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fca.144.13.sxw
Madhu Gupta Age 61 years, Occ: Housewife Residing at 50 , !heeta" #A$ %ing !wa&i !a&arth 'agar, Mu&+ai, 00 050s( 1ra2in 3u&ar Gupta Age 65 years, Retired Off( )our *unga"ows Andheri %est
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] ] ] ] ] ]((Respondent .Ori( 1etitioner/
WITH CIVIL APPLICATION NO. 13 OF 2013 IN F.C.A.NO. 144 OF 2013 IN M.J.PETITION NO. A-382 OF 2008 1 of 15
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Residing at 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( Off 6ari Road, 0erso2a
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FAMILY COURT APPEAL NO. 144 OF 2013 IN M.J.PETITION NO. A - 382 OF 2008
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Madhu Gupta Age 61 years, Occ: Housewife Residing at 50 , !heeta" #A$ %ing !wa&i !a&arth 'agar, Off( )our *unga"ows Andheri %est Mu&+ai, 00 058' 9H: MA99:R *:9%::'! Madhu Gupta
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Residing at 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( Off 6ari Road, 0erso2a Andheri .%est/, Mu&+ai, 00 061
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] ] ] ] ] ](( Appe""ant .Ori( Respondent/ ] ] ] ] ] ]((Respondent .Ori( 1etitioner/
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1ra2in 3u&ar Gupta 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( Off 6ari Road, 0erso2a Andheri .%est/, Mu&+ai, 00 061 9e&porari"y Residing at 0, ;en<i" A2e, !t( 4"air, '!% =>5?, !ydney, Austra"ia
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Madhu Gupta
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1ra2in 3u&ar Gupta at 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( 6ari Road, 0erso2a Andheri .%est/, Mu&+ai, 00 061
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]((App"icant7Respondent ] ] ] ] ](( Appe""ant .Ori( Respondent/ ] ] ] ] ]((Respondent .Ori( 1etitioner/
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Mr( ;attatray 1( Adar@ar Ad2ocate for Respondent in )4A 'o( 1 of =01- and 4AM 'o( 1-> of =01- and App"icant in 4AM 'o( 16 of =01 (((((
CORAM ! SMT.V.#.TAHILRAMANI AND SHRI. P.N.DESHMU#H$ JJ. DATED ! FEBRUARY 11$ 2014
the "earned counse" for the respondent,hus+and( *y consent of the parties, the &atter is ta@en up for fina" hearing and disposa"( )or the sa@e of con2enience, hereinafter, the
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against the Audg&ent and order dated ==(10(=01= passed in M(D( 1etition 'o( A,-E= of =00E +y the )a&i"y 4ourt 'o(=, *andra, Mu&+ai, where+y her counter,c"ai& for &aintenance
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((((( Mrs( Mruna"ini ;esh&u@h and Ms( ;e2i@a ;esh&u@h a"ong with Mr( Mahesh 5ondhe and Ms( Radha 0ed Ad2ocates i7+ M7s( !anAay Bdeshi and 4o( for Appe""ant in )4A 'o( 1 of =01- and App"icant in 4AM 'o( 1-> of =01- and Respondent in 4AM 'o( 16 of =01
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was dis&issed(
ha2e two chi"dren i(e( one son Anindya and one daughter( *oth the chi"dren are &arried and they are sett"ed a+road(
hus+and had fi"ed a petition for di2orce on the ground of crue"ty which ca&e to +e dis&issed( He has not cha""enged the said decision in the petition for di2orce(
On 1-(E(=00E, the )a&i"y 4ourt eFparte decreed the counter, c"ai& and according"y decree of Audicia" separation was passed
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and the hus+and was directed to pay Rs(=5,0007, per &onth as &aintenance to the wife( 9he hus+and preferred Misc( 4i2i"
App"ication for setting aside eFparte decree passed on 1-(E(=00E( Howe2er, he did not cha""enge the decree of
Audicia" separation and he had on"y prayed for setting aside the order re"ating to the &aintenance( Misc( 4i2i" App"ication was granted on 1?(-(=01=( 9hus, the decree passed on 1-(E(=00E
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9he wife had fi"ed
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9he
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in re"ation to &aintenance, was set aside +y order dated 1?(-(=01=( 9hereafter, the wife "ed her e2idence and the
e2idence(
&aintenance fro& her hus+and who is ha2ing sufficient &eans( 9he +urden "ies on the wife to pro2e that the hus+and has
sufficient &eans(
hus+and
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shows that the wife is staying separate since =00> and the has not gi2en any a&ount to her towards
&aintenance(
8t is an ad&itted fact that +oth the parties are As the decree for
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Audicia" separation was granted in fa2our of the wife and the decree of Audicia" separation has not +een cha""enged +y the hus+and, on this ground the wife has a right to "i2e separate"y fro& hus+and( 9he hus+and has stated in his e2idence that he is staying in Austra"ia and he is doing part,ti&e wor@ at 5oca" 4o&&unity 4o""ege .'epean 4o&&unity 4o""ege/( He has
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per&anent
source
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inco&e,
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c"ai& and get
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further stated that he was teaching three courses +ased on his s@i""s in !a"es and 4o&puters( :ach course is of E "ecturers of =
for the fu"" course( His a2erage &onth"y inco&e post,taF was 00 Austra"ian ;o""ars(
docu&ents to show that the hus+and was a 4(:(O( in G5=%8' 4O'!B59A'46 109( 59;( in Austra"ia 9he said +usiness is
pointed out that one other fir& i(e( Architectura" ;rafting and
address which shows that the hus+and is connected with the said +usiness( 8n order to support the c"ai& that the hus+and is
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connected with +oth the +usinesses, she pointed out that the address of the said two +usinesses is the sa&e as the residentia" address of the hus+and( As far as these docu&ents are concerned, 4ourt( they were not produced +efore the )a&i"y
:2en if the said docu&ents are ta@en into consideration, they do not show the inco&e of the respondent,hus+and( Hence,
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;esign !er2ices a"so carries out +usiness fro& the 2ery sa&e
conducted fro&
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capacity to pay &aintenance H and .=/ whether the wife has any source of inco&e to &aintain herse"f H
e2idence and e2idence of her son Anindya( 8t is pertinent to note that the wife has not specifica""y p"eaded and stated in her
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e2idence that she is not ha2ing any per&anent source of inco&e and that she is una+"e to &aintain herse"f( 8t is further pertinent to note that she has ad&itted in her cross, eFa&ination in paragraph 5= that near a+out Rs(50 "a@hs ha2e +een deposited in the *an@s as )iFed ;eposits( As per !ection 5E of the :2idence Act, ad&itted facts need not +e pro2ed( :2en otherwise the "earned counse" for the appe""ant,wife has
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herse"f( 8n order to pro2e the sa&e, the wife has adduced her
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9he e2idence of 00
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ad&itted that a+out Rs(50 "a@hs is in the na&e of the wife in the *an@( 9he e2idence of the wife c"ear"y shows that the wife
4ertificates, therefore, it has not co&e on record that how &uch interest she is getting( wife is a senior citi<en( 8t is an ad&itted fact that the
which &eans that she wou"d get Rs(->,5007, per &onth as interest on )iFed ;eposits of Rs(50 "a@hs( 9he wife has stated
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of interest, then the wife wou"d get Rs( ,50,0007, per year
produce the !tate&ents of Accounts of Mutua" )unds standing in her na&e a"one +ut she has not produced the !tate&ents of Accounts of Mutua" )unds( 9his shows that she has a"so &ade in2est&ents in Mutua" )unds in addition to )iFed ;eposits which c"ear"y stand in her na&e +ut she has not produced the sa&e( 8f she wou"d ha2e produced the !tate&ents of Accounts
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Ad&itted"y,
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has
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the )iFed ;eposit
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of Mutua" )unds, then it wou"d ha2e gone against her, therefore, she has not produced the sa&e( 8n
is getting so&e di2idends regu"ar"y fro& the in2est&ents &ade in the Mutua" )unds(
out of the &oney put in +y her and her hus+and( 9he hus+and
9he "earned counse" for the respondent,hus+and has stated that the f"at has +een gi2en eFc"usi2e"y to the wife and she is in
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eFc"usi2e possession of the sa&e( 9his fact is ad&itted +y the "earned counse" for the appe""ant,wife( 8n such case, there is no Iuestion of gi2ing rent for acco&&odation to the wife(
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that though the )a&i"y 4ourt had he"d that the wife has to incur &edica" eFpenses, dai"y eFpenses, &aintenance of
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such
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society etc( yet, the )a&i"y 4ourt has not awarded any &aintenance to the wife( !he further pointed out that on
@nees and the eFpenses for the said surgery ca&e to a+out Rs(10,-?,0007,( !he has further stated that the f"at in which
which shows that the f"at needs repairs( 9hus, it was su+&itted that the wife wou"d +e reIuired to incur eFpenses in re"ation to
after the Audg&ent and decree was passed in the present case( 9he Audg&ent and decree in the present case was passed on
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==(10(=01= and the e2ents &entioned in the docu&ents ha2e occurred after the Audg&ent and decree has +een passed( 8n 2iew of this su+seIuent de2e"op&ents, the Audg&ent passed +y the "earned Dudge of the )a&i"y 4ourt cannot +e fau"ted( !i&i"ar is the situation in respect of the eFpenses for repairs of the f"at(
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that the wife herse"f had not &ade any &ention a+out the sa&e in her e2idence(
ti&e and again that the appe""ant wife was and is a ho&e
an ad&itted fact that the wife has Rs(50 "a@hs in *an@ Accounts, o+2ious"y, as the wife was not earning, the said
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a&ount of Rs(50 "a@hs &ust ha2e co&e out of the hus+and$s earning( *esides the a&ount of Rs(50 "a@hs which is deposited in the )iFed ;eposits in the na&e of the wife, it &ay +e stated that the hus+and had deposited Rs(=,00,0007, +y way of interi& &aintenance for the wife( 9he wife was a""owed to
withdraw the said a&ount( !he has deposited the said a&ount in the *an@ as )iFed ;eposits which is ad&itted +y her in her
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9he
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need of &oney for her &aintenance, then definite"y she wou"d ha2e spent the a&ount and wou"d not ha2e in2ested it in )iFed ;eposits in the *an@( 9his shows that the wife is ha2ing
sufficient &oney for her &aintenance( 9he wife is getting at "east an a&ount of Rs(->,5007, per &onth fro& the )iFed
of interest on Rs(=,00,0007, which has +een in2ested +y her which was recei2ed +y her +y way of interi& &aintenance( 8n
is seen that the wife is ha2ing sufficient per&anent source of inco&e to &aintain herse"f(
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su+&itted that the wife is ha2ing sufficient &eans for her sur2i2a" and therefore, she is not entit"ed to get &aintenance( He has p"aced re"iance on the ratio "aid down +y this 4ourt in the case of S'(')*+ A,-.)/ M0/1'*23*4 V5. A,-.)/ R*63,.5')* M0/1'*23*4 reported in 20117"8 M'. L. J. 19(
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;eposits(
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8n the said case, this 4ourt o+ser2ed that the wife was earning Rs( 5,0007, per &onth as sa"ary and she has recei2ed Rs(11
her(
&aintenance( 9his 4ourt o+ser2ed that in such case, the wife is not entit"ed for &aintenance fro& the hus+and(
Rs(->,5007, per &onth as interest( !he has &ore than 50 "a@hs in the +an@( 8n addition, the app"icant$s son is pro2iding &oney
on her(
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opinion that the Dudge of the )a&i"y 4ourt has right"y he"d that the appe""ant,wife is ha2ing sufficient inco&e for her sur2i2a" and she has fai"ed to pro2e that she is entit"ed for any &aintenance( 9hus, we find no &erit in the present Appea"( Appea" is, therefore, dis&issed(
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facts in the present case are Iuite si&i"ar and the ratio wou"d
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8n the
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1=
App"ication 'os( 1-> of =01- and 16 of =01 do not sur2i2e and are disposed of as such(
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