IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.45 OF 2011 IN PETITION NO.C-09 OF 2003 WITH CIVIL APPLICATION NO.79 OF 2011 KJ Sainath Dattaram Jadhav ) Indian inhabitant, Age-53 years, ) Occ.: Frelance Artist, residing at 31/Guruprasad ) Kalanagar, Bandra (East), Mumbai-400 051 )..Appellant Vs. Shraddha Sainath Jadhav ) Indian inhabitant, Age-50 years, ) Occ.: Housewife, residing at C/o. Satish S.Utekar ) Flat No.34, Mistry Palace, Chuna Bhatti, Sion ) Mumbai-400 022 )Respondent ---- Mr.Uday Bobde a/w Jitendra Ramugade for the appellant. Ms.Kokila Kalra a/w Vaishnavi Balsekar for the respondent. ---- CORAM : A.M.KHANWILKAR & MRS.MRIDULA BHATKAR,JJ DATE : 08/06/2011 JUDGMENT : ( Per : Mrs.Mridula Bhatkar,J) 1 Heard Counsel for the parties. 2 Rule. Rule made returnable forthwith, by consent. Ms. Kalra waives notice for the respondent. 3 As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4 This appeal is filed against a judgment and decree dated 18.2.2011 passed by the learned trial Judge Family Court, Bandra, Mumbai, directing the appellant-husband to pay Rs.10,000/- per month each for respondent-wife and son Devesh towards the maintenance from the date of filing of the original petition i.e from 12.3.2003. 5 The appellant and the respondent got married at Bandra on 21.2.1987. On 10.11.1987 respondent gave birth to child namely Devesh. On 18.11.1987, according to the appellant, respondent left the petitioner and since then she has never returned back. In the year 1995, appellant filed Marriage Petition No.A-512/1995 for divorce on the ground of cruelty and desertion. In the year 1998, appellant in the said petition disputed the paternity of the child. The said petition was dismissed on 23.5.2000 on merits. The appellant filed appeal. However, the said appeal was dismissed on merits by the High Court. During the pendency of the petition, the Court had directed the appellant to give Rs.700/- to wife and Rs. 400/- to minor child towards the maintenance. In the year 2000, respondent filed maintenance application bearing No.E-764/2000 under Section 125 of Cr.P.C, in which Court directed to pay Rs. 1000/- to the wife as well as Rs.1000/- to the son towards the maintenance. 6 On 12.3.2003, respondent-wife filed Petition No.C-69-2003 under Section 18 of Hindu Adoptions & Maintenance Act of 1956, in which she claimed maintenance of Rs.6000/- for herself and Rs. 5000/- for her son. Family Court at Bandra, while deciding the said petition, on 18.2.2011 granted Rs.10,000/- each to the respondent and the son with effect from the date of filing of the petition. 7 Learned Counsel for the appellant argued that the amount of maintenance awarded by the Judge of the Family Court is illegal as it is beyond the pleading of demand of maintenance. Learned Counsel pointed out that Family Court Judge has committed an error in holding the monthly income of the appellant as Rs. 50,000/- to Rs.60,000/- when the appellant has a less income as he is an Artist who draws sketches for the police force and Ganesh idols in the season. It is contended that the bungalow where the appellant, at present, is staying is not self acquired property but is a joint family property and the respondent, it being her matrimonial home can come and stay in the bungalow along with the son. Further he has argued that son has become major on 10th November 2005 and therefore, appellant is not liable to pay any maintenance to the son. 8 Appellant-husband has filed this appeal. The Respondent- wife has denied that the appellant has less income. Learned Counsel appearing for the respondent submitted that the respondent has looked after the son from his birth and required to spend substantial amount for his education and upbringing. She could hardly manage to do so in a paltry sum of maintenance of Rs.1000/- each per month which she has received from the appellant during the pendency of the marriage petition. 9 Learned Counsel took us through the evidence of the appellant and the respondent and highlighted the relevant portion revealing the good financial position of the appellant. It is further submitted that the order passed by the Family Court is legal and correct. 10 The main objection on the quantum of the amount is that the amount of maintenance granted is higher than the amount demanded by respondent in the original petition. Admittedly, respondent in Petition No.C-09/2003 has prayed for Rs.6000/- for herself and Rs.5000/- for their son. However, the Family Court Judge has granted higher amount i.e Rs.10,000/- P. M each. Family Court did not justify the order of granting higher amount by giving reasons. We find that there is substance in the submission of the appellant on this point and therefore, while deciding the quantum of the maintenance, we may have to restrict ourselves to the amount demanded i.e Rs.6000/- for respondent and Rs.5000/- for the son. 11 While fixing quantum, the Family Court has rightly discussed the two factors i.e earning of the husband and secondly his general standard of living. 