Dismissed

K. Vijay Kumar v. K. Usha Rani and 2 Others

Andhra Pradesh HC8 Nov 2022FCA/259/2010

Case brief

AI extract

What is this about?

This appeal challenged the Family Court's order granting maintenance to the wife and children. The Appeal Court affirmed the lower court's decision, holding the awarded amount just and reasonable, citing Supreme Court guidelines on maintenance quantum.

What did the court decide?

The Family Court Appeal was dismissed, confirming the maintenance order of Rs. 14,000/- per month (wife and children).

K. Vijay Kumar Vs K. Usha Rani and 2 Others — Maintenance and Alimony | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE M. GANGA RAO AND THE HON’BLE SRI JUSTICE B.SYAMSUNDER

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F.C.A.No.259 of 2010

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JUDGMENT: (Per Hon’ble Sri Justice M. Ganga Rao)

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The Appeal, under Section 19 of the Family Courts Act, 1984 is filed by the respondent in O.P. No. 476 of 2006, aggrieved by the order, dated 09.09.2010, passed by the learned Judge, Additional Family Court, Visakhapatnam.

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2 . By the aforesaid order, the Family Court allowed in part the petition filed by the petitioners under Section 7 (c) & (d) of the Family Courts Act, 1984, claiming maintenance at Rs.10,000/- per month for the 1^st petitioner and Rs.5,000/- each per month for petitioners 2 and 3, and directed the respondent to pay Rs.4,000/- per month to the 1^st petitioner and Rs.5,000/- each per month to petitioners 2 & 3 (Total Rs.14,000/-) towards their maintenance from the date of the order, i.e., 09.09.2010. The claim for the past maintenance was disallowed. This appeal is filed by the respondent questioning the order of the Family Court, mainly on the ground that the quantum of maintenance awarded is excessive.

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3 . The parties shall hereinafter be referred to as they are arrayed in the OP before the Family Court.

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4 . The 1^st petitioner is the wife of the respondent and petitioners 2 and 3 are the children of the 1^st petitioner and the respondent. The marriage

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MGR,J & BSS,J FCA_259_2010

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of the 1^st petitioner with the respondent was solemnized at Nagayalanka, Kirshna District, on 20.04.1996. Out of the wedlock, they gave birth to two children, petitioners 2 & 3.

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5 . The case of the petitioners is this: At the time of marriage, the father of the 1^st petitioner presented Rs.2,00,000/- cash to the respondent apart from gold ornaments worth Rs.50,000/-. The respondent has no properties of his own as on the date of the marriage and he used the amount of Rs.2,00,000/- given to him by his father-inlaw. They lived together happily for some time. Thereafter, the respondent started harassing the 1^st petitioner demanding amounts by way of additional dowry and the 3^rd petitioner was kept in the custody of the parents of the 1^st petitioner. The parents of the respondent used to visit the 1^st petitioner and respondent now and then. The respondent, under the influence of his parents, used to harass the 1^st petitioner. The father of the respondent has retired from service and started living with the respondent at Visakhapatnam. The respondent took a separate house for the petitioners at Srinagar, Gajuwaka, Visakhapatnam, but failed to take care of them. Ultimately, the father of the 1^st petitioner took the petitioners to his house. While so, the respondent filed O.P.No.777 of 2005 for dissolution of marriage, whereas the 1^st petitioner filed M.C.No.128 of 2006 under Section 125 CrPC., seeking maintenance. According to the 1^st petitioner, the respondent is earning Rs.50,000/- per

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month from his finance business at Gajuwaka. He also acquired properties at Angala Kudru of Tenali. Since July, 2015, the respondent neglected the petitioners and failed to maintain them. The present petition is filed for recovery of Rs.2,60,000/- towards past maintenance for 13 months at the rate of Rs.20,000/- per month and also for future maintenance at Rs.20,000/- per month for petitioners 1 to 3.

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6 . The respondent filed counter denying all the petition averments. It is further contended that the 1^st petitioner is a partner in New Looks Herbal Beauty Parlor run at Gajuwaka and she is earning Rs.30,000/- per month. She has sufficient means to maintain herself and her two sons. The 1^st petitioner is a quarrelsome lady. Several mediations took place to settle the disputes between the couple. The respondent is earning Rs.4,500/- per month and he cannot provide the maintenance as sought in the petition at the rate of Rs.20,000/- per month.

