduct      of the parties and other circumstances of the case), it may seem to      the Court to be just, and any such payment may be secured, if      necessary, by a charge on the immovable property of the respondent.     In the facts and circumstances of the present case what we find that    since the decree for nullity of marriage is passed under Section    5(ii)(c) we have to consider as to whether order for amount of alimony    is to be passed. In view of the above referred 2 Judgments which have    been relied by the Counsel for the appellant, we do not find any    difficulty to conclude that in such a decree the wife is entitled to    have a permanent alimony. However, whether the conduct of the parties    and other circumstances involved in this case will allow us to pass    such order is the main question. It is an admitted fact that the    marriage was celebrated on 21-5-1995 and within 4 days from the date of    marriage, ‘Satyanarayan Pooja’ was performed in the matrimonial home    and thereafter husband and wife were allowed to stay with each other.    However, when it was found that the appellant-wife is suffering from    epilepsy the marriage was not consumated and on 27-5-1995 the    respondent-husband has contacted the appellant’s father. The    applicant’s father and mother accompanied by the Doctor attached to the    Poddar hospital came to the house of the respondent-husband and    thereafter they discussed about the fact of suffering of the epilepsy.    The appellant’s father showed willingness to incur the medical expenses    for the treatment of the appellant. However, he requested the    Respondent to allow the appellant to stay in the house of the    respondent-husband. This was not accepted by the respondent and    therefore, the father of the appellant has taken the appellant and    thereafter, a petition for nullity of marriage was filed in which    ex-parte decree was passed. The said decree is not challenged.    Thereafter, the applicant has filed this application for the permanent    alimony. It is pertinent to note that the parents and/or father of the    appellant have not entered into a witness box either to depose that the    fact of the epilepsy was disclosed to the respondent husband at the    time of settlement of carriage nor the appellant has stated in her    evidence that at any point of time prior to the marriage when they have    seen each other said fact was disclosed to the respondent-husband.    Therefore, the only inference is that till the marriage is performed    the respondent was not aware of the fact that the appellant is a    patient of epilepsy. The moment he got knowledge, he has not    consummated the marriage and called the parents of the appellant and    thereafter appellant was taken by the parents. This shows that had the    fact been disclosed prior to the performance of the marriage, the    respondent-husband would not have conducted such marriage with the    appellant-wife. The non disclosure by the parents of the appellant and    the appellant accepting the decree as it is without making any grudge    that in respect of the ground that the appellant was suffering from the    epilepsy prior to the marriage reflects upon the conduct of the    appellant and if we take into consideration this aspect what we find is    that the appellant is trying to take advantage of her wrong or fraud    and is trying to harass the respondent by claiming the amount of    alimony. But what we find is that after a decree of annulment the    respondent has married and he is having a child. Now this appears to be    an attempt on the part of the appellant and her parents to disturb the    marital life of the respondent which he has tried to settle after    annulment of the marriage. This is an attempt to shift the liability of    maintenance by the appellant-wife on a husband who was not at fault and    who has not consummated the marriage. Even though the law permits the    right of the alimony in favour of the appellant, however, the conduct    and the circumstances involved in the present case does not permit us    to pass an order of permanent alimony in favour of the appellant. We    find that the findings recorded by the Family Court are just and proper    and no interference is called for.

6. In the result, we find that there is no substance in the appeal and    hence, appeal is hereby dismissed with no order as to costs.

Bombay HC:- Once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act.

Bombay High Court
Sangeeta Piyush Raj
vs
Piyush Chaturbhuj Raj
on 13 January, 1998
Equivalent citations: 1998 (3) BomCR 207, II (1998) DMC 443
Author: M Shah
Bench: M S C.J., R Kochar

ORDER

M.B. Shah, C.J.

1. After considering the various decisions cited at the hearing of the Notice of Motion, by order dated 17th January, 1997, Variava, J., referred to the Division Bench the following two questions for determination:–

“1. Whether in proceedings under section 18 of the Hindu Adoptions and Maintenance Act, the Court can grant interim maintenance?

2. Whether if matrimonial proceedings are pending between the parties then an application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act?”

2. With regard to the first question, after considering the various decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R Desai, JJ.) by judgment and order dated (16th and 17th December, 1997 in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court has jurisdiction and power to pass appropriate interim and ad-interim orders. We agree with the said conclusion.

