published inhttp://hc.ap.nic.in/csis/MainInfo.jsp?mtype=FCA&mno=99&year=2013
| FCA 99 / 2013 | FCASR 4368 / 2013 |
|
HON’BLE SRI JUSTICE L.NARASIMHA REDDY
&
HON’BLE SRI JUSTICE S.V.BHATT
F.C.A.Nos.25 & 99 OF 2013
COMMON JUDGMENT: (Per Hon’ble Sri Justice SVB,J )
F.C.A.No.25 of 2013 and F.C.A.No.99 of 2013 are directed against the order dated 27.07.2012 in O.P.No.282 of 2009, on the file of the Family Court, Ranga Reddy District.
F.C.A.No.25 of 2013 is filed by the wife seeking enhancement of maintenance granted by the Family Court and F.C.A.No.99 of 2013 is filed by husband questioning the award of maintenance of Rs.10,000/- per month by Family Court.
For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the Court below.
O.P.No.282 of 2009 was filed by the petitioner claiming maintenance of Rs.23,000/- per month from the respondent.
The allegations in the petition are that on 05.09.2007, the marriage between the petitioner and the respondent was solemnized at K.P.H.B., Hyderabad
At the time of marriage, the petitioner’s father gave a sum of
Rs.5 lakhs towards dowry to respondent and his parents. It is the case of the petitioner that 25 tolas of gold and a gold chain, bracelet, etc., were also given at the time of marriage as gift by the parents of petitioner.
At the time of marriage, the petitioner’s father gave a sum of
Rs.5 lakhs towards dowry to respondent and his parents. It is the case of the petitioner that 25 tolas of gold and a gold chain, bracelet, etc., were also given at the time of marriage as gift by the parents of petitioner.
The marriage was performed by incurring huge expenditure of Rs.6 lakhs.
At the time of marriage, it is alleged that the respondent was employed in Chennai as a Software Engineer with a monthly salary of Rs.50,000/-.
On getting employment in Varsun Technologies, Hyderabad , the respondent has re-located himself to Hyderabad
The parties stayed at petitioner’s parents’ house for a while after he had re-located from Chennai to Hyderabad
However, the kith and kin of respondent have ridiculed the petitioner, her father and also said that her father is a very miserly person and that they could have got Rs.50 lakhs dowry if the respondent had married any other girl as he was handsome and also a Software Engineer with good salary.
The parents of respondent pressurized the petitioner to prevail upon her father to give a minimum amount of Rs.5 lakhs as additional dowry. The petitioner always resisted these unreasonable demands of respondent and her family members leading to harassment, both by the respondent and his family members.
The petitioner further alleges that these acts of harassment have been brought to the notice of well-wishers and mediation had taken place and he was advised to mend his ways.
On 29.04.2008, the respondent picked up a quarrel with petitioner and demanded that the petitioner’s parents should not visit his house and also threatened the petitioner with dire consequences if she ventures out to visit her parents.
The matter was further precipitated and it is alleged by the petitioner that the respondent has forcefully pushed her down on the bed and dragged her out of the bedroom, causing unbearable physical and mental strain to her.
The petitioner unable to face the harassment of respondent came to her parent’s house on the very same day and informed the happenings to her parents. Ever since 29.04.2008, the petitioner says that on account of the rude behaviour of respondent, she has been staying with her parents.
While matters stood thus, the respondent issued legal notice dated 24.07.2008 alleging that the petitioner left matrimony and in spite of repeated requests, the petitioner refused to join his company. The petitioner replied through notice dated 30.08.2008 that she was never reluctant to live with the respondent and was ready to join him and on the other hand, the respondent had no interest to lead marital life with the petitioner and he has been harassing the petitioner with ulterior demands which are very difficult for the petitioner and her parents to meet. The petitioner apprehended threat to her life. In spite of her willingness to join the company of respondent, as stated in her reply notice dated 30.08.2008, the respondent has not taken steps to come and live with the petitioner.
