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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.20 OF 2005
Smt.Manju Kamal Mehra
aged about 35 years, occ. Housewife,
Religion Hindu, resident of C/o G.K.
Chawla, G-1/23,Vijay Nagar, Marol-Maroshi
Road, Andheri (E), Mumbai-400 059. ....Appellant
V/s.
Mr.Kamal Pushkar Mehra,
aged about 40 years, occ.business,
Religion Hindu, residing of 107,
Janak Apartment, Samarth Ramdas Nagar,
Navghar Vasai (East), District.Thane ....Respondent
Mr.P.M. Havnur for the Appellant.
Mrs.B.P. Jakhade for the Respondent.
WITH
FAMILY COURT APPEAL NO.44 OF 2005
Mr.Kamal Pushkar Mehra,
aged about 40 years, occ.business,
Religion Hindu, residing of 107,
Janak Apartment, Samarth Ramdas Nagar,
Navghar Vasai (East), District.Thane ....Appellant
V/s.
Smt.Manju Kamal Mehra
aged about 35 years, occ. Housewife,
Religion Hindu, resident of C/o G.K.
Chawla, G-1/23,Vijay Nagar, Marol-Maroshi
Road, Andheri (E), Mumbai-400 059. ....Respondent
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Mrs.B.P. Jakhade for the Appellant.
Mr.P.M. Havnur for the Respondent.
CORAM : B.H. MARLAPALLE &
S.J. VAZIFDAR, JJ.
DATE : 18TH JULY, 2009.
ORAL JUDGMENT ( PER B.H. MARLAPALLE, J.) :-
1. Both these appeals filed by the respective spouses arise from a
common judgment and order dated 31.12.2004 passed by the Family Court at
Pune in Petition No.A-978 of 2002 and hence they are being decided by this
common judgment.
2. The parties were married at Mumbai on 12.7.1994 as per Hindu
rites and they co-habitated at Dahisar where a daughter by name Aishwarya
was born to the couple on 21.12.1995. As per the husband, the wife did not
return to the matrimonial home after the daughter was borne. The husband
claims that the wife abandoned the matrimonial home, whereas it is the case
of the wife that she was thrown out of the matrimonial home before the birth
of the child that is some time in September, 1995. In July, 1996, the wife’s
younger sister Anju was married and the husband along with his family
member attended the said marriage. The couple stayed together from 22 nd to
26th July, 1996 in the house of the wife’s parents but after 26th July, 1996, the
wife did not return to the matrimonial home. It appears that the wife was
working with M/s.R.G. Stone Hospital and she claimed that she left the said
job from 4.5.1998. The husband issued a legal notice on 30.4.2001
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(Exhibit-23, which was reply on 10.5.2001, Exhibit-24). Second legal notice
was issued on 8.6.2001 (Exhibit-25, which was replied on 15.6.2001,
Exhibit-26). Third legal notice was issued on 12.6.2001 (Exhibit-27) and
consequently a joint meeting between the two parties on 6.5.2002 to resolve
matrimonial dispute was held. It was decided in the said meeting that both the
parties should forget the past and start staying together. The wife conveyed
that she was ready and willing to co-habit with the Petitioner and her father
also supported the same plea and stated that his daughter must return to the
matrimonial home at Dahisar. Despite the settlement, there was no
cohabitation between the parties and therefore, Petition No.A-978 of 2002
was moved by the husband to seek a decree of restitution of conjugal rights
under Section 9 of the Hindu Marriage Act, 1955. The said Petition was
opposed by the wife. The following issues were framed by the Family Court
and answered accordingly in the impugned judgment :-
ISSUES FINDINGS
1) Does the Petitioner proves that the Respondent
has without any reasonable excuse withdrawn
from his society ? Yes
2) Whether the Petitioner is entitled to a decree
of restitution of conjugal rights ? Yes
3) Whether the Petitioner is entitled for maintenance Yes @ Rs.
from the Petitioner for herself or the child ? 2500/- per
month for
4) If yes, what should be the quantum ? herself & @
Rs.3000/-
p.m. for the
minor
daughter.
4-A) Whether the Respondent is entitled to Does not
return of her streedhan from the Petitioner ? survive.
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5. What order and decree ? As per final
order.
3. However, it appears that when Petition No.A-978 of 2002 was
decided by the earlier judgment dated 30.4.2004, the Family Court had not
recorded its findings on issue Nos.1 and 4-A. The said judgment was the
subject matter of challenge in Family Court Appeal Nos. 94 of 2004 and 95 of
2004 and by a common judgment dated 18.8.2004, the Appeals were
disposed off and the Petition filed by the husband was remanded to the
Family Court to record its findings on issue Nos.1 and 4-A.
