Bombay High Court
KIRTIDA BHAVESH CHHADVAversusBHAVESH SHAMJI CHHADVA
- Decided
- Disposal
- Disposed Off
Holding
The alleged conduct does not constitute cruelty; the divorce decree is set aside and the wife is entitled to maintenance and residential accommodation.
Summary
The parties were married on 28 February 2002 but separated within three months, after which the husband filed for divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, and the wife filed for maintenance and residence under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. The Family Court decreed divorce and dismissed the maintenance claim, relying on a solitary advertisement of the wife’s art classes as proof of self‑sufficiency. On appeal, the High Court held that the alleged behaviour—failure to cook, minor quarrels, and alleged disrespect—did not rise to the level of cruelty required for divorce and that the Family Court erred in concluding the wife could maintain herself. Consequently, the divorce decree was set aside, the husband’s petition dismissed, and the wife was awarded maintenance of Rs.10,000 per month plus an equal amount for residential accommodation. The Court also noted the husband’s professional capacity as a Chartered Accountant and the need to adjust maintenance for inflation.
Issues considered
- The conduct alleged by the husband amounts to cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
- Whether the wife is entitled to maintenance and residence under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
- Whether the Family Court erred in finding the wife capable of self‑maintenance based on a single advertisement of art classes.
- Whether the interim maintenance award should be enhanced in view of the husband’s earning capacity and inflation.
Legislation cited
- Hindu Adoptions and Maintenance Act, 1956 — s. 18
- Hindu Marriage Act, 1955 — s. 13(1)(i-a)
Subjects
- divorce
- cruelty
- maintenance
- Hindu Marriage Act
- Hindu Adoptions and Maintenance Act
- family court appeal
- interim maintenance
- residential accommodation
Judgment
NISHA Digitally signed by
NISHA SANDEEP
SANDEEP CHITNIS
Date: 2026.05.11
CHITNIS 16:11:59 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.159 OF 2010
WITH
FAMILY COURT APPEAL NO.161 OF 2010
Kirtida Bhavesh Chhadva
Age. 31 yrs.
3-9, Hemkunj, Mamaldarwadi,
Opp. Saregam, Malad (W),
Mumbai- 64, at present
402, 4th Floor, Royal Amber,
Behind Vishaka Building, …Appellant
Malad (West), Mumbai-400 064. (Orig. Respondent)
Versus
Bhavesh Shamji Chhadva
Residing at 2/32, Modern Building,
Zakaria Bunder Road, …Respondent
Cotton Green, Mumbai-400 015. (Orig. Deft.)
Ms. Aditi Naikare (through legal aid) for the Appellant.
Mr. Vaibhav Jagdale for the Respondent.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 17th MARCH 2026
PRONOUNCED ON : 8th MAY 2026
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JUDGMENT :(Per Manjusha Deshpande, J.) :
1. Both these appeals arise out of the common judgment
delivered by the Judge, Family Court Mumbai at Bandra in Petition
No.A-1022 of 2004 and Petition No.C-188 of 2004 delivered on 23 rd
July, 2010, thereby the petition for divorce has been decreed by
dissolving the marriage under Section 13(1)(i-a) of the Hindu Marriage
Act and dismissing the petition for maintenance filed by the wife.
Feeling aggrieved by the outcome of both the petitions the respondent-
wife has approached this Court by way of filing the appeals against the
impugned orders.
2. The husband had filed Petition No.A-1022 of 2004 for
divorce under Hindu Marriage Act 1955, on the ground of cruelty,
whereas the wife has filed Petition No.C-188 of 2004 seeking
maintenance and residential accommodation under the provisions of
the Hindu Adoptions and Maintenance Act, 1956.
According to the husband, the marriage between the
parties was solemnized as per the Hindu Vedic Religious Rites on 28 th
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February 2002. Within few days of solemnization of marriage, dispute
arose between the parties.
In June 2002, their dispute was resolved through
mediation and they decided to start afresh. However, this
reconciliation did not last for long and again on 7 th July 2002, the wife
left the matrimonial home and started residing with her parents.
After waiting for a considerable period the husband filed
Petition for Divorce on the ground of cruelty. The allegations of the
husband were that wife was not behaving properly; was not doing her
household work; she was disobedient towards his parents; her
behavior was rude; she was not able to cook; the wife caused him
mental stress, all these acts amount to cruelty.
The parties filed their respective written statements and
lead evidence. The husband examined himself and his two witnesses in
support of his allegations of cruelty. The wife deposed on oath and
opposed all the allegations. After hearing the respective parties the
impugned Judgment came to be passed.
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3. So far as the relief of maintenance claimed by the wife is
concerned, during the pendency of the maintenance petition the
application for interim maintenance filed by the wife was allowed and
the husband has been directed to pay an amount of Rs.1200/- per
month along with a cost of Rs.1,000/- vide order dated 21 st September,
2005. This order continued to operate during the pendency of the
petition till its decision.
It is submitted that the respondent was very much
employed and is a qualified Chartered Accountant who was earning
more than Rs.30,000/- to Rs.40,000/- per month during the pendency
of the petition before the Family Court. The defence of the respondent
before the Family Court about losing the job and not being able to
earn anything is taken with a view to defeat her claim of maintenance.
Presently he is having an established practice as a Chartered
Accountant, therefore, the order refusing maintenance needs to be set
aside by enhancing the amount which is granted by this Court by way
of ad-interim relief.
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4. According to the appellant, it is admitted by the
respondent that she was conducting art classes like decoration of bridal
sarees, decorative articles along with basic drawing and painting from
which she was earning sufficiently as such she was able to maintain
herself which dis-entitled her for receiving any maintenance.
5. It is submitted that she, on her own volition, deserted the
respondent on 7th July 2002 by leaving the matrimonial house and
refusing to resume cohabitation. It was also contended before the
Court that the respondent was not having any source of income
because he was without any stable job and whatever his earning was it
was from his Articleship.
6. The learned advocate for the appellant submits that, the
evidence produced by the parties has not been properly appreciated by
the learned Judge of the Family Court while passing the impugned
judgment. While refusing the maintenance there is nothing produced
on record by the respondent to show that the appellant is having
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sufficient income. It also needs to be appreciated that a hobby or art
cannot become a means of survival or a stable income for one’s
livelihood.
Inspite of the fact that the respondent has not produced
any material on record to show that the appellant is having any stable
and permanent source of income she has been denied maintenance
holding that she is not entitled for maintenance.
7. It is submitted that relying on one single advertisement
given by the appellant, in the newspapers about her art classes, the
learned Judge has come to a conclusion that she is having a stable
source of income. The learned advocate submits that, the appellant
being a legally wedded wife, is entitled for a decent maintenance and
provision of residence, befitting the status of her husband who is a
Chartered Accountant. Thus, she is entitled to be maintained with the
same status as that of her husband. Hence, the learned Judge has
committed a grave error in denying the relief of maintenance as
claimed by her in the petition for maintenance.
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8. It is also submitted that the learned Judge has believed the
distorted version of their married life presented by the respondent
before the Court as a gospel truth. The learned Judge has failed to
appreciate she left the matrimonial house on 7 th July, 2002, as she was
forced to leave due to the harassment of the respondent and his
relatives.
9. Although the respondent has claimed that she has behaved
in a cruel manner with him, by her conduct and in language, but infact
it was the respondent-husband and his parents who kept on making
demands of dowry, expensive jewelleries, cash etc. from the appellant
and her parents. Her parents have already spent Rs.4,00,000/- on her
marriage, in order to meet every possible demand made by the
respondent and his parents. The parents as well as the respondent
himself have treated the appellant with a prejudice mind.
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10. The appellant has denied the allegations of refusing to do
the domestic work. It is submitted that these allegations have been
made only with a view to create grounds of divorce and defeat the
claim of the appellant. In fact she was made to do all the household
work of cleaning the house, utensils, clothes, cooking food etc.
Despite doing all the household chores, the family members of the
respondent were never satisfied, she had to bear all the atrocities of the
family members of the respondent. They were refusing to eat the meals
prepared by her, and compelled her to eat the entire leftover food all
alone. She used to be scolded for petty things and was physically
assaulted. Due to the harassment and torture she was compelled to
leave the house and lodge a complaint. It was the respondent who
inflicted physical and mental torture on the appellant. The allegations
against the appellant were supported by examining the witnesses who
are close relatives i.e. mother and maternal aunt who are interested
witnesses. Thus, reliance on those witnesses to prove cruelty is
justifiable. Therefore, the judgment and order passed by the learned
Judge, Family Court, Mumbai at Bandra needs to be quashed and set
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aside.
11. Per Contra the learned advocate for the respondent-
husband submits that, the conduct of the appellant was such that it
caused him mental agony. Firstly she was not giving respect to his
parents; she behaved rudely and insulted them. She has left the house
without just and reasonable cause without informing him on 7 th July,
2002; she has harassed and tortured him by threatening to commit
suicide. She has harassed him by filing written complaints with the
police station as well as with various authorities as a counter blast to
the petition for divorce filed by him.
12. The learned advocate submits that the evidence produced
by the respondent is categorical and accurate on the issue of cruel
treatment given by the appellant. So far as the, evidence in support to
his allegations of cruelty is concerned, it is supported by the testimony
of his mother, PW2-Amrutben Chhadva and PW3 his maternal aunt –
Kasturben Vira. Therefore, the evidence produced by him has gone
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untraversed holding that the allegations of cruelty stands proved.
Sufficient opportunity to lead the evidence was granted to
the appellant, however she has failed to lead any evidence except her
own testimony. As against that, the respondent had led cogent evidence
through two other witnesses apart from his own evidence given on
oath. The allegation made by the respondent about refusal of the
appellant to stay jointly and demanding separate residence, has been
fully corroborated by the testimony of PW2. There is no contradiction,
or variation in the testimony of the witnesses examined by the
respondent therefore the testimony of the witnesses has been rightly
believed by the Court.
13. The learned advocate for the respondent further submits
that, even the conduct of the appellant itself corroborates allegations
made against her, necessity of calling a meeting within two and a half
months of the marriage, for bringing about some solution to the
prevailing situation itself speaks in volumes about her conduct. It is
submitted that infact the period of cohabitation of the appellant in the
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house of the respondent itself is too short.
In order to substantiate the allegations of cruel treatment
by the appellant, the respondent, has relied on one instance when the
respondent was humiliated publicly by the appellant, while attending a
function commonly held in their community, where she has refused to
have snacks offered during the programme on the pretext that she was
having a fast when she was actually not fasting at all which came to the
notice of all the relatives present, which caused him embarrassment
and humiliation to a great extent. The appellant has admitted of
having attended such function with her mother-in-law. The appellant
has also accepted during the cross examination that, after marriage the
quarrel between them started about 8 days or there-about. She also
accepted the suggestion that the reason for their quarrel was her
inability to do the household work.
14. We have heard the respective parties, perused the
documents placed on record. After hearing the parties and appreciating
the facts and the legal position which exists as on date, what emerges is
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that after a duration of short cohabitation of less than 3 months of
their marriage the parties have started residing separately. The
attempts for reconciliation during the intervening period, have failed.
15. The respondent has claimed a relief of divorce alleging
cruelty against the appellant-wife. In support of the allegations of
cruelty he has examined himself along with two other witnesses i.e.
PW2 and PW3 respectively, who are his mother and the maternal aunt.