The petitioner alleges that the respondent has forced her
to leave the company of respondent w.e.f., 29.04.2008 for no fault of her. She is unemployed and dependant on her parents.
The respondent’s salary as stated above is over and above Rs.50,000/- and she claimed maintenance amounting to Rs.23,000/- from the respondent under different heads.
to leave the company of respondent w.e.f., 29.04.2008 for no fault of her. She is unemployed and dependant on her parents.
The respondent’s salary as stated above is over and above Rs.50,000/- and she claimed maintenance amounting to Rs.23,000/- from the respondent under different heads.
The respondent has denied the allegations in the petition
stating that he never demanded dowry from petitioner or her parents. The respondent has further put the petitioner to prove the alleged mediation that has taken place on his alleged misbehaviour.
The respondent says that the petitioner has no just cause to stay away from his company and is not entitled for any amount towards maintenance. She has been working and earning a salary of Rs.18,000/- per month.
stating that he never demanded dowry from petitioner or her parents. The respondent has further put the petitioner to prove the alleged mediation that has taken place on his alleged misbehaviour.
The respondent says that the petitioner has no just cause to stay away from his company and is not entitled for any amount towards maintenance. She has been working and earning a salary of Rs.18,000/- per month.
On account of criminal case filed by the petitioner, the respondent has lost his job and he is now presently residing at Sambavaram Village
The Court below framed the following issue:
“Whether the petitioner is entitled for the maintenance amount as prayed for?”
The petitioner examined herself as P.W.1 and has also examined three more witnesses on her behalf as P.W.2 to 4 and got marked Ex.P-1 to P-5. Exs.X-1 to X-16 were marked. On behalf of respondent, he was examined as R.W.1 and got marked Exs.R-1 and R-2.
On a consideration of the case urged by parties and the evidence available on record, the Court below allowed the petition filed by the petitioner/wife awarding an amount of Rs.10,000/- per month to her from the respondent.
It may be noted that the petitioner in her capacity as wife
of respondent has filed the present petition for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (for short ‘the Act’).
of respondent has filed the present petition for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (for short ‘the Act’).
Through the allegations of harassment and abuse by respondent, the petitioner has invoked the assistance of Section 18 of the Act.
Section 23 of the said Act prescribes the amount of maintenance that can be granted by the Court.
The relevant factors which are to be taken note by the Court while considering the request for grant of maintenance as per Section 23(3) of the Hindu Adoption and Maintenance Act, 1956 are as follows:
“In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a Will of the deceased in respect of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant
and any income derived from such property; or from his or her earnings or from any other source;
(g) the number of dependants entitled to maintenance under this Act.”
The Family Court held that the respondent is having
the attitude to avoid maintenance amount to petitioner and if there
is truth in the allegation of respondent that there was no
harassment meted out to petitioner either by himself or by his parents, he would have examined anyone of his parents in support of his case. The non-examination of parents has been taken note by the trial Court. There is no attempt on the part of respondent to get back the petitioner into matrimonial fold after the issuance of reply notice by her.
This clearly shows that though the petitioner is willing to join the company of respondent, the respondent was avoiding to maintain his wife or her company. It has been found that there is just cause for the petitioner for staying away from the company of respondent petitioner is entitled for maintenance.
the attitude to avoid maintenance amount to petitioner and if there
is truth in the allegation of respondent that there was no
harassment meted out to petitioner either by himself or by his parents, he would have examined anyone of his parents in support of his case. The non-examination of parents has been taken note by the trial Court. There is no attempt on the part of respondent to get back the petitioner into matrimonial fold after the issuance of reply notice by her.
This clearly shows that though the petitioner is willing to join the company of respondent, the respondent was avoiding to maintain his wife or her company. It has been found that there is just cause for the petitioner for staying away from the company of respondent petitioner is entitled for maintenance.
