Dismissed

Shri. Pravin Ramchandra Shinde v. Smt. Mandakini Pravin Shinde

Bombay HC6 Aug 2007FCA/126/2007

Case brief

AI extract

What is this about?

The High Court dismissed the husband's family court appeal challenging the Family Court's order granting maintenance to the wife and minor daughter. The Court held the lower court justified in awarding maintenance from the consent date due to pendency of suit, affirmed the quantum, and dismissed the appeal.

What did the court decide?

The appeal was dismissed with costs. The respondent was permitted to withdraw the litigation expenses awarded by this Court.

Shri. Pravin Ramchandra Shinde Vs Smt. Mandakini… — Maintenance and Alimony | Bombay HC (2007)

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VPH

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL No.126 OF 2007

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Pravin Ramchandra Shinde

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Appellant

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Vs.

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Smt. Mandakini P. Shinde

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Respondent

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Mr. N. D. Rao & S. S. Kudalkar, Advocates for appellant.

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Mr. S. V. Dhakephalkar, advocate for respondent.

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CORAM: J. N. PATEL, AND

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A. A. SAYED, JJ.

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DATE : AUGUST 6, 2007.

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P.C. [Per J. N. PATEL, J.]:

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Heard. The only issue which arises

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. for determination in the appeal is whether respondent wife, and minor daughter are

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entitled to maintenance and if so, what should

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be the quantum.

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The learned counsel for the parties submit that the appeal can be disposed of at the stage of admission, dispensing all the formalities like preparation of paper books, and therefore, we have heard the learned counsel for the parties. It is not in dispute that initially the appellant / husband filed the petition for dissolution of marriage under

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S.	13(1)(i-a) of	the Hin	du Marria	ge Act 1955.
During	the pendenc	y of	the pro	ceedings parties
agreed	to get	the case	resolved	by amicable
settlement	and	accordingly	consent	terms for
divorce	by mut	ual consent	came to	be drawn,
which	is filed on	record at	Exhibit	F. In the
consent	terms,	it has	been cle	arly recorded
that	the custody	of the	daughter	Ragini will
remain	with	respondent	mother	and the
petitioner	even	did not	claim any	access to
the	daughter and	on the	other	two issues
regarding	maintenan	ce of	the respo	ndent wife
and	the daug	hter, and	also the	respondent’s
claim	for "St	ridhan and	her bel	onging" were
left	to the dec	ision of	the Court.	The trial

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Court acting on consent terms proceeded to

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frame the issues as under-

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(1) Whether the respondent and her minor daughter are entitled to get maintenance allowance from the petitioner?

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(3) Whether the respondent is entitled to get any Streedhan or her belongings from the petitioner?

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(4) What order?

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The Court then recorded evidence on the issues of maintenance and "Streedhan & her belonging" and arrived at a finding that the respondent wife and her daughter Ragini are entitled to maintenance, quantifying the same at Rs.1,000/each per month. The claim of the respondent for "Streedhan" and personal belongings is negated by the Court.

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We are not adverting to all the facts

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in the matter, as the challange to the decision is restricted to the two issues which we have already spelt out.

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The learned counsel appearing for the

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appellant	subm	itted	that	the finding	of	the
trial	Court	that	the	wife is	entitled	for
maint	enance,	is	not	correct, and by	way	of
alternate	plea		it is	submitted that	even	if
this	Court	finds	that	the	trial	Court’s
decision	regard	ing	the	right of the	wife	to
maintenance		is	justified,	then the	quantum	of
maintenance	awar	ded	to	the wife	at	Rs.
1,000/-	per	month	is	exorbitant.	It	is
further	conte	nded	by t	he learned co	unsel	for

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the		appell	ant	that	if	at all	the Court	wanted
to		saddle		the		liability	by	granting
maint	ena	nce	to		the	responde	nt/wife it	ought
not		to	have	gran	ted	maintenan	ce from the	date
of	c	onsent	terms	i.e.		from	3rd December	2004,
but		ought	to	have	ma	de it	effective from	the

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date of judgment and order i.e. 13th July

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5.	The l	earned coun	sel for t	he respondent
submitted	that	once	the	parties	have	filed
consent	terms	and		submitted	to	the
jurisdiction	of th	e Fam	ily	Court to	decide	the
quantum	of	ma	intenanc	e,	now	the
appellant/origi	nal	petit	ioner	cannot		agitate

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the matter before this Court, and that the

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appeal deserves to be dismissed.

