1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 123 OF 2010 Sudamati w/o Dnyandeo Mote age 44 years, occupation : household, r/o Dev Pimpri, Taluka Georai, Dist. Beed. .. Appellant versus Dnyandeo s/o Bajirao Mote age 52 years, occup.Agril. r/of Bori, Pimpalgaon, Tq. Gevrai, District Beed. .. Respondent -------------------------------------------------- Smt. Netrali Jain, Advocate for the appellant. Shri A.B. Karande, Advocate for the Respondent. -------------------------------------------------- Coram : P.R. Borkar, J. Date : March 31, 2010 ORAL JUDGMENT 01. This second appeal is filed by original plaintiff-wife being aggrieved by the judgment of the learned District Judge-II, Beed in Regular Civil Appeal No.73 of 2006 decided on 4.11.2009 whereby he modified the decree passed by the learned Civil Judge, Junior Division, Georai in R.C.S. No. 162 of 2003 decided on 4.3.2006. The trial court awarded maintenance at Rs.1000/= per month to the present 2 appellant with effect from 21.6.2003 i.e. from the date of the suit and kept charge thereof on property of the Respondent-defendant. The First Appellate Court reduced the amount of maintenance from Rs. 1,000/= to Rs.700/= per month and confirmed the remaining part of the decree of the trial court. 02. Now, it is no more disputed that the appellant Sudamati is wife of Respondent Dnyandeo, but both could not adjust with each other and, therefore, are residing separately. Initially, the appellant-wife had filed application under Section 125 of the Code of Criminal Procedure 1973 for maintenance and an amount Rs.300/= per month was awarded as maintenance. Subsequently, appellant filed R.C.S. No.162 of 2003 for maintenance under Section 18 of the Hindu Adoption and Maintenance Act claiming that maintenance granted earlier in the application under Section 125 of Cr.P.C. was inadequate. 03. It is the case of the appellant that Respondent-husband has two lands. In Block No.172 he has share to the extent of 1 hector 22 Are portion and in Gat No.137 he owns 68 Are land. Both lands are situated at village Bori Pimpalgaon. Those are the 3 irrigated lands and of good quality. According to the appellant-wife, respondent-husband is getting good income from the said lands and, therefore, she claimed monthly maintenance at Rs.1500/=. 04. Present respondent-husband filed written statement at Exh.18 and denied the income from land as claimed by the appellant. According to him, he sold part of the land for the purpose of marriage of his daughter. He has second wife and a son to maintain. The son is suffering from heart disease and requires regular expenses towards medical treatment and even mother of the Respondent was seriously ill. There was no income from the land as claimed by appellant- wife since they are jirayat lands. On the other hand, appellant has landed property received from her father and she is able to maintain herself. According to the Respondent he is doing labour work and earning Rs.40/= per day. 05. The trial court has discussed the quantum of maintenance in paragraphs 16 onwards of its judgment. In this case, since the dispute is mainly regarding quantum of maintenance, the matter is taken up for final disposal at this stage. The question is whether 4 the maintenance awarded by the first appellate court is grossly inadequate amounting to failure of justice. 06. The trial court in paragraph 17 of its judgment has observed that as per V.F. 7x12 extracts produced on record, the respondent-defendant was in occupation of portion of 1 hector 22 gunthas out of land gat No.172 and 68 R. portion out of Gat No.137. Crops like toor, cotton, bajara were taken in the said lands in the year 2002-03. Thus, total holding of the Respondent-husband as per V.F. 7x12 extracts is 1 hector 90 Are. The trial court accepted the case of the Respondent that he performed marriage of his daughter by selling 1 acre of land. The appellate court did not differ from the said conclusion. However, the trial court, even though medical evidence, such as cardiogram, echocardiograph doppler report, was on record, did not believe that the son of the Respondent was suffering from heart disease. The trial court observed that there was no medical certificate. However, even though there is no medical certificate or bill regarding expenses made on the treatment to the son, there ought to have been investigation with regard to the health of the son of the respondent. In any case, it is not disputed that 5 Respondent-husband has responsibility of maintaining second wife and also son. It is not the case of the appellant that the son of the respondent is able to maintain himself. 07. In paragraph 19 of its judgment, the trial court has observed that though the respondent-husband has denied existence of wells in his lands, the report of the commissioner which is at Exh.28 clearly indicates that there were three wells on the bund of Gat No.137 and on one of the wells, there was electric pump set installed and, therefore, it can be inferred that at least Gat No.137 was irrigated land. It was, however, found that in Gat No.172 there was no well. It has also come in the evidence of Respondent that he had grown crops, such as, cotton and wheat when his deposition was recorded. Considering these circumstances, the trial court felt Rs.1000/= per month to be proper amount for maintenance. 08. On the other hand, the first appellate court in paragraph 12 onwards of its judgment discussed the entire evidence regarding property, income and responsibilities of the Respondent. The court has held that in the year 2004, the present respondent 6 sold some land for Rs.70,000/= and V.F.7x12 extracts for the year 2002-03 do not disclose the said fact. The court considered the fact that there were about four acres land in two Gat numbers. In paragraph 22 of the judgment, the first appellate court came to the conclusion that the annual income of the respondent from the land can be said to be Rs.15,000/= and, therefore, it awarded 50 percent of the said amount as maintenance to the present appellant-wife. So, the court calculated additional amount to be paid as maintenance at Rs.700/= per month. I may quote relevant observations from paragraph 23 of the judgment: "23. ............................................. So in all monthly maintenance of respondent (wife) if considered Rs.1,000/= inclusive of maintenance payable under Section 125 of Cr.P Code, the matter may time being ends for justice. Hence, I ascertained monthly maintenance Rs.700/= payable by appellant (husband) to respondent within a scope of section 18 of the Act." 09. It is, herefore, abundantly clear that the first appellate court came to the conclusion that Rs. 1000/= per month should be paid as maintenance to the present appellant-wife and the same would be sufficient and reasonable. At the same time, it took into consideration that the amount of Rs.300/= p.m. was awarded in earlier maintenance proceedings under 7 Section 125 of Code of Criminal Procedure. Ultimately, both the courts came to the conclusion that the respondent- husband should pay Rs.1000/= per month to the appellant- wife towards her maintenance and that would be sufficient for her considering the income and liabilities of the respondent-husband. The respondents has not filed appeal or cross objection challenging the decision of the first appellate court. 10. After giving anxious consideration to the arguments advanced before me, I am of the opinion that the conclusion drawn by the first appellate court is reasonable and proper and it cannot be said to be unreasonable. What is awarded is reasonable, having regard to the circumstances of the case. 11. In the result, second appeal fails and is dismissed. pnd/sa123.10 (P.R.BORKAR, J.)