(1) SA. 382.2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 382 OF 2006 1] Mandakini w/o Machindra Galande Age: 40 years, Occu.: Service, R/o Karjule Hariya, Tq. Parner, Dist. Ahmednagar 2] Miss. Pritam d/o Machindra Galande, Age: 17 years, Occu.: Student, R/o Karjule Hariya, Tq. Parner, Dist. Ahmednagar 3] Miss Priyanka d/o Machindra Galande Age: 14 years, Occu.: Education, R/o Karjule Hariya, Tq. Parner, Dist. Ahmednagar, Appellants no.2 and 3 minors through their legal guardian Mandakini w/o Machindra Galande .. Appellants VERSUS 1] Machindra s/o Balaji Galande Age: 47 years, Occu.: Service R/o Kala Chowki, Abhuday Nagar, Housing Board, Building no.42, Room no. 3215, Fourth Storey, Mumbai-33 2] Sadashiv S/o Balaji Galande, Age : Major, Occu.: Agriculture, R/o Kalas, Tq. Parner, Dist. Ahmednagar 3] Rohidas S/o Balaji Galande, Age : Major, Occu.: Agriculture, R/o Kalas, Tq. Parner, Dist. Ahmednagar 4] Ramdas S/o Balaji Galande, Age : Major, Occu.: Agriculture, R/o Kalas, Tq. Parner, Dist. : Ahmednagar .. Respondents (2) SA. 382.2006 Mr. P.R. Katneshwarkar, Advocate h/f. Mr. N.R. Katneshwarkar, Advocate for the appellant Mr. V.D. Hon, Advocate h/f. Mr. D.G. Nagode, Advocate for the respondent no.1 [Second Appeal stands dismissed against respondent nos. 2 to 4 vide Court's order dated 4.1.2010] CORAM : A.V. NIRGUDE, J. DATED : 12TH MARCH, 2010 ORAL ORDER:- 1] After hearing the parties, I thought it fit to decide this Appeal at this stage. There appears a substantial question of law arising in this Appeal, which can be framed as under:- [i] Whether the finding of the learned Judge of the first appellate Court, that the appellant is not entitled to maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956, is perverse in the light of the evidence that has come on record? 2] The facts leading to the litigation are as follows:- . The appellants were the applicants in the lower Court when they made their application for maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter be referred to as "the Act" for brevity) against the present respondent and his brothers who together held certain joint family property. Along with their prayer of (3) SA. 382.2006 maintenance, they also sought charge on the joint family property of the respondent. The appellants could prove that the respondent had taken second wife and so the appellant no.1-his first wife- was entitled to live separately from her husband without forfeiting her claim for maintenance. The Courts below also recorded a finding that the appellant no.1 earns Rs.6500/- as salary, whereas the Courts below held that the salary of the respondent could be Rs.12,000/- per month. The trial Court, in the facts and circumstances of the case taking into account the provisions of section 23 of the Act, held that the appellant no.1 would be entitled to Rs.800/- per month as maintenance and the appellant nos. 2 and 3 are entitled to Rs.500/- each per month as maintenance excluding the amount of maintenance ordered by the Criminal Court in their favour. The respondents challenged the order and the appeal Court held that the appellant no.1 was not at all entitled to maintenance. This finding of the lower appellate Court is being challenged in this Appeal. The learned Judge of the first appeal Court was quite aware of the provisions of law namely, section 18 and section 23 of the Act. He had quoted these provisions in his judgment. But, the learned Judge of the first appeal Court taking into account the income of the appellant no.1 being Rs.6500/- per month, held that she was not entitled to maintenance (4) SA. 382.2006 under section 18 of the Act. He held that in view of her salary, it cannot be said that she was unable to maintain herself or that she needs more amount from her husband for her maintenance. In my view, this finding of the first appellate Court, is grossly perverse and has no support in the evidence before the Court. The learned Judge of the first appeal Court also erred in holding that if the respondent was getting Rs.12000/- per month as salary, there would be deduction of Rs.2000/- p. m. and he would get take home salary of Rs.10,000/- p. m.. This has no basis on record. This finding is perverse. What the learned Judge of the first appeal Court ignored is the fact that the appellant no.1 has to maintain not only herself but she is also liable to maintain her two daughters who reside with her. Having regard to the evidence on record, it is clear that major chunk of her own income would be spent on her daughters and in such situation, the amount that would remain with her from her salary would be insufficient for her needs. In the light of this, the learned Judge of the first appeal Court should have held that the order of the learned Judge of the first appeal Court could not be disturbed. Besides, the learned Judge of the first appeal Court did not consider that the contribution for maintaining the daughters coming from the respondent Rs.1000 per month per daughter, would be grossly inadequate in (5) SA. 382.2006 view of the evidence that has come on record in respect of cost of living of the parties. 3] Having regard to these two aspects, the order passed by the trial Court was just if not really ample. I am, therefore, inclined to allow the Appeal and reverse the finding of the first appeal Court to the extent it affected the appellant no.1. 4] The learned Advocate appearing for the respondent tried to convey to me that his client could not adduce sufficient evidence at the trial stage and that some changes have occurred in the circumstances of the parties. At one stage, even suggested that he would make an application for recording additional evidence in support of his case. But I am not inclined to protract this matter further in view of the fact that if at all there are changes in the circumstances, the respondent would be able to make an Application under section 25 of the Act to get the order set aside or varied. Section 25 of the Act certainly gives even the respondent a right to make an application for alteration in the amount of maintenance ordered under section 18 of the Act. 5] The Second Appeal is allowed. The impugned order of the first appeal Court is set aside. The order of the learned Judge of the trial Court is restored. (6) SA. 382.2006 . It is needless to add that the observations made here, would not come in way of both the parties if they meet again in the trial Court in future for contesting their applications under section 25 of the Act. Sd/- (A.V. NIRGUDE, J.) arp/ok