Bombay High Court
Sudhakar Namdeorao Yawale vs Sau Sunita Sudhakar Yawale on 3 July, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik
0107FCA177.14-Judgment 1/25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 177 OF 2014
APPELLANT :- Sudhakar Namdeorao Yawale, Aged 42
(Org.Res.onR.A.) years, Occ. Contractor & Builder, R/o C/o
Sahebrao Kandalkar, Near House of Suhas
Gonge, Rahatgaon Tq. & Distt. Amravati.
...VERSUS...
RESPONDENT :- Sau.Sanita Sudhakar Yawale, Aged 39 years,
(Ori.Pet.on R.A.) occ: Household, R/o C/o Dilip Uttamrao
Ghatol Old Saturna, Sai Nagar Road,
Amravati, Tq.& Distt. Amravati.
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Mr. Pravin Agrawal, counsel for the appellant.
Mrs.P.M.Chandekar, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 01-03.07.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this family court appeal, the appellant-husband challenges the judgment of the Family Court, Amravati, dated 20/09/2011 allowing a petition filed by the respondent-wife under section 18 of the Hindu Adoptions and Maintenance Act and directing the appellant to pay a sum of Rs.10,00,000/- to the wife for her residence, a sum of ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 2/25 Rs.7,500/- per month as maintenance and enhanced maintenance every year at the rate of 8% on the awarded amount so as to avoid multiplicity of proceedings in future.
2. Few facts giving rise to the family court appeal are stated thus :-
The appellant-husband and the respondent-wife were married at Amravati on 30/07/1994 as per the Hindu rights and customs. The parties have no issue from the wedlock. The parties were residing together at Amravati till the year 2007 and are staying separately since then. It is pleaded by the wife in the petition filed by her for maintenance under section 18 of the Hindu Adoptions and Maintenance Act that the wife was harassed by the husband both mentally and physically. It is pleaded that the husband used to tell the wife that the marriage should be dissolved so that he could remarry. It is pleaded that the husband used to threaten her that he would kill her if she did not agree for his remarriage. It is pleaded that the husband tried to burn her by throwing a burning towel, on her. It is pleaded that on 30/06/2008 the husband fought with the wife for trifle reason and left the residential house along with the mother, leaving her alone in the house. It is pleaded that from that day, the husband started residing separately. It is pleaded that proceedings were filed by the wife for ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 3/25 restitution of conjugal rights and in those proceedings, the husband had informed the court that he wanted to sell his flat and therefore the wife should reside with him where he was residing with his mother. It is pleaded that the family court had directed the husband to pay a sum of Rs.2,00,000/- to the wife as security before passing the order of restitution of conjugal rights. It is pleaded that when the wife went to reside with the husband in his house, she found some other woman in his house, who behaved rudely with her and informed her that she was the wife of Sudhakar Yawale, i.e., her husband. It is pleaded that the husband is working as a builder and has constructed some flat schemes. It is pleaded that he is in possession of two agricultural fields bearing survey No.23, admeasuring 1.77 HR and survey No.21, admeasuring 1.01 HR. It is pleaded that the husband is earning more than Rs.50,000/- per month. It is pleaded that since the wife is legally wedded to the husband, she would require a sum of Rs.10,00,000/-. On the aforesaid pleadings, the wife sought a decree for grant of lump-sum maintenance amount of Rs.10,00,000/- for her residential accommodation, medical treatment and her livelihood. The wife further sought monthly maintenance of Rs.10,000/- for maintaining herself.
