Partly allowed

Smt. Pragna Ashok Patel v. Shri. Ashok Khimjibhai Patel

Bombay HC21 Aug 2014FCA/69/2007

Case brief

AI extract

What is this about?

The High Court affirmed the Family Court's decree of divorce on the ground of cruelty, holding unsubstantiated marital allegations caused mental cruelty. However, the Court modified the maintenance quantum from Rs.3,000 to Rs.10,000 per month based on documentary evidence proving the husband's higher income, directing payment from the date of the counter-claim.

What did the court decide?

Divorce decree confirmed; restitution of conjugal rights rejected; maintenance increased to Rs.10,000/month; injunction retained.

Smt. Pragna Ashok Patel Vs Shri. Ashok Khimjibhai Patel — Maintenance and Alimony | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.69 OF 2007 WITH

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FAMILY COURT APPEAL NO.73 OF 2007

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Smt. Pragna Ashok Patel,	)
Aged 52 years, Hindu, Indian Inhabitant,	)
Occupation – House wife, residing at Flat No.104, Amar Tower,	) )
Juhu Beekay Co-op. Housing Society Ltd.,	)
Anandrao Deole Marg, Juhu,	)
Mumbai – 400 049.	)..	Appellant

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Versus

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Shri Ashok Khimjibhai Patel, ) Aged 53 years, Hindu Indian Inhabitant, ) Occ. Diamond Merchant, residing at ) Khimjibhai Kabhabhai Patel, ) 31, Panchsheel Society, Usmanpura, ) Ahmedabad – 13, Gujarath. ).. Respondent

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Ms. Purnima Bhatia i/by Ms. Kumud A. Bhatia for the Appellant in both the Appeals.

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Shri Harihar Bhave i/by M/s. Harihar Bhave & Co for the Respondent in both the Appeals.

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CORAM : A.S. OKA & G.S.KULKARNI, JJ DATED : 21ST AUGUST 2014

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ORAL JUDGMENT ( PER A.S. OKA, J)

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. These two Appeals take exception to the judgment and

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decree passed by the learned Judge of the Family Court on a Petition

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filed by the Appellant wife in which a counter-claim was filed by the

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Respondent husband. The Petition filed by the Appellant wife was for restitution of conjugal rights. By amending the Petition, a prayer for perpetual injunction was incorporated restraining the Respondent husband from disturbing the peaceful possession, occupation and enjoyment of the Appellant in relation to the alleged matrimonial home viz. Flat No.104, Amar Tower, Juhu Beekay CHS Ltd., Anandrao Deole Marg, Juhu, Mumbai – 400 049 (for short “the said Flat”). A counter claim was filed by the Respondent husband in the said Petition seeking a decree of divorce under Clause (ia) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 ( for short “the said Act”). It will be necessary to make a reference to the operative part of the impugned decree passed by the learned Judge of the Family Court, Mumbai, which reads thus:

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“Petitioner's claim for decree of restitution of conjugal rights u/s. 9 of the Act, stands dismissed.

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Counter claim of the Respondent Ashok Patel for decree of divorce on the ground of cruelty and desertion stands allowed.

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Marriage between the spouses Pragna Patel and Ashok Patel stands dissolved by decree of divorce vide clauses (1)(ia) of Sec. 13 of the Act, with effect from the date of this order.

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Respondent Ashok Patel do pay permanent maintenance of Rs.3,000/- per month to the Petitioner/Pragna Patel with effect from 1^st March, 2007 with further direction to clear the arrears of interim alimony as following due till 28^th February, 2007.

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The Respondent/Ashok Patel is hereby restrained from

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disturbing, obstructing the Petitioner Pragna's possession over the suit premises more particularly described in her petition in any manner or by any more either through himself or through his agents, servants, representatives, etc. except in accordance with the due process of law and that too after making arrangement for decent alternate accommodation in City of Mumbai as per the status of the parties.

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Under the circumstances of the case, parties are left to bear their own costs.”

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By preferring two separate Appeals, the Appellant wife has challenged the decree passed by the Family Court both on the Petition as well as on the counter-claim.

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With a view to appreciate the submissions, it will be necessary to make a reference to the material facts of the case in brief.