Coming to the income and other sources available for grant of maintenance, the Court below has considered the documentary evidence marked as Ex.P-4, Ex.X-1 and Ex.X-5. In the course of examination, the respondent conceded to pay an amount of Rs.5,000/- per month to the petitioner towards maintenance. After taking into consideration the salary of petitioner as Rs.87,020/- and also the fact that the petitioner is living with her parents, the Family Court awarded an amount of Rs.10,000/- to the petitioner towards maintenance, payable from 27.11.2012.
Heard learned counsel appearing for the parties.
The respondent has urged that the Court below committed error by relying upon Exs.X-5 and X-6 and the petitioner having left
the matrimonial house on her own accord is not entitled for grant
of maintenance. At any rate, it is contended that the petitioner is not entitled for maintenance and alternatively the award of Rs.10,000/- per month is equally unsustainable. On the other hand, it is urged by the counsel appearing for petitioner that the respondent, as evidenced by Ex.P-5, Exs.X-6, X-8, X-9 and X-10, is drawing salary of Rs.87,020/- per month. Considering the family status of parties and the living conditions the petitioner is expecting from the respondent, the award of maintenance of Rs.10,000/- is contended as inadequate and meager and therefore it is prayed that the maintenance may be enhanced as prayed for.
the matrimonial house on her own accord is not entitled for grant
of maintenance. At any rate, it is contended that the petitioner is not entitled for maintenance and alternatively the award of Rs.10,000/- per month is equally unsustainable. On the other hand, it is urged by the counsel appearing for petitioner that the respondent, as evidenced by Ex.P-5, Exs.X-6, X-8, X-9 and X-10, is drawing salary of Rs.87,020/- per month. Considering the family status of parties and the living conditions the petitioner is expecting from the respondent, the award of maintenance of Rs.10,000/- is contended as inadequate and meager and therefore it is prayed that the maintenance may be enhanced as prayed for.
Now the points that arise for consideration are:
a) Whether the petitioner is entitled for maintenance from the respondent and the maintenance awarded requires interference; and
b) Whether the order under appeal is sustainable on the material available on record?
It may be noticed from the material available on record that the petitioner has been staying away from the company of respondent from April, 2008. The circumstance compelling the petitioner to leave the company of respondent is the behaviour alleged to have been meted out to petitioner by the respondent on 29.04.2008. It is her case that she has been dragged out from the bed and pushed out of the bedroom, compelling her to leave the house for protecting herself. In spite of her willingness to join the company of the respondent,
which was made clear through the reply notice that the respondent has not taken interest to have the company of petitioner. Therefore, it is to be stated that the petitioner has been firstly compelled to go out of the company of the respondent and secondly the respondent has not initiated enough steps for re-union. Therefore, the application under Section 18 for award of maintenance is tenable and this point was rightly held in favour of petitioner by the Court below. This Court is not inclined to disturb the findings of the trial Court in this behalf.
which was made clear through the reply notice that the respondent has not taken interest to have the company of petitioner. Therefore, it is to be stated that the petitioner has been firstly compelled to go out of the company of the respondent and secondly the respondent has not initiated enough steps for re-union. Therefore, the application under Section 18 for award of maintenance is tenable and this point was rightly held in favour of petitioner by the Court below. This Court is not inclined to disturb the findings of the trial Court in this behalf.
The trial Court has taken into consideration the educational qualification of respective parties, their conditions of living, the income of respondent and the place where the petitioner is residing. Admittedly, the petitioner was also pursuing to acquire additional educational qualifications to further her employment chances. She has not set up her own independent house to claim any sum towards rent and incidental charges. She is staying with her parents at Hyderabad
In the result, both the appeals are dismissed.
The miscellaneous petitions, if any, filed in this appeal shall also stand disposed of.
There shall be no order as to costs.
_________________________
L. NARASIMHA REDDY, J
____________
S.V.BHATT, J
22nd April 2013
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