1 fca22.06 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 22 OF 2006 WITH CIVIL APPLICATION (ST.)NO.18788 OF 2010 IN FAMILY COURT APPEAL NO. 22 OF 2006 1. Mrs. Mansi Milind Behere Age about 25 years, Occ: Nil, Residing at : Shri Prakash P. Kand, 142 Shukrawar Peth, Pune 411 002. 2. Kumari Aishwarya Milind Behere, minor, through the Natural Guardian, Mrs. Mansi Milind Behere,. ....Appellants. Occ: Nil, Residing at : Shri Prakash P. Kand, 142 Shukrawar Peth, Pune 411 002. Vs. Shri Milind Pandurang Behere. Age about 31 years, Occ : Nil, Residing at : 1440 Shukrawar Peth, Pune 411 002. Presently residing at Kurdhe Morvi, Tal: Ratnagiri, District Ratnagiri. ....Respondent. Mr. Jaydeep S. Deo for appellants. None for the Respondent. 2 fca22.06 CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- AUGUST 9, 2010 JUDGMENT(Per A.M.Khanwilkar,J) 1. Heard Counsel for the Appellants. None appears for the Respondent. 2. This Appeal by the wife takes exception to the Judgment and Decree passed by the Principal Judge, Family Court No.5, Pune dated 28th April, 2005 in Petition C.No.65/2003 and Petition E.No.397/2003. Gist of the said order reads thus: “ORDER 1. The respondent is hereby directed to pay Rs.1,500/- per month to Petitioner No.1 and Rs.1,000/- p.m. to the Petitioner No.2, from the date of this Petition u/s 18 and 20 of the Hindu Adoption & Maintenance Act and under Section 125 of the Code of Cri. Procedure. 2. In case of default in payment of maintenance by Respondent the petitioner-wife can recover the said amount either by filing Darkhast or by filing recovery Petition u/s 125 (3) of the Code of Cri. Procedure and not by adopting both modes of execution simultaneously. 3 fca22.06 3. The amount received by the Petitioner from the respondent under the order of interim alimony shall be adjusted with the amount of arrears as per this order. 4. Decree be drawn accordingly in PC No.65/2003. 5. Copy of this judgment be kept in PE No.397/2003.” The above composite order has been passed while disposing of the Petitions filed by the appellant wife for maintenance under section 18(2)(b) of the Hindu Adoption & Maintenance Act and section 125 of Criminal Procedure Code. The above order was challenged also by the Respondent-husband by separate appeal being FCA No.99 of 2005, which we have dismissed today for non-prosecution. In so far as the Appellant-wife is concerned, she is praying for enhancement of the maintenance amount provided in the order impugned in this Appeal. During the pendency of this Appeal, the High Court accepted the Appellants’ request for enhancing the maintenance amount, which has been quantified at aggregate amount of Rs.10,000/- for both the appellants. 2. In the present Appeal, our attention is invited to paragraph-7 of the Petition filed by the Appellants for maintenance under section 18 of the Act of 1956. The same reads thus: 4 fca22.06 “7. That the Applicant states and submits that she is having no source of income of whatsoever nature for their maintenance. Therefore, she is unable to maintain herself and her minor daughter i.e. the Applicant No.2. So also, the financial position of her parents is not good. Therefore, herself and her minor daughter are residing at the mercy of her parents. Thus, the Applicant is unable to maintain herself and her minor daughter. On the contrary, the Opponent is having 75 acres mango orchards at Village Kurdhe (Moravi), Taluka and District Ratnagiri, out of which the Opponents and his parents are getting nearly Rs.3,00,00,000/- per year. So also, the Opponent is having mango nursery from which he gets net income of Rs.1,00,000/- per year. Not only that but the Opponent is a wholesaler of mangoes having big business at Pune, in the name and style as ‘Ragna Mango House’ and ‘Behere Bandhu Aambewale’. That two shops totally admeasuring at 500 sq.ft. bearing City Survey Nos. 1440/G/2, Shukrawar Peth, Pune – 411 002 are owned and possessed by the Opponent himself and Shop No.1440/S/G/1, admeasuring 630 sq.ft. is owned and possessed by the father of the Opponent, wherein the Opponent is also selling various types of food and food products on retain as well as wholesale basis, out of which the Opponent is having net income of Rs.8,00,000/- per year. In addition to the same, in Ganpati season, the Opponent sells Mava and Kaju Modaks and thereby getting net income of Rs.1,00,000/- per year. Thus, excluding the expenses, the Opponent is having net yearly income of Rs.2,00,00,000/- per year out of mango orchards and various business, as clarified hereinabove. So also, the Opponent is having two luxurious bungalows at Village Kurdhe(Moravi), Taluka and District Ratnagiri and total five residential floats at Shukrawar Peth, Pune, out of which, three flats are situated in Kaustubh Apartment, bearing No. 101, 102 and 103, Shukrawar Peth, Pune and two flats at 1440 Shukrawar Peth, Pune – 411 002, each having an area of 850 sq.ft. each approximately. Not only that, but the Opponent also owns and possesses a Maruti Van and a Truck (Model 407) for his use and occupation. However, there is no other dependency on the Opponents except the Applicants.” 