3. The husband filed the written statement and denied the claim of the wife. The husband denied all the adverse allegations that ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 4/25 were levelled by the wife against him in regard to his behaviour. The husband admitted that the court had ordered that he should pay a sum of Rs.2,00,000/- to the wife for her accommodation and that he had paid the same to her. The husband pleaded that due to the illegal demand of Rs.2,00,000/- by the wife, he was required to sell the flat. The husband denied that the wife was living at the mercy of her brother. It is pleaded by the husband that the wife was running tuition classes and was also working as a LIC agent and was earning a sum of Rs.8,000/- to Rs.10,000/- per month for her livelihood. The husband denied that two field properties were owned by him and that he was earning a sum of Rs.50,000/- per month from his business and his properties. The husband denied that flat schemes were being constructed by him. The husband pleaded that he was a diploma holder and was working with an engineer, Sanjay Sune. The husband denied the claim of the wife for a sum of Rs.10,00,000/-. The husband pleaded that the wife was not willing to reside in the joint family and since the husband was the only son of his old aged parents, who were bedridden, the parties could not pull on together. The husband sought for the dismissal of the petition filed by the wife with costs of Rs.10,000/-.
4. In support of her claim, the wife tendered her evidence on affidavit. The wife stated in her evidence on affidavit that a direction ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 5/25 be issued against the husband to pay a sum of Rs.10,00,000/- to her in lump-sum towards full and final settlement for her future needs. The wife was cross-examined on behalf of the husband. The wife admitted in her cross-examination that apart from the said proceedings, she had also filed proceedings under the provisions of the Protection of Women From Domestic Violence Act and had claimed a sum of Rs.15,000/- per month towards maintenance. The wife stated in her cross-examination that the husband pays the income tax and when the income tax returns of the husband for the year 2007-2010 were brought to the notice of the wife, the wife stated that she was not aware of the said returns and the contents thereof. The wife admitted that she was previously working in Savitribai Fule Vidyalaya. The wife however denied the suggestion that she had left her job on her volition. The wife denied the suggestion that the police did not take the cognizance of her complaint dated 03/06/2009 as it was false. The wife admitted that the husband had purchased the flat in which the parties were residing by taking loan. The wife further admitted that they had received notices as the loan could not be repaid. The wife stated that the loan was not repaid as the wife was residing in the flat. The wife stated that she has a doubt that her husband has illegally entered into a marriage with the woman with whom he was residing. The wife admitted that she had not lodged any report against the husband in this regard. When a question was posed ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 6/25 to the wife that she had not filed any documents to show that the husband earns a sum of Rs.40,000/- to Rs.50,000/- per month as he does not earn that amount, the court prevented the counsel for the husband from posing that question. The wife denied the suggestion that she was taking tuition classes, was working as a LIC agent and that she was earning a sum of Rs.8,000/- to Rs.10,000/- per month for her livelihood. The wife denied the suggestion that the husband was earning a sum of Rs.3,000/- to Rs.4,000/- per month. The wife denied the suggestion that false documents were filed to show that the husband was in the construction business.
5. The husband entered into the witness box and reiterated the facts pleaded by him in his evidence on affidavit and prayed for the dismissal of the petition filed by the wife by claiming that the wife earns a sum of Rs.8,000/- to Rs.10,000/- per month for her livelihood. In his cross-examination, the husband admitted that he was paying income tax and that he had filed the returns for the assessment year 2007-2010. The husband admitted that when he left the matrimonial home on 30/06/2008, the husband, the wife and his mother were residing in Swapna-Shilpa Apartment. The husband stated that he was compelled to leave the house along with his mother. The husband admitted that there was a meeting between the parties after 7 to 8 days from the ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 7/25 separation. The husband admitted in his cross-examination that he had sold the flat in which the parties were residing. The husband denied the suggestion that after selling the flat, he had taken two houses on rent. The husband admitted that he had taken a house on rent for the wife after the parties separated, but it was not true that in the said house, the entry of a cupboard was not possible. The husband admitted that he had taken one house on rent in Keval Nagar. He stated that it was taken on rent as he was residing with his mother. He further stated that a helper woman was also residing along with his mother in the said house. The husband denied that his mother was residing in Chaitanya Colony. The husband stated that the helper woman was his cousin sister and she has a son. The husband stated that he was not aware whether the helper woman was pregnant. The husband stated that he has no information about the personal life of the wife after the separation. The husband denied that Mukta Associates was his firm and that he was working as a consulting engineer. The husband stated that he was working with an engineer as his helper. The husband denied that he is the owner of two fields but admitted that his father owns a house in Salora (Khurd). The husband denied that the wife always wanted to reside with him but he had refused to stay with her. The husband admitted that proceedings were filed by the wife against him for the offences punishable under section 498-A and section 494 of the ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 8/25 Penal Code. The husband admitted that the wife does not have a house for her residence. The husband denied that the wife does not have any source of income other than the maintenance amount. The husband denied the suggestion that his monthly income was Rs.40,000/- to Rs.50,000/-. The husband also denied that he could pay a sum of Rs.10,00,000/- to the wife towards maintenance. On an appreciation of the evidence on record, the family court allowed the petition filed by the wife and directed the husband to pay Rs.10,00,000/- to the wife for her residence and Rs.7,500/- per month towards maintenance. The said judgment is challented in this family court appeal.
