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2005 DIGILAW 604 (ORI)

PRAMILA MOHANTY v. BANABIHARI MOHANTY

2005-10-07

P.K.TRIPATHY, PRADIP MOHANTY

body2005
PRADIP MOHANTY, J. ( 1 ) BOTH the aforesaid appeals have been filed under Section 19 of the Family Courts Act, 1984 challenging the judgment dated 7. 1. 2002 passed by the judge, Family Court, Cuttack in Civil Proceeding no. 269 of 2000. Civil Appeal No. 7 of 2002 has been filed by the wife and children for enhancement of the amount of maintenance whereas Civil Appeal No. 11 of 2002 has been filed by the husband to set aside the impugned judgment. ( 2 ) SINCE both the appeals arise out of the same judgment, they were heard together and are disposed of by this judgment, which will govern both the cases. ( 3 ) APPELLANT No. 1 and respondent in Civil appeal No. 7 of 2002 are wife and husband respectively. Appellants 2 to 6 are their children. The wife and children (Appellants in Civil appeal No. 7 of 2002) filed a petition under sections 18 and 20 of the Hindu Adoption and Maintenance Act before the Family Court claiming monthly maintenance, cost of seperate residence and marriage expenses of appellants 2 to 6. Their case is that appellant no. 1 married the respondent according to hindu rites and customs and led their conjugal life. To their wedlock, one son and five daughters were born. Due to dissension in the joint family of the husband, parties shifted their residence to a nearby village and resided there in a rented house. The respondent is a Government servant. He was continuously visiting his wife and children and taking their case till the year 1997. It is alleged by the appellants that from the year 1997, the respondent did not visit them, nor did he take care of them. He also did not provide anything for their maintenance. They have no means or source of income. The husband is getting Rs. 15,000/-per month as salary but is neglecting his wife and children. ( 4 ) THE case of the respondent is complete denial of the allegations. According to him, he and his wife led a happy conjugal life till 2000. Due to the behaviour and rowdy nature of the wife, dispute arose between them. In order to harass, him, the wife has filed the case. He submitted that his monthly income is rs. 9,000. 00 only. According to him, he and his wife led a happy conjugal life till 2000. Due to the behaviour and rowdy nature of the wife, dispute arose between them. In order to harass, him, the wife has filed the case. He submitted that his monthly income is rs. 9,000. 00 only. He is serving as an Assistant engineer and, due to his posting at baripada, he is staying there. ( 5 ) IN order to prove their case, the appellants examined three witnesses on their behalf including the appellants 1 and 3 as P. Ws. 1 and 3 respectively. P. W. 2 is an independent witness who deposed about the living of the appellants in the house of his brother on rent. In support of his case, the respondent has examined himself as O. P. W. No. 1. ( 6 ) THE learned Judge, Family Court, after going through the evidence on record and hearing learned Counsel for the parties vide the impugned judgment disposed of the petition by directing the respondent to pay monthly maintenance of Rs. 500/- to each of the six petitioners (wife and five daughters) before him and Rs. 50,000/- each to petitioners 2, 3 and 4 towards their marriage expenses one month prior to their marriage. ( 7 ) MR. Pattnaik, learned Counsel for the appellants in Civil Appeal No. 7 of 2002, submitted that while fixing the quantum of maintenance, which, according to him, is too meagre, the Judge, Family Court, should have taken into consideration the status of the parties, their necessities, change of circumstances and the mode of living. He also urged that the Judge, family Court, should not have accepted the statement of the husband that his monthly salary is Rs. 9,000. 00 in absence of any document. According to him, the Judge, Family court, has erroneously awarded Rs. 50,000. 00 each to three daughters only instead of all the five daughters towards their marriage expenses. Besides, the amount awarded is too low keeping in view their status. ( 8 ) MR. Nayak, learned Counsel appearing for the respondent (appellant in Civil Appeal No. 11 of 2002), submitted that respondents 2 and 3 are earning Rs. 6. 000. 00 per month from their business. The Judge, Family court, without any document and without considering the oral evidence has erroneously awarded very high maintenance. ( 8 ) MR. Nayak, learned Counsel appearing for the respondent (appellant in Civil Appeal No. 11 of 2002), submitted that respondents 2 and 3 are earning Rs. 6. 000. 00 per month from their business. The Judge, Family court, without any document and without considering the oral evidence has erroneously awarded very high maintenance. In a case of this nature, the petitioners are to prove that the respondent neglected them and treated them with cruelty, which can justify their separate living. ( 9 ) IN the instant case P. Ws. 1 and 3 have categorically stated that they are living in a rented house and the respondent is not making any arrangement for the marriage of the grown up daughters. The respondent also assaulted them and abused them in filthy language. P. W. 3 has specifically stated about the illness of the youngest daughter and that due to lack of funds, she has not been getting proper treatment. She has further stated that the income of the respondent is more than rs. 15,000/- per month. P. W. 2 who is an independent witness, has only deposed about staying of the appellants in the house of his brother on rent since 1996. Nothing substantial has been brought out from them during cross-examination to discredit their testimony. ( 10 ) O. P. W. 1 has stated in his evidence that many persons used to visit the petitioners though the daughters were already grown up. When he restrained, the quarrel started. He has also stated that he is getting salary of rs. 9,000/- per month. But no documentary evidence has been produced with regard to his salary. ( 11 ) THIS Court has gone through the impugned judgment and considered the submissions made by the parties. It is noticed that the respondent has not filed any documentary evidence with regard to his monthly salary. It is only his oral evidence that his monthly salary is Rs. 9,000. 00. On the other hand, the oral evidence of P. Ws. 1 and 3 is to the effect that his monthly salary is Rs. 15,000/ -. It is not improbable for an Assistant Engineer to get salary of Rs. 15,000. 00 per month. Therefore, this Court does not accept the submission that the respondent earns Rs. 9,000. 00 per month. This Court opines that the submission made by the appellants is more acceptable. 15,000/ -. It is not improbable for an Assistant Engineer to get salary of Rs. 15,000. 00 per month. Therefore, this Court does not accept the submission that the respondent earns Rs. 9,000. 00 per month. This Court opines that the submission made by the appellants is more acceptable. ( 12 ) CONSIDERING the facts and circumstances of the case this Court is of the view that the monthly maintenance of Rs. 500. 00, as awarded by the Judge, Family Court, should be enhanced to Rs. 600. 00 (six hundred ). As regards marriage expenses, the Judge, Family court has awarded the same in favour of respondents 2, 3 and 4 only. But, this Court is of the view that the same should be awarded to respondents 2 to 6. As to quantum of the marriage expenses, considering the status of the parties, their standard of living and the present market rate, this Court fixes the same at Rs. 75,000. 00 to be paid in favour of respondents 2 to 6. ( 13 ) IN the result, Civil Appeal No. 7 of 2002 is allowed and the judgment of the Judge, family Court, Cuttack is modified to the extent that the respondent shall" pay monthly maintenance of Rs. 600. 00 (six hundred) to each of the appellants, payable from the date of application. Further, he shall pay a sum of rs. 75,000. 00 (seventy-five thousand) to each of the appellants 2 to 6 (in C. A. No. 7/2002)towards their marriage expenses within two months from today, the said amount shall be kept in fixed deposit in any Nationalised Bank in their respective names. Liberty is given to respondents 2 to 6 (in C. A. No. 11 of 2002)to withdraw the said amount one month prior to their marriage. ( 14 ) IN view of the above, Civil Appeal No. 11 of 2002 stands dismissed. Appeals disposed of.