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7 . Before the Family Court, on behalf of the petitioners, PWs 1 to 4 were examined, and exhibits A1 to A5 were marked. PW1 is the 1^st petitioner, PW2 is her father. On behalf of the respondent, the respondent himself was examined as RW1 and he got examined RWs 2 & 3 in support of his case. No documents were marked on his behalf.

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8 . The Family Court, having considered the oral and documentary evidence on record, has recorded a finding that the petitioners are not

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entitled to seek past maintenance and they are entitled to claim maintenance from the respondent only from the date of the order impugned in this appeal.

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9 . Heard Sri Mangena Sree Rama Rao , learned counsel for the appellant/respondent-husband and Sri S.V.R.Subrahmanyam , learned counsel for the respondents/petitioners-wife and children.

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10 . Learned counsel for the appellant-respondent would submit that the appellant-respondent is jobless and awarding such huge amount towards maintenance is unjust and unreasonable. The 1^st petitioner is a partner in New Looks Herbal Beauty Parlour at Gajuwaka and earning Rs.30,000/per month. The 1^st petitioner also did not deny the said fact. She is having sufficient means to maintain herself and children. The trial Court failed to consider the financial capacity of the respondent. Further, the 1^st petitioner failed to prove neither desertion nor any cruelty and she has left the company of the respondent without reasonable cause. The petition is filed suppressing material facts. The respondent has no means and he is dependent on his parents. The properties covered by exhibits A4 and A5 are not his properties and the father of the respondent purchased those properties with his retiral benefits in which the appellant

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has no right at all. The quantum of maintenance awarded is arbitrary and excessive. The order of the trial Court is liable to be set aside as it failed to appreciate the evidence on record in a proper perspective. The

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respondent has taken care of entire expenses of the children and the petitioners approached the Family Court by suppressing material facts and that itself is sufficient to set aside the order of the Family Court. As the petitioners have not come with clean hands and, further, in view of the conduct, which is held to be cruel and also in view of suppression of material facts in the petition filed by the 1^st petitioner before the Family Court, the petition filed by her is to be dismissed, by setting aside the order of the Family Court granting maintenance.

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11 . On the other hand, learned counsel for the petitioners submitted that the respondent is earning Rs.50,000/- per month from his finance business and as such, though he is able to pay maintenance to the petitioners, he neglected to maintain them. The 1^st petitioner also got marked two sale deeds of immovable property in order to establish that the respondent is financially sound.

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12 . We have considered the facts and circumstances of the case and submissions of both the learned counsel and perused the material on record. The 1^st petitioner and the respondent were married on 20.04.1996 and were blessed with two children, petitioners 2 & 3. The 1^st petitioner deposed as PW1 to the effect that the respondent was not having any properties of his own, however, after the marriage, her father (PW2) gave an amount of Rs.2 lakhs and thereafter, the respondent could

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improve his business and was able to purchase properties mentioned in

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items 1 and 2 in the petition in I.A.Nos.143 &144 of 2008, i.e., shop situated in D.No.7-3-2 (7) situated at Jain Temple street, Tenali Municipality and item No.2 is property situated at Angala Kuduru, Tenali. The respondent is earning Rs.50,000/- per month from his finance business and as such, he is able to pay the maintenance to the petitioners but still, he neglected to maintain them. In the cross-examination of PW1, it was elicited that the respondent made payment of the school fee for petitioners 2 and 3. It was further elicited in the cross-examination that there is one beauty parlor in which PW1 is a partner and she was earning Rs.30,000/- per month. As against this evidence, the evidence of RWs 2 & 3 is to the effect that PW1 was given Ac.1.00 cents of agricultural land by her father and she also got an amount of Rs.38 lakhs. However, there is no documentary evidence exhibited to substantiate the said evidence. The respondent in his counter took a specific plea that the 1^st petitioner (PW1) is running a beauty parlor and earns Rs.30,000/- per month. There is no dispute as regards the running of beauty parlor at the house of parents of PW1. In view of the aforesaid evidence and keeping in view of the fact that even after filing of this petition, the respondent has taken care of providing medical expenditure of PW1, apart from making payment of school fee for the children, the trial Court held that the petitioners are not entitled to ask for past maintenance. This Court holds that the said observation does not warrant any interference.

