1 fca.8.03 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 8 OF 2003 Sau. Sandhya Mandar Gosawi, age 24 years, occupation household, residing at C/o Dinkar Vithal Salve, Block No.7, Range Hills, 18, Type-II, Kirkee, Pune 411 020. ... APPELLANT VERSUS Mandar Yeshwant Gosawi, age 29 years, occ. Rickshaw Driver, R/at 212, Dattawadi, Near Maruti Mandir, Pune 411 030. ... RESPONDENT -------- Mr. Pramod J.Pawar for the Appellant. Mr. Vilas A.Jadhav for the Respondent. -------- CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 26 th July, 2010. 2 fca.8.03 ORAL JUDGMENT : ( PER A.M.KHANWILKAR, J ) 1 Heard the learned counsel for the parties. 2 This appeal takes exception to the judgment and decree passed by the Family Court No.1, Pune dated 11 th July, 2002 in Petition No. A-575 of 2000, the same reads thus: “ O R D E R 1 Petition No.A.No.575/2000 is allowed. 2 The marriage solemnised on 7.12.1993 at Alandi between petitioner Shri Mandar Yeshwant Gosavi and respondent Sau. Sandhya Mandar Gosavi is hereby dissolved by a decree of divorce under Section 13 (1)(ia) and 13 (1-A) (i) of the Hindu Marriage Act from the date of this order. 3 Petition E. No.937/2000 is allowed. 4 The respondent Shri Mandar Yeshwant Gosavi is ordered to pay Rs.600/- per month to the divorced wife Sandhya and Rs.400/- per month to his daughter Saili who was given birth on 16.4.1995, for their monthly maintenance instead or earlier maintenance granted to them from the date of this order.” 3 fca.8.03 3 As is noticed from this order, the decree of divorce passed on two counts; firstly on the ground that the wife caused mental cruelty to the husband by her conduct and in particular lodging false criminal cases against him as well his mother, brother, brother’s wife, two sisters and their husbands. All the relatives were acquitted by the JMFC, who had tried the offence against the husband and his relatives under Section 498-A of the Indian Penal Code. The husband thereafter, carried the matter in appeal against the order of conviction, which has been eventually allowed on 02 nd July, 2002. In this backdrop, the husband insisted for decree of divorce on the ground that the act of the wife in lodging false criminal cases against him and his relatives was one of the cause for aggravated mental cruelty. Besides the ground of mental cruelty, the case of the husband was that the Appellant-wife left the matrimonial home without any sufficient cause on 15 th June, 1997 and was staying separately since then. Indeed, the husband has filed petition for restitution of conjugal rights, it was decreed 24 th April, 1999, but the parties did not cohabit thereafter. In other words, since 1997, the parties are staying separately and there is no possibility of coming together. As a result, the Family Court has awarded decree of divorce also under Section 13 (1A)(i) of the Hindu Marriage Act. Besides awarding the decree of divorce, the Family Court directed the Respondent-husband to pay maintenance to the wife at the rate of Rs.600/- per month and Rs. 400/- per month to his daughter Saili, who was born on 16 th April, 1995. 4 fca.8.03 4 Insofar as the decree of divorce on two grounds referred to earlier is concerned, is the subject matter of challenge in the present appeal. However, on analyzing oral evidence of the parties and the reasons recorded by the trial Court for granting decree of divorce, we have no hesitation in taking the view that the conclusion reached by the Family Court is unexceptionable. This is so because it is noticed from the record that there was discordant relationship between the parties for which reconciliation was attempted on 07 th June, 1997. Soon after the reconciliation attempt, according to the husband, the wife left the matrimonial home on 15 th June, 1997 and since then, she has been staying separately. While she removed herself from the matrimonial home, she lodged police complaint including for offence punishable under Section 498-A of the Indian Penal Code not only against the husband, but also against of his close relatives, namely aged mother, brother, brother’s wife, two sisters and their husbands. It is a different matter that the Criminal Court of first instance acquitted all the relatives of the husband and convicted the husband for alleged offence. However, lateron, on appeal, the order of conviction even against the husband has been set aside. The husband has also been acquitted. In other words, the complaint registered by the wife against the husband and his close relatives, has been negatived by the Criminal Court as founded on unsubstantiated allegations. In this backdrop, no fault