They have supported the allegations about the behavior of the
appellant branding it as cruel, by alleging that she did not give due
respect to the elders; was always in a mood to quarrel; would not
listen to the advice given by the elders; she was not able to cook food
properly and was causing them embarrassment in the society, these are
the allegations made against the appellant. These allegations are made
on the background of the short tenure of cohabitation of less than 3
months. Therefore, the question remains that whether the behavior of
the appellant about lack of expertise in domestic work, cooking food
and constant bickering amounts to cruelty.
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16. After going through the evidence, we find that this
phenomenon is usual feature in the beginning of a marriage.
Therefore, this behavior alone would not amount to cruelty during the
short stint of cohabitation. The allegations made by the respondent are
general, which are usually made by the parties to a marriage in the
initial days of adjustments. Thus, this ordinary wear and tear of
marriage has been given undue weightage to treat it as cruelty. The
term cruelty as contemplated in Section 13(1)(ia) of the Hindu
Marriage Act 1955, must be of such intensity that, it should make the
cohabitation of other spouse impossible. It should be of such nature
that appellant spouse carries a reasonable apprehension of physical or
mental harm due to the behavior of the other spouse. There has to be a
continuous humiliation, severe persistent behavioral issues and false
allegations that would result in humiliation and lowering down one’s
image in public.
Applying the said parameters when we examine the
allegations made against the appellant, which are claimed to have been
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proved during the proceedings before the Family Court, we do not
find the allegations to be of such a nature that it can be termed as
‘cruelty’ of such intensity making the respondent entitled for a decree
of divorce.
17. Bald allegations of the respondent supported by the
interested witnesses who amongst them is, one against whom
allegations are made by the appellant cannot be a reliable witness she is
the mother of respondent and specific allegations of cruelty and ill-
treatment are made against her, such witness is bound to depose
against the appellant. Thus, the reliance on such evidence placed by
the learned Judge to hold that cruel treatment has been meted to the
respondent is unsustainable in view of the foregoing facts of the
present case.
18. Even the witness No.3 is a sibling of PW2 is clearly an
interested witness, who is never going to put forth an impartial version
of the events that have occurred. Thus, even her testimony is not
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worth taking into consideration.
19. If testimony of both the witnesses is ignored, the only
evidence that remains is the evidence in the form of testimony of the
respondent himself. There are counter allegations made by the
appellant and the respondent against each other. Thus, the allegation
of cruelty against the appellant-wife is not proved by the respondent-
husband. The learned Judge of the Family Court has committed a
grave error by relying on the scanty material to hold that the
respondent has proved cruelty, making the respondent entitled for
decree of divorce.
20. The nature of allegations that are treated as cruelty, needs
to be appreciated for deciding whether the allegations made by the
respondent-husband amounts to ‘cruelty’. From the pleadings as well
as the deposition of the witnesses, the nature of allegations amounting
cruelty made against the appellant are as follows:-
(i) Refusing to obey the commands of in-laws;
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(ii) Allegation that the meals she prepared were not palatable; she
was not ready to cook; not able to perform the household chores;
(iii) She never prepared tiffin for her husband while he was leaving
the house for his work;
(iv) She was frequently visiting her parents house and was required
to be brought back;
(v) Refusing to give respect to the elders;
(vi) She behaved in a rude manner.
All these allegations are made against the appellant during
their cohabitation of few months i.e. between 28 th February 2002 to 7th
July 2002. During such short span the allegations that are made are
not at all of serious nature, that can be held to be amounting to
‘cruelty’.
21. The respondent-husband has filed proceedings for divorce
invoking Section 13(1)(i-a) of the Hindu Marriage Act, 1955, which
reads thus:-
13. Divorce.—(1) Any marriage solemnized, whether before
or after the commencement of this Act, may, on a petition
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presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than
his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated
the petitioner with cruelty; or……..”
The above provision enable either the husband or a wife to
present a petition for divorce on the ground that the other party has
after solemnization of marriage treated the petitioner with cruelty.