4.
The husband examined himself and Kiran R.Vishvira, who is the
partner of a firm by name M/s.Manav Mandir Builders. The wife examined
herself and her father Gopal Kishan Chawla. She also examined Ajay
Gulabchand Malpani, Treasurer of the Housing Society at Vasai and
Dr.Manish Bansal, the Managing Director of R.G. Stone Hospital. Written
arguments were submitted before the Family Court and the Petition filed by
the husband came to be allowed in terms of the following order :-
“The Respondent is directed to restore conjugal rights with the
Petitioner forthwith.
The Petitioner is directed to pay Rs.2500/- per month towards
maintenance of the respondent and Rs.3000/- per month towards
maintenance of the minor daughter Aishwarya, in aggregate Rs.5500/- per
month from the date of order till the Respondent restitutes his conjugal rights.
5. The husband has challenged the directions to pay the
maintenance to the wife despite the fact that the decree under Section 9 of
the said Act has been passed in his favour. Whereas the wife has challenged
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the decree passed under Section 9 of the said Act and claimed that the
Family Court did not consider the harassment and ill-treatment given to her in
the matrimonial home and consequently she was justified in staying away
from the husband.
6. Mrs.Jakhade, the learned counsel for the husband submitted that
in Petition No.A-978 of 2002, the wife did not file any application for any
maintenance either under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956 or under Section 24 of the Act for maintenance
pendant-lite. She also pointed out that the decree of restitution of conjugal
rights was passed against the wife and surprisingly and equally shocking the
Family Court directed the husband to pay maintenance to the wife and as per
Mrs.Jakhade, this order itself is self-contradictory and the decree for
restitution of conjugal rights became a nullity as the wife continued to stay
away from the husband and the husband was required to deposit the
maintenance amount every month. Mr.Havnur, the learned counsel for the
wife on the other hand submitted that the decree for restitution of conjugal
rights was grossly erroneous and the Family Court was not justified, in the
facts of this case, to record its findings in the affirmative on issue No.1 framed
by it. He also submitted that as the wife was thrown out of her matrimonial
home along with her daughter much before the daughter was born and she
had to maintain herself and the daughter, the Family Court was justified in
granting maintenance by the impugned order. We are, therefore, required to
examine :-
i) Whether the decree of conjugal rights passed under Section 9 of the
Act in favour of the husband is sustainable and ;
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ii) Whether the Family Court was right in law to direct the husband to pay
maintenance to the wife after it had passed a decree under Section 9
of the Act in favour of the husband and directed the wife to join the
husband in the matrimonial home.
7. So far as the first issue is concerned, the Family Court has
referred to the oral depositions of the husband, wife and her father. As is
required in law, both the parties were referred to the Marriage Counsellor who
submitted her first report on 17.10.2002 (at Exhibit-3). The said report
indicated that both the parties had expressed their wish for reconciliation and
for resumption of co-habitation, but the second report of the Marriage
Counsellor dated 17.3.2003 (at Exhibit-14) was negative and it stated that
reconciliation between the parties was not possible and they were agreeable
for divorce but there was a dispute regarding the quantum of alimony. A joint
meeting between them on 6.5.2002 with the intervention of a common family
friend by name Mr.Jain and the reconciliation therein was not disputed
between the parties and the wife had shown her willingness to live and co-
habit with the husband. The father of the wife in his depositions before the
Family Court also stated that he wished that his daughter could return to her
matrimonial home at Dahisar. The deposition of the wife also went to show
that despite various allegations made by her against the husband and his
family members about cruelty and ill-treatment, she wanted to go and stay at
Dahisar and she was keen to save her marriage. She had categorically stated
in the pleadings as well as in her depositions that she was ready and willing
to co-habit with the Petitioner and she also reiterated about the compromise
and to bury the past. The husband had also assured the parents of the wife
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that he take her care. The Family Court therefore, held that the wife had
condoned the acts of the alleged cruelty and ill-treatment. In paragraph 31 of
the impugned judgment, the Family Court recorded its surprise about the wife
in the following words :-
“31. It is very peculiar that the petitioner has filed this
petition for restitution of conjugal rights and the respondentin her pleadings as well as in her evidence has deposed that
she is also ready and willing to co-habit with the petitioner.
The father of the respondent in his evidence has also
deposed that he desires that the respondent co-habits with
the petitioner. It is also an admitted fact that meeting of thefamily members was held with the common friend Mr.Jain
house and it was agreed that they would live together. Thefather of the respondent has admitted in his cross-
examination that a compromise was arrived at for the
petitioner and the respondent to stay together. He also
admitted that the petitioner does not own any property atDahisar. During the pendency of the proceedings various
attempts were made for the parties to resume their co-
habitation in view of the desires of both the parties, but failed
because the petitioner wants that the respondent should
resume his conjugal rights at Vasai where he owns hisownership flat, and the respondent wants to return and stay
at Dahisar, where she was living from the day after hermarriage till she left the house.”
8. The Family Court recorded the finding that the wife was not
justified and she had no good reason to stay away from her husband and she
had withdrawn from the society of the husband without any reasonable
excuse. Having referred to the evidence placed before the Family Court by
the respective parties, we are satisfied that these findings recorded by the
Family Court cannot be faulted with and the decree of restitution of conjugal
rights under Section 9 of the said Act was rightly passed in favour of the
husband. We are informed that till this date, the wife has not submitted to the
said decree and she continues to stay with her parents. In fact the husband
could have been justified in asking for dissolution of the marriage under
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Section 13(1-A) of the said Act on the ground that there was no resumption
of co-habitation between the parties for one year or thereafter, after the
decree under Section 9 of the said Act was passed, but he has not done so
and the leaned counsel for the husband stated before us that the husband is
keen to continue with the marriage and desires that his wife along with
daughter Aishwarya to join the matrimonial home. We are also informed and
it was the same case before the Family Court as well that the husband is
willing to stay away from other family members in his ownership flat at Vasai.
However, the wife insists that he should shift to a place in Andheri which is
close to her parent’s house and also to the daughter’s school. Consequently
the decree passed under Section 9 of the said Act has remained on paper.
9. So far as, issue No.1 – maintenance is concerned, pending the
proceedings before the Family Court at the behest of either of the parties,
wife was entitled to apply for interim maintenance either under Section 18 of
the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the
Act. She did not submit any such application nor did she file a counter claim
in the Petition filed by the husband. The Family Court in its second round of
the judgment, held that the wife was not justified in staying away from her
husband and directed her to submit to the decree under Section 9 of the Act.
However while doing so, it proceeded to consider the expenditure incurred by
the wife while she was staying away from her husband. The Court noted that
the wife had no employment since May, 1998 on the basis of the evidence of
Dr.Bansal, the Managing Director of R.G. Stone, Urological Research
Institute, corroborated by the evidence of her father and thus she was without
any source of income. The Court further observed as under :-
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“…….. It can therefore be held that the Respondent has no
source of income and hence the Respondent is entitled toclaim maintenance for herself. As regards the daughter, it is
moral, social and legal obligation of the Petitioner – father tomaintain her. The Petitioner has no where in his pleadings
stated as to what he is doing and what is his income. But in
reply to the interim application it is observed that it is anadmitted fact that the Petitioner is dealing in shares. He has
stated that his average income is Rs.7000/- per month…………
Hence considering the status of the parties and needs of thePetitioner for herself and the minor daughter, and that the
Petitioner has no other dependents upon him, the cost ofliving, it can be held that he is capable and able to pay Rs.
2500/- per month towards the maintenance for the wife andRs.3000/- per month towards the maintenance for minor
daughter, in aggregate Rs.5500/- per month from the date of
order till the Respondent restitutes to his conjugal rights.”
10. In the case of Chand Bhawan v. Jawaharlal Dhawan, (1993) 3
SCC 406, on the rights of the wife to receive any maintenance either under
Section 18 of Hindu Adoptions and Maintenance Act or under Section 24 of
the said Act, the Supreme Court stated as under :-
“23. The preamble to the Hindu Marriage Act
suggests that it is an Act to amend and codify the law
relating to marriage among Hindus. Though it speaks only of
the law relating to marriage, yet the Act itself lays down rules
relating to the solemnization and requirements of a validHindu marriage as well as restitution of conjugal rights,
judicial separation, nullity of marriage, divorce, legitimacy of
children and other allied matters. Where the statute
expressly codifies the law, the court as a general rule, is not
at liberty to go outside the law so created, just on the basis
that before its enactment another law prevailed. Now the
other law in the context which prevailed prior to that was the
uncodified Hindu law on the subject. Prior to the year 1955
or 1956 maintenance could be claimed by a Hindu wife
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developed. Now with effect from December 21, 1956, the
Hindu Adoptions and Maintenance Act is in force and thattoo in a codified form. Its preamble too suggests that it is an
Act to amend and codify the law relating to adoptions and
maintenance among Hindus. Section 18(1) of the HinduAdoptions and Maintenance Act, 1956 entitles a Hindu wife
to claim maintenance from her husband during her lifetime.
Sub-section (2) of Section 18 grants her the right to live
separately, without forfeiting her claim to maintenance, if he
is guilty of any of the misbehaviours enumerated therein or
on account of his being in one of objectionable conditions as
mentioned therein. So while sustaining her marriage and
preserving her marital status, the wife is entitled to claim
maintenance from her husband. On the other hand, under
the Hindu Marriage Act, in contrast, her claim for
maintenance pendente lite is durated (sic) on the pendency
of a litigation of the kind envisaged under Sections 9 to 14 of
the Hindu Marriage Act, and her claim to permanent
maintenance or alimony is based on the supposition that
either her marital status has been strained or affected by
passing a decree for restitution of conjugal rights or judicial
separation in favour or against her, or her marriage stands
dissolved by a decree of nullity or divorce, with or without
her consent. Thus when her marital status is to be affected
or disrupted the court does so by passing a decree for or
against her. On or at the time of the happening of that event,
the court being seisin of the matter, invokes its ancillary or
incidental power to grant permanent alimony. Not only that,
the court retains the jurisdiction at subsequent stages to fulfil
this incidental or ancillary obligation when moved by an
application on that behalf by a party entitled to relief. The
court further retains the power to change or alter the order in
view of the changed circumstances. Thus the whole exercise
is within the gammit (sic gamut) of a diseased or a broken
marriage. And in order to avoid conflict of perceptions the
legislature while codifying the Hindu Marriage Act preserved
the right of permanent maintenance in favour of the husband
or the wife, as the case may be, dependent on the court
passing a decree of the kind as envisaged under Sections 9
to 14 of the Act. In other words without the marital status
being affected or disrupted by the matrimonial court under
the Hindu Marriage Act the claim of permanent alimony was
not to be valid as ancillary or incidental to such affectation or
disruption. The wife’s claim to maintenance necessarily has
then to be agitated under the Hindu Adoptions and
Maintenance Act, 1956 which is a legislative measure later
in point of time than the Hindu Marriage Act, 1955, though
part of the same socio-legal scheme revolutionizing the law
applicable to Hindus.”
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11. In the case B.P. Achala Anand v. S. Appi Reddy and another, AIR
2005, SC 986, a three Judge Bench held that Section 18 of the Hindu
Adoptions and Maintenance Act confers a right on a wife to be maintained by
her husband during her lifetime and such a right for maintenance is an
incident of the status or estate of matrimony and a Hindu is under a legal
obligation to maintain his wife. Section 25 of the Act enables the Court to
pass an order for providing alimony and maintenance in favour of the
divorced wife. The Court further observed that on the status of the wife being
terminated by a decree for divorce under the Act, rights of divorced wife seem
to be cribbed, confined and cabined by the provisions of and to the rights
available Sections 25 and 27 of the said Act.
12. When the husband has succeeded in obtaining a decree of
restitution of conjugal rights against the wife, it is implied that the wife was
required to join the company of the husband at her matrimonial home and
therefore, there is no question of maintenance at least from the date of the
said order. If the wife is directed to be paid maintenance despite the said
decree, reluctance of the wife to join the husband would be further
strengthened and she would be encouraged to stay away from the husband
despite the decree passed by the Court. The decree for restitution of conjugal
rights would be rendered inoperative and for such an act of the wife, the
husband would be penalized to pay the maintenance to the wife, who does
not subject to the decree passed by the Court. Such a direction would be
incentive to frustrate the decree passed under Section 9 of the Act. It is well
settled that if such a decree is passed at the instance of the wife and against
the husband, the Court would be justified in directing the husband to pay
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maintenance to the wife till he resumes cohabitation with her or calls upon her
to join him at the matrimonial home pursuant to the decree passed by the
Court in her favour. Such is not a case before us. We are, therefore, satisfied
that the Family Court acted without jurisdiction in directing the husband to
pay maintenance at least from the date when the impugned order was
passed and therefore, the impugned order to that extent is required to be set
aside. However, we are not inclined to interfere in the maintenance granted to
the daughter.
13. In the premises, Family Court Appeal No.20 of 2005 fails and the
same is hereby dismissed. Family Court Appeal No.44 of 2005 succeeds
partly and the directions to pay an amount of Rs.2500/- per month by way of
the maintenance to the wife are hereby quashed and set-aside. Undoubtedly
till the wife resumes cohabitation with the husband, the order for access
passed by this Court dated 20.10.2006 shall continue to operate.
14. The parties to bear their own costs.
(S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)
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