:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 196 OF 2008 WITH CIVIL APPLICATION NO. 296 OF 2008 Mrs. Vastavikta Kiran Goragandhi ..Appellant Vs. Shri Kiran B. Goragandhi ..Respondent Mr. V.S. Kapse for appellant. Mr. Vivek Kantawala for respondent. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. Date : March 05, 2009. Date : March 05, 2009. Date : March 05, 2009. P.C.: P.C.: P.C.: 1. Heard Mr. Kapse the learned counsel for the appellant-wife. Mr. Vivek Kantawala appears for the respondent-wife. 2. As we had put on notice to decide this appeal at the admission stage itself, the learned counsel for the appellant has submitted private paper book copies. 3. The appellant-wife approached the Family Court :2: in Petition No.C-132 of 2002 filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (for short the Act) and prayed for maintenance. She alleged that she was ill-treated by her husband and two children and that she was being neglected by them. She had no source of income to support herself and the husband as well as the children refused to maintain her. She claimed that she was entitled for a separate residential accommodation and, therefore, prayed that the flat she was staying in along with the family members be divided in two equal parts and she be given the possession of half portion. She further prayed for maintenance of Rs.50,000/- per month. As per her, the respondent-husband was earning Rs.5,00,000/- per month and the children also employed, but all of them were harassing her and refused to maintain her. 4. The respondent-husband filed his Written Statement at Exh.10 and opposed the petition. He submitted that the wife had filed Petition No.C-138 of 1998 for the very same relief and had withdrawn it unconditionally. He further claimed that she was a professional music player and was earning more than :3: Rs.25,000/- p.m. He also pointed out that the appellant, he himself and the two children have been staying in the same house and under the same roof. The entire expenditure of the house was either taken care by him or by the son and the appellant was not required to spend any money. He denied that the appellant was being neglected or was being harassed or ill-treated. 5. The appellant, in support of her case, examined herself and one more witness Smt. Swati Ghaswala (PW 2), whereas the respondent examined himself (DW 1) and the two children stepped into the witness box (DW 2 and DW 3). 6. The parties were married on 23/1/1977. The couple begot two children, son Premal and daughter Niyati. As per the wife, she started facing problems in her matrimonial life from 1998 onwards. She alleged that the respondent tried to eliminate her by throwing her from their flat and at that time she ran away to her parents’ house. She filed Petition No.C-138 of 1998. During the pendency of the :4: petition, the parties appeared before the Marriage Counsellor and the respondent submitted his apology. The wife, therefore, withdrew the petition. She filed the fresh petition for maintenance as in the intervening period the husband neglected and refused to maintain her and even the children did not give any financial assistance to her. The Family Court considered the evidence of all the witnesses and granted an amount of Rs.7000/- per month towards maintenance and payable from the date of the impugned order i.e. 30/7/2008. So far as her claim for flat and car is concerned, the same was rejected. Hence, this appeal for enhancement of maintenance, separate house and car. 7. As the petition was filed under Section 18 of the Act, we are required to consider whether the wife made out a case that the respondent neglected and refused to maintain her and whether the amount of maintenance granted by the Family Court at the rate of Rs.7000/- per month is required to be enhanced and also whether the wife is entitled for a separate flat by dividing the existing flat into two flats. The :5: evidence of Swati Ghaswala does not support the case of the appellant for her claim under Section 18 of the Act and even if we discard the allegations and counter allegations and claims and counter claims made by the husband and wife in their depositions before the Family Court, it would be sufficient to take into consideration the evidence of the two children. 8. Daughter Niyati stated that all the four family members have been staying together and the brother is married. She has her own car which she won in one contest. She stated that her mother is a professional singer and she takes classes in music. The classes are conducted in the family house and at times the mother goes to the house of other persons for the same. She further stated that the mother employed 2-3 other persons to accompany her in the music programmes. In her cross examination she stated that she was getting an amount of Rs.4000/- to Rs.5000/- per month from her employment as Bilatis Hub Trainer and Slide Trainer with Nawaz Modi Singhania. Son Premal stated before the Family Court that his parents, sister and wife along with himself were :6: staying in the family house. His wife and mother with the help of the sister are cooking food and they are having one kitchen and one common mess. The father brings the daily needs in the house and he was also assisting financially. He was bearing all the outgoing expenses also and the father was looking after the maintenance of the house. The flat was single unit though it is known as Flat No. 701 and 702. The Flats are in the joint name of the father and himself. The father was keeping himself busy as a broker in automobile and was earning Rs.2000/- per month. He has obtained loan from his father-in-law when his flat was attached and he paid Rs.16,70,000/- to Kalpana Goragandhi. Mother was carrying hot water in a pot and she fell down and had burn injuries on her hand. She was taken to Bhatia Hospital and admitted. The father also came to the hospital and stayed there. All family members took care of the mother and he spent Rs.3,50,000/- on her medical treatment. His mother was taking tuitions in music and giving music programmes and was earning Rs.20,000/- to Rs.25,000/- per month. She has employed two musicians, one is Harmonium player and :7: the other is Tabla player. 9. We have noted that these statements of the son remained intact in his cross-examination. It is evident from the depositions of both the children that the appellant is a professional singer, she gives performances as a professional singer and also takes music classes. She is earning now Rs.20,000/- to Rs.25,000/- per month from the same vocation. The entire family expenses are met by the son and the father is taking care of maintenance of the house. The appellant and respondent are occupying a common bed room. All the family members are staying under the same roof. There is nothing on record to point out either the respondent or the children have neglected and/or refused to maintain the appellant. It appears that there are some disputes amongst the family members on account of the appellant conducting the music classes in the house itself but all such instances are normal joint family life wear and tear. Nothing stops the appellant to shift her music classes to some other premises or conduct such classes from any of the student’s premises. If the family members :8: do not like the music classes being conducted from the family house, that by itself does not entitle the appellant to ask for a separate flat by dividing the existing flat into two. 10. We are, therefore, not impressed by the claim for enhancement of maintenance granted by the Family Court and we are satisfied that the appellant has not been neglected by either her husband or the two children. She has her own source of income which is sufficient to meet her needs. We have noted down the undertaking of the respondent as well as the son that they would pay the amount of Rs.7000/- per month to the appellant as granted by the family court and also take care of all the other expenses like medical treatment/hospitalisation, as was being done in the past. 11. Hence, this appeal must fail at the threshold and the same is hereby dismissed. 12. Civil Application No. 296 of 2008 does not survive and disposed as such. :9: (D.G. Karnik,J.) (D.G. Karnik,J.) (D.G. Karnik,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)