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13. As regards grant of future maintenance, it is pertinent to mention here the scope of Section 18 of the Hindu Adoptions and Maintenance Act,

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1956 (hereinafter referred to as the "Act"), which reads as under:

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“18. Maintenance of wife.-

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(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time;

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(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

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(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;

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(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

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(d) if he has any other wife living;

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(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

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(f) if he has ceased to be a Hindu by conversion to another religion;

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(g) if there is any other cause justifying living separately.

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(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

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14. As per Section 18(1) of the Act, as a general rule, a Hindu wife shall be entitled to be maintained by her husband during her life time. She can live separately without foregoing her claim for maintenance under the circumstances enumerated under clauses (a) to (g) of sub Section (2) of Section 18 of the Act.

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15. In the case on hand, admittedly, the 1^st petitioner is claiming maintenance by living separately from the appellant. Therefore, only point to be considered is, whether her claim would fall under any of the grounds enumerated under clauses (a) to (g) of sub-section (2) of Section 18 of the Act.

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16. Learned counsel for the appellant mainly contended that the trial Court ought to have seen that as per Section 23(2) of the Hindu Adoption and Maintenance Act while determining the amount of maintenance, (a) the Court has to see the position and status of the parties; (b) reasonable wants of the claimant and (c) if the claimant is living separately, whether the claimant is justified in doing so, but the Court below failed to consider the same while determining the quantum of maintenance and erred in awarding Rs.4,000/- per month for 1^st petitioner and Rs.5,000/- each per month to petitioners 2 and 3 (Total Rs.14,000/-) towards maintenance without assigning any reasons. He also submitted that the children have become majors now.

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17. The objections raised by the appellant are not maintainable in view

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of the recent judgment of the Hon'ble Apex Court reported in Rajnesh v. Neha and another [(2021) 2 SCC 324], wherein, the Apex Court has categorically laid down the criterion for determining the quantum of maintenance. The Apex Court observed as under:

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"III. Criteria for determining quantum of maintenance

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The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

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The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

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Section 23 of the HAMA provides statutory guidance

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with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration: (i) position and status of the parties, (ii)

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reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source."

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Further, though the children have become majors, it is settled law that the father is under obligation to maintain them until they started their career independently. However, it needs to be proved before the trial Court, by adducing evidence, to withdraw the maintenance. The appellant has not been able to point out any illegality or irregularity in the impugned order. No material has been placed on record to show that the 1^st petitioner is able to sustain herself and her children. So also, the appellant failed to produce sufficient evidence to demonstrate that the 1^st petitioner can sustain herself.

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18. After perusing the entire case on record, we find that the trial Court has rightly allowed the OP No. 476 of 2006 by granting maintenance of Rs. 4,000/- to the 1^st petitioner/1^st respondent and Rs. 5,000/- each to the 2^nd petitioner/2^nd respondent and 3^rd petitioner/3^rd respondent which is just and reasonable.

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19. Having regard to the facts and circumstances of the case and the submissions of both the parties, we do not find any infirmity with the impugned order and hence the appeal is liable to be dismissed.

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20. In the result, the Family Court Appeal is dismissed confirming the order, dated 09-09-2010, passed in O.P. No. 476 of 2006 on the file of Additional Family Court, Visakhapatnam.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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_____________ M.GANGA RAO, J

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_______________ B.SYAMSUNDER, J

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08-11-2022 Vjl

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MGR,J & BSS,J FCA_259_2010

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THE HON’BLE SRI JUSTICE M. GANGA RAO AND THE HON’BLE SRI JUSTICE B.SYAMSUNDER

F.C.A.No.259 of 2010

(per MGR,J)

08-11-2022

Vjl

K. Vijay Kumar v. K. Usha Rani and 2 Others

Case brief

What is this about?

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K. Vijay Kumar v. K. Usha Rani and 2 Others

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