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6.		It is further s	ubmitted that though he
has	not	preferred	any cross o	bjection,	he	may
be pe	rmitted	to	point out that	the		Family
Court	wa	s not	justified in	granting		permanent
alimony	in	favour	of the wife	w.e.f.		3rd
December	2	004 i.e.	the date	when	the	parties
entered	into	consen	t terms and	sou	ght	the
Court’s	interve	ntion o	nly on the	limit	ed	issue
whether	the	respond	ent should	be		awarded
maintenance		from th	e date of	petition,		which

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should be the normal practice, unless the Court gives exceptional reasons to deviate in the matter.

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7.		In so far as the capability of the
appellant/hus	band	is concerned, from	the
evidence	led	by the parties, it is quite	clear
that	the	appellant has sufficient source	of
income	to	pay maintenance to the wife.	The
contention	ra	ised by the learned counsel	for
the	appellant	that the appellant has	other
family	memb	ers to maintain, does not	absolve
him of	his	liability to pay maintenance to	the
wife.	In	so far as quantum of maintenanc	e is
concerned,	we	are of the view that sum	of
Rs.1,000/-	is	a meagre amount which may	be
hardly	sufficient	to meet the bare ne	cessities
of life,	and	therefore, we do not find that	on
this	count,	the learned Judge of the	Family
Court	has	erred in law and fact, so as	to

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interfere with the decision of the Family

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Court.

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The only question now remains for our

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determination is, whether the Family Court

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erred respondent	in wife	granting from	the	mainten date	ance of	to consent	the terms

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i.e. 3rd December 2004 or it ought to have

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been granted from the date of decree.

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9.		We are in	formed t	hat during	pendency
of	the	petition,	no	interim	order	was	passed,
granting		maintenance	pe	ndente	lite	in	favour
of the		respondent/	wife.	I	t ap	pears	that
before	the	petition	in	the	Family	Court	came
to be	filed,	the	wife	had	filed	an	Application
under	S.		125	Cr.P.C.,	claiming		maintenance

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and in that case also she was not awarded

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maintenance at all.

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10.	In view of the fact that	the
respondent/wi	fe had no	independent income,
sufficient	for her mai	ntenance, in ordinary
course,	she could have	been entitled for
maintenance	pendente lite	and expenses for
litigation,	but the same	were not claimed.
Therefore,	while awarding	permanent alimony,
we find	that the Family	Court was justified in
awarding	the same from the	date of the consent
terms.	As it is on th	at date, the proceedings
before	the Family Court	had almost concluded,
except	the issues referred	to the Court i.e.
maintenance	as well as	Streedhan and personal
belongings,	and therefore, we	do not find that
the	impugned judgment and	order calls for any

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interference. We therefore, dismiss the

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appeal with costs.

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11.		The counsel for t	he respo	ndent su	bmits
that	the	respondent	be	permit	ted to	withdraw
the	litigation	expenses	aw	arded	by	this Court,
which	are	deposited	in	this	Court	by the

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appellant, and accordingly, she is permitted

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to withdraw the same.

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Sd/Sd/- [ A. A. SAYED, J.] [ J. N. PATEL, J.]

Shri. Pravin Ramchandra Shinde v. Smt. Mandakini Pravin Shinde

Case brief

What is this about?

What did the court decide?

Shri. Pravin Ramchandra Shinde v. Smt. Mandakini Pravin Shinde

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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