Dismissed

Shri. Hiren Shashikant Pandya v. Smt. Meghna Hiren Pandya Nee Meghna Chandravadan Bhatt

Bombay HC25 Jul 2014FCA/167/2007

Case brief

AI extract

What is this about?

Husband appealed against Family Court order granting maintenance to wife and minor child. Court found wife justified in separating due to husband's threat to life via strangulation attempts. Appeal dismissed; maintenance of Rs. 2500/month affirmed.

What did the court decide?

Appeal dismissed; appellant directed to pay respondent Rs. 5,000 costs.

Shri. Hiren Shashikant Pandya Vs Smt. Meghna Hiren… — Maintenance and Alimony | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL No. 167 of 2007

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Hiren Shashikant Pandya age about 27 years Hindu Indian Inhabitant occupation service and part time work as priest Residing at 201/A, Parshwa Giriraj Society, Harishankar Joshi Road, Opp. Madhuram Hall, Dahisar (East), Mumbai 400 068.

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..Appellant. Original Respondent.

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Meghna Hiren Pandya, Nee Mghna Chandravadan Bhatt age about 26 years, Hindu Inhabitant, Occupation household, residing at present C/o Chandravadan Prabhashankar Bhatt, B/101, Akshar Apartment, Irani Wadi, Road No.3, Kandivali (West) Mumbai 400 067.

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..Respondent. Original Petitioner.

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Shri S.A. Ghaisas for the Appellant. Shri P.G. Vora for the Respondent.

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CORAM :A.S. OKA & A.S.CHANDURKAR, JJ CORAM :- 25^th July, 2014.

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JUDGMENT (PER : A.S. CHANDURKAR, J)

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This appeal under section 19 of the Family Courts Act, 1984 at

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the instance of the husband takes exception to the judgment and order dated 30^th December,2006 passed by the learned Judge, 7^th Family Court, Mumbai

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in Petition No.0-75/2004. By aforesaid order, the petition filed by the respondent under provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1955 (hereinafter referred to “as the said Act”) seeking maintenance on behalf of herself and her minor son has been allowed.

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The facts leading to filing of the present proceedings are that the marriage between the appellant and the respondent was solemnized on 7^th February, 2003. According to the respondent, immediately after their marriage the present appellant – husband started harassing the respondentwife. According to the respondent, the appellant tried to strangulate her on 26^th April,2003. Thereafter, on 16^th July,2003 the appellant again pressed the respondent's throat forcefully as a result of which a vein was damaged. She was, therefore, required to take treatment in that regard. A male child was born to the couple on 26^th November, 2003. However, the appellant or his family members did not visit the respondent. After the birth of the child, the respondent had taken the newly born child with her mother to a temple but this fact was not appreciated by the appellant and his family members. Hence, the respondent was not taken back from her parents place and she was required to stay there. It is in this back ground that the respondent filed present proceedings on 17^th April, 2004 under provisions of Section 18 of the said Act seeking an amount of Rs.5,000/- towards maintenance for herself and her minor child. In the said petition it was stated that the appellant was

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working as an accountant and was earning Rs.10,000/- per month. It was further stated that the appellant was also working along with his father as a priest and both were earning Rs.10,000/- to 15000/- per month. It was further averred that the respondent did not feel it safe to reside with the appellant as the appellant had tried to strangulate her on two occasions.

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In response to the aforesaid petition, the appellant filed his written statement vide Exh.8. The allegations with regard to the attempt to strangulate the respondent were denied. On the contrary, it was stated that it was the respondent who was not behaving well with the appellant and his family members. It was further stated that the appellant had made available all necessary medical help during the respondent's pregnancy. It was further stated that the appellant was working as a clerk and was drawing a salary of Rs.2000/- only. It was further stated that the appellant had no time to work as a priest. It was, therefore, stated that considering the meagre amount of income and the fact that the appellant had to look after his aged and sick parents, he was willing to pay a sum of Rs.300/- to the minor child. No amount was liable to be paid to the respondent as she was working and earning.

