Appellants. When the matter went for trial, the Appellant reiterated her case.
The Respondent in his examination-in-chief admitted that atleast 23 acres of
land belongs to the Joint Hindu undivided family and he is one of the
coparcener. In so far as other properties referred to in the Petition, he has merely
denied having any connection therewith inspite of the fact of having admitted
that godown was standing in his name. The fact remains that the joint Hindu
undivided family of which the Respondent was coparcener has substantial
properties. The Appellant had produced 7/12 extract before the lower Court to
establish the fact that the Family property consisting of mango grove was
around 75 acres of which 22 ares was used for cultivation of mango. The fact
that the family owns property has been accepted by the lower Court. The lower
Court has also accepted that joint family business was conducted through two
firms by the name “Ratna Mango House” and “Behere Bandhu Ambewala”.
The lower Court has rejected the plea of the appellant that income from all
sources would be around Rs.2 Crores per year. At the same time, it is noticed
that holding of other 22 acres of mango grove would generate substantial
income. We are conscious of the fact that the Respondent is one of the
coparcener and would have only part of share in the said income. It has come
on record that joint family also owns tempos and other vehicles. Considering
the life style of the Respondent family, it would necessarily follow that the
income of the Respondent was substantial. The Respondent only in crossexamination
produced his income tax return. However, when it came to the
question as to whether his father has filed income tax return as HUF. He has
denied knowledge thereof. That information is within the personal knowledge
of the Respondent. It was possible for the Respondent being one of the
coparcener of the Hindu undivided family and having share in the business and
income of the family, to have filed income tax returns in the name of HUF to
repel the claim of the Appellant that the income of the HUF was quite
substantial and almost around two crores per annum. The Respondent failed to
do so. In such a situation, adverse inference can be drawn against the
Respondent. We would therefore safely assume that the Respondent has
substantive income and considering holdings of the Joint family was capable of
paying monthly maintenance amount to the wife and the minor daughter as
prayed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 22 OF 2006
WITH
CIVIL APPLICATION (ST.)NO.18788 OF 2010
IN
FAMILY COURT APPEAL NO. 22 OF 2006
Mrs. Mansi Milind Behere
Vs.
Shri Milind Pandurang Behere.
CORAM:- A.M.KHANWILKAR AND
A.A.SAYED, JJ
DATED:- AUGUST 9, 2010
1. Heard Counsel for the Appellants. None appears for the Respondent.
2. This Appeal by the wife takes exception to the Judgment and Decree
passed by the Principal Judge, Family Court No.5, Pune dated 28th April, 2005
in Petition C.No.65/2003 and Petition E.No.397/2003. Gist of the said order
reads thus:
“ORDER
1. The respondent is hereby directed to pay Rs.1,500/- per
month to Petitioner No.1 and Rs.1,000/- p.m. to the Petitioner
No.2, from the date of this Petition u/s 18 and 20 of the
Hindu Adoption & Maintenance Act and under Section 125
of the Code of Cri. Procedure.
2. In case of default in payment of maintenance by
Respondent the petitioner-wife can recover the said amount
either by filing Darkhast or by filing recovery Petition u/s
125 (3) of the Code of Cri. Procedure and not by adopting
both modes of execution simultaneously.
3. The amount received by the Petitioner from the
respondent under the order of interim alimony shall be
adjusted with the amount of arrears as per this order.
4. Decree be drawn accordingly in PC No.65/2003.
5. Copy of this judgment be kept in PE No.397/2003.”
The above composite order has been passed while disposing of the Petitions
filed by the appellant wife for maintenance under section 18(2)(b) of the Hindu
Adoption & Maintenance Act and section 125 of Criminal Procedure Code. The
above order was challenged also by the Respondent-husband by separate appeal
being FCA No.99 of 2005, which we have dismissed today for non-prosecution.
In so far as the Appellant-wife is concerned, she is praying for enhancement of
the maintenance amount provided in the order impugned in this Appeal. During
the pendency of this Appeal, the High Court accepted the Appellants’ request for
enhancing the maintenance amount, which has been quantified at aggregate
amount of Rs.10,000/- for both the appellants.
2. In the present Appeal, our attention is invited to paragraph-7 of the
Petition filed by the Appellants for maintenance under section 18 of the Act of
1956. The same reads thus:
“7. That the Applicant states and submits that she is
having no source of income of whatsoever nature for their
maintenance. Therefore, she is unable to maintain herself
and her minor daughter i.e. the Applicant No.2. So also, the
financial position of her parents is not good. Therefore,
herself and her minor daughter are residing at the mercy of
her parents. Thus, the Applicant is unable to maintain herself
and her minor daughter. On the contrary, the Opponent is
having 75 acres mango orchards at Village Kurdhe (Moravi),
Taluka and District Ratnagiri, out of which the Opponents
and his parents are getting nearly Rs.3,00,00,000/- per year.
So also, the Opponent is having mango nursery from which
he gets net income of Rs.1,00,000/- per year. Not only that
but the Opponent is a wholesaler of mangoes having big
business at Pune, in the name and style as ‘Ragna Mango
House’ and ‘Behere Bandhu Aambewale’. That two shops
totally admeasuring at 500 sq.ft. bearing City Survey Nos.
1440/G/2, Shukrawar Peth, Pune – 411 002 are owned and
possessed by the Opponent himself and Shop No.1440/S/G/1,
admeasuring 630 sq.ft. is owned and possessed by the father
of the Opponent, wherein the Opponent is also selling various
types of food and food products on retain as well as
wholesale basis, out of which the Opponent is having net
income of Rs.8,00,000/- per year. In addition to the same, in
Ganpati season, the Opponent sells Mava and Kaju Modaks
and thereby getting net income of Rs.1,00,000/- per year.
Thus, excluding the expenses, the Opponent is having net
yearly income of Rs.2,00,00,000/- per year out of mango
orchards and various business, as clarified hereinabove. So
also, the Opponent is having two luxurious bungalows at
Village Kurdhe(Moravi), Taluka and District Ratnagiri and
total five residential floats at Shukrawar Peth, Pune, out of
which, three flats are situated in Kaustubh Apartment,
bearing No. 101, 102 and 103, Shukrawar Peth, Pune and two
flats at 1440 Shukrawar Peth, Pune – 411 002, each having an
area of 850 sq.ft. each approximately. Not only that, but the
Opponent also owns and possesses a Maruti Van and a Truck
(Model 407) for his use and occupation. However, there is
no other dependency on the Opponents except the
Applicants.”
In reply to the said Petition, the Respondent husband filed reply stating as
follows:
“H. The contents of para-7 of the application are not true and
correct and are denied by the Opponent. It is not true to state
that the Applicant No.1 has no source of income and is
unable to maintain herself and the minor daughter. It is also
not true to state that the financial position of the Applicant
No.1’s parents is not good. It is also not true that the
Opponent is having 75 acres of mango orchard at Village
Kurdhe, Tal. Moravi, Dist. Ratnagiri. It is further denied that
the Opponent and his parents have an income of Rs. Three
crores per year. It is further denied that the Opponent No.1
carries on a business of mango nursery from which he derives
an income of Rs. One lakh per year. It is not true to state that
the Opponent is a wholesaler of mangoes having a big
business at Pune viz. Ratna Mango House and Behere Bandu
Ambewale and that both the shops are owned and possessed
by the Opponent himself. It is also not true to state that the
Opponent is selling various types of food and food products
on retail and wholesale basis; out of which the Opponent is
having net income of Rs. Eight lacs per year. It is also not
true that in Ganapati season, the Opponent sells Mawa and
Kaju Modaks and earns net income of Rs. One lac per year.
