1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE SECOND APPEAL NO.220 OF 2009 Madan Manohar Kulkarni & Ors. .... Appellants Vs. Sou. Aishwarya Madan Kulkarni .... Respondent Shri U.R. Mankapure for the Appellants. Shri S.A. Rajashirke for the Respondent. CORAM: R.S. MOHITE, J. DATED: FEBRUARY 23, 2010 P.C: Heard both sides. Admit on the substantial question of law as to whether the Appellate Court, in an appeal by the husband, could have awarded maintenance for a period of three years prior to the date of filing of the suit. The learned Advocate for the respondent waives notice. By consent, heard forthwith. 2. The facts of the case are that appellant No.1 had married the respondent in the year 1993. A girl and a boy were born from 2 the marriage in the year 1994 and 1995, respectively. It is the case of the appellant- husband that his wife deserted him by leaving the two children behind in the year 1997. A civil suit for maintenance was filed by the respondent-wife in the Court of the Civil Judge, Senior Division, Islampur, on 21-6-2005. The trial Court decreed the suit filed by the wife and granted maintenance to her at the rate of Rs.1200/- per month, payable from one year prior to the date of filing of the suit. Being aggrieved by the said order, the respondent- wife filed an appeal for enhancement of the said amount. No appeal or cross objections were filed by the husband and the husband accepted the order passed by the Civil Judge, Senior Division, Islampur. The District Judge- I, Islampur, passed an order allowing the appeal with costs. He directed the appellant- husband to pay an alimony of Rs.3000/- per month from the date of filing of the suit. He further directed the husband to pay an amount of Rs.1,08,000/- as arrears of alimony for a period of three years before the date of the filing of the suit at the rate of Rs.3000/- per month. He lastly directed the husband to pay interest at the rate of 10% per annum on the said amount from the date of the order in the 3 appeal. Aggrieved by the order passed by the District Court, the appellant has preferred this second appeal. 3. On the aforesaid question, as framed, the record indicates that the wife left her matrimonial home to stay with her father in the year 1997. She filed the suit for maintenance after a period of eight years. The trial Court in its judgment indicated that the husband had issued a notice on 4-9-1997 to the wife stating therein that if she was not willing to cohabit with him and if she requires a divorce, it was open for her to divorce him as per law. The husband issued a second notice to the wife on 10-11-1998, once again requesting her to come for cohabitation. These notices were exhibited as Exhibits 36 and 38, respectively and the acknowledgement receipts were also exhibited as Exhibits 37 and 39, respectively. The record, therefore, indicates that from the year 1997 till the year 2005 the wife did not come back for cohabitation and also did not file any suit for maintenance. It is an admitted position that the two children from their marriage are being looked after by the husband. The respondent-wife has not given any explanation as to why she did not file a suit for 4 maintenance from the year 1997 till the year 2005. The trial Court has further observed that the wife is herself a graduate, having studied up to B.Com. and has also completed a computer course. The husband had suggested that she was giving tuitions and was getting an income. Be that as it may, in my view, in the absence of any explanation on the part of the wife as to why she did not approach the Court for maintenance from the year 1997 till the year 2001, the lower Courts ought not have granted maintenance for a period prior to the filing of the suit. The impugned judgment and decree of the Appellate Court is, therefore, confirmed, subject to the modification that the plaintiff-wife will not be entitled to arrears of maintenance for any period prior to the filing of the suit but will be entitled for maintenance at the rate of Rs.3000/- per month from the date she filed the suit in the Court of the Civil Judge, Senior Division, Islampur. The appeal stands partly allowed & decreed to the aforesaid effect with no order as to costs. It is made clear that all other amounts payable to the wife as per the decree of the Appellate Court stands confirmed. The Advocate appearing for the appellants states that the appellants will pay the arrears, if any, as per this order 5 within a period of four weeks from today. The present order not to be executed for a period of four weeks. R.S. MOHITE, J.