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Bombay HC overturns ‘illegal, unjust’ order passed by family court

Maintenance to woman had been cancelled for ‘living in adultery’ even though it had not been proved in court in three proceedings.

Written by Ruhi Bhasin | Mumbai | Published: October 11, 2017 5:17:10 am
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The Bombay High Court recently termed as “illegal and unjust”, an order passed by a family court in Solapur cancelling the grant of maintenance to a woman from her husband. The HC said that the family court should have taken sufficient care before branding the woman as “living in adultery” even though it had not been proved by the court in the earlier three proceedings.

The woman filed a petition in the High Court in July 2014 challenging the family court order after it rejected her application for enhancement of maintenance, and allowed her husband’s application seeking cancellation of maintenance. The wife was being paid Rs 575 per month by her husband, who was a railway police constable. The family court cancelled the same on the ground that the wife was living in an adulterous relation with another man.
The HC agreed with the submissions made by the wife’s lawyers that the trial court had rejected the application for enhancement of maintenance going totally against the “evidence on record.”

The husband had sought a divorce from his wife on the ground of adultery and desertion. The divorce on the ground of adultery was rejected, while it was allowed on the ground of desertion as the evidence on record proved the same.
“It is apparent that the trial court committed a grave error in holding that the husband has proved that the petitioner is living in adultery… Merely because divorce is granted in 2004, the trial court has without reading the said judgment assumed it was on the ground of adultery. The least expected from the trial court was to peruse the said judgment to know that divorce was granted only on the ground of desertion and not on the ground of adultery,” said Justice Shalini Phansalkar-Joshi.

The family court had relied on evidence of a witness, who, according to the court, was the man with whom the wife was living with, in an “adulterous relationship.” The HC, however, held that the evidence of that man could not have been relied upon by the trial court as he was not available for cross-examination.

“In such a situation, the trial court committed another grave error as his evidence remained unchallenged, but was relied upon and accordingly it was held that the petitioner had illicit relations with that man and therefore debarred her from getting maintenance,” added the court.

Pointing out that the family court should have appreciated the evidence on record properly, Justice Phansalkar-Joshi held that “It has drawn conclusions which were not borne out from the material. The trial court should have taken sufficient care before branding the petitioner as “living in  adultery.”

The HC set aside the order of the family court while enhancing the wife’s maintenance. The court said that taking into consideration the income of the husband, and his liability, coupled with the requirement of the wife, and with “regard to inflation in prices of essential commodities, a reasonable maintenance of Rs 3,500” should be paid to the wife, while a maintenance of Rs 3,000 should be paid to the minor son.

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