3. Further, it is to be noted that the Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions and maintenance among Hindus. It only declares and codifies the law with regard to adoptions and maintenance by Hindus. The basis of such obligation to maintain wives, widowed daughter-in-law, children and aged parents may be a pious obligation of Hindus. The provisions relating to maintenance are in Chapter III. Section 18 deals with maintenance of a wife during her life time under certain circumstances, as provided in sub-section (2) thereof. Section 19 provides for maintenance of a widowed daughter-in-law to the extent that she is unable to maintain herself out of her own earnings or other property by her father-in-law. Similarly, section 20 provides for maintenance of his or her legitimate or illegitimate children and his or her aged or infirm parents. The liability to pay maintenance to children is on the father or mother. Similarly, liability to pay maintenance to infirm parents is on the son or the daughter. Section 22 further provides that the heirs of a deceased Hindu are bound to maintain the defendants of the deceased (as defined in section 21) out of the estate inherited by them from the deceased. Section 23 provides for the objective criteria for determining the amount of maintenance. Further, the requirement is that no person shall be entitled to claim maintenance if she or he has ceased to be a Hindu by conversion to any other religion (section 24). Section 25 empowers the alteration of the amount of maintenance on change of circumstances justifying such alteration. Further, the proceedings initiated for getting maintenance would be under the Civil Procedure Code. Hence, there is no reason why inherent jurisdiction of the Court cannot be exercised for providing interim maintenance. If a deserted wife, widowed daughter-in-law, minor children and aged parents are not provided with interim maintenance, it would cause lot of hardship for a long period. The entire purpose of the enactment would be defeated because of the proverbial delays in disposal of cases resulting in grave hardship to the applicants who may have no means to survive until final decree is passed. There is no provision under the Hindu Adoptions and Maintenance Act or under the Civil Procedure Code that interim maintenance cannot be granted; there is no provision under the said Act which would meet the necessities of the case in question. Therefore, for doing real and substantial justice, Court can exercise power under section 151 of the Civil Procedure Code for grant of interim maintenance. It would also prevent abuse of the process of the Court.

4. Even in proceedings under section 125 of the Code of Criminal Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J. 411, the Court held as under :–

“Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125 of the Code, we feel that the said provisions should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance, subject to the other conditions referred to, pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by Magistrates under section 125 of the Code to the Family Courts constituted under the said Act.”

For arriving at the above conclusion, the Court has observed that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. The Court further observed that whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. In a civil suit filed for maintenance on the basis of the law applicable under the Hindu Adoptions and Maintenance Act, such power is required to be exercised. In our view, there is no reason not to apply the ratio laid down by the Supreme Court in Savitri’s case (supra) to the question involved in the present case.

5. Re: The Second Question :

In our view, even if matrimonial proceedings are pending between the parties, it is not the requirement that the application for interim maintenance must be made only to the Family Court under the provisions of section 24 of the Hindu Marriage Act. Once we arrive at the conclusion that an application under section 18 of the Hindu Adoptions and Maintenance Act is maintainable during the pendency of proceedings under the Hindu Marriage Act, then, obviously, the result would be that the application (or interim maintenance could be filed before the Court dealing with the right arising under provisions of section 18 of the Hindu Adoptions and Maintenance Act.

6. With regard to the provisions of section 18 of the Hindu Adoptions and Maintenance Act and provisions of the Hindu Marriage Act, the Apex Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3) Supreme Court Cases 4061, has held that, without affection or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoptions and Maintenance Act. She may also be entitled to relief under section 125 of the Code of Criminal Procedure; but this is an alternative measure. The Court clarified that, in a petition under the Hindu Marriage Act, the Court is empowered to grant interim maintenance; but, in those cases where the marital status is to be affected or disrupted, then the Court would pass orders for maintenance. In other cases, the Hindu Adoptions and Maintenance Act would be applicable. Hence, in our view, even if matrimonial proceedings are pending between the parties in the Family Court, it is not necessary that for getting interim maintenance, an application must be made to the said Court under the provisions of section 24 of the Hindu Marriage Act.

7. We, however, make it clear that, once the interim maintenance is granted either under section 24 of the Hindu Marriage Act or under section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of entertaining the application under the other Act. This would avoid multiplicity of proceedings, because the criteria for awarding maintenance under both the provisions would be the same.

8. Reference stands disposed of accordingly.

 

http://indiankanoon.org/doc/785025/

Categories: CrPC 125, HAMA, HMA 24 Tags: , ,

Husband get divorce u/S 13(1)(ia) and (ib) of HMA but the Bombay HIgh Court set asides the order of Maintenance to the wife which was rejected by Family Court.

