Sudarshan Baburao Khande v. Sau. Indumati Sudarshan Khande
1 SA 663-2016 & SA 664-2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD SECOND APPEAL NO.663 OF 2016 (WITH CA/3839/2019) WITH SECOND APPEAL NO.664 OF 2016 (WITH CA/3838/2019) Sudarshan s/o Baburao Khande, Age 40 years, Occupation Suspended Service (Head Master) At Present Nil, Dr. Babasaheb Ambedkar Vidyalaya, Gautam Nagar, Parbhani.
...Appellant.
(Appellant/ Original defendant)
VERSUS
Sau. Indumati w/o Sudarshan Khande, Age 37 years, Occupation Household, R/o Jalalpur Tq. Dist. Parbhani.
...Respondent.
(Respondent / Original Plaintif) ......
Advocate for Appellant : Mr. A. S. Usmanpurkar.
Advocate for Respondent : Mr. V. P. Kadam ......
CORAM : SMT.VIBHA KANKANWADI, J.
Date Of Reserving The Judgment :
26-09-2019.
Date Of Pronouncing The Judgment :
08-11-2019.
JUDGMENT :
1) Both these appeals are arising between same parties. They are husband and wife. In Second Appeal No.663 of 2016 the husband is challenging the concurrent Judgment and decree passed in Regular
2 SA 663-2016 & SA 664-2016 Civil Appeal No.61 of 2013, by learned Adhoc District Judge-2, Parbhani, dated 12-10-2015, thereby maintaining the Judgment and decree passed in Regular Civil Suit No.149 of 2009 by learned 6th Joint Civil Judge, Junior Division, Parbhani, dated 07-03-2013, whereby the suit for getting maintenance under Section 18 of the Hindu Adoption and Maintenance Act came to be partly decreed. 2) In Second Appeal No.664 of 2016 the husband is challenging the Judgment and decree passed in Regular Civil Appeal No.54 of 2013, by learned Adhoc District Judge-2, Parbhani, dated 12-102015, thereby the Judgment and decree passed in Regular Civil suit No.149 of 2009, by learned 6th Joint Civil Judge, Junior Division, Parhani, dated 07-03-2013, modifying and enhancing the maintenance amount by partly decreeing the appeal fled by the wife.
3) It is admitted fact that, the husband and wife got married in year 1986 as per their customs and rites. The wife had fled the petition for getting maintenance by contending that, she was treated properly by the husband for about only one year, and thereafter, he started demanding amount from her for purchase of scooter. She was harassed and then after beating her, she was sent to her parental house. After persuasion by her parents, she was left with the husband. They have begotten a son in the year 1990, but thereafter, again the husband started harassing her on the same
3 SA 663-2016 & SA 664-2016 count. It was contended that, after she was driven out of the house, the husband has performed illegal marriage with one Suman, and therefore, the present wife has fled criminal proceedings against the husband. She had fled suit for getting maintenance i.e. Regular Civil suit No.155 of 2006, however it was dismissed in default on 20-062007. She is unable to maintain herself. The husband is Headmaster in a school and getting huge amount as salary. He has additional income in the form of rent. His parents are not depending on him as they are pensioners, and therefore, the wife prayed for maintenance to herself as well as to her son. 4) The husband resisted the claim and denied the allegations made against him. It was contended that, the wife has left him without assigning any reasonable ground.
Since she has deserted him, she is not entitled to get maintenance. It was also contended that, maintenance has been granted in a proceedings under Section 125 of Code of Criminal Procedure in Criminal Misc. Application No.276 of 2009, and therefore, she is not entitled to claim maintenance once again. She is getting beneft under 'Sanjay Gandhi Niradhar Yojana', and therefore, she can maintain herself. 5) After the issues were framed, parties have led oral as well as documentary evidence. Taking into consideration the evidence on record, it was held that, the husband has deserted and refused to maintain the wife. She is unable to maintain herself.
4 SA 663-2016 & SA 664-2016 has sufcient means to maintain the wife, and therefore, maintenance was granted @ Rs.2500/- per month. 6) As aforesaid, both the parties challenged the said Judgment and decree before the learned Appellate Court. The appeal fled by the husband was dismissed and the appeal fled by the wife was partly allowed. The amount of maintenance has been enhanced to Rs.3,500/- per month. Hence, both these second appeals. 7) Heard learned Advocate Mr. A. S. Usmanpurkar for appellant husband and learned Advocate Mr. V. P. Kadam representing the respondent wife.
