1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO 23 OF 2009 WITH CIVIL APPLICATION NO. 4 OF 2007 WITH CIVIL APPLICATION NO. 339 OF 2007 Premsingh Chatarsingh Khalsa .. Appellant V/s Amrit Kaur Premsingh Khalsa .. Respondent Mr. P.B. Kakade, for the Appellant Ms. Indu Verma for the Respondent CORAM : B.H. MARLAPALLE & RAVI K. DESHPANDE, JJ. DATE : 03.04.2009 P.C.: 1. We have heard Mr. Kakade, learned advocate for the Appellant - husband. 2. By our order dated 24.02.2009, we have put the Appellant on notice that the Appeal would be decided at the admission Rma FCA2804506030409.sxw 2 stage itself and private paper book copies have been circulated. 3. This is an Appeal under Section 19 of the Family Courts Act, 1984 against the Judgment and Order dated 20.09.2006 whereby the Family Court has directed the Appellant – husband to pay Rs. 3000/- per month as maintenance allowance to the Respondent - wife w.e.f 20.09.2006, filed belatedly and Civil Application No. 3 of 2007 for condonation of delay was allowed by us on 27.01.2009. The Petition No. C-158 of 2001 was filed by the Respondent - wife under Section 18 of the Hindu Adoption and Maintenance Act 1956 ( the “Maintenance Act” in short) and she had claimed an amount of Rs. 6000/ per month by way of monthly maintenance. The Petition has been partly allowed by fixing the maintenance of Rs. 3000/ per month. 4. The parties were married on 27.05.1995 at Mumbai as per Hindu Vedic Rites and Sikh Marriage Custom at Mumbai. As per the wife, after she co-habitated with the Appellant at her matrimonial home at Mumbai, on or about 1st October 1995, she Rma FCA2804506030409.sxw 3 was taken to Jhunagadh where the Respondent's uncle was staying and she was confined in his house. The husband returned to Mumbai from Jhunagadh and sometime on 08th February, 1996 from Jhunagadh itself, she was sent to her father's house at Ahmedabad. Be that as it may, the husband has filed Petition No. A - 1377 of 1996 for divorce and in the said Petition, the wife filed an application for interim maintenance in which the learned Judge of the Family Court was pleased to grant interim maintenance at the rate of Rs. 3000/ per month. The wife had also filed an application under Section 125 of Cr.P.C before the Court of Metropolitan Magistrate at Ahmedabad and by way of settlement between the parties and as per the order passed on 05.09.1998 by the said Court, the husband agreed to give maintenance at the rate of Rs. 500/- per month. The Petition filed by the husband registered as Petition No. 1377 of 1996 seeking divorce came to be dismissed for non prosecution on 14.01.2000 and before this dismissal of petition, the husband also faced execution proceeding as he had failed to pay the interim maintenance amount. Rma FCA2804506030409.sxw 4 5. The wife presented HMP No. 111 of 1997 under Section 9 of the Hindu Marriage Act 1955 for restitution of conjugal rights and petition was returned on 26.07.1999 by the District Court at Ahmedabad on the ground of lack of territorial jurisdiction. On or about 21.02.2001, the wife filed Maintenance Application No. C- 158 of 2001 under Section 18 of the Maintenance Act. The Appellant / husband filed his written statement and opposed the same. The wife examined herself as P.W.1 and her brother as P.W.2 whereas in support of his contest to the application for Maintenance, the present Appellant examined himself as D.W.1 and his brother-in-law Shri. Govind Singh as D.W.2. 6. Section 18 of the Maintenance Act deals with the maintenance of wife. As per Sub-Section (1), a Hindu wife shall be entitled to be maintained by her husband during her life time and as per Sub-Section (2) of the said Act, she shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion, that is to say, of Rma FCA2804506030409.sxw 5 abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her or he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; maintenance is required to be paid by the husband to his wife otherwise he would have to satisfy the Court that there is no other cause justifying her living separately from her husband. Mr. Kakade, the learned counsel for the Appellant relied upon the decision of this Court in case of Smt. Suman Ramchandra Vs Ramchandra 1989(2) Bom.C.H. 122 and Rakesh Sharma Vs Surbhi Sharma AIR 2002 RAJASTHAN 138. Both these judgments do not deal with the application under Section 18 of the Maintenance Act. 7. In the instant case, after perusal of the pleadings between the parties, the Family Court framed following two main issues and answered them in favour of the wife : Rma FCA2804506030409.sxw 6 (1) Does Petitioner justify her living separately from the Respondent without forfeiting her claim of maintenance? (2) (a) Is Petitioner entitled to maintenance? (b) If yes, at what rate? 8. In her depositions before the Family Court, the wife elaborately set out the acts of torture, physical assault and harassment right from the day of Janmashtami in 1995 till she reached her father's house in early February 1996. The Family Court recorded the allegations made by the wife regarding demand of dowry, car, television, fridge and air-conditioner etc. The wife was subjected to the cross examination before the Family Court on her affidavit in examination in chief on these allegations of torture, assault and harassment. She was given suggestion that the said statements were wrong or false which she denied. We, therefore, do not find any error in the findings recorded by the Family Court that the wife was justified in staying away from the Appellant and without forfeiting her right for maintenance. Rma FCA2804506030409.sxw 7 9. On the issue of fixing the maintenance amount, it is pertinent to note the salary certificates of the Petitioner were on record. In addition, Shri. Mahadev Chavan, an officer of the Rashtriya Chemicals and Fertilizers Limited where the Appellant - husband is employed was also examined. The salary slips for the month of November 2005 to January 206 indicated that the take home salary of the Appellant was varying between Rs. 14000/ to Rs. 15000/. The Family Court also noted that while fixing the interim maintenance, Petition No. 1377 of 1996 filed by the husband produced at Ex. 25 was considered and the interim maintenance was fixed of Rs. 3000/ per month. It has also come in evidence that the Appellant's parents are not dependent on him and in fact, he is staying with his father in a fully furnished flat owned by the father who retired from R.C.F as Execution Engineer. The Petitioner holds qualification of B.Sc., M. Sc and Ph. D. Having regards to the take home salary, in fact, the Family Court would have been justified in granting Rs. 6000/- per month claimed by the wife, however, the wife has not challenged Rma FCA2804506030409.sxw 8 the order passed by the family Court and we think it appropriate that in the facts of this case, the impugned order fixing the maintenance of Rs. 3,000/- per month does not call for any interference. 10. Hence, this Appeal fails and same is hereby dismissed. 11. In view of the disposal of Appeal, the Civil Application Nos. 4 of 2007 and 339 of 2007 do not survive. Same are disposed off accordingly. (RAVI K. DESHPANDE, J) (B.H. MARLAPALLE, J) Rma FCA2804506030409.sxw