High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFAMILY COURT APPEAL NO.18 OF 2023Pramod Shankarrao Sawant,Age 37 yrs., Occ. Unemployed,R/o Kalyannagar, Nanded. At present r/o Sy.No.82,Behind Bhairoba Temple,Hadapsar, Pune. … Appellant… Versus …Sujata w/o Pramod Sawant,Age 34 yrs., Occ. Household andPrivate Service,R/o C/o Pandurang Dawane,Ashirwadnagar, Pivli Girni,Nanded, Tq. & Dist. Nanded. … Respondent...Mr. S.M. Kamble, Advocate for the appellantMr. G.G. Suryawanshi, Advocate for the sole respondent...CORAM :SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE :03rd JANUARY, 2024JUDGMENT : ( PER : SMT. VIBHA KANKANWADI, J.)1Appeal is admitted. With the consent of both the parties the 2FCA_18_2023_Jdmatter is heard finally at the stage of admission. 2Heard learned Advocate Mr. S.M. Kamble for the appellant andlearned Advocate Mr. G.G. Suryawanshi for the sole respondent. 3Taking into consideration the facts of the case following pointarise for determination. Findings and reasons for the same are as follow :Sr. Nos.POINTFINDINGS01Whether the husband has shown groundsfor cancellation/modification of themaintenance amount granted underSection 25 of the Hindu Adoption andMaintenance Act ?In the negative. REASONSPoint No.1 :4Appellant is the original petitioner – husband, who had filedpetition under Section 25 of the Hindu Adoption and Maintenance Act foralteration/cancellation of the maintenance order passed in Petition No.C/8 of2015 dated 24.10.2016, thereby granting maintenance @ Rs.6,000/- permonth to the respondent. 3FCA_18_2023_Jd5In order to cut short, it can be said that both the sides have madesubmissions in support of their respective stand before the trial Court. Theparties hereinafter are referred to as ‘husband’ and ‘wife’ respectively, for thesake of convenience. 6The respondent – wife had filed petition for restitution ofconjugal rights which came to be allowed by the Family Court on 24.10.2016and it was further directed that the husband should take wife forcohabitation within two months from the date of the order and he shouldalso pay maintenance @ Rs.6,000/- per month till re-union. Husband thencontended that he along with his father and relatives went to the parentalhouse of the wife on 05.11.2016 and 08.12.2016 to fetch the wife, however,the wife and her father did not open the door. Thereafter, husband issuedlegal notices dated 14.12.2016 and 30.12.2016 stating that he would takethe wife from the Court premises on 19.01.2017 when the date for the caseunder Section 498-A of the Indian Penal Code was scheduled. Wife did notattend the Court on that day and, therefore, he had stated that wife is notwilling to resume the cohabitation and, therefore, she has no right to getmaintenance as directed. In the written statement all the allegations weredenied. It is stated that after the restitution decree she had sent two lettersto the husband requesting him to take her for cohabitation, however, those 4FCA_18_2023_Jdhave been returned with endorsement as insufficient address. In fact, theaddress was the same, however, the husband it appears that by misleadingprovided incorrect address. She expressed that she is ready to join thecompany of the husband. She had also filed pursis to that effect. 7Issues were framed and both the parties have led oral evidence.Husband examined himself and also examined his relative Indrajeet Bhise,whereas wife examined herself. 8The question was only as regards, whether there was genuineand serious efforts on the part of the husband to take the wife back forcohabitation as he had suffered the decree and was directed apart fromtaking the wife for cohabitation, to pay maintenance till re-union. It has beenspecifically observed by the learned trial Judge that though the husbandclaimed that he had issued two notices i.e. 14.12.2016 and 30.12.2016, hefailed to produce copies of those notices. The contents in the said noticescould not be ascertained, however, notice reply has been produced at Exh.45and 46 by the wife. Thus, it can be seen that the husband though havingpossession of the documentary evidence, intentionally did not produce.Therefore, it cannot be said that there was genuine effort on his part.Thereafter, he as well as his witness say that in the month of November, 2016they had gone to the house of wife’s father but the iron gate of the compound 5FCA_18_2023_Jdwall was closed. In spite of giving a call nobody opened the gate. Even if forthe sake of argument it is accepted that they had gone to the house of thefather of the wife and it was found closed; yet, they have not come with acase that they had given intimation that they would be coming on aparticular day to fetch the wife. The possibility has been expressed by thelearned trial Judge that the wife, her father and the relatives might havegone out of town cannot be ruled out appears to be a probable inference andonly such one effort cannot be considered as a negative point for the wife. 9Both the parties have then admitted that wife had filed executionpetition i.e. Regular Darkhast No.9/2016 for execution of the decree forrestitution of conjugal rights. They both were referred to MarriageCounsellor and thereafter consent terms were executed before the MarriageCounsellor on 26.07.2017. The husband in his cross-examination hasadmitted that in view of the compromise wife had joined his company atPune. He has stated that he resides in a room admeasuring 8’ x 8’ situated inSy.No.82 at Hadapsar, Pune. The said room had tin roof. He does not have abed or fridge in the said room. Racks and kitchen platform is not available.The bathroom is also inside the room, however, the toilet is outside. There isa big Nala situated near the room. The learned trial Judge went on toconsider that the petitioner is having salary of Rs.21,475/- in July, 2015.
Legal Reasoning
6FCA_18_2023_JdTherefore, for a dignified survival the house which was taken by him was notappropriate. Even if we decide not to go into this aspect, the fact furtherremains is that the wife has stated that she was beaten by the husband tosuch an extent that it caused fracture injury to her. No doubt, she could notprove the medical document, however, there is no proper explanation onbehalf of the husband as to why the wife had withdrawn his company whenhe admits that she had joined him at Pune. Since there appears to be nogenuine efforts to have re-union, the wife is justified in staying with herparents. Under the said circumstance, there was no question of alteration inthe maintenance amount. The decree has been passed properly and legally,which requires no interference. The point is, therefore, answered in thenegative. Therefore, the appeal stands dismissed. ( S.G. CHAPALGAONKAR, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd