(Prayer: Appeal under section ---- against orderspleased to set aide the order in FCOP.No. 1265 of 2017, dated 27.06.2024 before the Court of the Judge, Additional Family Court, Visakhapatnam, and pass

IA NO: 1 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to condone the delay of 34 days in filing the present appeal against the Order passed in F.C.O.P. No. 1265 of 2017, dated 27.06.2024, before the Hon’ble Court Judge, Additional Family Court, Visakhapatnam and to pass

IA NO: 2 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to condone the delay of 74 days in representing the present FCA..No. 30 of 2025. And pass

IA NO: 3 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to suspend the operation of the Order passed in F.C.O.P. No.1265 of 2017, dated 27.06.2024, before the Hon’ble Court Judge, Additional Family Court, Visakhapatnam, pending disposal of the above appeal, and pass)

A. Hari Haranadha Sarma, J.

Introductory:-

1. The respondent in F.C.O.P.No.1265 of 2017 on the file of the Judge, Additional Family Court, Visakhapatnam (for short “the Family Court”), filed the present appeal questioning the order and decree dated 27.06.2024 passed by the Family Court, where under the petition filed by the wife and son, of the appellant in terms of Section 18 of the Hindu Adoptions Maintenance Act was allowed, directing payment of maintenance of Rs.8,000/- per month to the 1st petitioner / wife and Rs.2,000/- per month to the 2nd petitioner / son from the date of petition, i.e. from 10.07.2017 to 26.04.2024 and at Rs.10,000/- per month to the 1st petitioner and Rs.5,000/- per month to the 2nd petitioner from the date of the order and past maintenance at the rate of Rs.6,000/- per month to the 1st petitioner and Rs.2,000/- per month to the 2nd petitioner / son for the period from 06.03.2015 to 05.06.2017. The respondent was directed to pay monthly maintenance awarded on or before the 10th of every succeeding month and the arrears of maintenance in ten monthly instalments.

2. Feeling aggrieved by the said order and decree, the present appeal is filed.

3. For the sake of convenience, the parties will be hereinafter referred to as the petitioners and the respondent with reference to their status before the Family Court (F.C.O.P.No.1265 of 2017).

Case of the petitioners:

4(i). The 1st petitioner is the wife of the respondent and during their wedlock, they were blessed with the 2nd petitioner. The mother, brother and sister of the respondent used to harass the 1st petitioner / wife stating that the dowry and launchanams given were insufficient and when the same was informed by the petitioner to her parents, they gave Rs.1,50,000/- to the respondent. When the 1st petitioner became pregnant, no proper care was taken. The brother of the respondent behaved indecently with her. When the same was reported to mother-in-law, she harassed the petitioner.

                  (ii). Thereafter, the 1st petitioner came back to her parental home for delivery and gave birth to the 2nd petitioner. The respondent used to claim that he will marry another woman if the 1st petitioner do not bring the additional dowry. The efforts of elders did not yield any result. Then, the 1st petitioner was constrained to initiate Crime No.48 of 2017 for the offences under Sections 498-A and 509 IPC and Sections 3 and 4 of the Dowry Prohibition Act. The respondent has completely neglected the petitioners, although he is getting salary of Rs.80,000/- per month working as a fireman in Naval Dockyard. The petitioners have no means; hence, they filed the application for maintenance.

Case of the respondent:

5(i). The respondent filed a counter admitting the relationship with the petitioner while denying the other allegations. He claimed that the father of the 1st petitioner was working as Khalasi in Visakhapatnam Port Trust. Therefore, he has no capacity to pay dowry and give gifts etc. The efforts of the Women Police to convince the 1st petitioner to restore the matrimonial home did not yield any result. The names of the sister of the respondent and her husband were also added in the complainant and later deleted, having found that the allegations against them were false.

                  (ii). The respondent is having an unemployed brother and old aged mother, who are dependent on him. The petitioners are not entitled for any maintenance, as the 1st petitioner is adamant and spoiled the family life.

6. As per the evidence of both sides, the relationship between the parties is not in dispute and in spite of P.W.2 and P.W.3 advice, the matrimonial home could not be restored for reasons attributable to the respondent and that respondent is questioning the character of the 1st petitioner without mentioning the same in the counter and that the petitioners are living separately.

7. The learned Judge, Family Court, observed that the petitioners were deserted by the respondent and that they are entitled for maintenance. Admittedly, the respondent is working and he has stated that he is getting Rs.20,000/- per month. Ex.B1-pay slip shows that he is getting a gross salary of Rs.44,249/- per month and a Net salary of Rs.19,160/- per month. Therefore, the petitioners are entitled for maintenance as quantified.