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The marriage between the Appellant and the Respondent was solemnized on 24^th January 1977. The daughter was born on 7^th October 1978 and the son was born on 11^th October 1983. The case made out by the Appellant wife in her Petition is that the married life between them was smooth till March 2000. In or around March 2000, according to the case of the Appellant wife, the Respondent informed her that he had fallen in love of another woman and intended to marry her. It is alleged that the Respondent called upon the Appellant to agree for a divorce by mutual consent. The material allegation in the Petition is that on 10^th May 2000, she received an anonymous call. The

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caller informed her that the Respondent husband was residing with one Sunanda, a bar girl in a rental premises at Yari Road, Andheri, Mumbai. It is alleged that the informant told her that the Respondent husband had procured a residential premises for the said bar girl Sunanda and has been paying her Rs.30,000/- per month. According to the case of the Appellant, the informant also stated that along with the said Sunanda, one more girl by the name Shashi @ Payal @ Rani was residing. The allegation is that the Appellant accompanied by her daughter visited the premises of Sunanda where she found her husband in a compromising position with the said Sunanda. The allegation is that on 14^th May 2000, the Respondent left the matrimonial home which is the said flat and never returned. Initially, a missing complaint was registered by the Appellant with the police. The allegation is that information was supplied to the Appellant that the Respondent husband has converted himself into an Islamic religion. Reliance is placed on the complaint lodged with the police station.

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In the Petition filed by the Appellant, she has set out the assets allegedly held by the Respondent husband. She has stated that the Respondent husband was running a business in the name and style “Diamond Ark Exporters” and “Akshar Exports”. The other assets held by the Respondent have been set out in the Petition. The Appellant prayed for a decree of restitution of conjugal rights and injunction for

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protecting her possession over the said flat.

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By filing a Written Statement, the Respondent disputed the correctness of the averments made in the Petition. The Respondent stated that though he was carrying on the diamond business, he closed down the same. A counter-claim was filed by the Respondent husband on 9^th March 2006. A decree of divorce was sought on the ground of cruelty by setting out the alleged conduct of the Appellant wife. It was alleged that the Appellant treated her daughter and son with extreme cruelty which caused mental cruelty to the Respondent husband. It was alleged that in the matrimonial home, she had kept a paying guest. It is alleged that the Appellant wife tried to disturb the matrimonial life of the daughter. It was contended that a false allegation was made by the Appellant about alleged affair of the Respondent with a woman who was allegedly a bar girl. An allegation was made about the adulterous behaviour of the Respondent. It is alleged that the said allegation created extreme mental pain and suffering to the Respondent thereby causing cruelty.

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The parties led evidence. The Appellant wife examined herself. The Respondent husband examined himself. No other witnesses were examined by the parties. The decree of divorce on the ground of cruelty has been passed mainly on the ground of the

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unsubstantiated allegations regarding the character of the Respondent made by the Appellant. The learned Judge of the Family Court relied upon the correspondence made by the son and the daughter of the Appellant and observed that the said correspondence shows the trauma and agony suffered by them on account of behaviour of the Appellant. After passing a decree on the ground of cruelty, the learned Judge examined the claim of the Appellant as regards the said flat and as regards the maintenance under Section 25 of the said Act. The learned Judge observed that as per his own admission, the Respondent was getting the monthly payment of Rs.800/- to Rs.1,000/- by way of honorarium by rendering services in the Temple of Swamy Narayan at Zadeshwar in Ahmedabad. The learned Judge observed that the business ventures of the husband came to an end somewhere in the year 2004-2005, but his son was successfully running the business of Steel Alloy. The learned Judge observed that the son of the Respondent was carrying on business with the help of his father. The learned Judge observed that the income of the father of the Respondent was in lacs. The learned Judge, therefore, proceeded to grant permanent maintenance at the rate of Rs.3,000/- per month. The learned Judge recorded a finding that the said flat was the matrimonial home of the parties. Therefore, the learned Judge granted a decree of injunction for protecting the possession of the Appellant with a rider that it will be open for the Respondent to dispossess the Appellant by

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following due process of law after making an arrangement for a decent alternate accommodation in the City of Mumbai considering the status of the parties.

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The learned counsel appearing for the Appellant wife invited our attention to the examination-in-chief of the Appellant. She pointed out the specific assertion made in the examination-in-chief as regards the relationship of the Respondent with the two ladies. Inviting our attention to the cross-examination of the Appellant made by the Respondent husband, she urged that there was absolutely no challenge in the cross-examination to the said specific allegation made by the Appellant wife as regards the character of the Respondent. Her submission is that the letters written by the daughter are on record which support the allegations made by the Appellant. Her submission is that the said allegation cannot be said to be unsubstantiated in light of the fact that there is no challenge to the said allegation in the crossexamination of the Appellant. She pointed out that it is brought on record before the Family Court that the mother of the Respondent is no more and during the pendency of the Appeal, even the father of the Respondent is no more. She pointed out that the admitted position is that the father of the Respondent had a very large income and he was having a large property consisting of a bungalow and an industrial shed at Ahmedabad. She invited our attention to the documents on record

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and contended that the stand taken by the Respondent that he closed down both the business ventures is completely false. Her submission is that the documents on record falsify the said case. Her submission is that after considering the large income of the Respondent, the maintenance granted at the rate of Rs.3,000/- per month is on the lower side. Her submission is that as of the date of the impugned decree of divorce, the maintenance ought to have been granted at the rate of Rs.30,000/- per month.

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Learned counsel appearing for the Respondent husband submitted that the allegation made by the Appellant as regards his alleged relationship with the two other women was not put to the Respondent in his cross-examination. Pointing out the specific allegations in the Petition, he urged that the daughter was a most material witness as it is alleged by the Appellant that when she visited along with her daughter the place where Sunanda was residing, they found the Respondent in a compromising position with the said Sunanda. He urged that the contents of the letters on record have not been proved. He urged that it is the case of the unsubstantiated allegation of serious nature regarding the character of the Respondent and, therefore, the learned Judge of the Family Court was justified in passing a decree of divorce on the ground of cruelty. He pointed out that the Respondent had given up his business ventures in the year

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2000 and he is rendering services at the Swamy Narayan Temple at Ahmedabad and is earning a meager income. He submitted that his son suffered losses in the business. He pointed out that both the son and the daughter are now abroad. His submission is that even the Appellant wife has a source of income and, therefore, there is no reason to interfere with the decree of maintenance passed by the learned Judge of the Family Court.

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We have carefully considered the submissions. We have perused the record of the case. We have also perused the pleading and notes of evidence.

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The first question for consideration will be whether the decree of divorce granted by the Family Court on the ground of cruelty is legal and proper. It will be necessary to make a reference to the material averments made in the Petition filed by the Appellant wife. We must note here that the affidavit-in-lieu of the examination-in-chief of the Appellant is virtually a replica of the averments made in the Petition. The material averments made in the Petition as regards the character of the husband can be summarized as under:

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(i) In the month of March 2000, the Respondent informed the Appellant that he was in love with

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another woman and, therefore, he called upon the Appellant to agree for a divorce by mutual consent;

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(ii) On 10^th May 2000, an anonymous informant informed the Appellant on telephone that the Respondent was residing in a building at Yari Road, Andheri, Mumbai, with one woman by the name Sunanda, who was a bar girl. It is alleged that the Respondent is paying a sum of Rs.30,000/- per month to the said Sunanda and he had procured a residential premises for the stay of the said Sunanda. It is alleged that another girl by the name Sashi @ Payal @ Rani was also residing with them in the said premises;

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(iii) When the Appellant wife along with her daughter visited the residential premises at the address given by the anonymous caller on telephone, they found the Respondent to be in a compromising position with the said Sunanda;

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(iv) The Respondent husband left the matrimonial home on 14^th May 2000. Later on, the Appellant learnt that he had started residing with the said Sunanda.

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We have perused the cross-examination of the Appellant made by the Advocate for the Respondent. There is no specific suggestion given to the Appellant in her cross-examination as regards the said allegations set out in the examination-in-chief of the Appellant. We have also perused the cross-examination of the Respondent made by the Advocate for the Appellant. Surprisingly, we find that the said allegations were not put to the Respondent husband in his crossexamination. Apart from the failure to put the said allegation in the cross-examination of the Respondent which militates against its veracity, as the said allegation was not put to the Respondent in his crossexamination, the Respondent had no occasion to explain or deal with the same. There is one more aspect which is rightly noted by the learned Judge of the Family Court. In Paragraph 8 of the Petition, the specific case of the Appellant was that along with her grown up daughter, she visited the premises where the said Sunanda was residing and she found the Respondent to be in a compromising position with the said Sunanda. For proving this material allegation, the daughter of the Appellant was a very important witness. There is no explanation as to why the daughter was not examined. This was sufficient to draw adverse inference against the Appellant wife.

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The photocopies of the letters addressed by the daughter are placed on record of the Family Court. The submission of the learned counsel appearing for the Appellant by relying upon Section 14 of the Family Court Act, 1984 was that the strict rules of evidence under the Indian Evidence Act, 1872 are not applicable to the proceedings before the Family Court. It is true that the strict rules of evidence may not be applicable. However, the Family Court, before relying upon a piece of evidence, has to satisfy itself that the same is genuine. Only one letter addressed by the daughter to the Appellant has been exhibited as Exhibit 59. The said letter Exhibit -59 does not refer to the incident relied upon by the Appellant. On the contrary, the daughter has made allegations against the Appellant. No one has deposed about the genuineness of the photocopy of the said letter. Therefore, we are concurring with the view taken by the learned Judge of the Family Court that the adverse allegations made by the Appellant against the Respondent as regards his character could not be substantiated by her.

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The law on this aspect is very well settled right from the decision of the Apex Court in the case of V. Bhagat v. D. Bhagat (Mrs.)¹ The law has been restated by the Apex Court in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate² . The Apex Court held that if the allegations made by one spouse against the other spouse as

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1 (1994)1 SCC 337

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2 (2003)6 SCC 334

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regards the extra marital relationship are not substantiated, the same constitute a mental cruelty to the spouse against whom such allegations have been made. Therefore, in our view, the learned Judge of the Family Court was justified in passing a decree of divorce on the ground of cruelty. We must note here that the learned Judge was also impressed by the allegations made by the son and the daughter in their letters. However, in our view, the said letters could not have been relied upon as neither the son nor the daughter have been examined by both the parties. Nevertheless, the allegations against the Respondent of living with a bar girl have not been substantiated by the Appellant, and therefore, such unsubstantiated allegations caused mental cruelty to the Respondent. In the circumstances, we have no hesitation in confirming the decree of divorce.

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Now the second question which needs to be considered will be as regards the quantum of the amount of maintenance payable to the Appellant.

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As regards the income of the Respondent husband, the allegation in the Petition filed by the Appellant is that the husband was carrying on business in the name and style of “Diamond Ark Exporters” in Mumbai. The second allegation is that he was carrying on Diamond business in the name and style of “Akshar Exports”. The registered

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office of the said Akshar Exports was shown as the said flat at Juhu, Mumbai. It is alleged that the Respondent was having a bungalow and an industrial gala at Ahmedabad and the industrial gala has been let out to one Ice Cream Company. It is alleged that the Respondent was carrying on construction business in the name and style of “Padmavati Housing Construction” along with other partners. It is alleged that the Respondent had booked an office premises in the Bharat Diamond Bourse in Bandra-Kurla Complex, Mumbai. Moreover, it is stated that the Respondent is having a life membership of prestigious Clubs in Mumbai like a Royal Palm. On this aspect, it will be necessary to make a reference to the cross-examination of the Respondent made by the Advocate for the Appellant wife. The Respondent has stated that he surrendered his business premises of first business (Diamond Ark Exporters) at Charni Road in the year 1993. His case is that the second business (Akshar Exports) was a partnership business in which even the Appellant wife was a partner. He has stated that he continued the said business till February/March 2000. He stated that he shifted to Gujarat in March 2002. His specific statement is that he is residing at Narode in Gujarat and is rendering services at the Swamy Narayan Temple at Zadeshwar in Gujarat. He stated that he was getting monthly emoluments of Rs.800/- to Rs.1,000/- by way of honorarium. His contention is that after 2002, except the honorarium received from the services rendered in a temple, he has no other source of income. A

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specific suggestion was given to the Respondent that he was running the business in the name and style “Akshar Exports” at least in the year 2005. He denied the correctness of the said suggestion. He stated that the Appellant wife was also a partner in the said business. In the crossexamination, he denied that he had invested a sum of Rs.5 lacs in the Naman Securities. However, he admitted that he got the amount of Rs.5 lacs from the said Naman Securities. In the further crossexamination, he stated that his son was running a steel business. He stated that his father's monthly income was around Rs.4 lacs. His case in the affidavit-in-lieu of the examination-in-chief is that the bungalow and the industrial gala at Ahmedabad are of his father. We must note here that during the pendency of Appeal, the father has expired. Learned counsel appearing for the Appellant submitted that the brother of the Respondent is also one of his legal representatives.

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From the stand taken by the husband, it appears that according to his case, from the year 2002, the Respondent has no source of income except the meager income which he derived by rendering the services in the Swamy Narayan Temple. This stand will have to be appreciated in the background of the documentary evidence on record and the admissions of the Respondent. In paragraph 55 of his cross-examination, he has stated that after the marriage, he and the Appellant were residing at Ahmedabad. At the time of marriage, he

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was running a paper factory near Ahmedabad. He has stated that he had also opened an electronic shop in Ahmedabad. Thereafter, admittedly, he had started two business ventures in diamond in Mumbai which we have mentioned hereinabove. We must note here that even according to the case of the Respondent, he along with the Appellant shifted to Mumbai in the year 1987 and thereafter, he acquired the said flat at Juhu, Mumbai. He admitted that he acquired a premises on rental basis in Panch Ratna at Opera House, Charni Road, Mumbai for his business. He claims that he surrendered the said premises in the year 1993. He did not dispute that he had booked an office premises in Bharat Diamond Bourse at Bandra-Kurla Complex, Mumbai. His contention is that he cancelled the booking of the said premises at Bharat Diamond Bourse. All this shows the affluence of the Respondent. Even according to the Respondent, his father’s income was Rs.4 lacs per month. His father was having a bungalow and an industrial gala at Ahmedabad.

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Now we may make a reference to the documentary evidence on record for testing the contention that even the second business venture was closed by the Respondent in the year 2000. As far as the business of the son is concerned, we must note that in paragraph 5 of the impugned judgment, the learned Judge has noted that the son is running a business of steel alloy with the help of his

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father (i.e. Respondent). A statement of Bank Account of the Respondent's son held with the ICICI Bank at Ahmedabad is on record at Exhibit-69. It records that in the year 2004, there are large number of credit entries totally amounting to Rs.7,34,716/- in the account of the son of the Respondent. The age of the son at that time was only 21 years. Even in the year 2005, there are deposits of Rs.1,75,000/- in his account.

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Along with the list at Exhibit-73, the Respondent produced photocopies of his PPF Account Passbook. As the photocopies have been produced by the Respondent himself, the same will have to be read in evidence. Initially, the PPF Account was in Mumbai. It was subsequently shifted to a branch of the State Bank of India at Ashram Road in Ahmedabad. Even according to the case of the Appellant, the business continued till May 2000. Thereafter, according to his case, he was earning the meager income of Rs.800/- to Rs.1,000/- by rendering the services in a Temple of Swamy Narayan. We find that from 31^st March 2001, there are cash deposit entries in the PPF Account. In the year 2002, there is a cash deposit of Rs.10,000/-. On 30^th March 2004, there is a cash deposit of Rs.5,000/-. On 25^th March 2005, a cash deposit of Rs.2,000/- is made in the PPF Account. Moreover, on 7^th March 2006, there is a cash deposit of Rs.5,000/- in the PPF Account of the Respondent. It is not possible for us to accept the fact that a person

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who was earning a maximum amount of Rs.12,000/- per year can make such cash deposits in the PPF Account.

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Exhibit-49 is a photocopy of the pass-book of the Respondent with the Indian Overseas Bank. It shows that on 11^th April 2000, the Respondent invested an amount of Rs.5 lacs with Naman Securities and got back the said amount of Rs.5 lacs in the same year. There is a document at Exhibit – 52 which shows that even on 17^th April 2000, the export of cut and polished diamonds having F.O.B. value of Rs.27,22,269/- was made by the Respondent. It will be necessary to make a reference to the Income Tax Returns of M/s. Akshar Exports which are produced on record by the Respondent. In the year ending with 31^st July 1999, the net profit to the share of the Respondent is Rs.4,98,103/-.

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Apart from the extract of the ICICI Bank Account of the son, a photocopy of his PPF passbook is on record at Exhibit – 58. We have noted that the son was born in the year 1983. We find that there are deposits regularly made in his PPF Account from the year 1997 onwards. The deposit of Rs.10,000/- is made on 29^th March 1999. The deposit of Rs.5,000/- has been made on 30th March 2001. The account was closed in the year 2002 and appears to have been transferred to Ahmedabad. There is a document placed on record of M/s. Diamond

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Exporters wherein the administrative office of the said business is shown at the address of the matrimonial home ( i.e. the said flat ) and the registered office is shown at 31, Panchsheel Society, Usmanpura, Ahmedabad. It will be necessary to make a reference to one more important document on record which is letter addressed by a bank to the Appellant. The said letter is dated 28^th July 2004 addressed by the ING Vysya Bank Limited to M/s. Akshar Exports which refers to outstanding export bills of the business for realization.

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As noted earlier, in the year 2004-2005, there are large credit entries in the bank account of 21 year old son of the Respondent. The Respondent himself was regularly depositing the amounts in his PPF Account till the year 2006. The finding of the learned Judge of the Family Court is that the Respondent was helping his son in the business. The documents on record completely militate against the case of the Respondent that from May 2000 onwards, he was not running any business ventures. The entries in the PPF Account of the Respondent and his son as well as in the Bank Account of the Respondent’s son are completely inconsistent with the case made out by the Respondent that after 2000, his monthly income was Rs.800/- to Rs.1000/- per month from the services rendered in a Temple. There is a material on record to show that atleast till the year 2006, the Respondent had income in addition to the income allegedly received by him by rendering services

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at the Swamy Narayan Temple. It is not possible to accept the case that a 21 year old son of the Respondent earned the amount in lacs in the year 2004-2005. The father of the Respondent is no more. The father was having an income of Rs.4 lacs per month. The father was having large assets in the form of a bungalow and industrial gala in Ahmedabad. We are testing the case as of the year 2006 when the Respondent filed the counter-claim. The impugned judgment and decree is dated 22^nd February 2007. Thus, the Respondent's case that he closed business in the year 2000 will have to be disbelieved. Hence, the Respondent has not disclosed his true income before the Family Court. Therefore, the Court will have to draw an appropriate inference on the basis of evidence on record. Even by taking a conservative view, it is not possible for us to accept that the monthly income of the Respondent in the year 2006 was less than Rs.25,000/- to Rs.30,000/-.

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There is no finding recorded by the learned Judge of the Family Court that the Appellant is having any source of income. The finding of the learned Judge of the Family Court regarding the liability of the Respondent to pay the maintenance is not subjected to a challenge by the Respondent husband.

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We must note here that during the pendency of the Appeal, there was an interim order passed by this Court directing the Appellant

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wife to pay the maintenance charges in respect of the matrimonial home i.e. the said flat. There was also an interim order which permitted the Appellant wife to induct a paying guest and to earn income. According to the Respondent husband, the maintenance charges are Rs.3,500/- per month.

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Under Section 25 of the said Act, the Appellant wife is not only entitled to the maintenance for her survival, but she is also entitled to seek support for herself in the form of a shelter. It is an obligation of the Respondent husband to provide a shelter to the Appellant wife. The said obligation has been accepted by the respondent by accepting the decree of injunction passed by the Family Court which records that the Appellant wife can be evicted from the said flat only after the Respondent husband makes an arrangement for an alternate accommodation in the City of Mumbai as per the respective status of the parties. As it is an obligation of the Respondent husband to provide a shelter to the Appellant, the liability to pay the maintenance charges of the Society will be that of the Respondent husband. However, the Appellant will have to comply with the interim order passed by this Court by making a payment of maintenance charges to the Society till the disposal of this Appeal. Yesterday, we have recorded an undertaking of the Appellant in Civil Application Nos. 352 and 353 of 2013 to pay the amount payable as per the order which may be passed in the

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proceedings under Section 101 of the Maharashtra Co-operative Societies Act, 1960. The Appellant will have to abide by the said undertaking by paying the maintenance charges of the Society only till the date of the disposal of the Appeals. It is obvious that after disposal of these Appeals, the Appellant will not be entitled to induct any third party in the said flat which is the matrimonial home.