6. Shri Agrawal, the learned counsel for the husband, submitted that the family court was not justified in directing the husband to pay a sum of Rs.10,00,000/- to the wife for residential accommodation in the proceedings filed by her under Section 18 of the Hindu Adoptions and Maintenance Act. It is submitted that the family court was also not justified in directing the husband to enhance the monthly maintenance by 8% at the end of every year commencing from 1 st of September. It is submitted that the part of the order of the family court that directs the payment of the amount of Rs.10,00,000/- in lump-sum for making the provision for the accommodation for the wife and the issuance of the direction to pay 8% more amount every year towards maintenance is ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 9/25 clearly illegal. It is submitted that after the Court decides the petition under Section 18 of the Hindu Adoptions and Maintenance Act, the parties have a right to approach the Court in future, for modification of the order granting maintenance, as per the change in circumstances. It is submitted that in view of the provisions of Section 25 of the Act, a party to the proceedings is entitled to approach the Court that fixes the amount of maintenance to alter the maintenance at a subsequent stage, if there is a material change in the circumstances justifying the alteration. It is submitted that without considering the provisions of Section 25 of the Act to which the parties could have resorted to, for modification of the decree granting maintenance under Section 18 of the Act, the family court illegally directed the husband to pay an amount which is 8% more than the amount that is paid, during the previous year. It is stated that in a given case, it could be possible that the husband's income could be diminished at a subsequent stage because of a number of factors and a husband could file an application under Section 25 of the Act for reducing the amount of maintenance that was directed to be paid in the proceedings under Section 18 of the Act by filing an application under Section 25 of the same. It is submitted that the part of the order of the family court directing the husband to pay additional maintenance every year is bad in law. It is submitted that the family court could not have granted a sum of ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 10/25 Rs.10,00,000/- to the wife for her accommodation as the husband had already paid a sum of Rs.2,00,000/- to her for securing an accommodation in the proceedings filed by the wife. It is submitted that the family court should have considered the needs of the wife and the capacity of the husband to pay maintenance and should have then determined the amount that is liable to be paid to the wife towards monthly maintenance. It is submitted that the judgment of the family court is totally one sided and the family court has not considered the case of the husband at all. It is submitted that even the Income Tax returns that are produced by the husband on record are disbelieved by the family court and the family court has wrongfully observed that the returns filed by the husband are false. It is stated that such observations could not have been made by the family court in the proceedings between the parties for grant of maintenance as it would be for the Income Tax authorities to consider whether the returns filed by the assessee are true or false.
7. Mrs. Chandekar, the learned counsel for the Wife, has supported the order of the family court. It is submitted that the family court has rightly directed the husband to pay a sum of Rs.10,00,000/- to the wife for her accommodation. It is submitted that the husband had sold the flat in which the parties were residing and, hence, with a ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 11/25 view to make a provision for the residence of the wife, the family court has rightly directed the husband to pay a sum of Rs.10,00,000/- to her. The learned counsel relied on the judgment reported in 2011 (6) Mh.L.J. 280 (Sanjeev v. Meghna) to substantiate her submission that an amount of Rs.10,00,000/- could have been directed to be paid to the wife in the proceedings filed by the wife under Section 18 of the Act. It is submitted that there is nothing wrong with the part of the order of the family court that directs the payment of additional amount of 8% every year as monthly maintenance, considering the rise in the prices of the commodities. The learned counsel submitted that the husband was a builder and developer and there is ample material on record in support of his business activities. It is submitted that in the circumstances of the case, the family court appeal is liable to be dismissed.
8. On hearing the learned counsel for the parties and on a perusal of the original Record & Proceedings, it appears that the following points arise for determination in this family court appeal :-
(I) Whether the family court was justified in directing the husband to pay a sum of Rs.10,00,000/- to the wife for accommodation?
(II) Whether the family court was justified in directing the ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 12/25 husband to pay enhanced maintenance to the wife by 8% every year?
(III) What order?
To consider the aforesaid points for determination, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. We have narrated the pleadings of the parties in the earlier part of the judgment. The wife had tendered the evidence on affidavit in support of her case. The wife was cross-examined on behalf of the husband. In her evidence on affidavit, the wife has reiterated the facts pleaded by her in the petition filed under Section 18 of the Act. In her cross-examination, the wife admitted that she had filed proceedings against the husband for grant of maintenance under Section 125 of the Code of Criminal Procedure and the provisions of the Protection of Women from Domestic Violence Act. The wife admitted that the husband had paid a sum of Rs.2,00,000/- to her during the pendency of the proceedings under the provisions of the Act of 2005. The wife admitted that she had placed the said amount in a fixed deposit account in the post office. The wife admitted that she had claimed an amount of Rs.15,000/- towards the maintenance in the proceedings filed by her under the provisions of the Act of 2005. A wife admitted that the husband was paying income tax. The wife, however, stated that she was not aware of the income tax returns for the year 2007-08 to 2009- ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 :::
0107FCA177.14-Judgment 13/25 10, which was brought to her notice at the time of the cross- examination. The wife admitted that she was serving in Savitribai Fule Vidyalaya but, she had left the job. The wife admitted that the husband had purchased the flat by securing a loan. The wife admitted that since the husband had not repaid the loan, he had received notices from the concerned Bank. The wife stated that it was correct to say that the wife has a doubt that the husband had married a woman and that he was residing with her. The wife stated that she had not tendered any document on record to show that the monthly income of the husband is Rs.40,000/- to Rs.50,000/-. When a query was posed to the wife that she could not produce the documents in support of her claim that the income of the husband was Rs.40,000/- to Rs.50,000/- per month as he was not earning the said amount, the family court did not permit the said question. The family court observed while rejecting the question of the husband that it was not possible for the wife to possess the documents pertaining to the business income of the husband. The wife denied the suggestion that she falsely stated that the monthly income of the husband is Rs.40,000/- to Rs.50,000/-. The wife denied that she was working as a L.I.C. agent and was also conducting classes and her monthly income was Rs.8,000/- to Rs.10,000/-. The wife denied that she had filed a false case against the husband.
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0107FCA177.14-Judgment 14/25
9. The husband tendered his evidence on affidavit and reiterated the statements pleaded by him in his written statement. The husband was cross-examined on behalf of the wife. The husband admitted in his cross-examination that he was paying income-tax and that he had filed the returns on record. The husband admitted that he, his mother and the wife were residing together in Swapna-Shilpa Apartment before he left the house along with his mother and started residing separately from 30/06/2008. The husband stated that he was compelled to leave the matrimonial home and therefore he had left the same. The husband admitted that the flat in Swapna-Shilpa Apartment was sold by him. The husband however denied that he took two houses on rent after the flat was sold. The husband admitted that he took a house on rent in Kewal Nagar. The husband admitted that he was residing with his mother and a woman was residing along with the mother to take care of her as his mother was more than 70 years of age and was ill. The husband admitted that in the documents marked as articles the phone number of the husband finds place. It is stated by the husband that in the documents at articles 'C, D, E and F' his name and his phone number finds place, as he is concerned with the marketing of the said flats. The husband denied that he was building the said apartment in partnership. The husband admitted that he had signed on the receipts acknowledging the amount received from the customers but ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:33 ::: 0107FCA177.14-Judgment 15/25 not as a builder and promoter. The husband denied the suggestion that the wife did not have a source of income other than the amount that she received towards maintenance. The husband denied that the wife had left the job, in view of his request. The husband denied that he was a builder-cum-developer and his monthly income was Rs.40,000/- to Rs.50,000/-. The husband denied that he could pay a sum of Rs.10,00,000/- to the wife towards maintenance in lump-sum.
10. On a reading of the evidence of the parties and on a perusal of the documents produced by the parties on record, it appears that the family court was not justified in directing the husband to pay a sum of Rs.10,00,000/- to the wife for her accommodation. The wife had filed proceedings against the husband under the provisions of the Protection of Women From Domestic Violence Act and for restitution of conjugal rights. In those proceedings, the husband had paid a sum of Rs.2,00,000/- to the wife as the husband desired to sell the flat in Swapna-Shilpa Apartment, where the wife was residing after the husband and his mother had left the place. It is an admitted position that the flat in Swapna-Shilpa Apartment was purchased by the husband by securing loan from the bank. The said fact is clearly admitted by the wife in her cross-examination. The wife has further admitted in her cross-examination that the husband was receiving ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 16/25 demand notices from the bank as he could not repay the loan secured by him for the purchase of the said flat. It is also brought on record that the husband received the consideration of Rs.9,50,000/- after selling the flat in Swapna-Shilpa Apartment. The said flat was sold as the installments could not be paid by the husband. If that is so, it is difficult to gauge as to how the family court could have directed the husband to pay a sum of Rs.10,00,000/- to the wife only for her accommodation, specially when the flat sold by the husband did not fetch the said amount. Also, the husband had to repay the loan secured by him from the bank after the sale of the said flat. It is necessary to note that though in the petition filed by the wife under section 18 of the Act, the wife has sought a sum of Rs.10,00,000/- for her residence, medical treatment and for her livelihood, the family court has granted a sum of Rs.10,00,000/- to the wife for her residence only. In the evidence tendered by the wife on affidavit, the wife has not claimed any monthly maintenance from the husband. The wife has stated in her examination- in-chief that a direction be issued against the husband to pay a sum of Rs.10,00,000/- to the wife towards her present and future needs, in lump-sum. If that be so, we fail to fathom as to how the family court could have directed the husband to pay a sum of Rs.10,00,000/- to the wife for her residence and then a sum of Rs.7,500/- per month towards maintenance. The claim of the wife in her evidence is only for the sum ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 17/25 of Rs.10,00,000/- in lump-sum and she had not claimed any monthly maintenance. In the aforesaid background, it would be necessary to consider as to whether the family court was justified in directing the husband to pay a sum of Rs.10,00,000/- to the wife and also pay a sum of Rs.7,500/- to her every month with a yearly raise in the maintenance amount by 8%. The wife has produced certain documents to prove that the husband is a builder and developer. However, those documents are not exhibited. The family court has however relied on the said documents that are marked as articles and has held on the basis of the same that the husband is having many houses and the wife is shelterless. The family court, took into consideration the documents that were marked as articles A, B, C, D, E and F to hold that the husband was a builder and developer. The family court relied on the receipts at exhibits-55/2 to 55/7 to hold that the amount mentioned in the receipts was handed over to the husband by the purchasers of the flat. The family court observed that though none of the purchasers were examined on behalf of the wife, since the husband had admitted his signature on the said receipts, it could be said that those receipts pertain to the sale of the flats by the husband. The family court did not consider the evidence of the husband in his examination-in-chief and also in his cross-examination, where he had clearly denied that he had signed on the receipts as a builder and developer. The husband had ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 18/25 stated that the receipts were not only signed by him but were signed by several others whose names are mentioned in his cross-examination. The documents tendered by the wife, even if they are believed, do not show that the husband was singly running the business of building and developing, as along with the husband the names of four others are also mentioned in the said documents. Even assuming that the husband was a partner along with others in the construction business, there is nothing on record to show that he was earning a particular income from the said business. The income tax returns of the husband were placed on record at exhibits-41 to 43. The family court, however did not believe that the husband had correctly stated the income in his returns. The family court observed that the income shown by the assessee in the previous year could not have been reduced in the subsequent