Karnataka High Court
Smt G Kusuma vs B H Govindappa on 3 December, 2013
Bench: K.L.Manjunath, A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF DECEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
M.F.A. NO.10193/2011 (MC)
C/W
M.F.A. NO.9802/2011 (MC)
M.F.A. NO.10193/2011 (MC)
BETWEEN:
1. SMT.G. KUSUMA,
D/O H. GOVINDAPPA,
2. KUM. DEEPA.K.,
D/O B.H. GOVINDAPPA,
AGED ABOUT 13 YEARS,
(THE 2ND APPELLANT IS MINOR
AND REPRESENTED BY HER NATURAL
GUARDIAN AND MOTHER G KUSUMA)
BOTH ARE RESIDING AT
NO.5, 8TH MAIN ROAD,
18TH CROSS, MUTHYALANAGAR,
BANDEPPA GARDEN,
BANGALORE-560054.
...APPELLANTS
(BY SRI. V.N. JAGADEESH ADV.)
2
AND:
B.H. GOVINDAPPA S/O HANUMANTHAPPA,
AGED ABOUT 48 YEARS,
PHYSICAL TEACHER, GOVERNMENT HIGH SCHOOL,
KARAKUCHI VILLAGE, THARIKERE TALUK,
CHIKKAMANGALORE DISTRICT-577228
... RESPONDENT
(BY SRI. R.B. SADASHIVAPPA ADV.)
MFA FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE
JUDGEMENT AND DECREE DATED 25.8.2011 PASSED IN
MC.NO.1264/1999 ON THE FILE OF II ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION
FILED U/S 25 OF HINDU MARRIAGE ACT FOR MAINTAINANCE.
M.F.A. NO.9802/2011 (MC)
BETWEEN:
B.H. GOVINDAPPA,
S/O HANUMANTHAPPA,
AGED ABOUT 42 YEARS,
R/O BARAGENAHALLI ROAD, RANGENAHALLI
TARIKERE TALUK, CHIKKAMAGALUR DIST.577144
...APPELLANT
(BY SRI. R.B. SADASHIVAPPA ADV.)
AND:
1. SMT.G. KUSUMA
W/O SRI B.H. GOVINDAPPA, 32 YEARS.
2. KUM. K.DEEPA
D/O SRI B.H. GOVINDAPPA,12 YEARS,
SINCE MINOR REP. BY HER NATURAL
GUARDIAN/MOTHER SMT.G.KUSUMA
- FIRST RESPONDENT
BOTH ARE R/A C/O SRI H. GOVINDAPPA
NEAR BRIGHT FUTURE SCHOOL
OPP: AMRUTH MAHAL KAVAL
B.H. ROAD, BIRUR, KADUR TALUK
CHIKKAMAGULUR DIST. 577116.
3
... RESPONDENTS
(BY SRI. V.N. JAGADISH FOR C/R ADV.)
MFA FILED U/S 19(1) OF FAMILY COURTS ACT, AGAINST THE
JUDGEMENT AND DECREE DATED 25.8.2011 PASSED IN
MC.NO.1264/1999 ON THE FILE OF II ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, BANGALORE, ALLOWING THE PETITION
FILED U/S 9 OF HINDU MARRIAGE ACT FOR RESTITUTION OF
CONJUGAL RIGHTS.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
ORDERS COMING ON FOR PRONOUNCMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals are directed against the order of granting permanent alimony in favour of Smt.G.Kusuma and maintenance in favour of her daughter Kum.K.Deepa passed by the learned II Addl. Principal Judge, Family Court, Bangalore in MC No.1264/1999 dated 25.8.2011.
2. The appellants in MFA 10193/2011 are the petitioners in MC No.1264/1999 and appellant in connected matter MFA 9802/2011 is the respondent in MC No.1264/1999.
3. The learned Family Court Judge has directed the appellant in MFA 9802/2011 i.e., respondent in MC 4 1264/1999 to pay a sum of Rs.2,500/- each per month to his divorced wife Kusuma and daughter Deepa as maintenance with effect from 1.1.2010 and also to pay a sum of Rs.3,000/- towards litigation expenses pertaining to MC No.1264/1999. It is this order dated 25.8.2011, which is called in question in MFA 10193/2011 by Kusuma and her daughter Deepa on the ground that the permanent alimony and maintenance granted to her and her daughter respectively is quite inadequate. Whereas, the respondent Sri.Govindappa has filed connected matter i.e., MFA 9802/2011 challenging the same order of the Family Court on the ground that the quantum of maintenance awarded against him pertaining to his wife and daughter is on the higher side and hence, he has requested the Court to suitably reduce the maintenance/permanent alimony awarded by the Trial Court.
4. As such both these appeals are taken up for common discussion. We have secured the records of MC 5 No.1264/1999 and we have heard the learned counsels for the parties at length.
5. Parties will be referred to as petitioners and respondent as per their status in the Trial Court in MC No.1264/1999.
6. Kusuma had filed a case in MC No.1264/1999 against her husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Her husband has filed a case against the appellant seeking divorce on the ground of cruelty and desertion in MC No.1861/2002. Kusuma had filed a suit against her husband in O.S.NO.1772/2000 also with a request to restrain him from permanently marrying any girl during the subsistence of her marriage. All these cases were clubbed and common judgment was passed by the Family Court on 1.4.2005 by dismissing M.C.No.1264/1999 and O.S.1772/2000. Whereas, M.C.No.1861/2002 filed by Govindappa came to be allowed. Therefore, decree of divorce was granted dissolving the 6 marriage of the parties which was solemnized on 22.8.1996 at Birur, Kadur Taluk, Chickmagalore.
7. Aggrieved by the said judgment and decree passed by the learned Additional Judge, wife had filed a separate appeal in MFA 5928/2005 and 5929/2005 before the Hon'ble High Court of Karnataka. Both the appeals were dismissed by considered judgment passed on 5.11.2008 confirming the judgment of dismissal of the petition filed by the respondent for restitution of conjugal rights and original suit filed for permanent injunction and confirming decree of divorce passed. But the matter was remanded to the Family Court, Bangalore to consider the aspect of permanent alimony only in MC No.1264/1999.
8. Consequent upon the receipt of the entire records in MC No.1264/1999, further evidence was let in by Kusuma with regard to permanent alimony and maintenance granted to her and her daughter Deepa. Kusuma got examined herself as PW-1 and she has got 7 marked 16 exhibits. Govindappa-respondent has examined himself as RW-1.
9. After hearing the learned counsels for the parties and perusing the records, the learned Family Court Judge has granted permanent alimony at the rate of Rs.2,500/- per month to Kusuma and Rs.2,500/- per month as maintenance to their daughter with effect from 1.1.2010. It is this order which is called in question in these appeals on various grounds by the parties.
10. It is contended by the learned counsel for Kusuma and Deepa that the Trial Court has not properly analyzed the evidence in right perspective and has not taken into consideration the gross salary of the respondent and the agricultural income derived from the garden land. It is further contended that the requirements of the wife and daughter with regard to food, clothing, shelter and education have not been properly considered and that the Trial Court's judgment is not based on ground realities. Hence, it is 8 prayed to grant maintenance at the rate of Rs.10,000/- per month.
11. Per contra it is contented by the learned counsel for the respondent Govindappa that the Trial Court has relied upon Ex.P4 and P5 the RTCs of the lands to hold that he has income from agricultural lands and that the same is erroneous as those lands do not belong to him. It is further contended that substantial amount is required for maintenance of himself and his wife, daughter and aged mother. It is further contended that she has a house of her own in Bangalore and that she gets monthly rent of Rs.10,000/- and that the same has not been taken into account. It is further contended that she has income from tailoring and the same has been ignored. The impugned order is stated to be opposed to law, facts and probabilities. Hence, it is requested to substantially reduce the maintenance amount.
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12. After hearing the learned counsels and perusing the records, following points arise for our consideration:-
"a) Whether the quantum of maintenance and permanent alimony awarded by the learned Family Court Judge, Bangalore needs to be modified ? And if so to what extent?
b) To what order and reliefs, the parties are entitled for?"
Reasons Point No.(a)
13. A Divorced Hindu wife can claim permanent alimony u/s 25 of Hindu Marriage Act. Section 25(2) of the Act empowers the Court to vary an order directing payment of maintenance, if the Court is satisfied that there is a change in the circumstances of either party any time after making the order. While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their obligations. While dealing with Section 25 of Hindu Marriage Act, Hon'ble Supreme Court, in the case 10 of Vinny Parmvir Parmar vs Parmvir Parma reported in (2011) 13 SCC 112 has observed above holding that while granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. A caution is also given stating that amount so fixed cannot be excessive or affect the living condition of the other party.
14. The decision rendered in Vinny Parmvir Parmar's case has been referred to and followed by the Hon'ble Supreme Court in the case of U.Sree vs U.Srinivas reported in (2013) 2 SCC 114. What is reiterated in the decision of U.Sree's case is that the status of the parties, their respective social needs, financial capacity of the husband and other obligations must be taken into account. It is also further observed that it is the duty of the Court to see that wife lives with dignity and comfort and not penury. 11 Though living need not be luxurious, Court has to act with pragmatic responsibility that wife does not meet any kind of man made misfortune. Keeping in mind these broad parameters fixed by the Hon'ble Apex Court, we have to reassess the evidence.
15. While submitting arguments, the learned Counsel for the petitioner-Smt. Kusuma has furnished the Salary slip of the respondent-husband issued by the Head Master of Govt. High School, Karakucchi, Tarikere Taluq for the month of October 2012. This is dated 24.11.2012. Ofcourse, the learned counsel for the respondent did not attack the validity of the Salary Certificate. But, his argument is that it cannot be looked into unless it is brought in the form of an evidence. We are unable to accept this contention for the reason that the Court can look into altered circumstances of the parties while deciding the quantum of alimony or maintenance. There has been substantial increase in the salary of the respondent when 12 Ex.P3, the salary certificate for the month of November 2010 was issued by the Head Master. Suffice to state that any valid document indicating the alteration of the income of the spouses, be it as the lower side or higher side, can be definitely considered.
16. Now let us consider the evidence of RW-1 Govindappa about his monthly income. Ex.P3 is his salary certificate for the month of November 2010. As a Physical Education Teacher of a Government High School, he was drawing a gross salary of Rs.16,394/- in the month of November 2010. The total deduction shown in Ex.P3 is Rs.6,173/- p.m. with Statutory deduction of Rs.120/- towards Group Insurance Scheme, Rs.1,123/- towards L.I.C. Policy, Rs.1,750/- towards General Provident Fund and Rs.3,080/- towards Karnataka Govt. Insurance Policy premium. Except Rs.120/- all other deductions are savings and he will get all these amount when they mature or at the time of his superannuation. As per K.G.I.D rules, the policy 13 matures when he crosses 55 years. They are virtually savings made out of his earnings.
17. Now, we are in the month of November 2013. The Salary certificate issued for the month of October 2012 discloses that his salary was Rs.22,660/- in the month of October and total deduction is Rs.7,923/- p.m. The increase in monthly deduction from his salary is on account of Rs.2,080/- being deducted towards the loan availed by him on his K.G.I.D. bond and this is an event which has happened when the evidence of the parties was in progress, after the case was remanded by Hon'ble High Court. Though, a State Government employee is to compulsorily make contribution to K.G.I.D., the same will come back to him with accrued bonus after he crosses 55 years. Therefore, we are constrained to take into account Rs.22,500/- p.m. as his income from salary.
18. The next aspect as to whether he has agricultural lands and if so what is the probable income from 14 agriculture. Exs.P4 and P5 are the RTCs i.e., revenue documents of the agricultural lands measuring 2.30 acres in Sy.No.1/10, and 2.37 acres in Sy.No.1/13 of Jannapura and Kole Basavanahalli of Amruthapura Hobli of Tarikere Taluk. It is mentioned in column No.12(9) of RTC of Ex P4 that it is a mango grove. Ex.P5 RTC discloses that it is a garden land with coconut trees. The name of the owner cum kathedar as "Govindappa S/o Hanumana" in columns 9 & 10 and 12(2) of RTC's marked as Exs.P4 & P5.
19. What is vehemently argued before us is that the name of the father of Govindappa is Hanumanthappa and not Hanumanna and hence, Ex.P4 and P5 do not refer to him or his family. In paragraph 15 of his affidavit evidence, RW-1 has asserted that RTCs do not relate to him and thus petitioner is trying to create evidence. In paragraph 14 of his evidence, he has further asserted that he does not own any lands and hence the question of getting income from lands does not arise at all. Ofcourse a suggestion put to him 15 that Exs.P-4 & 5 refer to the land owned by him, he has denied the same.
20. In villages, normally elderly persons by name Hanumanthappa will also be called as Hanumanna. Infact, it is not his case that in his village or in the villages of Jannapara and Kotebasavanahalli there are persons with name Hanumanna or Hanumanthappa, who has a son by name Govindappa. We cannot expect a lady to produce 100% fool proof evidence in regard to such land holdings and connected revenue documents. As rightly pointed out by the Trial Court in paragraph 11 of the impugned order dated 25.8.2011, the husband has not given explanation as to why his name is entered in Ex.P-4 and P5 the revenue documents maintained by the authorities under the relevant provisions of Karnataka Law Revenue Act, 1964. Hence, a statutory presumption is available under Section 133 of Karnataka Revenue Act 1964 about the contents of records of rights and pahani patrike. Therefore, we are of the opinion 16 that Sri.Govindappa referred to in Exs.P4 and P5 is the appellant and he owns 5.20 acres of garden land with mango tress and coconut trees.
21. Then, we have to see as to what may be the probable income from these two lands. Admittedly, the cultivation expenses of mango grove is comparatively very less, when compared to the maintenance of coconut trees. Anyhow the cultivation expenses of these two lands is definitely lesser than maintaining wet lands where either paddy or sugarcane is grown. Normally, while calculating the yearly income from wet lands, the cultivation expenses will be reckoned at 50% of the yearly income. Therefore, it is probable to assess the cultivation expenses of these two lands per year at 25%. PW-1 has deposed that RW-1 has annual income of Rs.4,00,000/- from agricultural lands. But, it is only a guess work. She has not properly substantiated the same. On the other hand, RW-1 has emphatically denied the suggestion put to him about 17 holding lands vide Exs.P-4 and P-5. If he had admitted, there would have been scope to get some vital answers about the agricultural income. The evidence in regard to the agricultural income is hazy. But, on that ground we cannot refuse to take into account the agricultural income.
22. What is laid down by the Hon'ble Supreme Court in the case of Chaturbhuj Pande and others vs. Collector, Raigarh reported in case reported in AIR 1969 SC 255 is that when the evidence in regard to income is hazy, the Judge will have to chew his personal experience of life and assess the evidence on the touch stone of broad probabilities. This is the advice given by the Hon'ble Apex Court to the Judges sitting in appeal over compensation cases arising out of acquisition of agricultural lands. Relevant portion of paragraph 6 of the Chaturbhuj Pande case is extracated hereinbelow:
"6..... It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector had 18 not adduced any evidence in rebuttal; but that does not mean that the Court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judge to test the evidence placed before them on the basis of probabilities."
23. Normally 40 coconut plants will be planted in one acre of land. The total extent of coconut land as shown in Ex.P-5 is 2.37 acres and it can be rounded off to 3 acres as it is only three guntas less than 3 acres. Hence, we can expect that there will be 120 coconut trees. If the yield per tree is calculated at 80 coconuts, then the total yield would be 9,600 coconuts. If the approximate rate per coconut could be Rs.7/- and then total income from 9,600 coconuts would be Rs.67,200/- per year. Out of this, a sum of Rs.14,300/- could be deducted towards maintenance expenses and plucking charges. Then the net income would be Rs.52,900/- per year. Similarly, on prepondable of 19 probabilities, the net income from mango grove per year could be assessed at Rs.30,000/- per year. Then the income from agricultural lands per year would be Rs.82,000/-.
24. Admittedly, RW-1 has two brothers. The lands in question belonged to his father Hanumanthappa or Hanumanna and after his death, Katha has been changed into his name as he is the eldest male member. He has two sisters. They too have share in the lands owned by their father. If the annual income is equally divided between three brothers and two sisters, the share of income of RW-1 would be Rs.20,000/- per year and monthly income would be Rs.1,660/- from agriculture. This agricultural income of Rs.1,660/- will have to be added to his gross income of Rs.22,660/- from monthly salary. Then the total income would be Rs.24,320/-.
25. Now, let us consider the contention of the learned counsel appearing for the husband that Smt.Kusuma has a house of her own at Bangalore and is getting income of 20 Rs.10,000/- per month as rent. It is his contention that she had site at Bangalore and sold for Rs.10,00,000/- and that she is getting a sum of Rs.5,000/- per month by tailoring. According to him, she is living with her father, who is a retired Deputy Commissioner and is getting substantial amount as rent. It is further argued that she is the only daughter to her father and gets substantial property as her share in his ancestral property under Section 6 of Hindu Succession Act.
26. So far as the property held by her father, it is not germane as nothing is placed on record to show that her father has immovable properties and that they are his ancestral properties. What is admitted by PW-1 is that she had a site given by her father and that she has already sold for Rs.3,00,000/- in the year 1999 itself. Anyhow suggestion put to her that she sold it for Rs.5,00,000/- has been emphatically denied. Anyhow the dispute between the parties started in the year 1999 and since then she has been 21 living separately from her husband and whatever amount she had, was used to maintain herself and her daughter.
27. She has admitted in her evidence on 11.2.2011 that after her marriage with the respondent, she constructed a house on a site gifted by her father and that measures 30x40 and the same is in Bangalore. She has asserted that she is alone living in the said house having two rooms, one kitchen and one bathroom. Anyhow, she has been staying in the said house for the past 10-12 years. Being the daughter of a Senior Revenue Officer, she was born and brought up at Bangalore and hence she likes to be in Bangalore. Her daughter is studying in private English School at Birur. Her daughter is staying with her maternal grandmother and grandfather in their Village and commutes to Birur daily. In view of the fact that she is residing in her own house at Bangalore and her daughter is with her parents, no amount needs to be awarded under the head "shelter". 22
28. So far as the income of PW1, nothing is placed on record by her husband RW1 to substantiate the same. As already discussed suggestion put to her that she is doing tailoring and earning Rs.5,000/- p.m. has been specifically denied. So far as her father's property is concerned, he has a house of two floors in Bangalore. Out of them one is rented and another is kept for their use whenever they come to Bangalore. But PW1 cannot have any claim over this building or the rent received by her father. Anyhow her father has to maintain his widowed daughter-in-law and three children.
29. Admittedly PW1 comes from a good family. RW1 is a physical education Teacher in a Government High School. Therefore, she requires the standard of life befitting the wife of a High School Teacher whose gross income is about Rs.24,000/- p.m. She has a daughter by name Miss.Deepa, who was a student of 6th Standard during January 2011. Now, she is a ninth Standard student 23 studying in Bright Future English School at Birur. Her annual tuition fee itself was more than Rs.2,300/-. Every year, she is expected to pay school development fee. It was Rs.600/- in 2007 and 2009. She needs atleast two sets of uniforms and three sets of regular cloths every year. Though she is looked after by her grand parents, we cannot deny her the amount under the head 'food'. Substantial amount is required for books, conveyance charges, shoes and chappals and medical charges. Normally there will be a trip from the School once or twice in a year. But charges for such trips will have to be paid. On an average amount of Rs.2,000/- per month for food, Rs.9,000/- p.a. for educational expenses inclusive of regular clothes, uniforms, shoes and chappals, conveyance charges and trip fees is required. A sum of Rs.3,000/- per annum will have to be earmarked for her medical expenses and other incidental expenses as she is a growing girl. Thus, the amount required towards her maintenance per year will be as follows:
24
1. Food Expenses Rs.24,000
2. Educational Expenses and Clothing Rs. 9,000
3. Medical Expenses and incidental expenses Rs. 3,000
--------------
TOTAL Rs.36,000/-
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30. This amount of Rs.36,000/- is the annual maintenance required for the second petitioner. Then monthly maintenance of second petitioner would be Rs.3,000/-. This amount, in our considered opinion, appears to be reasonable for the maintenance of the second petitioner for the present.