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In support of the claim for maintenance the respondent examined herself vide Exh.14, her neighbour Dharmsi Soni vide Exh.22, her mother Pravina Bhatt at Exh.23, her brother Jignesh Bhatt at Exh.27 and Ms Neha

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Bhillare, a B.H.M.S. Doctor at Exh.32. On the other hand, the appellant examined himself vide Exh.35, one Archana Shukla, a Clinical Psychologist at Exh.38 and his father Shashikant Pandya vide Exh.39. The learned Judge of the Family Court after hearing both sides and after considering material on record proceeded to hold that the respondent was justified in staying away from the appellant and was also entitled to claim maintenance for herself and her minor child. In that view of the matter, the petition filed by the respondent came to be allowed and the appellant was directed to pay a sum of Rs.2500/- per month each to the respondent and her minor son from the date of filing of the petition.

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Shri S.A.Ghaisas, learned Counsel appearing for the appellant submitted that the learned Judge of the Family Court erred in allowing the petition filed by the respondent. The evidence on record clearly revealed that there was no justification on the part of the respondent in staying away from the appellant. In fact, the appellant had been taking good care of the respondent and had provided all medical aid to the respondent. It was further urged that considering the meagre amount of salary earned by the appellant and that the fact that he was required to maintain his aged parents, he would not be liable to pay maintenance to the respondent. The learned Counsel, therefore, submitted that the impugned judgment deserves to be set aside.

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1. Shri P.B.Vora, learned Counsel appearing for the respondent on

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the other hand supported the impugned judgment and order and submitted

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that the same had been passed after taking into account of the evidence on record. It was submitted that the respondent had duly proved that on account of the injury caused by the appellant by pressing the throat of the respondent, there was a threat to her life and hence she was justified in staying away from the matrimonial house. It was further submitted that considering the income earned by the appellant the amount of maintenance awarded was just and proper. He, therefore, submitted that there was no need whatsoever to interfere with the impugned judgment.

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After hearing the respective Counsel and after going through the material on record, the following points arise for determination:

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(A) Whether the respondent has proved that she was justified in

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staying away from the appellant?

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(B) Whether the respondent is entitled to be awarded maintenance? If yes, the quantum of said amount?

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As to Point No. (A) :-

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It is the specific case of the respondent that initially on 26^th April,2003 the appellant had tried to strangulate her. Similarly, on 16^th July,2003 the appellant had again pressed the respondent's throat thereby

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causing damage to a vein. He has stated that she was required to take medical treatment in that regard. The appellant has denied aforesaid averments. The evidence on record indicates that the respondent was required to take medical treatment in view of the injury caused by the act of the appellant of pressing her throat. Exhibit 17 is the phisio-therapy card showing treatment initially at R.L.Shisha Sansthan Arogya Kendra. Thereafter, she was referred to Orthopedic Hospital and also to Dr Neha Bhillare as is clear from the note at Exh.18. She was told by the doctors that pain was on account of swelling on the nerve. She has alleged that she was harassed for dowry by her in-laws. She has, therefore, stated that she was staying away from the appellant. Though the respondent was cross-examined, there is nothing material brought out therein to disbelieve the incident of the appellant pressing the respondent's throat. The evidence of Mrs Bhillare who is a BHMS practitioner also supports the version of the respondent. In her crossexamination she has denied the suggestion that on account of sleeping disorder or spondylitis such pain can be caused. The depositions of the respondent's mother and brother also indicate that they were accompanying her while she was taking treatment in this regard. The appellant in his crossexamination admitted that proceedings under Sections 406 and 498-A read with Section 34 of the Indian Penal Code filed at the instance of the respondent were pending against him and his parents. He has further

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admitted that when the respondent went to her parental home, his mother had given her the medical file and x-ray film. Archana Shukla who was examined by the appellant in her examination-in-chief referred to an x-ray film being handed over to the respondent. But in her cross-examination she admitted that she had not treated the respondent and was not conversant with her physical ailments.