However, the word ‘cruelty’ has not been defined in the Hindu
Marriage Act, 1955. The meaning of word ‘cruelty’ in context with
marriage would mean willful, unjustified conduct by one spouse, that
causes serious physical or mental pain and suffering rendering
continued cohabitation unbearable. It also contemplates a reasonable
apprehension that living with the other spouse is harmful and injurious
to the life, limb or health of the other spouse.
Cruelty is broadly categorised as ‘physical cruelty’ and
‘mental cruelty’. Physical cruelty constitutes striking, slapping,
pushing, kicking or any type of bodily damage by assault or threats of
such acts.
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‘Mental cruelty’ means a conduct that causes emotional
distress, humiliation or suffering making it impossible for a spouse to
continue with the marriage. The examples of mental cruelty are using
abusive language, derogatory remarks, public embarrassment,
restriction on freedom. These are some of the examples, however, it is
subjective and may change from person to person, according to the
social environment and the family background. Therefore, since there
are no definite parameters as to what amounts to cruelty. The concept
of ‘cruelty’ and its meaning changes from case to case based on facts of
each case.
22. When we analyse the allegations made against the
appellant and put ourselves a question whether the conduct of the
appellant towards the family members of the respondent and the
respondent himself amounts to cruelty. In our view in order to invoke
the ground of cruelty there has to be consistent apprehension in the
mind of a spouse that the continued cohabitation has become so
unbearable making it impossible to live with the other spouse. The first
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hurdle is the period of cohabitation of the appellant and the
respondent, which is so short that it is beyond comprehension that the
parties found it impossible to live with each other any further.
23. The allegations made against the appellant are of trivial
nature that are usually made by the respective spouses against each
other in the beginning of their marriage. The conduct of cruelty must
be persistent for a fairly long time, where the relationship had
deteriorated to such an extent that it is impossible for the wronged
party to cohabit with the other party. Considering the length of
cohabitation of the parties, we do not find that they have lived
together for sufficient length of time to infer from the conduct of the
wife, whether it would amount to cruel behaviour to such extent,
which made their cohabitation impossible.
For grant of divorce on the ground of cruelty, the actions,
complained of must be severe and causing extreme mental or physical
violence rather than ordinary household disagreements. This squarely
applies to the present case. Mere failure to perform domestic work
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such as cooking, cleaning does not automatically amount to cruelty as
marriage is a partnership of equals and not a service contract and the
wife’s are not “deemed maids”. Therefore, refusal of the wife to
perform daily chores even in our view do not qualify as a mental
cruelty.
24. In view of the aforementioned observations and the
evidence led by the parties, we do not find that the learned Judge of
the Family Court is justified in holding that the respondent-husband
has proved the allegation of ‘cruelty’ against the appellant-wife. Since
we are of the view that the alleged conduct of the appellant is
insufficient to constitute ‘cruelty’, therefore we hold that the order
passed by the learned Judge of the Family Court is against the purport
and meaning of the concept of “cruelty” for grant of divorce under
Section 13(1)(i-a) of the Hindu Marriage Act.
25. The other petition decided in the common judgment is
about the claim for maintenance made by the appellant in Hindu
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Marriage Petition No.C-188 of 2004. The appellant had filed petition
for maintenance under the provisions of Hindu Adoptions and
Maintenance Act 1956, seeking directions to pay her a monthly sum of
Rs.5,000/- towards maintenance and alimony along with a prayer for
grant of expenses for her accommodation @ Rs.5,000/- per month. It
was her contention that she was constrained to leave her matrimonial
house due to the ill-treatment by the respondent and his parents along
with other family members, as such she has been residing separately
since 7th July 2002, without any monetary support from the
respondent; she does not have any source of income and she is not
qualified to apply for any job since she is educated only upto
matriculation. Till the filing of the petition for maintenance she did
not have any independent source of income, whereas it is claimed by
her that the respondent who is a qualified Chartered Accountant, is
earning a handsome monthly income of Rs.30,000/- to Rs.40,000/- as
he also undertakes private works of accounting along with his
employment in one Accountancy Firm i.e. Gala and Gala.
