Dismissed

Renuka Vijay Mahagavali v. Vijay Kisan Mahagavali

Bombay HC15 Mar 2018FCA/33/2017

Case brief

AI extract

What is this about?

In family court appeals filed by both husband and wife challenging a divorce decree, the High Court dismissed the appeals. Upholding the Family Court's award of Rs.3,000 monthly maintenance as reasonable despite the husband's low-income claim, the court rejected demands for higher maintenance and stridhan due to lack of evidence. The issue of alleged subsequent remarriage was also rejected.

What did the court decide?

The appeals by the husband and wife are dismissed; the Family Court judgment ordering maintenance of Rs.3,000/month is upheld.

Renuka Vijay Mahagavali Vs Vijay Kisan Mahagavali — Maintenance and Alimony | Bombay HC (2018)

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6.17FCA+

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FAMILY COURT APPEAL NO.6 OF 2017

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Vijay s/o. Kishan Mahagavali,
Age: 35 years, Occupation : Beggar,
Residing at Tang-Bond, Hyderabad

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APPELLANT

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VERSUS

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Renuka w/o. Vijay Mahagavali,

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Age: 31 Years, Occupation : Self Employed,
Residing at C/o. Kacheswar Kisan Bhagat,
Dhirendra Apartment, Samarth Nagar,
Aurangabad. RESPONDENT

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RESPONDENT

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...

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Mr.Kshitij Surve, Advocate for the appellant
Mr.M.G.Kochar, Advocate for the respondent.

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...

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WITH

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FAMILY COURT APPEAL NO. 33 OF 2017

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Renuka w/o. Vijay Mahagavali,
Age: 31 years, Occ. Nil,
R/o. C/o. Kacheswar Kisan Bhagat,
Dhirendra Apartment, Samarth Nagar,
Aurangabad.

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 APPELLANT

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VERSUS

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Vijay Kishan Mahagavli,
Age: Major, Occ: Service,
R/o. House no.5-1-308,
Near Balaji Temple, Shikh Galli,
Gavliguda Parisar, Hyderabad (A.P.)

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RESPONDENT

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...

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Mr.M.G.Kochar, Advocate for the appellant
Mr.Kshitij Surve, Advocate for the respondent

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...

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6.17FCA+

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CORAM: S.S.SHINDE &

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 S.M.GAVHANE,JJ.

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Reserved on : 12.03.2018
 Pronounced on : 15.03.2018

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ORDER: (Per S.S.Shinde, J.):

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1]Both these Family Court Appeals are
arising out of the common judgment and order,
and therefore, the same are heard together
and being disposed of by the common order.

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2]The appellant in Family Court Appeal
No.33 of 2017 is the original petitioner in
Petition No. A-171/2015 [Renuka w/o. Vijay
Mahagavali Vs. Vijay s/o. Kisan Mahagavali],
decided by the Judge, Family Court,
Aurangabad on 29th August, 2016. By the
impugned judgment and order dated 29.08.2016,
the Family Court partly allowed the Petition
filed by the appellant, namely, Renuka i.e.

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the wife, and it is ordered thus:

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6.17FCA+

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(2) The marriage between petitioner and respondent solemnized on 24.04.2003 at Hyderabad is hereby dissolved by decree of divorce as per Section 13 (1) (i-a) of Hindu Marriage Act, 1955.

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(3) Application at Exh. 11 is partly allowed. Thereby, the respondent is directed to pay maintenance of Rs.3,000/- p.m. to the petitioner from the date order. However, the prayer for stridhan is rejected. The amount of maintenance granted is not in addition to the interim maintenance granted under Domestic Violence Act.

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3]Family Court Appeal No.06 of 2017 is
filed by the respondent, namely, Vijay Kisan
Mahagavali i.e. husband, before the Family
Court.

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4]The appellant-wife, in Family Court
Appeal No.33 of 2017, has prayed for
modification of the judgment and decree to

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6.17FCA+

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the extent of quantum of maintenance, thereby
praying for maintenance of Rs.10,000/- per
month from the date of neglecting to maintain
and cohabit with the appellant by respondent-
husband, and further prayer is made seeking
direction against the respondent to pay
arrears towards maintenance. There is also
prayer for return of gold ornaments etc.
given at the time of marriage to the
respondent-husband.

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5] Learned counsel appearing for the appellant-Renuka, in Family Court Appeal No.33 of 2017 submits that the respondent [husband] did not enter into the witness box. Therefore, the claim of the appellant for permanent alimony and other prayers for return of gold ornaments and also two wheeler ought to have been granted in toto . However, the Family Court has granted only Rs.3000/per month towards permanent maintenance/ permanent alimony. The said amount by any

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6.17FCA+

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standard is meager. Therefore, the learned
counsel appearing for the appellant-Renuka,
relying upon the grounds taken in the Appeal
Memo submits that the Family Court Appeal
deserves to be allowed.

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6]Learned counsel appearing for the
respondent-Vijay vehemently opposed the
reliefs claimed in the Appeal and submits
that the appellant did not prove by bringing
on record documentary evidence or any other
evidence about source of income of the

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respondent. It is submitted that the
appellant-Renuka has not brought on record
sufficient and cogent evidence to show that,

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as a matter of fact respondent was given as stridhan, gold ornaments or any other article at the time of marriage.