year. The family court observed that in one year the income was more, in the next year it was lesser and in the third year it was still less and this would show that the returns did not relate to the income that the husband was earning from his business. The family court observed that it was not possible that the income could be reduced in the next year. We are afraid that the family court should not have made such observations, as rightly submitted on behalf of the husband. It is for the Income Tax Department to decide whether the income could have been reduced in the next year or not and/or whether the return filed by an assessee was ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 19/25 true or false. The family court however scanned the income returns filed by the appellant to disbelieve the returns and also to disbelieve his case in regard to his income. The family court discarded the income tax returns as the husband had a mobile handset and a four wheeler. We are afraid that the observations made by the family court in this regard are unwarranted. In these days, a mobile handset is available even with maids, who are employed for petty household work. Merely because a person has a four wheeler and a mobile handset, it cannot be said that the said person would be earning in lakhs or for that matter a sum of Rs.40,000/- or Rs.50,000/- as claimed by the wife. It is an admitted position that the husband had purchased the flat in which the parties were residing only after securing loan from the bank and the bank was issuing notices to the husband as he could not repay the loan amount. The said flat was sought to be put to auction as the husband could not repay the loan amount. The flat was sold for the consideration of Rs.9,50,000/- and the family court has directed the husband to pay a sum of Rs.10,00,000/- to the wife as the flat was sold by him.
11. Normally, in a petition filed by a wife under section 18 of the Hindu Adoptions and Maintenance Act, maintenance is not awarded to the wife or to the person claiming the maintenance under section 18 of the Act, in lump-sum. Normally, the requirements of the claimant for a ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 20/25 month are considered by a court and the non-applicant or the respondent is directed to pay the maintenance to the claimant as per the requirements of the claimant, who is unable to maintain herself after considering the earning capacity of the person against whom the claim is made. Even assuming that the wife required an accommodation and also required some amount towards her maintenance, i.e. for food, shelter and clothing, the family court should have considered as to what would have been the reasonable needs of the wife and should have directed the husband to pay the amount needed by the wife every month, for her survival, considering the earning capacity of the husband. In our considered view on a reading of the evidence tendered by the parties on record, it cannot be said that the husband was earing a sum of Rs.40,000/- to Rs.50,000/- per month. There is no evidence in this regard. Merely because the term builder or developer is used for a person constructing one or two flat schemes, it cannot be presumed that the builder or developer would be earning in lakhs and would be a very rich and affluent man. Sometimes it is seen that even builders and developers do not earn profit and they are in doldrums. Some builders may be rich, some financially sound and some may not be earning well. Be that as it may, we are not required to consider these aspects of the matter. Suffice it to state that there is no evidence on record to show that the husband was earning a sum of Rs.40,000/- to Rs.50,000/- per ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 21/25 month. For proving the financial capacity of a party, cogent and reliable evidence should be placed on record. We find some force in the submission made on behalf of the husband that the judgment of the family court is totally one sided and the family court went out of the way to help the wife, without considering the case of the husband. We find some support to this submission from the objection of the court to a query put by the counsel for the husband to the wife. The counsel for the husband had posed a query to the wife that she could not file the documents in support of her claim that the husband earns a sum of Rs.40,000/- to Rs.50,000/- per month as he does not earn that amount. The family court had rejected the said question posed by the counsel for the husband, before the wife could answer the same. The family court could not have objected to the suggestion on the side of the husband. In fact, it was a valid suggestion given by the counsel for the husband to the wife. The wife may have answered the suggestion in the negative. We find that the court has posed certain queries to the husband in his cross-examination on its own and had wrongfully disallowed some suggestions and queries posed from the side of the husband to the wife.
12. The family court has not recorded any specific finding on the basis of the evidence on record that the husband must be earning a ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 22/25 particular amount every month. The family court has not arrived at a clear finding in regard to the earning capacity of the husband. The family court has only observed that the wife should also have the same facilities as are enjoyed by the husband and that she would be entitled for a sum of Rs.10,00,000/- in lump-sum in lieu of residence. The family court has then observed that apart from the amount that was liable to be paid by the husband to the wife in lieu of residence, he was liable to pay a sum of Rs.7,500/- as monetary aid for her survival, every month. After having held so, the family court held that to avoid multiplicity of proceedings, it would be proper to give a further direction to the husband to enhance the quantum of maintenance every year, with effect from 1st September of every year, at the rate of 8% per annum on the amount that was paid to the wife in the previous year. We are surprised that such an order is passed by the family court when section 25 of the Hindu Adoptions and Maintenance Act gives a right to either of the parties to approach the court for modification of the decree granting maintenance in view of the altered or changed circumstances. We have already stated herein above and we reiterate that it is possible that in a given case even the husband's income would be lowered in the next year, may be if he is in any business or for that matter a husband may even be incapacitated after the decree granting maintenance is passed. In view of the provisions of section 25 of the Hindu Adoptions ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 23/25 and Maintenance Act, providing for the alteration or modification of the decree granting the maintenance amount, it is difficult to gauge as to how the family court could direct the husband to grant 8% additional maintenance to the wife every year, starting from 1st September of the next year. If the parties live for 30 more years, the amount would be increased every year by 8% for the next 30 years without considering as to what is the earning capacity of the husband and/or what are the needs or the earning capacity of the wife in future. The family court was surely not justified in directing the husband to pay the sum of Rs.10,00,000/- to the wife towards accommodation and a sum of Rs.7,500/- per month with additional increase at 8% every year. It is pertinent to note that though the wife had claimed monthly maintenance and lump-sum in the petition, in her evidence on affidavit, the wife had only sought the amount of Rs.10,00,000/- in lump-sum. The family court, ought to have considered the income of the husband and the needs of the wife while deciding the petition filed by the wife under section 18 of the Act. In the circumstances of the case, the judgment reported in 2011 (6) Mh.L.J. 280 and relied on by the counsel for the wife cannot be applied to this case, as admittedly, the husband is residing in a rented house and the house in which the parties were residing was purchased by the husband on loan and the same is sold by the husband only for a sum of Rs.9,50,000/-. If that is ::: Uploaded on - 13/07/2017 ::: Downloaded on - 28/08/2017 08:53:34 ::: 0107FCA177.14-Judgment 24/25 so, the husband could not have been directed to pay a sum of Rs.10,00,000/- to the wife in lump-sum, specially when the loan of the bank was liable to be repaid and the house was sold for the sum of Rs.9,50,000/-. On a consideration of the evidence on record, specially the income tax returns and the other documents, it would be necessary to hold that the monthly income of the husband must be approximately Rs.25,000/- and considering the fact that the old aged mother of the husband is residing with the husband, it would be necessary to direct the husband to pay a sum of Rs.9,000/- per month to the wife towards maintenance. Though the wife possesses a graduates degree and also training qualification which could have entitled her to a job, like the one she was doing earlier and could have taken some private tuitions considering her training qualification, we are surprised that the wife is doing nothing. Be that as it may, it would be necessary in the circumstances of the case to modify the order of the family court and direct the husband to pay a sum of Rs.9,000/- to the wife towards monthly maintenance. If by chance, any amount is paid by the husband to the wife over and above the amount of Rs.9,000/- per month in the past, the husband would not be entitled to recover the said amount from the wife or adjust the said amount while paying the present and future maintenance to the wife.
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13. Hence, for the reasons aforesaid, the family court is partly allowed. The judgment of the family court is modified. The part of the judgment that directs the husband to pay a sum of Rs.10,00,000/- to the wife for her residential accommodation is hereby set aside. We make it clear that the husband would not be entitled to recover the sum of Rs.2,00,000/- that was paid to the wife for her accommodation during the pendency of the other proceedings filed by the wife. The part of the order which directs the husband to pay 8% more maintenance every year, commencing from 1st of September is also set aside. The husband is directed to pay a sum of Rs.9,000/- per month to the wife towards maintenance. Order accordingly. No costs.
JUDGE JUDGE
KHUNTE
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