Attested copies not given in time from court staff
lalabhai1977
(Querist) 27 September 2016
This query is : Resolved
Dear Sir / Madam,
I have to do if court staff is not providing me attested copied of my son custody case papers and my wife maintenance case papers in time. They given me false promise to collect the same. I need it for put up in Gujarat High Court for stay and quashing application. The day after tomorrow I have hearing in this lower family court - Gandhinagar i.e. 29.09.2016. If any complaint authority for the same please intimate me immediately. The registrar also known person for this matter and clerk is neglecting the same. For getting the copies time limit is one week (7 days) for ordinary charge but in my case I have passed away total 13 days including time limit for copies of papers.
Please help me for this as quick reply. I will be always thankful to you.
I am attaching my receipt which i got after the lump sum amount from court administrative staff. Here with i am attaching the receipt.
thanking you
Please help me.
Raj Kumar Makkad
(Expert) 28 September 2016
You can personally make a complaint to the District/Metropolitan magistrate in this regard.
lalabhai1977
(Querist) 28 September 2016
There are many magistrate in the district court and my case is related to family court. Is this will be going fruitful?
Rajendra K Goyal
(Expert) 28 September 2016
You can prey family court / district judge.
Raj Kumar Makkad
(Expert) 29 September 2016
The chief of all magistrates is to be approached, may he be District or Metropolitan Judge.
Dr J C Vashista
(Expert) 02 October 2016
Custody case of son and maintenance case of wife are dealt by different courts, i.e., MM & Family Court; copying agency do not have same clerk to provide copy with respect to both of them. Administrative officer (immediate Officer-in-charge) Copying agency and/or District Judge must be appraised of the fact, if your query is true, which I doubt.
lalabhai1977
(Querist) 03 October 2016
My Query was true and I was went there and orally I discussed to court staff that I will go to complaint to your higher authority for the same then it was short out.
I am saluting to all of you that you were helped me and improve my knowledge. I hope you will provide positive response in future.
Once again thank you very much. Have nice practice for advocate.
lalabhai1977
(Querist) 04 October 2016
Request on Urgent basis.
Dear all,
I need a Bombay high court and Punjan & Hariyana High court judgements of after ex party order to husband in section - 9, Hindu marriage act decree of restitution of conjugal rights and section 125 crpc for stopping the maintenance. If there is a any kind of supreme court judgement for stopping the maintenance after the refused to stay with his husband and husband has a ex-party order along with decree of section - 9 in Hindu marriage act.
This is my own case and I have to argue on written my next hearing on 6th October 2016 to Family court Gandhinagar, Gujarat.
Please help me and I will be always thankful to all of you.
with best regards,
lala bhai
08155810739
Rajendra K Goyal
(Expert) 05 October 2016
Judgment / reference cases / ruling / citation / decided cases not supplied in this section.
May try at indiankanoon.com or respective court site.
lalabhai1977
(Querist) 05 October 2016
Thank u Rajendraji,
you have any source to get the same. I will go through this site. Thank you sir and Salute to you boss.
lalabhai1977
(Querist) 06 October 2016
Rajendra sir,
Supreme court ka koi judgment mil sakta hai kya.
lalabhai1977
(Querist) 06 October 2016
after the got the decree of section - 9 which ex-party order to respondent in the case of 125 maintenance. petitioner clear said in his cross that she is not ready to stay with respondent. She (respondent) has not any FIR or complain against the respondent for mentally and physically harassment to her. Respondent taken all type of care to her and his son who with petitioner. Petitioner fail to maintain her conjugal rights. Respondent has the witness for his non alcoholic. Witness has been gave his statement at the time of his before cross.
Please reply urgent basis.
thanks and regards,
lala bhai
Nadeem Qureshi
(Expert) 07 October 2016
Dear Querist
in every court, a person is appointed as in-charge of Coping Department, you may file a complaint to him/her and get the solution.
Nadeem Qureshi
(Expert) 07 October 2016
Mrs. Meena Dinesh Parmar vs Shri Dinesh Hastimal Parmar on 4/2/2005
JUDGMENT
R.S. Mohite, J.
1. This appeal has been filed by the appellant Mrs. Meena Dinesh Parmar
(hereinafter referred to as "wife") against the respondent Dinesh Hastimal
Parmar (hereinafter referred to as "husband") seeking to quash and set aside the
Judgment and order passed by the Judge, Family Court, Pune on 26.2.2001 In
Petition No. A−354 of 2000 and Petition No. E/810/1998. Petition No. A/354/2000
is a petition filed by the husband for grant of divorce on the ground of cruelty
and desertion under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.
The Petition No. E−810/1998 was filed by the wife claiming maintenance under
Section 125 of the Code of Criminal Procedure, 1973. By the impugned Judgment
and order the Judge, Family Court granted dissolution of marriage by decree of
divorce on both the grounds and granted Rs. 500/− per month as maintenance to a
son Bhushan who was born out of the marriage, while rejecting the claim of the
wife for grant of maintenance.
2. The case of the husband as made out in his petition filed in the Family
Court was as under:
a) That, both the parties belonging to Hindu community had entered into an
arranged marriage on 24.2.1995. The marriage was performed as per the Hindu
Vedic rites. At the time of marriage the husband was a bachelor and the wife was
a spinster.
b) After the marriage the newly wedded couple started residing in a family
residence of the husband at Bhandup. A few days after the marriage the wife
started picking up quarrels with the husband and other family members on trifle
matters. She started insisting for separate accommodation. According to the
husband even before the marriage, he had asked his wife as to whether she was
ready to stay in a joint family and she had agreed to do so. The husband
reminded her of this consent given by her but the wife continued to insist that
they should move to a separate accommodation. The husband move to a separate
accommodation. The husband tried to persuade her not to be adamant but the wife
respondent by denying him physical contact, thus, causing him mental and
physical torture. The husband further found that his wife was not carrying out
household duties. She used to sit in a corner in the room and was not helping
other family members in carrying out other household duties.
c) That the parents of the wife used to reside at Yogita Building, Daulat
Nagar, Borivali (E). The wife used to frequent her parents house. She had a
maternal uncle staying at Pune. This maternal uncle was a divorcee and the
petitioner’s wife used to visit her maternal uncle also. The husband was
required to go and search for her and he used to find her at her parents’ home.
d) That, on 15.5.1996, the husband sent his wife to her parents’ house at
Borivali for delivery as she was then seven months pregnant. However, to the
dismay of the husband and his family, his wife went to the house of her maternal
uncle at Pune for delivery instead of staying at her parents house at Borivali.
She went to the house of her maternal uncle without informing the husband.
Inspite of such action by his wife, upon master Bhushan being born at Pune, the
husband and his family members had gone to see the newly born baby at Pune. At
Pune, the husband asked the wife to return with him to the matrimonial home at
Bhandup but the wife refused to do so. Her maternal uncle Babulal Dhoke also
refused to send her to Mumbai alongwith the husband. Quarrel took place between
the wife and her maternal uncle on one hand and the husband and his family
members on the other and the wife clearly told her husband that she will never
return to her matrimonial home and she will live with her maternal uncle at
Pune. She also told the husband that she wanted a divorce from him.
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e) Since the husband found that his wife was completely adamant about
having a separate accommodation, in the month of April, 1997, in order to save
his matrimonial life, he purchased a separate premises. Thereafter, husband and
his family members went to Pune on several dates to persuade the wife to return
but she refused to do so. On 3 to 4 occasions maternal uncle even assaulted the
husband and tried to drive him out of the house.
f) On the occasion of the first birth day of the child,master Bhushan,
husband had gone to Pune with some sweets, clothes and presents. However, the
wife and her maternal uncle refused to accept the presents and threw the same
towards the husband. Husband then collected the same and kept them in a corner
of the room. However, the wife sent back sweets, clothes and presents to the
husband by courier on the very next day.
g) On 26.9.1997 the husband filed a petition in the Family Court at Pune
for restitution of Conjugal rights.
h) As a counter move to the said petition, wife filed police complaint
against the husband and his family members at Pune (Ramoshi Gate) Police Station
and the husband and his family members were required to go to the police station
at least thee times and due to the harassment caused to them and likelihood of
harassment they also applied for anticipatory bail which was granted to the
husband and his family members by the court.
i) On 1.6.1998 wife then filed a maintenance application in the Family
Court at Pune. In her application, she contended that due to harassment caused
by her husband and his family members she had to leave for her parental home
when she was pregnant. But as the harassment continued, her parents sent her to
the house of her maternal uncle at Pune. Inspite of her delivery on 29.7.1996
she continued to be neglected by her husband. That, because of continued
harassment and the sending of a false notice by her husband she had to file
criminal case in Khadki Police Station at Pune. She claimed maintenance at the
rate of Rs. 500/− p.m. for herself and Rs. 500/− for her son. She also filed
Civil Misc. Application in the High Court of Mumbai for transfer of the
husband’s petition for restitution of conjugal rights. Seeing that there was no
hope of her return, the husband withdrew his petition for restitution of
conjugal rights by filing an application dated 5.11.1998 in the family Court at
Bandra. The wife also filed a private complaint under Section 498A of the Indian
Penal Code at Pune Court. As a result of these proceedings it has become clear
that his wife was not interested in living with him.
j) In the circumstances, on 10.11.1998, the husband filed a petition for
grant of divorce on the ground of desertion and cruelty.
3. On 8.10.2000, the wife filed her written statement. In the written
statement she denied the allegations made by the husband. She also came out with
a positive case that her parents had given 33 tolas of gold ornaments and 4−K.G.
of silver ornaments to her on the demand made by her husband. That her parents
had spent four to five lacs at the time of the marriage. That, after the
marriage the husband and his family members had asked money from time to time
from her parents and therefore, her parents were constrained to sell their flat
for fulfilling the demand of her husband and her family members. She was
harassed and ill−treated by the petitioner and his family members. Her husband
tired to compel her to give a divorce in writing on stamp paper. Her parents
were not in a position to fulfil such exorbitant and continuous demands because
they were not financially sound. That, she was never provided with medical aid
during her pregnancy and therefore, she became weak. That, as a result of such
harassment she had to return to her parents house at Borivali. Since her husband
and his family members continued to harass her, her parents sent her to Pune for
her safety. At Pune she delivered her child and since she was very weak she was
admitted in Meera Hospital where she took treatment for 2.1/2 months. That, her
Indian Kanoon − http://indiankanoon.org/doc/1401220/
husband neither performed his duty as her husband or as father of the child nor
had he visited her after her delivery. That, her husband was making false
allegations against her for adultery. That, her maternal uncle was a respectable
person in society and was just like her father to her. He had brought up her
just like a daughter. That, these allegations made by her husband against her
and her maternal uncle amounted to cruelty to her and her maternal uncle. She
denied that she had made any demand for a separate residence and denied that she
had caused any mental and physical torture by denying physical relations to her
husband.
4. At the trial the husband examined himself as P.W.No. 1, his brother Dr.
Naresh Parmar as P.W.2 and one Kantilal Ranka who claims to be the employer of
the husband as P.W.3. The wife examined herself as R.W.1, her mother Bhavaribai
Surana as R.W.2, her other uncle Devraj Dhoka as R.W.3 Both the sides produced
documentary evidence. Upon considering all the evidence on record, the Family
Court, Pune passed the impugned judgment and order which is the subject matter
of challenge in this appeal. It may be stated here that since no stay to the
decree of divorce was granted pending this appeal, the husband married again and
has by now two children from his second marriage.
5. We have heard both the sides exhaustively. We have also perused the entire
evidence on record. We made serious attempts to see that the parties to be
brought together but our efforts have failed. It is the admitted position before
us that the parties have been staying separately since 15.5.1996 i.e. for a
period of more than 6 years and 8 months. Since all attempts of reconciliation
failed, we have looked into the evidence in order to decide the matter on
merits. We find from the evidence of the husband that the main reason given by
him as to why his wife was unhappy was that she was seeking a separate
accommodation and desired to stay away from the joint family. He has stated that
his wife denied physical relations with him and caused him physical and mental
torture. That,after she left her matrimonial home on 15.5.1996, though she
initially went to her parental house at Borivali within two days he came to know
that she had gone to her maternal uncle’s house at Pune. He deposed that he had
gone to the house of her maternal uncle and had been abused by him. His wife had
informed him that she wanted to stay at Pune. That, in April, 1997 he had made
arrangement for a separate residence at Bhandup and had intimated about it to
the parents of his wife but inspite of this she did not return. We have noted
that the wife took the contention that she was willing to stay in a joint
family. If this be so, then one of the main reason for acrimony between the
parties would not exist and there was no reason for her not to return to her
husband. We find that she has contended that she was harassed and ill−treated by
the petitioner and his family members. Her contentions in this regard are vague.
There is no date mentioned in respect of any particular incident of harassment.
So also particulars of harassments are also not given. She had stated that she
was never provided with any medical aid during her pregnancy. Apart from her
bare statement, there is nothing on record to substantiate this contention. It
is noted that she had gone to her parents place at Borivali for delivery
however, within two days she left for her uncle’s place at Pune. In the police
enquiry her own father had given a statement that his consent and permission was
not taken for leaving his house at Borivali. We find no justification in the
contention of the wife for staying at Pune with her maternal uncle, even though
her husband had purchased a separate place for their exclusive residence. Such
an act on her part of staying at Pune alongwith her newly born son does amount
to both cruelty as well as desertion and no fault can be found in the impugned
judgment and order granting divorce on the ground of cruelty and desertion.
6. So far as question of maintenance is concerned, in view of our aforesaid
finding, maintenance cannot be granted to the wife. In so far as the child is
concerned, we find that an amount of Rs. 500/− which is awarded is too meagre
looking to the present requirements of a growing child. The evidence indicates
that the husband had sufficient money to purchase his own flat. He cannot be
said to be a person of no means. No doubt, he contended that he had borrowed
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monies from his friends to purchase the new flat but he candidly admitted that
he had not taken any such contention about borrowing of monies from his friends
in his petition nor had he led any evidence in this regard. Taking an over all
view of the matter, we feel that ends of justice will be met if an amount of Rs.
3000/− per month is granted as maintenance to the child. The husband will have
an option of making lumpsum payment of Rs. 5,00,000/− towards the maintenance of
his son and if he makes such lumpsum payment in full, then his liability to pay
maintenance at the rate of Rs. 3000/− per month will cease from the date of full
payment. He will also have an option to make a lumpsum payment of Rs. 2,50,000/−
at the first instance and if he does so then the maintenance payable to the son
will stand reduced to Rs. 1500/− per month from the date of such payment. The
maintenance amount/amount in lieu of maintenance as aforesaid would be payable
to the son till the son attains the age of majority. In the circumstances, the
appeal is partly allowed with costs in the aforesaid terms.
Nadeem Qureshi
(Expert) 07 October 2016
Bench: B Marlapalle, S Vazifdar
1
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
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 1
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 2
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
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 2
job from 4.5.1998. The husband issued a legal notice on 30.4.2001 3
(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. 4
5. What order and decree ? As per final order.
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 3
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 5
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
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 4
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 ; 6
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.
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 5
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 cohabit
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 7
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
respondent in her pleadings as well as in her evidence has deposed that she is also ready and willing to
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 6
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 the family members
was held with the common friend Mr.Jain house and it was agreed that they would live together. The father 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 at Dahisar.
During the pendency of the proceedings various attempts were made for the parties to resume their cohabitation
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 his ownership flat, and the respondent wants to
return and stay at Dahisar, where she was living from the day after her marriage 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 8
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.
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
Indian Kanoon - http://indiankanoon.org/doc/409014/ 7
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 :- 9
"........ It can therefore be held that the Respondent has no source of income and hence the Respondent is
entitled to claim maintenance for herself. As regards the daughter, it is moral, social and legal obligation of
the Petitioner father to maintain 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 an admitted 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 the Petitioner for herself and the minor daughter, and that the
Petitioner has no other dependents upon him, the cost of living, it can be held that he is capable and able to
pay Rs. 2500/- per month towards the maintenance for the wife and Rs.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 valid Hindu 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
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
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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 through court intervention and with the aid of the
case-law 10
developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force
and that too 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 Hindu Adoptions 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."
11
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
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
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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 12
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
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July, 2009
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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.)
Smt.Manju Kamal Mehra vs Mr.Kamal Pushkar Mehra on 18 July,
lalabhai1977
(Querist) 07 October 2016
I need to stop her maintenance.