can be found with the stand of the husband that he has no intention to resume cohabitation with the wife. There is sufficient and plausible explanation offered by the 5 fca.8.03 husband, which impelled him to seek decree of divorce against the wife. 5 Even with regard to the second ground on which the decree of divorce has been passed, we are in agreement with the opinion of the trial Court that the parties are staying separately since 15 th June, 1997 and there is no possibility of resuming cohabitation for, they are staying separately for more than one year and there is hardly any possibility of the parties coming together. The decree as passed on the ground available under Section 13 (1A)(i) of the Hindu Marriage Act, is also unexceptional. 6 Besides the two grounds recorded by the Family Court, it is noticed that after the impugned decree was passed on 11 th July, 2002, after waiting for the statutory period, the Respondent-husband entered into second marriage on 10 th March, 2003. That marriage was solemnized as per Hindu Vedic Rites, which fact is substantiated by the marriage certificate dated 04 th December, 2003. Even for this reason, no fruitful purpose would be served by interfering with the decree of divorce as passed by the Family Court. It has come on record that the husband is staying at Dattawadi, Pune with his second wife from 2003, who has given birth to one daughter and one son out of the said wedlock. Accordingly, we have no hesitation in dismissing the appeal against the decree of divorce, which is impugned before us. 6 fca.8.03 7 That takes us to the second aspect dealt with by the Family Court, regarding maintenance to be paid to the Appellant-wife and the daughter-Saili born out of the wedlock between the Appellant and the Respondent. The Family Court has noted that the husband was working as an Auto Rickshaw Driver. The Court has assumed that his income would around Rs.3000/- per month. On that basis, maintenance amount has been awarded to the Appellant-wife in a sum of Rs.600/- per month and to minor daughter-Saili at the rate of Rs.400/- per month. This maintenance amount has been determined in July, 2002. By passage of time, we have no doubt in our mind that the income of the Respondent- husband must have increased manifold. The Respondent is taking care of his second wife and two children born out of the said wedlock. In any case, we find that the maintenance amount payable to the minor daughter-Saili is only a sum of Rs.400/- per month, which is inadequate. That may not be sufficient even to pursue quality education in an established school. In the circumstances, we think it appropriate to enhance the maintenance amount payable atleast to the minor daughter- Saili. We are informed by the counsel appearing for the husband that the wife has already filed application before the Family Court at Pune for enhancement of maintenance amount. 8 In the circumstances, we would not express any opinion with regard to the claim of the Appellant-wife for enhancement of maintenance amount. We keep that question open to be decided by the Family Court. 7 fca.8.03 However, we would direct the Respondent-husband to pay enhanced maintenance amount to the minor daughter-Saili at the rate of Rs.1,200/- per month with effect from 1 st July, 2010. This arrangement, however, will be without prejudice to the rights and contentions of the minor daughter, who can claim for enhancing the maintenance amount, as is already pending before the Family Court, Pune. All questions in that behalf are kept open to be decided on its own merits. O R D E R a) Accordingly, this appeal partly succeeds. The judgment and decree passed by the Family Court dissolving the marriage between the Appellant and the Respondent solemnized on 7 th December, 1993 by a decree of divorce under Section 13 (1) (ia) and Section 13 (1A)(i) of the Hindu Marriage Act is confirmed and upheld. b) The order of maintenance is modified to the extent that the Respondent-husband shall with effect from 1 st July, 2010, pay maintenance amount to his daughter-Saili at the rate of Rs. 1,200/- per month and continue to pay Rs.600/- per month additionally to the wife towards her maintenance as ordered by the lower Court. This 8 fca.8.03 arrangement would be without prejudice to the rights and contentions of the parties including that of the wife and the daughter to ask for enhancement of maintenance amount and will not come in the way of the parties in the pending application before the Family Court for that purpose. c) No order as to costs. d) Decree be drawn up accordingly. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]