8) It has been vehemently submitted on behalf of the appellant husband that, by way of subsequent events and in view of the afdavit fled by the appellant, a fact has been brought on record that, the husband was prosecuted under Prevention of Corruption Act and he has faced Special Case No. (ACB) No.2 of 2014 before learned Sessions Judge, Parbhani. The husband has been convicted on 1910-2016 and has been directed to undergo rigorous imprisonment for four years and pay fne of Rs.3000/-, in default rigorous imprison for 3 months, for committing ofence punishable under Section 7 of the Prevention of Corruption Act and equal punishment has been awarded for committing ofence punishable under Section 13 (1) (d) of the Prevention of Corruption Act. Even prior to the trial after the
5 SA 663-2016 & SA 664-2016 registration of the ofence, the husband was suspended from service on 28-05-2015, and after the conviction, an order has been passed on 14-03-2017 that, the husband will not be entitled to any benefts including pensionary as well as salary, therefore he is not getting either salary or any other emoluments. So also in the meantime, i.e. on 31-10-2017, he has retired from the services. Now he is not getting pension and other service benefts, therefore he is unable to pay maintenance.
9) At the outset, it can be said that, while dealing with second appeal what is required to be shown by the appellant is the substantial question of law as contemplated under Section 100 of Code of Civil procedure. Now by way of subsequent event, the documents have been produced on record to show that the appellant has been convicted and the letters on record show that at present he is not getting any part of his salary or after his retirement any pension and other benefts. This fact has not been refuted by the wife by fling any counter afdavit. Therefore, by taking into consideration the said subsequent event, the substantial question of law though might be relating to the quantum of maintenance, would be as follows ;
"Whether the First Appellate court was justifed in enhancing the compensation and granting it in addition to the maintenance granted under Section 125 of the Code of Criminal Procedure ?"
6 SA 663-2016 & SA 664-2016 10) Here it is to be noted that, while granting maintenance under Section 18 of the Hindu Adoption Act and Maintenance Act, what was required to be seen by the Court was, as to whether there was any maintenance granted under Section 125 of the Criminal Procedure Code. Even after taking into consideration that amount, whether then the wife can survive would be a question. It cannot be stated that, since maintenance has been granted under Section 125 of Criminal procedure Code, the wife has no right to get maintenance under Section 18 of the Hindu Adoption and maintenance Act. Both the remedies are diferent and they will have to be considered on its own merits.
Here in this case, there is concurrent fnding by both the Courts that, the wife has been deserted and has not been looked after or maintained by the husband, and therefore, she is entitled to get maintenance when she is unable to maintain herself. While assessing the maintenance amount, what was considered by both the Courts was, the salary of the husband as Headmaster. However, in view of the subsequent event it can be said that, the said source of income is no longer available to the husband. The wife is already getting maintenance @ Rs.3000/- per month under criminal proceedings and whatever was granted by the Trial Court and then enhanced by the District Court was in addition to the said amount of maintenance.
7 SA 663-2016 & SA 664-2016 disturbed or set aside by any Courts. That means, the said order is still in existence and the husband is bound to obey the said order. The only question is regarding the amount now awarded under this proceedings.
11) The present appellant is an able bodied person. Though he might have lost one source of income, i.e. his salary as Headmaster, and then because of his own acts, he appears to have been convicted and now the pension has been stopped. That cannot be the ground to totally set aside the entire decree. However, the only amount can be reduced so as to commensurate with the requirement of the wife to survive, and therefore, revival of the original order passed by the Trial Court would be the just and appropriate step. In other words whatever enhancement has been granted by the learned First Appellate Court in the appeal fled by the wife deserves only to be set aside taking into consideration the subsequent event. Hence, following order.
ORDER
(1) Second Appeal No.663 of 2016 is hereby dismissed. (2) Second Appeal No.664 of 2016 is hereby partly allowed.
(3) The Judgment and decree passed in Regular Civil Appeal No.54 of 2013, by learned Adhoc District Judge-2, Parbhani, dated 12-10-2015, is hereby set aside to the extent of enhancing the maintenance by modifying the Judgment and decree passed in Regular Civil Suit No.149
8 SA 663-2016 & SA 664-2016 of 2009, by learned 6th Joint Civil Judge, Junior Division, Parbhani, dated 07-03-2013.
(4) It is clarifed that, only the Judgment and decree in Regular civil Appeal No.54 of 2013 to the extent of enhancement is set aside thereby reviving the Judgment and decree passed by the learned Trial Court. (5) In view of the facts above, parties to bear their own cost.
(6) Pending civil applications stand disposed of. (SMT. VIBHA KANKANWADI) JUDGE vjg/-.