It is not true that the Opponent is thus having a net income of
Rs. Two cores per year. It is also not true to state that the
Opponent is having two luxurious bungalows in Village
Kurdhe and total five residential flats at Shukrawar Peth,
Pune. It is also not true that the Opponent also owns a Maruti
Van, a truck for his use and business. It is also not true that
there is no other dependency on the Opponent except the
Applicants.”
3. It is seen that the reply is only of denial of the assertions made by the
Appellants. When the matter went for trial, the Appellant reiterated her case.
The Respondent in his examination-in-chief admitted that atleast 23 acres of
land belongs to the Joint Hindu undivided family and he is one of the
coparcener. In so far as other properties referred to in the Petition, he has merely
denied having any connection therewith inspite of the fact of having admitted
that godown was standing in his name. The fact remains that the joint Hindu
undivided family of which the Respondent was coparcener has substantial
properties. The Appellant had produced 7/12 extract before the lower Court to
establish the fact that the Family property consisting of mango grove was
around 75 acres of which 22 ares was used for cultivation of mango. The fact
that the family owns property has been accepted by the lower Court. The lower
Court has also accepted that joint family business was conducted through two
firms by the name “Ratna Mango House” and “Behere Bandhu Ambewala”.
The lower Court has rejected the plea of the appellant that income from all
sources would be around Rs.2 Crores per year. At the same time, it is noticed
that holding of other 22 acres of mango grove would generate substantial
income. We are conscious of the fact that the Respondent is one of the
coparcener and would have only part of share in the said income. It has come
on record that joint family also owns tempos and other vehicles. Considering
the life style of the Respondent family, it would necessarily follow that the
income of the Respondent was substantial. The Respondent only in crossexamination
produced his income tax return. However, when it came to the
question as to whether his father has filed income tax return as HUF. He has
denied knowledge thereof. That information is within the personal knowledge
of the Respondent. It was possible for the Respondent being one of the
coparcener of the Hindu undivided family and having share in the business and
income of the family, to have filed income tax returns in the name of HUF to
repel the claim of the Appellant that the income of the HUF was quite
substantial and almost around two crores per annum. The Respondent failed to
do so. In such a situation, adverse inference can be drawn against the
Respondent. We would therefore safely assume that the Respondent has
substantive income and considering holdings of the Joint family was capable of
paying monthly maintenance amount to the wife and the minor daughter as
prayed. In the application under section 18, the wife claims monthly
maintenance up to Rs.10,000/- and for daughter further sum of Rs.10,000/- per
month. Taking over all view of the matter, coupled with the fact that the
Appellant No.2 is school going and must be around 9 years by now, and also
considering heavy expenditure for education and maintenance we allow this
Appeal by granting the amount as demanded by the Appellant. We are
conscious of the fact that the Appellants have filed application in the pending
appeal praying for grant of further maintenance amount aggregating to Rs. One
Lakh per month. However, we will not enter upon the said controversy and
leave the option open to the appellants to move the lower Court for such relief, if
so advised.
4. Accordingly, we allow the appeal by enhancing the monthly maintenance
payable to the Appellant No.1 in the sum of Rs.10,000/- per month and to
Appellant No.2 in the sum of Rs.10,000/- i.e. aggregate amount of Rs.20,000/-.
However, that liability would commence from the date of the order and not
retrospective. In so far as the liability to pay maintenance amount as determined
by this Court during the pendency of the appeal is quantified at Rs.10,000/- per
month, which will endure till the date of the order.
5. Our attention is invited to the pendency of the Civil Application (St.) No.
18788 of 2010 for striking out defence of the Respondent. In view of dismissal
of the Appeal(FCA No.99 of 2005) filed by the Respondent husband, no further
order is required in the said application. Even the said application would stand
disposed of.
6. The Respondent shall pay costs of this proceedings to the Appellants in
the sum of Rs. 10,000/-.
7. We make it clear that the amount provided by us towards monthly
maintenance will be inclusive of all the expenses to be incurred by the
appellants towards educational fees of the appellant No.2.
(A.A.SAYED, J) (A.M.KHANWILKAR, J)
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