1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.827 OF 2009 Vijay s/o Anantrao Wankhede, age 27 years, occup.Agril. & business, r/of Ratan Nagar, Malegaon Road, Nanded,Taluka Appellant/ori. and district Nanded. Defendant Versus 1. Parvati w/o Vijay Wankhede, age 25 years, occup. house- hold, R/of Ratan Nagar, Malegaon Road, Nanded, now r/of Regaon, Taluka Purna, District Parbhani. 2. Ku. Kiran d/o Vijay Wankhede, age 3 years (minor), occup. nil, under guardianship of Respondents/ respondent No.1 Parvati w/o orig.plaintiffs Vijay Wankhede. ------------------------------------------------------ Shri S. S. Jadhvar, Advocate, for the appellant. Shri M. V. Ghatge, Advocate for the Respondents. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : June 07, 2010 ORAL JUDGMENT 01. This second appeal is preferred by original defendant-husband who is directed by learned Civil Judge, Junior Division, Purna, District Parbhani by judgment and order dated 23.6.2008 passed in R.C.S. No.66 of 2007, to pay maintenance at the rate of Rs. 2 1,000/= per month to his wife-Respondent No.1 and Rs. 500/= per month to his daughter-Respondent No.2 under the provisions of Hindu Adoption and Maintenance Act 1956 from 18.6.2007. The said judgment is further confirmed by learned District Judge-II, Parbhani in Regular Civil Appeal No.74 of 2008 decided on 5.9.2009. 02. Heard Shri S.S.Jadhvar, and Shri M.V. Ghatge, learned counsel for the respective parties. 03. It is no more disputed that the marriage of appellant and Respondent No.1 was solemnized on 13.5.2001. However, they could not live together happily in spite of birth of Respondent No.2 out of the said wedlock. Therefore, both of them filed Hindu Marriage Petition No.134 of 2006 under Section 13-B of the Hindu Marriage Act in the court of Civil Judge, Senior Division, Nanded. However,in the said petition, on 31.1.2007, present Respondent No.1-wife raised an objection by application Exhibit 9, contending that her thumb impression was obtained on the said petition by threatening and by practicing fraud upon her. In the circumstances, said Hindu Marriage Petition was dismissed by order dated 16.3.2007. 3 04. Thereafter, both the Respondents filed R.C.S. No.66 of 2007 for maintenance and, as stated earlier, said suit was decreed. Appeal filed by present appellant in the District Court against the said decree was dismissed and hence this second appeal. 05. The main point canvassed as substantial question of law before this court for admitting this second appeal is that both the courts below have not considered the payment of Rs.50,000/= as amount towards full and final settlement of maintenance of both the respondents which fact was admitted by Respondent-wife not only in Hindu Marriage Petition No.134 of 2006, but also in her affidavit in the said petition which was filed by consent by present appellant and respondent No.1. 06. Shri Jadhvar, learned counsel for the appellant-husband has taken me through the record. At Exhibit 30 in R.C.S. No.66 of 2007, there is a copy of Hindu Marriage Petition No.134 of 2006. In paragraph 5 of the said petition, it is mentioned that as per compromise, present Respondent No.1 Parvatibai had 4 received Rs.50,000/= from appellant-Vijay and thereby she had given up her right of maintenance. Copy of the affidavit is at Exhibit 39. 07. In the second appeal, along with civil application No.12221 of 2009, a copy of Hakka Sodpatra (letter of waiver of right) is produced. However, after verifying the original record, it does not appear that the said document was produced either before the trial court or before the first appellate court. 08. Pleading regarding payment of Rs.50,000/= as permanent alimony to Respondent No.1 is dealt with in all details by the first appellate court in paragraph 11 onwards of its judgment. Though the certified copies of Hindu Marriage Petition No.134 of 2006 is produced on record at Exhibits 30 and 50 and copy of affidavit filed therein is produced at Exhibit 39, with none of these documents Respondent No.1-wife was confronted during her cross examination. No explanation was sought from her. It may be noted that so far as certified copy of Hindu Marriage Petition No.134 of 2006 is concerned, it is no more disputed that the said petition was dismissed by the court on 5 the ground that by affidavit/application at Exhibit 9 filed by present Respondent No.1-wife, she had raised objection to the said petition, by contending that her thumb impression was obtained thereon under threats and by practicing fraud on her. 09. So far as payment of Rs.50,000/= to Respondent No.1 Parvatibai is concerned, the courts below have observed that no witness is examined to prove the said payment, though it was specifically stated by present appellant that the payment was made in presence of witnesses. Therefore, there is only interested word of the appellant regarding so-called payment of Rs.50,000/=. 10. On behalf of Respondents, it is argued by learned counsel Shri Ghatge that in paragraph 5 of the written statement, it is stated that the appellant is a poor person and does not have property as mentioned in the plaint and the income as shown is exaggerated. The land which is 2-1/2 acres is dry land and is self acquired property of father of the appellant. Even in paragraph 8 of the written statement, appellant has repeated the pleading. In such circumstances, it was necessary for the appellant to show from what sources 6 he had raised amount of Rs.50,000/= and there is no evidence regarding the same. 11. Having given anxious consideration to the submissions made by both sides, so also after going through judgments of the trial court and the first appellate court, in my opinion, there is no perversity or illegality in appreciation of evidence. There is concurrent finding of fact regarding non payment of Rs.50,000/= to Respondent-wife towards permanent maintenance. There is no other substantial question of law raised in this matter. 12. In the circumstances, this second appeal deserves to be and is accordingly dismissed. pnd/sa287.09 (P.R.BORKAR, J.) 7