31. We have arrived at the total income of the respondent at Rs.24,000/- per month. After divorce, he has married again and he has a son, who is age about 6 years, he has an aged mother. Ofcourse, he has two brothers who also look after the mother. He has a moral responsibility to look after his mother, who is a widow. Probably, she must be 25 interested in living with him as he is the eldest son as he has responsibly of wife, child and his mother. He has to travel from his native village to the place where he has been posted as a teacher. He needs reasonable amount for personal expenses. He has family obligation to attend functions in the houses of his brothers and sisters and to make presents on such occasion. Taking into consideration, the persons who are dependent upon him, minimum monthly personal expenses of Rs.3,000/- is required. I am of the considered opinion that he needs atleast Rs.17,000/- per month for maintenance of his family.
32. So far as the quantum of maintenance to be awarded to Kusuma is that she resides mostly in Bangalore and cost of living in Bangalore is too costly, she requires atleast 3 sets of clothes every year and some incidental expenses apart from medical expenses. She requires about Rs.100/- per day for expenses in connection with food and hence, a sum of Rs.3,000/- per month is to be awarded 26 under the head 'food'. So far as medical expenses, clothing and other incidental expenses including travelling expenses are concerned, she requires Rs.1,000/- per month. Hence, she requires not less than Rs.4,000/- per month as maintenance. This amount is dependent on the social status of the parties and her basic requirements. Hence, we are of the considered opinion that a sum of Rs.3,000/- per month has to be awarded towards maintenance of Kum.Deepa and a sum of Rs.4,000/- per month has to be awarded towards permanent alimony of Smt.Kusuma. In all they are entitled to a sum of Rs.7,000/- per month.
33. We have taken into consideration the salary certificate of the respondent issued for the month of November 2011 and therefore, amount of maintenance to be awarded by this Court has to commence from the date of this judgment in appeal and not from the date of petition. In so far as Rs.3,000/- awarded towards litigation expenses of the petition in the Trial Court, it is justified. 27
34. Similarly, a sum of Rs.5,000/- has to be awarded towards litigation expenses of Smt.Kusuma and Deepa in this Court. Hence upward revision is required with regard to maintenance granted to her and daughter. Request for reduction of maintenance amount as sought for by Govindappa, has to be rejected. Hence we hold that upward revision is required in the case of Kusma and Deepa i.e., MFA 10193/2001 and no downward revision is required in the connected MFA 9802/2011.
ORDER
35. Accordingly, MFA 10193/2011 is allowed in part. Whereas MFA 9802/2011 filed by Govidnappa is dismissed. Consequently, maintenance is enhanced to Rs.3,000/- per month from Rs.2,500/- per month in respect of Deepa. Permanent alimony of Rs.2,500/- per month is enhanced to Rs.4,000/- per month in so far Mrs. Kusuma is concerned.
36. The enhanced alimony and maintenance shall come into effect from today i.e., the day of judgment in these 28 appeals. In so far as marriage expenses of the daughter Deepa is concerned, necessary application may be filed under Section 26 of the Hindu Marriage Act when her marriage is likely to be conducted and at that time, the Court will be at liberty to pass suitable orders on the claim for marriage expenses. Litigation cost of Rs.3,000/- awarded by the Trial Court is confirmed. Rs.5,000/- is awarded towards litigation expenses in this Court. Maintenance shall be paid on or before 8th of every month.
37. Office to keep the copy of this order in connected MFA 9802/2011.
Sd/-
JUDGE Sd/-
JUDGE DM