12 Marriage Petition filed by the appellant on the ground of desertion and cruelty was dismissed by the trial Court and the said order was confirmed in appeal by this Court. The appellant and the respondent indeed have spent a very short period together i.e less than a year. After the birth of the child, both the parties did not stay together, and son Devesh was brought up by a single parent (Respondent herein). 13 We have carefully examined the evidence tendered by both the parties. In the Examination-in-chief, the respondent has mentioned that she is residing in the house of her father along with her son. She has passed SSC and she does not have her own income. She has mentioned that the appellant prepares statutes of Saibaba and has good earnings. Appellant has admitted that he holds a degree in Fine Arts from JJ School of Arts. He admitted that he has been residing at Guru-prasad Bungalow admeasuring 2000 sq. ft. at Kala Nagar, Bandra and it is bequethed to him exclusively by a will of his father. He admitted that bungalow of 2000 sq. ft. is standing on the plot admeasuring 420 square meter bearing No.31, Kalanagar, Bandra (E), Mumbai. He admitted that he makes idols during the Ganesh season and draws sketches for the police department. He has admitted that there is a temple of Saibaba (called as Dwarkamai) in his house from 55 to 60 years back and idol of Saibaba in this temple is almost the replica of Saibaba of Shirdi. He has admitted that there is a separate Pooja- room (Dev-ghar) in the bungalow admeasuring 10 x 20 Sq. F.t. and carries his business in the name of Sai-Art. We also came across the admission on documentary evidence showing that the amount of Rs.84,251/- was spent towards purchase of raw material in the year 2006, then the opening stock is shown as Rs. 70,250/- is the asset in the beginning of the year 2008. The labour charges is shown as Rs.82,586/- towards help of labour employed for shifting the bags of plaster, wooden boards etc. and he admitted that there is a need of about 50 to 100 kgs. of plaster of paris in a year. 14 In the cross examination, he admitted that his petrol expenses is shown as Rs.19,875 for the year 2008. Telephone expenses is shown as Rs.9732/-. He spent Rs.20,000/- to Rs. 22,000/- for renovation. Tea expenses are shown as Rs.9257. He admitted that he received orders for saree painting, fabric painting, sculpture, idols etc. and he admitted that all his payment from his client is in cash. 15 Further, the appellant does not have any other financial responsibility. Thus, though the respondent could not point out any documentary evidence to prove his income as Rs.50,000/- to Rs.60,000/- per month on the basis of evidence which is brought before the Court, the finding given by the learned Family Court Judge is a possible view. There is sufficient material to draw inference and come to the conclusion that the amount demanded by the wife towards her maintenance as Rs.6000 and Rs.5000 per month towards son is very reasonable compared to the income of the appellant. 16 We, however, while calculating the amount of maintenance, clarify that amount of maintenance i.e Rs.1000 P.M. which was fixed as interim maintenance if already paid shall be deducted from the arrears. So also we allow the prayer for maintenance of Rs.5000 for son from the date of filing of the petition till he attained the majority and the amount of maintenance of Rs.6000/- demanded by wife is accepted and thus the appellant’s appeal is partly allowed in the following terms :- O R D E R (a) Amount of maintenance of Rs.10,000/- each awarded to wife and son is reduced to Rs.6000 per month to wife and Rs.5000 per month to son from the date of filing of the original petition i.e. 12.3.2003 ; (b) The amount of interim maintenance already paid by the appellant from the date of the filing of the original petition, that will be deducted and adjusted towards the arrears ; (c) The amount of maintenance of Rs.5000 is payable to the son Devesh from the date of filing of the petition (i.e.12.3.2003) till he attained majority (i.e.10.11.2005) ; (d) The appellant shall pay the arrears of maintenance in the above terms within four weeks from today ; (e) Further amount of monthly maintenance at the rate of Rs. 6000/- to be deposited in the bank account of the wife by the appellant on or before the 5th day of every English Calender month. (f) Appeal disposed off on the above terms with no order as to costs. The accompanying Civil Application for stay is also disposed off. (MRS.MRIDULA BHATKAR,J) (A.M.KHANWILKAR,J) After the order was pronounced, Counsel for the appellant submits on instructions that the appellant may want to challenge this decision by way of appeal before the Supreme Court. He, accordingly, prays for six weeks time. In the order as pronounced, there is already enough time provided to the appellant to comply with the order i.e four weeks. If the appellant is dissatisfied with the order, is free to take recourse to remedy of appeal within such time. Hence, prayer for keeping the order in abeyance is rejected. (MRS.MRIDULA BHATKAR,J) (A.M.KHANWILKAR,J)