ENHANCEMENT OF MAINTENANCE UNDER SEC.25 (2) OF HINDU MARRIAGE ACT = Whether the second petitioner is disentitled to claim for enhancement of maintenance since attained majority and the petition is filed under Section 25(2) of Hindu Marriage Act? = However, it is made clear that the second respondent shall not be entitled to be granted any maintenance from the date on which she marries. 2. Whether the petitioners are entitled for enhancement of maintenance payable by the respondent as they claimed? Not withstanding the dire necessity to enhance the amount, the obligation of the appellant to maintain himself and his mother cannot be ignored. The allocation of Rs.6,000/- per month being almost 1/3rd of the total income of the appellant towards maintenance of divorced wife and his daughter will certainly cause hardship to him. We are of the view that the ends of justice would be met if the enhancement is restricted to Rs.2,000/- per month to each of the respondents.


THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
and
THE HON’BLE SRI JUSTICE  S.V.N.BHATTI

 

F.C.A.No.20 of 2012



JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)

          The first respondent was the wife of the appellant and the second respondent is their daughter. The appellant and the first respondent obtained divorce through mutual consent way back on
26-11-1996.  In the order passed by the trial Court, permanent alimony was ordered @ Rs.800/- per month to the first respondent and Rs.500/- per month to the second respondent.

The respondents filed F.C.O.P.No.23 of 2011 in the Court of the Judge, Family Court, Kurnool under sub-section (2) of Section 25 of the Hindu Marriage Act r/w Section 7 of the Family Court Act for enhancement of the maintenance to Rs.3,000/- each. It was pleaded that the appellant is possessed of adequate income and it is becoming difficult for them to maintain themselves with the meager amount ordered in the year 1996. It was stated that the second respondent is pursuing her studies and she is in need of adequate resources.  The petition was opposed by the appellant. Through its order dated 11.12.2011, the Family Court, Kurnool enhanced the maintenance to the respondents @ Rs.3,000/- each per month. Hence, this appeal.

Sri D. Ramalinga Swamy, the learned counsel for the appellant submits that the trial Court has committed a factual error in treating the income of the second wife of the appellant as the income of the appellant himself.  He contends that though the second respondent was declared as major, she was still awarded the alimony/maintenance contrary to law. Other contentions are also advanced. 

Sri J.V.M.V.Prasad, the learned counsel for the respondents, on the other hand, submits that the enhancement ordered by the Family Court is reasonable and in these days of high cost of living, it cannot be said to be exorbitant.  He submits that despite the fact that the second respondent became major, the appellant is under obligation to maintain her till she gets married.

It is a matter of record that the marriage between the appellant and the first respondent stood dissolved through mutual consent and alimony @ Rs.800/- and Rs.500/- per month respectively to the respondents was ordered.  It is brought to the notice of this Court that there was slight enhancement in between.

        The respondents filed fresh OP for enhancement of the amount towards maintenance.

The Family Court framed the following points for its consideration:

1.                 Whether the second petitioner is disentitled to claim for enhancement of maintenance since attained majority and the petition is filed under Section 25(2) of Hindu Marriage Act?

2.                 Whether the petitioners are entitled for enhancement of maintenance payable by the respondent as they claimed?

The first respondent deposed as P.W.1, but she did not file any documents.  The appellant deposed as R.W.1 and his mother was examined as RW.2.  He filed his salary certificate and the same was marked as Ex.B.1.

          The discussion undertaken by the trial Court discloses that

the income of the second wife of the appellant was also taken into account.

 However, it was not at all in the context of taking the total income of the appellant and his financial capacity.  

It was only from the point of view of obligation of the appellant to maintain his second wife and the daughter, got through her. 

Obviously to determine the extent of liability of the appellant towards maintenance, the salary of the second wife was also taken into account.  

It is not in dispute that the second wife of the appellant was drawing a salary of Rs.20,000/- and in that view of the matter, the appellant does not have to incur any expenditure specially to her and her daughter. 

The appellant, no doubt, may have to maintain his old mother. 

Equally same, he is under obligation to provide alimony to the first respondent and maintenance to the second respondent. 

Ex.B.1-salary certificate discloses that the appellant is drawing salary of Rs.26,224/- per month.  

The net salary is about Rs.20,000/- per month. 

 It was not even suggested, much less proved that the respondents are having any income of their own.  

In that view of the matter, the maintenance that was granted long ago deserved enhancement. 

Not withstanding the dire  necessity to enhance the amount, the obligation of the appellant to maintain himself and his mother cannot be ignored. 

The allocation of Rs.6,000/- per month being almost 1/3rd of the total income of the appellant towards maintenance of divorced wife and his daughter will certainly cause hardship to him.  

We are of the view that the ends of justice would be met if the enhancement is restricted to Rs.2,000/- per month to each of the respondents.

          Hence, the appeal is partly allowed reducing the maintenance awarded by the trial Court to respondents 1 and 2 to Rs.2,000/- per month effective from May, 2013.  However, it is made clear that the second respondent shall not be entitled to be granted any maintenance from the date on which she marries.  

The other conditions imposed by the trial Court shall remain sustained.

The miscellaneous petitions filed in this appeal shall also stand disposed of.  There shall be no order as to costs.

 

______________________                                                                                           
                                                                    L. NARASIMHA REDDY,J
                                                                  
                                                             

______________________                                                                                        
                                                                     S.V.N.BHATTI, J
Dt: 15-04-2013
Nvl/va
         

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