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26. Being a legally wedded wife of the respondent she is
entitled for maintenance under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956. Her application was resisted by the
respondent by filing written statement, wherein he claimed that the
appellant has been residing away from the matrimonial house without
any reasonable cause, she has herself deserted him on 7 th July 2002,
therefore, she is not entitled to claim any maintenance from him.
According to him, his income was not as high as claimed by the
appellant but he was earning about Rs.10,000/- per month. He relied
on the Income Tax Returns which discloses that his income was about
Rs.10,000/- to Rs.12,000/- per month. He has placed on record the
Income Tax Returns from the year 2017 and 2018, which show his
Gross Income was Rs.1,26,039/-; in the year 2018–2019, it was
Rs.1,36,478/-, in 2019-2020, it was shown as Rs.1,39,887/- and in
2020-2021, it was again reduced to Rs.1,27,650/-, for the Financial
Year 2021-2022, his Gross Income was Rs.1,29,330/-. According to
him he has responsibility of his mother who is aged and ailing,
therefore he has to take care of her medical expenses as well as his
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own needs, therefore, he did not have any additional income to meet
the demands of the appellant by paying maintenance of Rs.30,000/-
per month.
27. When the appellant had approached this Court in the
present Appeal for Maintenance i.e. Family Court Appeal No.161 of
2010, by way of an interim order the appellant was awarded
Rs.5,000/- per month with effect from 1st April 2013 vide order dated
29th August 2013, in Civil Application No.111 of 2013. Thereafter the
appellant has again filed Interim Application No.2 of 2019 for
enhancement of the maintenance, claiming that the
respondent/opponent has not placed his true income and assets before
the Court, he has suppressed his actual income as well as the assets.
She has placed on record the picture with the name plate of
respondent in a residential building with multiple flats among, which
one of the flats is owned by him, which he claims to be residing on
rental basis. Another picture of a house constructed in the village of
the respondent is also placed on record. She relies on the profile page
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of the Institute of Chartered Accountants of India claiming that the
respondent is a professional with independent accounting practice.
28. At this stage, having considered the findings recorded
hereinabove on the basis of the pleadings and evidence led by the
parties, it becomes necessary to consider the claim of the appellant–
wife for maintenance and residential accommodation. The record
indicates that the appellant had instituted Petition No. C-188 of 2004
asserting that she is a housewife, unemployed, and unable to maintain
herself, and that she was constrained to reside with her parents after
being subjected to ill-treatment and being driven out of the
matrimonial home. The said position is consistently maintained in her
pleadings as well as in her evidence.
29. Upon re-appreciation of the evidence on record, this Court
finds that the conclusion drawn by the learned Family Court that the
appellant was capable of maintaining herself is not supported by any
cogent or reliable material. The entire finding of the Family Court rests
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upon a solitary instance of an advertisement allegedly issued by the
appellant in relation to art and craft activities. As already noted from
the record, there is no material whatsoever to indicate that such
activity translated into a regular or sufficient source of income. It is
well settled that mere possession of a skill or sporadic engagement
cannot be equated with a stable source of livelihood. The evidence on
record does not demonstrate that the appellant had any independent
income sufficient to maintain herself.
On the other hand, the appellant has consistently asserted
that the respondent is professionally qualified and earning. It is
submitted that the respondent was earning between Rs.30,000/- to
Rs.40,000/- per month from his professional engagements. The
respondent has not placed any cogent material to conclusively dislodge
this assertion. Even otherwise, it is an admitted position that the
Respondent is a Chartered Accountant by qualification, and therefore
possesses the professional capacity to earn.
