KOKILABEN AND OTHERS Vs. HARSHADBHAI NARANDAS PATEL

JUDGEMENT

(1.) Taking into consideration the factors enumerated in Sec. 23(2) of the Act, the question is as to how much amount should be fixed as maintenance for the wife and the two daughters. The amount of maintenance shall have to be fixed in the light of the above factors depending upon the facts and circumstances of each case. No hard and fast rule be laid down. But we will refer to some decisions which are cited at the Bar in this regard.

(2.) The total income of defendant No. I is assessed by us at Rs. 25,500.00 per year. Taking two units for an adult and one unit for the minor, the total number of units of the family of defendant No. 1 which includes him- self, his wife and two minor daughters, comes to six when we divide Rs. 25,000.00 by six, it comes to Rs. 4,250.00 one unit is thus equivalent to Rs. 4,250.00. That can be the amount to be awarded for maintenance for the minor children which comes to Rs. 350.00 and odd per month.,The amount to be awarded for the wife per year comes to Rs. 8,500.00 equivalent to two units and that comes to Rs. 700.00 and odd per month. That will also leave Rs. 8,500.00 for the maintenance of defendant No. I himself. We, therefore, propose to enhance the amount of maintenance as above.

(3.) The further question is as to from what date the amount of maintenance should be directed to be paid prior to the filing of the suit. The trial court has awarded further maintenance from the date of the suit while it has fixed the amount of Rs. 830.00 towards the arrears of maintenance for the period prior to the filing of the suit. The grievance of the appellants plaintiffs is that the past arrears should have been calculated with effect from 22-11-1981, the date on which the plaintiff was driven out by defendant No. 1 the plaintiff-wife was deserted by defendant No. 1 husband on 22-11-1981. In view of this, the maintenance should have been awarded from that date. But the learned Trial Judge, with respect, has by curious reasoning adopted by him, awarded the maintenance from 12-3-1982 instead of from 22-11-1981. The relevant discussion by the learned trial Judge is at para 43 of the judgment. The learned trial Judge has observed' that because both the parties had gone to the office of the Social Welfare Department on 7-3-1982 and till then there was every chance of the parties living together if the husband had not denied the wife entry in the house on 12-3-1982, desertion started from that date and, therefore, the plaintiff was entitled to maintenance not from 22-11-1981 but from 12-3-1982. The reasonings, on the face of it, are curious and do not appeal to us. The evidence on record clearly shows that the desertion was from 22-11-1981. The plaintiff Kokilaben is examined at Ex. 25. She has stated at para 5 of her deposition that she was driven away on 22-11-1981 when she was pregnant and she gave birth to a daughter on the next day. She has specifically stated at para 8 of her deposition that after she was driven away on 22-11-1981, her husband did not make any effort to call her. She, of course, admits that they went to the office of the Social Welfare Department on 7-3-1982 and it was agreed that she should go to the place of her husband on 12-3-1982, but when she went there, she was not allowed to enter the house of her husband. She has been cross-examined at length. The suggestion was that she was not deserted and that she had deserted the husband, but that contention of the defendants has not been even accepted by the trial court. But it is pertinent to note that she was not cross-examined with regard to her evidence in examination-in- chief as discussed above about the date of desertion viz. 22-11-1981. The learned trial Judge, with respect to him, committed an error in reaching the conclusion that the desertion was on 12-3-1982. It is clearly established in this case that the desertion took place on 22-11-1981 and, therefore, the plaintiff is entitled to maintenance for her and her two children with effect from 22-11-1981. Of course, the second daughter was born on 26-11-1981 and therefore, so far as the second daughter is concerned, the plaintiff is entitled to maintenance for that daughter with effect from 26-11-1981 and not from 22-11-1981. The amount calculated at Rs. 700 per month for plaintiff No. 1 for six months from 22-11-1981 to 21-5-1982 claimed by the plaintiff comes to Rs. 4,200.00. The amount for the elder daughter for six months comes to Rs. 2,100.00. The maintenance for the second daughter for five months and 25 days comes to Rs. 2,060.00. The total comes to Rs. 8,360.00. Hence the plaintiffs are entitled to Rs. 8,360.00 instead of Rs. 8.30.00 towards past maintenance.