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Considering the finding on the income of the Respondent recorded above, we are of the view that as on the date of filing of the counter-claim by the Respondent, he was liable to pay maintenance at the rate of Rs.10,000/- per month to the Appellant wife. To that extent, the judgment and decree will have to be modified. We are recording a finding regarding quantum of maintenance on the basis of the material on record on the date of disposal of the case by the Family Court. In the view of the subsequent change in the circumstances after the date of the impugned decree, the Appellant can always invoke Sub-section (2) of Section 25 of the said Act.

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The maintenance at the rate of Rs.10,000/- per month will be payable from the date of filing of the counter-claim by the Respondent husband. We find from the record that the counter-claim was filed on 9^th March 2006. Till that date, obviously, the order of interim maintenance passed by the Family Court at the rate of

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Rs.3,000/- per month will continue. We propose to grant a reasonable time to the Respondent husband to pay arrears of maintenance to the Appellant wife.

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We must record here that there is no serious challenge by the Appellant wife to that part of the decree by which the prayer for restitution of conjugal rights was rejected. In light of the findings recorded on the issue of cruelty, in any event, the Appellant is disentitled to a decree for restitution of conjugal rights. The Respondent husband will have to pay costs to the Appellant wife of these two Appeals quantified totally at Rs.25,000/-.

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Hence, we dispose of the Appeals by passing the following

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order:

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ORDER :

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(a) As far as the decree refusing the prayer for restitution of conjugal rights is concerned, the impugned decree to that extent is confirmed;

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(b) The decree of divorce granted by the Family Court is hereby confirmed;

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(d) The Respondent husband is hereby ordered and decreed to pay maintenance under Section 25 of the Hindu Marriage Act, 1955 to the Appellant wife at the rate of Rs.10,000/- per month from 9^th March 2006 onwards;

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(e) We clarify that it will be open for the parties to invoke the provisions of Sub-section (2) of Section 25 of the Hindu Marriage Act, 1955 as and when occasion arises;

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(f) We make it clear that with effect from 1^st September 2014, the Respondent husband shall be liable to pay maintenance charges along with all other charges payable to the co-operative society in relation to the said flat;

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(g) Notwithstanding this judgment, the Appellant shall

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be bound by her undertaking recorded yesterday i.e.

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20^th August 2014 in the order passed on the Civil Application Nos.352 of 2013 and 353 of 2013;

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(h) The maintenance already paid by the Respondent husband at the rate of Rs.3,000/- to the Appellant wife shall be adjusted towards the maintenance payable at the rate of Rs.10,000/- per month from 9^th March 2006;

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(i) We grant time till 31^st December 2014 to the Respondent husband to pay arrears of maintenance to the Appellant wife at the rate of Rs.10,000/- per month from 9^th March 2006 till 31^st August 2014;

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(j) From September 2014, the Respondent husband shall pay the maintenance at the rate of Rs.10,000/per month to the Appellant wife on or before the 15^th day of every calender month;

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(k) It will be open for the Appellant wife to supply particulars of her bank account to the Respondent husband. If such particulars are supplied, the maintenance amount as well as arrears of

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maintenance amount shall be directly transferred by the Respondent husband to the said bank account of the Appellant wife;

¶158

(l) We direct the Respondent husband to pay costs of the said two Appeals quantified totally at Rs.25,000/- to the Appellant wife within a period of two months from today;

¶159

(m) The Appeals are partly allowed on above terms,

Smt. Pragna Ashok Patel v. Shri. Ashok Khimjibhai Patel

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Smt. Pragna Ashok Patel v. Shri. Ashok Khimjibhai Patel

Case brief

What is this about?

What did the court decide?

What the court decided

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