In response to the above assertion the respondent has
sought to rely upon his Income Tax Returns to project a limited
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income; however, it is pertinent to note that even in the interim
proceedings, such returns were taken into consideration only in the
absence of any better material and cannot be treated as conclusive of
the Respondent’s true earning capacity.
30. In this context, the principles laid down by the Hon’ble
Supreme Court in Rajnesh vs. Neha and Another.1 assume significance,
wherein it has been observed that income disclosures in maintenance
proceedings must be scrutinized with care, as they may not always
reflect the true financial capacity of the earning spouse. The
respondent, being a qualified Chartered Accountant, possesses the
professional capacity to earn, and the assessment of his financial
capacity cannot be confined merely to the income disclosed in the
returns, but must take into account the overall circumstances, earning
potential, and standard of living.
It is also required to be noted that the interim
maintenance, even after enhancement to Rs.5,000/- per month in the
year 2013, was fixed more than a decade ago. The Court cannot be
1 (2021) 2 SCC 324
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oblivious to the substantial increase in cost of living, inflation, and
basic living expenses since then. An amount which may have been
considered reasonable at an interim stage, based on limited material,
would not suffice for ensuring a dignified existence in the present
economic scenario.
As regards the claim for residential accommodation,
though the same was declined at the interim stage, the rejection was on
the ground that such relief partakes the character of a final relief and
was not appropriate for grant at an interlocutory stage. The said
observation cannot be construed as a rejection of the substantive
entitlement of the appellant to residence. The evidence on record
clearly indicates that the appellant has been residing with her parents
after separation and has no independent residential arrangement. The
right to residence is an integral component of maintenance,
particularly where the wife does not have independent means.
Thus, upon a holistic appreciation of the evidence on
record, this Court finds that (i) there is no reliable material to establish
that the appellant has an independent source of income, (ii) the
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respondent possesses the professional qualification and earning
capacity to maintain the appellant, and (iii) the findings recorded by
the learned Family Court are based on an erroneous appreciation of
evidence and cannot be sustained.
Having regard to the aforesaid, the appellant-wife is
entitled to maintenance at a reasonable rate. The determination must
be fair, not excessive, and sufficient to enable the appellant to live
with dignity. In the considered opinion of this Court, an amount of
Rs.10,000/- per month towards maintenance and a further sum of
Rs.10,000/- per month towards residential accommodation would
meet the ends of justice. The finding of the learned Family Court
denying maintenance to the appellant is therefore liable to be set aside.
Both the Family Court Appeals are accordingly disposed of, on the
following terms and conditions :-
ORDER
i) Both the Family Court Appeals are allowed;
ii) The common Judgment and Decree dated 23 rd
July, 2010 passed by the learned Judge, Family Court,
N. S. Chitnis 28/30
fca.159&161.2010.doc
Bandra, Mumbai in Petition No. A-1022 of 2004 and
Petition No.C-188 of 2004 is hereby quashed and set
aside;
iii) Petition No. A-1022 of 2004 filed by the
respondent–husband seeking divorce under Section 13(1)
(i-a) of the Hindu Marriage Act, 1955 stands dismissed;
iv) Petition No. C-188 of 2004 filed by the
appellant–wife under Section 18 of the Hindu Adoptions
and Maintenance Act, 1956 stands allowed;
v) The respondent–husband shall pay to the
appellant–wife maintenance at the rate of Rs.10,000/-
(Rupees Ten Thousand only) per month;
vi) The respondent shall further pay a sum of
Rs.10,000/- (Rupees Ten Thousand only) per month
towards residential accommodation;
vii) The aforesaid amounts shall be payable from
the date of the Application;
N. S. Chitnis 29/30
fca.159&161.2010.doc
viii) The amounts shall be paid on or before the 10 th
day of each calendar month;
ix) No order as to costs.
MANJUSHA DESHPANDE, J. BHARATI DANGRE, J.
N. S. Chitnis 30/30
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