July 5, 2012 1 comment

A husband who won the Divorce & Maintenance battle in Family Court has to run pillar to post even after the mental cruelty from Wife…this time its from Bombay High Court. Even after the Maintenance application of Wife was rejected by Family Court u/s 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956, the Bombay High Court ordered to set aside the same and directed the Lower Court for the Re-trail of the said application.

below is the Judgement

fca28.12.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012

Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. … Appellant
(Ori.Respondent)

Versus

Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
(Ori.Petitioner)

AND

FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012

IN
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
1 of 18
SQP
fca28.12.sxw
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. … Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. …. Respondent
……
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
……
CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.

6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her crossexamination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant’s witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit relation between husband and his sister were unsubstantiated and frivolous. The Family Court has noticed the letters Exhibit 62 and Exhibit 63, in addition to the stand taken in the written statement as well as oral evidence of the appellant. The Family Court on analysis of the above material then proceeded to authoritatively hold that the wild allegations made by the wife against the husband about illicit relations between him and his sisters, coupled with the fact that inspite of attempt made by the husband and his family members to persuade the appellant wife to come back to her matrimonial home and resume cohabitation/conjugal rights, she failed to do so, answered the issue against the appellant wife and therefore, dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1) (ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum and substance of the finding and the conclusion reached by the Family Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that the common Judgment of the Family Court is completely unsustainable as it fails to analyse the evidence properly and to record finding of fact in the context of the separate issue that was required to be answered before concluding that the petition filed by husband for dissolution of marriage and divorce deserves to be allowed. The argument is attractive at the first blush. However, as aforesaid, the Family Court has adverted to the substance of the pleading and oral and documentary evidence adduced by the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record, which this Court in appeal is expected to do, the conclusion reached by the Family Court in dissolving the marriage between the parties and passing decree of divorce is inevitable. We are inclined to uphold the order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering the fact that the appellant wife in her communication dated 11th May, 2006 in response to the letters sent by the respondent husband dated 5th December, 2005 and 11th January, 2006 has stated about the incidents she had personally noticed indicative of illicit relations between the respondent husband and his sisters. We refrain from reproducing those allegations in this Judgment. Suffice it to mention that the same are serious and disparaging remarks. The respondent husband in his petition has pointedly referred to the said communication, being one of the acts committed by the appellant wife which had caused immense mental agony and cruelty to him. The appellant wife in the written statement went on to reiterate those allegations and gave justification that the letters sent by her on 11th May, 2006 was a privileged communication between the husband and wife. She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is found in paragraph XIV of the written statement. The husband in his evidence has reiterated the position that making of such malafide, reckless and frivolous allegations by the wife constituted severe mental cruelty to him. Nevertheless, the appellant wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the respondent husband and his real sisters and she had written about the same in her communication dated 11th May, 2006 sent to respondent husband on the basis of her inner feelings. Admittedly, no contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making of such false, frivolous and unsubstantiated allegations against the husband in the communication as well as reiterating the same in the written statement and also in the oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband. It was clearly an attempt to sully the reputation not only of the respondent husband but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need not deal with the other allegations concerning ground of cruelty. Even the Family Court has not touched upon those allegations but in substance has opined that this ground established from the record was sufficient to grant decree of divorce. In other words, the decree of divorce under Section 13(1)(ia) deserves to be upheld in the fact situation of the present case.

9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)(ib) i.e. desertion. As an appellate Court, having upheld the decree of divorce on one count, which is formidable one and unassailable on any count, it may not be necessary to dilate on other grounds to sustain the decree. Be that as it may, we find that even though the Family Court has not thoroughly analysed the pleadings and evidence on record in the context of Section 13(1)(ib), but has certainly referred to the substance of the pleadings and the evidence. The Family Court has noted that appellant wife left the matrimonial house on her own on 1st June, 2005 and that inspite of persuasion by the respondent husband and his family members on two different occasions, she refused to resume cohabitation/conjugal rights. The fact that she left her matrimonial home on 1st June, 2005 is admitted by the wife. She has also admitted that after leaving the matrimonial home, she stayed with her father. Further, she took away her daughter along with her and got her admitted in Nazareth School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come to her on two occasions to convince her to resume cohabitation/conjugal rights, but she did not go back to her matrimonial house. On the basis of these admitted facts, the Family Court has granted decree of divorce also on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
10 of 18
fca28.12.sxw
communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
11 of 18
fca28.12.sxw
12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
12 of 18
fca28.12.sxw
“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
13 of 18
fca28.12.sxw
matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
14 of 18
fca28.12.sxw
Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read – “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
15 of 18
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requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
16 of 18
fca28.12.sxw
Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
17 of 18
fca28.12.sxw
and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
open.
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)
18 of 18

Delhi HC- Maintenance rejected as the Woman is well qualified, employed earlier and quited the job on her own will.

June 1, 2012 3 comments

CRL.REV.P. 344/2011 Page 1 of 8
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RESERVED ON : 19.04.2012
PRONOUNCED ON: 14.05.2012
+ CRL.REV.P. 344/2011
DAMANREET KAUR ….. Petitioner
Through: Mr.Sugam Puri, Advocate
versus
INDERMEET JUNEJA & ANR ….. Respondents
Through: Mr.Shyam Moorjani with
Mr.Taru Goomber, Mr.Pankaj Mendiratta
and Mr. Gaurav Goswami, Advocates.
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI
%
1. The petitioner has preferred this revision petition
impugning the order dated 01.06.2011 passed by the learned
Addl. Sessions Judge, Delhi. The petitioner is wife of respondent
Indermeet Juneja. She filed a complaint case bearing No.352/3
under Section 12 of Protection of Women from Domestic
Violence Act, 2005 alongwith an application for monetary relief
under Section 23 of the Act. Her prayer for interim monetary
relief was declined vide order dated 18.11.2010 by the learned
M.M.
2. Feeling aggrieved, she preferred an appeal against the
said order passed by the learned M.M. declining monetary relief
to her. In appeal, the learned ASJ vide the impugned order CRL.REV.P. 344/2011 Page 2 of 8
dated 01.06.2011 though declined the prayer of interim
monetary relief to the petitioner, partly allowed the appeal and
directed the respondent to pay a sum of Rs.10,000/- per month
from the date of filing of the petition towards contribution of
the respondent to maintain the child born out of the wedlock of
the parties.
3. The grievance of the petitioner is that the learned ASJ
committed an error in declining the relief to her on the ground
that she was well qualified, capable to maintain herself and
had the capacity to work and that she had also been actually
earning in the past and was thus not entitled to get any
maintenance from the respondent. The petitioner has
submitted that earlier she was working with Met Life Insurance
Company since the birth of her child. The company due to its
relocation process had asked the petitioner to shift to
Bangalore. She could not accept this offer as it would not be
appropriate for the child to be uprooted from the place where
she has been residing and due to the fact that there were
visitation orders passed by the learned Sessions Court and had
the petitioner along with the child shifted to Bangalore, the said
orders could not have been complied with. As such the
petitioner turned down the offer of the company. The company
refused to change its policy and the petitioner was forced to
resign from her job.
4. The relieving letter placed on record by the petitioner is
dated 17.08.2010. As per this relieving letter the date of joining CRL.REV.P. 344/2011 Page 3 of 8
of the petitioner with Met Life was 07.01.2008 and her
designation at the time of leaving the company was Assistant
Manager (Service Delivery). She has been relieved pursuant to
her resignation letter dated 17.06.2010. This letter is not
accompanied by the resignation letter of the petitioner giving
the reasons for her resignation or the policy of the company to
shift her to Bangalore. It is relevant to mention here that while
the date of joining of petitioner with Met Life Insurance is
07.01.2008, the petitioner has given birth to a female child on
18.09.2008 i.e. in the same year and despite having infant
child to take care, she has served the company till she was
relieved on 17.08.2010.
5. The contention of petitioner is that in order to comply
with the order of the Court to allow the respondent to have
visitation right she could not shift to Bangalore. There is
nothing on record to indicate that at any point of time despite
continuous litigation going on between the parties she had
approached the Court for modification of the order regarding
visitation right. If the petitioner of her own prefers to resign,
she cannot take shelter under the Court order regarding
visitation right. With the passage of time the child has grown
up and is of school going age. Thus, it is more convenient for a
working mother to be in the job then to sit at home.
6. The learned ASJ has rightly declined the interim monetary
relief to the petitioner by holding that she was well educated
lady earning Rs.50,000/- per month and had chosen not to CRL.REV.P. 344/2011 Page 4 of 8
work of her own will though had the capacity to work and find a
suitable job for herself.
7. The learned ASJ in the impugned order has also corrected
the error appearing in the order of learned M.M declining the
monetary relief to the child for the reason that she was not the
petitioner before the Court. In para-10 of the impugned order,
the learned ASJ, after considering the facts and relevant case
law has concluded as under:-
“10. On perusal of record and after hearing the
submissions made at bar, I do not find any infirmity in the
impugned order as regards maintenance to the
appellant/wife is concerned. The question, whether
appellant/wife was forced to resign or she had resigned
herself is a question to be considered by the court during
trial and also the question whether the reasons given by
her for resigning were satisfactory or not. These are the
question to be gone into during evidence by the Learned
Trial Court. But, the observation of the Learned Trial Court
in para-10 i.e. “As far as the maintenance of the child is
concerned, since she is not the petitioner in the present
complaint, I would not be able to pass any orders as
regards the maintenance for the daughter of the parties”,
is erroneous and cannot be sustained. Admittedly on the
date, when application u/s. 12 of the „act‟ was filed by the
appellant/wife, child was in the custody of the husband.
Secondly, if the scheme of the act is seen as a whole, it is
obvious that it is not necessary that the child should be
impleaded as a party. Relief can be granted to the child or
for the benefit of the child without child being impleaded
as a party. The relief can be granted not only to the
aggrieved person, but also to the „child‟. On reading of
Section 20 and 21 of the „Act‟ it is clear that not only
aggrieved person, but any child or children may be
granted relief. The court has to keep in mind the interest
and the welfare of the child, even if child is not a party.
Therefore, orders as regard custody or the maintenance or
the welfare of the „children‟ can be passed even if child is CRL.REV.P. 344/2011 Page 5 of 8
not a party in the application filed under the „Act‟ before
Learned Metropolitan Magistrate. There is manifest error
in the impugned order as regards the observations in
para-10 of the impugned order, which is set aside. In view
of this, it is directed that Learned Trial Court shall decide
the quantum of maintenance for the minor daughter of
the parties after making a realistic assessment of the
needs of child, keeping in view the status of parties, on
the basis of material placed on record by the parties.
Respondent/husband submitted that he was ready and
willing to bear 50% of expenditure of the child. He can
show his bonafide by providing some assistance to the
child so that the child is brought up in an appropriate
atmosphere and so that she is provided with minimum
comfort, which the child requires.
11. In the circumstances, till further orders are passed by
the Learned Trial Court, I deem it expedient in the interest
of justice to direct the respondent/husband to pay sum of
Rs.10,000/- per month towards his contribution from the
date of filing of the petition to maintain the child. The
amount ordered to be paid by respondent/husband shall
not tantamount to be an expression on merits of the case.
Appeal stands disposed of accordingly. TCR be sent back
alongwith copy of this order. File be consigned to Record
Room.”
8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3)
MPLJ 100, the High Court of Madhya Pradesh while dealing
with identical situation observed that 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. For better appreciation, relevant
paragraphs of the said decision are reproduced hereunder:-
“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 CRL.REV.P. 344/2011 Page 6 of 8
or her expenditure? Whether such spouse should be
permitted to get pendent 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 pendent 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 adversary 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 put a big
question which is to be answered by Mamta Jaiswal with
sufficient cogent 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 versa
also. If a husband well qualified, sufficient enough to earn,
sit 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, at least, has to make
sincere efforts in that direction. If this criteria is not
applied, if this attitude is not adopted, there would be a CRL.REV.P. 344/2011 Page 7 of 8
tendency growing amongst such litigants to prolong such
litigation and to milk out the adversary 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 pendent 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 healthiness 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
jeopardizing their hard earned income by toiling working
hours.
In the present case, wife Mamta Jaiswal, has been
awarded Rs.800/- per month as pendent lite alimony and
has been awarded the relief of being reimbursed from
husband whenever she makes up a trip to Indore from
Pusad, Distt. Yeotmal for attending Matrimonial Court for
date of hearing. She is well qualified woman once upon
time obviously 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 at least a bus service is available as
mode of transport. The submission made on behalf of
Mamta, the wife, is not palatable and digestible. This
smells of oblique intention of putting extra financial
burden on the husband. Such attempts are to be
discouraged.”
9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon
appropriate proof, the court may order the respondent to pay
maintenance to the aggrieved person and to her children and CRL.REV.P. 344/2011 Page 8 of 8
further permits the Court to pass an order of maintenance
under the PWDVA in addition to maintenance already granted
under section 125 Cr.P.C.
10. In State of Maharashtra vs. Sujay Mangesh
Poyarekar (2008) 9 SCC 475 it was held that powers of the
revisional courts are very limited and the revisional court
should not interfere unless there is a jurisdictional error or an
error of law is noticed.
11. The learned ASJ in the impugned order has rightly
observed that the question whether the petitioner-wife was
forced to resign or had resigned herself is a question to be
considered during trial and also the question whether the
reasons given by her for resigning from her job were
satisfactory or not.
12. It is worth mentioning here that the child for which
maintenance of Rs.10,000/- per month from the date of filing of
the petition has been ordered by Learned Addl. Sessions Judge
is just and fair and sufficient to meet the requirements of a
child which is aged about 3 ½ years.
13. There is no jurisdictional error or error in law in the
impugned order. The petition being devoid of merit is hereby
dismissed with no order as to costs.
(PRATIBHA RANI)
JUDGE
MAY 14, 2012/„dc‟

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