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7]Advocate Mr. Kshitij Surve appearing

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for the appellant-Vijay in Family Court
Appeal No.6 of 2017 restricts his prayer to

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6.17FCA+

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the extent of quashing the findings recorded

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by the Family Court, while answering issue
no.2 i.e. whether the petitioner is entitled

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to permanent alimony and maintenance as per
Section 25 of Hindu Marriage Act, 1955. He
submits that upon careful perusal of the
findings / reasons assigned by the Family
Court while directing to pay Rs.3,000/- per
month to the petitioner, there is no
discussion of any documentary evidence or
authentic source of income brought on record
by the respondent-Renuka. It is submitted

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that the Family Court has rightly rejected

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the prayer for stridhan made by the

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respondent-wife. The learned counsel invites
our attention to the grounds taken in the

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Appeal memo and findings recorded by the
Family Court and submits that clause (3) in

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the operative part of the order dated
29.08.2016 deserves to be quashed and set
aside.

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6.17FCA+

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8]Learned counsel further submits that

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after pronouncement of the judgment and order

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by the Family Court, respondent-wife has
performed second marriage. He invites our
attention to the photograph, and amended
portion in the Appeal Memo and submits that
for the said reason also, clause (3) in the
operative part of the order dated 29.08.2016
deserves to be quashed and set aside. In
support of his aforesaid contentions he
placed reliance on the ratio laid down in the

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following judgments; in the case of U.Sree Vs. U.Srinivas¹ , in the case of Ritula Singh Vs. Lt.Col.Rajeshwar Singh² , in the case of Smt. P.Archana @ Atchamamba Vs. Varada Siva Rama Krishna³ and in the case of Jayashree Vinod Bilthare and Anr. Vs. Vinod Bhagwandas Bilthare and Anr.⁴ .

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1 2013 [1] All MR 409

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2 2010 [3] All MR 828

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3 2008 All MR [Cri.] Journal 240

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4 2003 [12] LJ Soft 91

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6.17FCA+

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9]We have considered the submissions

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of the learned counsel appearing for the
parties. Upon careful perusal of the order
dated 29.08.2016 passed by the Family Court,
it appears that respondent therein i.e. Vijay

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Kisan Mahagavali, is directed to pay
maintenance of Rs.3,000/- p.m. to the
petitioner-wife from the date of order.
However, the Family Court has clarified that

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the amount of maintenance granted is not in
addition to the interim maintenance granted
under Domestic Violence Act.

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10]Upon careful perusal of the

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discussion in para 10 of the impugned order
dated 29.08.2016, the Family Court has
observed that the respondent i.e. husband,

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has stated that he works as a coolie and

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earns Rs.100/- to 150/- per day. It is
further observed by the Family Court that the

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respondent is staying in a city like

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6.17FCA+

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Hyderabad. Considering the minimum wages of
labour also, it cannot be believed that the
respondent is getting only Rs.100/- to 150/-
per day. In a city like Hyderabad, even a
labourer can earn atleast Rs.8,000/- to
10,000/- p.m. As has been mentioned above,
the respondent has not stepped into witness

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box. Therefore, the contention of the
respondent that he earns only Rs.100/- to
150/- per day cannot be believed. The
petitioner-wife has stated that she has no
source of income.

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11]In Family Court Appeal filed before

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this Court, Renuka has placed on record
copies of documents, suggesting that,
respondent-husband is the owner of certain
vehicles i.e. four wheeler. Be that as it

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may, viewed from any angle in our considered

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opinion, the directions given by the Family

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Court to pay Rs.3,000/- per month to the

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petitioner, namely Renuka i.e. wife, cannot

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be said to be unreasonable, perverse, and therefore, no interference is called for.

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12]So far as the prayer of the wife
namely Renuka to pay maintenance of

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Rs.10,000/- per month is concerned, she could
not bring cogent and satisfactory evidence on
record to hold that, she is entitled for
Rs.10,000/- per month towards maintenance /
permanent alimony. It further appears that

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though it was claimed that the husband, namely, Vijay was given as stridhan gold ornaments and other article at the time of marriage, however, no evidence was placed on record before the Family Court to that effect.

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13]So far as the arrears towards

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maintenance is concerned, it is needless to
observe that the husband–Vijay is under
obligation to pay the said amount and on non-

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6.17FCA+

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payment of such amount, wife–Renuka can take
appropriate steps in accordance with law.

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14]The contention of the learned

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counsel appearing for the husband-Vijay that,
after the judgment and decree of the Family
Court wife-Renuka has performed second
marriage, will have to be proved by him
before the competent Court of jurisdiction,

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and this Court only on the basis of the
photographs cannot accept the contention of
the learned counsel appearing for the
husband-Vijay that, Renuka-wife has performed
second marriage. It is also relevant to
mention that the amount of Rs.3,000/- per
month towards maintenance granted by the
Family Court is not in addition to the
interim maintenance granted under Domestic
Violence Act. Meaning thereby Renuka-wife is
already receiving the maintenance i.e.
Rs.3,000/- in the proceedings arising out of
the Domestic Violence.

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6.17FCA+

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15]In the light of discussion herein
above, we are unable to persuade ourselves to
grant any relief in favour of appellants.
Both the Appeals are devoid of merits. Hence,
both the Family Court Appeals stand
dismissed.

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 [S.M.GAVHANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

Renuka Vijay Mahagavali v. Vijay Kisan Mahagavali

Case brief

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Renuka Vijay Mahagavali v. Vijay Kisan Mahagavali

Case brief

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