1 26 fca.8.10 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 8 OF 2010 WITH CIVIL APPLICATION NO. 249 OF 2009 Narayan Kondiba Dhebe. ... Appellant Vs. Sou. Malati Narayan Dhebe. ... Respondent ----- Mr. N.C.Walimbe for the Appellant. Mr. S.A.Bhagwat for the Respondent. ----- CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 10 th August, 2010. P.C. 1 Heard the learned counsel for the parties. 2 This appeal takes exception to the judgment and decree passed by the Family Court, No.2, Pune dated 30 th April, 2009 directing the Appellant to pay maintenance amount of Rs.3000/- per month to the Respondent-wife from the date of filing of the petition. The first contention raised before us is that the Respondent-wife had already resorted to proceedings under the provisions of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act of 2005” for the sake of brevity). In the said proceedings, the Respondent- 2 26 fca.8.10 anr wife has been awarded maintenance amount of Rs.2000/- per month and that order enures in favour of the Respondent-wife even till now. For that reason, the remedy under Section 18 of the Hindu Maintenance and Adoption Act, 1956 (hereinafter referred to as “the Act of 1956” for the sake of brevity) was unavailable to the Respondent. The argument is completely misplaced. That argument is founded on sub-section 2 of Section 26 of the Act of 2005, the same reads thus: “26. ...... (2) Any relief referred to in sub-section (1) may be sought for in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court.” 3 In the present appeal, were are not concerned with the correctness of the order passed by the appropriate Forum in the proceedings under the provisions of the Act of 2005. We are simplicitor concerned with the correctness of the order passed on the petition under Section 18 of the Act of 1956. That remedy is independent remedy and can be pursued in addition to the relief available under the Act of 2005. Section 26 of the Act of 2005, which is pressed into service does not preclude the Respondent from pursuing her remedy under Section 18 of the Act of 1956. In the circumstances, that submission will have to be stated to be rejected. 4 The next argument is that the amount specified by the lower 3 26 fca.8.10 anr Court towards maintenance to be paid under Section 18 of the Act of 1956 in a sum of Rs.3000/- per month is excessive. Insofar as this argument is concerned, in our opinion, considering the finding of fact recorded in paragraph No.9 of the impugned judgment, no interference is warranted. We are in agreement agreement with the said finding of fact. The Court below has noted that the Appellant had admitted that the Respondent-wife had no source of income. That finding was assailed before us by relying on the evidence before the lower Court. Assuming that the said finding is incorrect, the learned counsel for the Appellant is not in a position to invite our attention to any material on record, which would even remotely suggest that the Respondent-wife had much less sufficient source of income to sustain herself. 5 The learned counsel for the Appellant merely placed reliance on assertion in the reply filed in the main petition as also his examination- in-chief. That is not enough, particularly when the Respondent-wife has not only stated on affidavit, but has withstood the cross-examination and restated the position that she had no source of income. The Respondent-wife cannot be expected to produce negative evidence to prove the fact that she has no source of income. Even for that reason, the conclusion reached by the Court below that the Respondent-wife has no source of income is unexceptionable. Insofar as the quantum of Rs. 3000/- determined by the lower Court to be paid to Respondent-wife towards monthly maintenance that is arrived at on the basis of the 4 26 fca.8.10 anr circumstances referred to in paragraph No.9 of the impugned judgment. The Appellant has retired from service. He is deriving pension. Besides, he has already received retiral benefits. The fact that he has invested the said amount in construction of the house and paid his old dues does not absolve him of his liability to maintain his wife during his lifetime and particularly when she has no source of income. The Appellant contends that his principal income is now derived from driving tempo, which is owned by his second wife. That tempo has been gifted to the second wife by her father. The Appellant contends that his income from the said employment is only upto Rs.100/- per day. It is not possible to accept this argument. The Appellant has not disclosed his real income. The Appellant has admitted that he owns properties alongwith his mother, which has been rented out by them. It has come on record that he admittedly owns 43 gunthas of land. Taking overall view of the matter, therefore, the amount determined by the lower Court towards monthly maintenance of additional sum of Rs.3000/-, besides the amount of Rs. 2000/- per month payable by the Appellant to the Respondent-wife, in our opinion, cannot be said to be excessive or unreasonable. We find no merits in this appeal, the same is dismissed. 6 In view of the dismissal of the appeal, civil application does not survive and the same is also dismissed. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]