1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 4 OF 2005 Smt. Rutuja Rajesh Surve ] Age – 27 years, Occupation-service ] Residing at C/o.Mr.Manohar More,] Sidheshwar Nagar Sector, ] B-2/24, Air Port Road, ] Pune – 15. ] ...Petitioner Vs. Shri Rajesh Yashwant Surve ] Age – 28 years, Occupation-Service] Residing at Sainik Nagar ] Plot No.27, S.No.154/2, ] Yerawada, Pune – 6. ] ...Respondent Mr. Mandar Limaya and Mr. S.M. Kelkar for Petitioner Mr. Madhav Jamdar for Respondent CORAM: S.A. BOBDE & S.J. KATHAWALLA,JJ. 2 Date of Reserving ) the Judgment ) 16/11/2009. Date of Pronouncing ) the Judgment ) 24/11/2009. JUDGMENT(Per S.J.Kathawalla, J.):- The present appeal arises against the order of the Learned Judge of the Family Court No. 4, Pune (P. A. No. 609/2003) on a petition for divorce filed by the Appellant (wife) against the Respondent (husband). The brief facts are that the Appellant filed petition for divorce on the ground of mental and physical cruelty which was granted by the Learned Judge of the Family Court. The Appellant further claimed a sum of Rs. 63,000/-, which according to her was taken by him and his parents out of her salary when she was staying with them, and rather than being applied for the family needs was used by them to finance their vices. Additionally, the Appellant claimed custody of their minor child and also permanent alimony for herself and for her minor child. The Learned Judge in his judgment, delivered on 28.10.04, having heard arguments and 3 oral evidence for both sides, granted the divorce on the ground of physical and mental cruelty, u/s 13(1)(ia) of the Hindu Marriage Act, 1956, to the Appellant and also granted her custody of the minor child. The Learned Judge however saw no substance in the claims for Rs.63,000/- or permanent alimony for the Appellant herself, as she was a salaried person. However, he directed the Respondent to pay Rs.800/- p.m. to the Appellant for maintenance of the minor child, as both spouses are equally responsible for maintenance of the child. It is against these findings that the present appeal comes before us. 2. At the outset, the learned Advocate for the Appellant has informed the Court that he has instructions to restrict the Appeal only as regards the direction to the respondent to pay Rs.800/- per month to the Appellant for maintenance of the child. On behalf of the Appellant it is contended that an amount of Rs.800/- is insufficient to meet even 50% of the expenses of the child. 4 3. Section 26 of the Hindu Marriage Act, 1956 gives the Court the power to make such provisions for the custody, maintenance and education of the child as it may deem “just and proper.” The settled position of law on the matter is that the welfare of the child is the paramount consideration for the Court, though other matters such as income of both parents, needs of the child and the like may also be considered. 4. Applying this to the present matter, the minor child is about three years of age and both his parents are employed. While it is correct that both spouses are obliged to contribute towards maintenance of the child, this need not be an equal contribution, as held by the Learned Trial Judge. Rather, this is to be decided based on the facts. As the Respondent father is earning an income of Rs. 10000/- p.m., as against the income of Rs.3,500/- of the Appellant mother, he is obliged to provide a sum of maintenance proportionate to his earning and bearing in mind the needs of the child. In our view a sum of Rs. 800/- p.m. is insufficient to meet the expenses of a growing child, which aside from food, clothing and other necessities would also now include fees and costs of a primary education. We 5 therefore direct the respondent to pay an amount of Rs.1500/- per month to the Appellant instead of Rs.800/- per month for the maintenance of the minor child. The Respondent shall also pay the difference of Rs.700/- per month from 6th September, 2003 i.e. the date of P.A.No.609 of 2003 within 12 weeks from today. 5. The Appeal is hence allowed only to the extent of increasing the maintenance payable by the Respondent to the Appellant for the expenses of their minor child to Rs. 1500/- p.m. With respect to all other claims, the order of the Learned Judge of the Family Court shall be final. Order Accordingly. (S. A. BOBDE, J) (S. J. KATHAWALLA, J.)