5 fca22.06 In reply to the said Petition, the Respondent husband filed reply stating as follows: “H. The contents of para-7 of the application are not true and correct and are denied by the Opponent. It is not true to state that the Applicant No.1 has no source of income and is unable to maintain herself and the minor daughter. It is also not true to state that the financial position of the Applicant No.1’s parents is not good. It is also not true that the Opponent is having 75 acres of mango orchard at Village Kurdhe, Tal. Moravi, Dist. Ratnagiri. It is further denied that the Opponent and his parents have an income of Rs. Three crores per year. It is further denied that the Opponent No.1 carries on a business of mango nursery from which he derives an income of Rs. One lakh per year. It is not true to state that the Opponent is a wholesaler of mangoes having a big business at Pune viz. Ratna Mango House and Behere Bandu Ambewale and that both the shops are owned and possessed by the Opponent himself. It is also not true to state that the Opponent is selling various types of food and food products on retail and wholesale basis; out of which the Opponent is having net income of Rs. Eight lacs per year. It is also not true that in Ganapati season, the Opponent sells Mawa and Kaju Modaks and earns net income of Rs. One lac per year. It is not true that the Opponent is thus having a net income of Rs. Two cores per year. It is also not true to state that the Opponent is having two luxurious bungalows in Village Kurdhe and total five residential flats at Shukrawar Peth, Pune. It is also not true that the Opponent also owns a Maruti Van, a truck for his use and business. It is also not true that there is no other dependency on the Opponent except the Applicants.” 6 fca22.06 3. It is seen that the reply is only of denial of the assertions made by the Appellants. When the matter went for trial, the Appellant reiterated her case. The Respondent in his examination-in-chief admitted that atleast 23 acres of land belongs to the Joint Hindu undivided family and he is one of the coparcener. In so far as other properties referred to in the Petition, he has merely denied having any connection therewith inspite of the fact of having admitted that godown was standing in his name. The fact remains that the joint Hindu undivided family of which the Respondent was coparcener has substantial properties. The Appellant had produced 7/12 extract before the lower Court to establish the fact that the Family property consisting of mango grove was around 75 acres of which 22 ares was used for cultivation of mango. The fact that the family owns property has been accepted by the lower Court. The lower Court has also accepted that joint family business was conducted through two firms by the name “Ratna Mango House” and “Behere Bandhu Ambewala”. The lower Court has rejected the plea of the appellant that income from all sources would be around Rs.2 Crores per year. At the same time, it is noticed that holding of other 22 acres of mango grove would generate substantial income. We are conscious of the fact that the Respondent is one of the coparcener and would have only part of share in the said income. It has come on record that joint family also owns tempos and other vehicles. Considering 7 fca22.06 the life style of the Respondent family, it would necessarily follow that the income of the Respondent was substantial. The Respondent only in cross- examination produced his income tax return. However, when it came to the question as to whether his father has filed income tax return as HUF. He has denied knowledge thereof. That information is within the personal knowledge of the Respondent. It was possible for the Respondent being one of the coparcener of the Hindu undivided family and having share in the business and income of the family, to have filed income tax returns in the name of HUF to repel the claim of the Appellant that the income of the HUF was quite substantial and almost around two crores per annum. The Respondent failed to do so. In such a situation, adverse inference can be drawn against the Respondent. We would therefore safely assume that the Respondent has substantive income and considering holdings of the Joint family was capable of paying monthly maintenance amount to the wife and the minor daughter as prayed. In the application under section 18, the wife claims monthly maintenance up to Rs.10,000/- and for daughter further sum of Rs.10,000/- per month. Taking over all view of the matter, coupled with the fact that the Appellant No.2 is school going and must be around 9 years by now, and also considering heavy expenditure for education and maintenance we allow this Appeal by granting the amount as demanded by the Appellant. We are 8 fca22.06 conscious of the fact that the Appellants have filed application in the pending appeal praying for grant of further maintenance amount aggregating to Rs. One Lakh per month. However, we will not enter upon the said controversy and leave the option open to the appellants to move the lower Court for such relief, if so advised. 4. Accordingly, we allow the appeal by enhancing the monthly maintenance payable to the Appellant No.1 in the sum of Rs.10,000/- per month and to Appellant No.2 in the sum of Rs.10,000/- i.e. aggregate amount of Rs.20,000/-. However, that liability would commence from the date of the order and not retrospective. In so far as the liability to pay maintenance amount as determined by this Court during the pendency of the appeal is quantified at Rs.10,000/- per month, which will endure till the date of the order. 5. Our attention is invited to the pendency of the Civil Application (St.) No. 18788 of 2010 for striking out defence of the Respondent. In view of dismissal of the Appeal(FCA No.99 of 2005) filed by the Respondent husband, no further order is required in the said application. Even the said application would stand disposed of. 9 fca22.06 6. The Respondent shall pay costs of this proceedings to the Appellants in the sum of Rs. 10,000/-. 7. We make it clear that the amount provided by us towards monthly maintenance will be inclusive of all the expenses to be incurred by the appellants towards educational fees of the appellant No.2. (A.A.SAYED, J) (A.M.KHANWILKAR, J)