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The learned Judge of the Family Court after appreciating aforesaid evidence found that the evidence led by the respondent was credible and the same was corroborated by the material on record. After going through the aforesaid evidence, we are also of the view that the respondent has proved that she received injury on her throat on account of the same being pressed by the appellant. The appellant himself has admitted that the medical file and the x-ray film was handed over by his mother to the respondent when she went to her parental home. The doctor was also examined has also opined that such injury could not be caused on account of any sleeping disorder or on account of spondylitis. The fact that the respondent had initiated proceedings under the provisions of Sections 406 and 498-A read with Section 34 of the Indian Penal Code is also a relevant aspect. Hence, we find that the material on record has been properly appreciated and the learned Judge of the Family Court was justified in coming to the conclusion that the aforesaid injury was caused by the

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appellant. It is in this background that the respondent was required to stay away from the appellant as the incidents of trying to strangulate the respondent had taken place on two occasions. Hence, the finding recorded by the learned Judge of the Family Court in this regard cannot be said to be perverse or based on no evidence. Hence, point No. (A) is answered in the affirmative and in favour of the respondent.

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As to Point No. (B):

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As we have found that the respondent was justified in staying away from the appellant, she would be entitled to claim maintenance in terms of provisions of Section 18 (2) (b) of the said Act. The appellant had treated the respondent with such cruelty that had caused a reasonable apprehension in her mind that it would be harmful or injurious to live with him. As regards the income of the respondent he relied upon a salary certificate at Exh.37 which showed his income at Rs.2000/- per month. However, in the advertisement at Exh.19 it was mentioned that the respondent's income was Rs.5000/- per month. The respondent denied having a PAN card but he was confronted with an extract of the same in his deposition. Similarly, he has referred to spending an amount of Rs.4500/-approximately per month for household expenses and medicines of his parents. Similarly, the amount credited in the appellant's father's account by the appellant's employer was brought on record. Considering the aforesaid evidence, the learned Judge of

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the Family Court disbelieved the case of the appellant that he was earning only Rs.200/- per month. We find that the aforesaid finding is based on a proper appreciation of the material on record. The stand taken by the appellant has been rightly disbelieved in view of the fact that in Exhibit 19 his income was mentioned as Rs.5000/- per month, the fact that he was spending almost Rs.4500/- per month towards household expenses and the fact that the respondent's employer had credited a sum of Rs.78,483/- on 5^th August, 2005 in the account of the appellant's father. We thus find that the evidence on record has been properly appreciated while disbelieving the case of the appellant.

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The quantum of maintenance of Rs.2500/- per month awarded to the respondent and her minor son also appears to be reasonable. Though the appellant had shown willingness to pay the respondent Rs.1000/- per month, the evidence on record however, indicates that the sum of Rs.2500/- per month as awarded is a reasonable amount of maintenance. There is no material on record to come to the finding that the same is on a higher side. The learned Judge has also rightly awarded the same from the date of filing of the petition. We, thus, find that there is no need whatsoever to interfere with the finding recorded in this regard. Hence, point No. (B) is answered in the affirmative and it is held that the award of Rs.2500/- per month as maintenance to the respondent and her minor son is legal and proper.

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As to Point No.(C):-

The learned Judge of the Family Court has considered the entire material on record in its proper perspective. It has been found on the basis of material on record that the respondent was justified in not staying with the appellant. Similarly, the material on record has been properly appreciated to hold that the respondent and her minor son are entitled to a sum of Rs.2500/per month. Hence, there is no ground whatsoever made out to interfere with the findings recorded by the learned Judge of the Family Court in the impugned order.

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In view of the aforesaid findings, we find that there is no merit whatsoever in the appeal.

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Dismissal of the aforesaid appeal would not however preclude the rights of the parties to seek variation of the amount of maintenance in accordance with law. Hence, we pass the following order:

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ORDER:

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(a) The appeal is dismissed;

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(b) The appellant is directed to pay the costs quantified

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at Rs.5,000/- to the respondent within a period of eight weeks from today.

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Shri. Hiren Shashikant Pandya v. Smt. Meghna Hiren Pandya Nee Meghna Chandravadan Bhatt

Case brief

What is this about?

What did the court decide?

Shri. Hiren Shashikant Pandya v. Smt. Meghna Hiren Pandya Nee Meghna Chandravadan Bhatt

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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