Arguments in the appeal:

For the appellant (Husband):

8(i). The Family Court ought to have held that there is no proof of giving dowry and cruelty and observed that the appellant visited the petitioner after the birth of the 2nd petitioner. Therefore, there is no desertion.

                  (ii). The Family Court ought to have observed that the complaint is lodged by the 1st petitioner with false allegations, even against the sister and brother-in-law of the respondent, which reflects the conduct of the 1st petitioner (wife).

                  (iii). The Family Court ought to have found that the 1st petitioner has voluntarily deserted the respondent and ought to have disclosed her assets and liabilities in terms of the judgment of the Hon’ble Supreme Court of India in Rajnesh vs. Neha and Another((2021) 2 SCC 324).

                  (iv). The Family Court ought to have dismissed the petition on the ground that the 1st petitioner/wife is having an extra-marital relationship.

                  (v). The Family Court erred in taking note of non-mentioning of the names of the petitioners in the service register of the respondent/husband as the same amounting to desertion.

                  (vi). The quantum of maintenance granted is excessive.

For the respondent / wife:

9(i). The relationship is not in dispute.

                  (ii). The respondent-husband is admittedly an employee and he did not choose to file any convincing evidence indicating his liabilities as against the salary he is receiving.

                  (iii). The orders passed by the learned Judge, Family Court are well reasoned and need no interference.

10. The points that arise for determination in this appeal are:

                  1) Whether the petitioners in F.C.O.P.No.1265 of 2017 are entitled for maintenance against the respondent (appellant herein) and whether the orders of the learned Family Court dated 27.06.2024 are proper and sustainable in law and on facts or require any interference, and if so, on what grounds?

                  2) What is the result of the appeal?

Point No.1:

11. There is no dispute that 1st petitioner is the wife and the 2nd petitioner is the son of the respondent. Both petitioners are living separately from respondent. The 2nd petitioner, being a minor, is entitled for maintenance and the same need not be doubted.  No objections can be entertained in respect of the entitlement of the 2nd petitioner. The capacity of the 1st petitioner to maintain herself and her financial resources are not proved. Therefore, the petitioners are entitled for maintenance.

12. The documentary evidence relied upon by the respondent is Ex.B1 -pay slip pertaining to his income. It is not the clear case of the respondent (husband) that the 1st petitioner is in some employment and earning. There is no convincing evidence indicating the ability of the 1st petitioner to maintain herself.

13. Any efforts for restitution of conjugal rights or restoration of the matrimonial home from the end of the respondent are not shown. In view of neglect and baseless allegations on the fidelity of the 1st petitioner, she is entitled to live separately.

14. The argument that there should have been efforts to collect the financial capacities of both parties on record by calling for information of both parties in terms of the enclosures contemplated by the Hon’ble Supreme Court in Rajnesh vs. Neha and Another (1 supra) merits no consideration at this advance stage. It is not the case of the petitioner that he has complied with the requirement. So objection is found as an effort to fish for something where there is nothing.

15. The Family Court has referred to Ex.B1 and the salary of the respondent / appellant herein and found that he is working as fireman in dockyard and the gross salary of Rs. 44,249/-. Even if the net salary is considered, it is around Rs.20,000/-.

16. Net salary will depend on the deductions an employee opts for, and it may vary time to time as deductions are not permanent. Whether the deduction is a voluntary one and for saving purpose is also a different issue. Even if the admitted salary is taken as the basis, the respondent can contribute Rs.8,000/- for the wife and Rs.4,000/- for the son easily. Except for the period from date of orders i.e., 27.06.2024, the maintenance is ordered at different rates. From the date of order i.e. 27.06.2024, the maintenance is awarded at Rs.10,000/- to the 1st petitioner/wife and Rs.5,000/- to the 2nd petitioner/son by the Family Court.

17. Upon considering the factual scenario and the evidence referred above, we are of the view that except with regard to the order for payment of maintenance at the rate of Rs.10,000/- per month to the 1st petitioner and Rs.5,000/- per month to the 2nd petitioner from 27.06.2024, modifying the same at the rate of Rs.8,000/- to the wife/1st petitioner and Rs.4,000/- to the son / 2nd petitioner, impugned orders require no interference. Point framed is answered accordingly.

Point No.2:

18. In the result, the appeal is partly allowed as follows:

                  (i). The impugned orders are modified by reducing the maintenance amount from Rs.10,000/- to Rs.8,000/- per month, to the wife of the respondent /1st petitioner, and from Rs.5,000/- to Rs.4,000/- per month, to the son of the respondent / 2nd petitioner for the period from 27.06.2024.

                  (ii). The rest of the directions relating to the payment of maintenance, including past maintenance for the different periods prior to 27.06.2024 directed in the impugned orders shall stand confirmed.

                  (iii). The rest of the order and directions in the impugned order shall stand confirmed.

                  (iv) There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed.