Husband's civil appeal against Family Court decree granting maintenance and residence. Court held no grounds for stay, rejecting argument based on handicap and wife's income assertions.
Application for interim relief rejected; appeal against Family Court decree dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE
CIVIL APPLICATION NO.239 OF 2006 IN
FAMILY COURT APPEAL NO.146 OF 2008
Mr. Dasharath Laxman Rahate. .. Applicant Vs Mrs. Vanita Dasharath Rahate. .. Respondent
Ms. Deepti Nayan Wadkar for the Applicant. Shri Sasi Nair for the Reespondent.
CORAM : A.S. OKA & A.S. CHANDURKAR, JJ.
DATE : 4TH AUGUST 2014 P.C.:
. This is an Application by the husband for stay of execution
and operation of the impugned Judgment and Decree dated 18th August 2006 passed by the learned Judge of the Family Court, Bandra, Mumbai. The operative part of the impugned Judgment and Decree reads thus:
“The respondent shall pay Rs.5,000/- per month to the petitioner from today onwards towards her maintenance allowance.
The respondent do acquire the residential accommodation for the petitioner in the area of Dadar or in lieu thereof shall pay her Rs.3 lac towards the
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permanent residential accommodation of the petitioner, and until then he shall not drive the petitioner out of the matrimonial house.
Petition No.C-72/1998 accordingly stands disposed of.
In view of the decision supra, Petition No.EO-360/2001 filed for maintenance under Section 125 of Cr.P.C. does not survive for consideration.
The respondent is hereby directed to pay Rs.3,000/- to the petitioner by way of cost of the litigation.”
that the Applicant husband has deposited the entire arrears of maintenance at the rate of Rs.5,000/- till 31st December 2013.
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said Act. She relied upon a decision of the learned Single Judge of Allahabad High Court in the case of Smt. Sunita Singh v. Raj Bahadur Singh and another [II(1998) DMC 496]. Her submission is that the Respondent wife admitted before the commissioner that she is drawing certain income. She relies on the Fixed Deposit Receipts at Exhibit-K (collectively) on pages 105 and 106 and submits that the maiden name of the Respondent wife is appearing in the said Fixed Deposit Receipts which are dated 30th January 2002 and 22nd May 2004. She also pointed out that the Respondent wife has obtained policies of the Life Insurance Corporation and she had a deposit of more than Rs.30,000/- in the HDFC Bank which matured on 18th June 2005. Therefore, she submitted that the Respondent wife has a source of income. Learned counsel appearing for the Respondent wife opposed the submissions of the learned counsel appearing for the Applicant husband by pointing out the findings recorded by the learned Judge of the Family Court.
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has recored elaborate findings holding that the Applicant is carrying on business. The finding of the Family Court is that the income of the Applicant is about Rs.30,000/- per month. The documents on which reliance was placed were available with the Applicant pending the proceedings before the Family Court. The Family Court was aware about the fact that the Applicant is handicapped. Considering the finding of fact recorded by the Family Court that the monthly income of the Applicant is Rs.30,000/-, on the basis of the affidavit filed by the Applicant, his case that he is unable to earn the income cannot be accepted.
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this stage, the maintenance cannot be denied to her.
we must note here that the first name in the said two Fixed Deposit Receipts is of the mother of the Respondent wife. Page 104 is the document which shows that the Respondent was the first Depositor in the Fixed Deposit Receipt with the HDFC Bank. The maturity date is 18th June 2005 and the amount on maturity is Rs.32,021/-. The evidence of the said Fixed Deposit Receipts was available even during the pendency of the Petition. There is no application made by the Applicant for leading the additional evidence. Apart from the aforesaid documents, the Applicant relied upon the notices issued to the Respondent wife by the Life Insurance Corporation for demanding premium. The payment of premium does not establish that the Respondent wife has a regular source of earnings.
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Firstly, we must note that the said Petition was not contested by the Respondent wife and notice of the Petition appears to have been served under Rule 20 of Order V of the Code of Civil Procedure, 1908 by substituted service. While passing the decree, the learned Judge of the Family Court has directed the Applicant husband to make a suitable arrangement for residence of the Respondent. Further direction has been issued that unless the Applicant makes a suitable arrangement for residence of the Respondent wife, he shall not drive the Respondent out of the matrimonial home. This relief has been granted by the learned Judge of the Family Court under Sub-section (1) of Section 25 of the said Act, while passing the decree of divorce on the ground of adultery. There is nothing on record to show that that part of the decree has been challenged by the Applicant husband. It is in this context that the Family Court in the impugned Judgment and Decree has dealt with the argument of the Applicant based on Sub-section (3) of Section 25 of the said Act. The learned Judge of the Family Court observed that after passing of the decree of divorce, no adverse conduct can be attributed to the Respondent wife.
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maintenance. As far as the second part of the decree regarding payment of a sum of Rs.3 lakhs is concerned, the consequences of not complying with the said part of decree have been provided in the impugned Judgment and Decree itself. It is not in dispute that the Respondent wife continues to occupy the matrimonial home.
2 issues framed by the court
Whether a stay of execution can be granted regarding maintenance and property relief against the Family Court decree.
Whether the respondent is disentitled to maintenance post-divorce due to the decree being passed on the ground of adultery.
Colour shows how this judgement treated each authority
Smt. Sunita Singh v. Raj Bahadur Singh and anotherReferred¶23
Smt. Sunita Singh v. Raj Bahadur Singh and another [II(1998) DMC 496]
Rule 20 of Order V of the Code of Civil Procedure, 1908Referred¶40
Dasharath Laxman Rahate
Vanita Dasharath Rahate
A.S. OKA
A.S. CHANDURKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
