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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL NO.59 OF 2016
Ruprao Mahipatrao Wadibhasme,
Aged about 58 years., Occ. Retired,
r/o. C/o. Bhujang Wadke,
Palora, Tq. Parshivani,
District Nagpur. .......... APPELLANT
// VERSUS //
Miss Ankita Ruprao Wadibhasme,
Aged about 21 years, Occ. r/o.
c/o. Roshani Vaidya, Plot No.
34, Mata Nagar, Pimpla Road,
Hudkeshwar, Nagpur. .......... RESPONDENT
____________________________________________________________
Mr.P.S.Kosare, Advocate for the Appellant.
Mr.D.A.Sonwane, Advocate for the Respondent.
____________________________________________________________
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Date of reserving the Judgment : 10.11.2017.
Date of pronouncement of the Judgment : 17.11.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. By the present appeal, the appellant has challenged the Judgment of Family Court, Nagpur in Petition No.C-97 of 2013, dt.23.6.2016, by which the appellant is directed to pay maintenance of Rs.8,000/- p.m. to the respondent (daughter).
2. The case of the appellant, in short, is as under :
That the respondent herein is daughter of the appellant. His first wife died in the year 2013. He has three daughters and one son from his first wife. On 9.6.2013, appellant performed second marriage. It is the case of appellant that since then his daughter/respondent was not behaving properly. She lodged false report and has filed false case against him. It is the case of the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 ::: 3 fca59.16.odt appellant that the Family Court has not considered evidence properly and has wrongly passed the impugned order.
3. It is submitted that the appellant is a retired Government employee. His home take salary is very meagre i.e. Rs.10,320/- p.m. He cannot pay the amount of Rs.8,000/- p.m. to the respondent. Learned Family Court has not considered the same and wrongly directed him to pay maintenance of Rs.8,000/- p.m. Being aggrieved by the Judgment, dated 23rd June, 2016 of the Family Court, the appellant has filed the present appeal.
4. Heard Ms P.S.Kosare, learned Counsel for the appellant. She has submitted that respondent is intentionally not residing with her father/respondent. She has filed false report against her father. Appellant is a retired Police Constable and he is getting only Rs.10,320/- p.m. towards pension. He has to maintain his second wife and son. His second wife is suffering from heart ailment and therefore, he is not in a position to pay amount of maintenance.
5. Learned Counsel for the appellant has submitted that, in the report itself, respondent has stated that she was doing some job. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 :::
4 fca59.16.odt Now she is major, aged about 23 years and she can maintain herself. At last, it is prayed to allow the appeal and quash and set aside the impugned Judgment.
6. Heard Mr.D.A.Sonwane, learned Counsel for the respondent. He has pointed out report lodged by the respondent. He has submitted that the appellant, after his second marriage, has changed his behaviour. He was behaving arrogantly and in an obscene manner with his own daughter/respondent. He tried to outrage her modesty. Therefore, there was no any option but to lodge report. Learned Counsel has submitted that the appellant was in jail. Therefore, he entered into compromise and agreed to pay Rs.6,000/- p.m. to the respondent. But, thereafter, he did not pay a single pie till filing of the petition before the Family Court. Learned Counsel has pointed out his admission in the cross-examination.
7. Learned Counsel Mr.D.A.Sonwane has submitted that the respondent is studying in G.S. Commerce College. She has to pay college fee etc. She has no other income. Therefore, amount of maintenance @ Rs.8,000/- p.m. is not exorbitant. At last, it is prayed to dismiss the appeal.
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8. Perused the evidence on record. There is no dispute that appellant was in service in Military. After his retirement, he joined the Police department. In the year 2013, his first wife died. He has three daughters and one son. Two daughters are married and are residing with their husbands.
9. Respondent Ankita and her brother were only residing with the appellant. It is not disputed that the respondent lodged report against the appellant stating that he directed her to serve meal to his friends, who were under the influence of liquor. When she refused, he abused her in obscene words. He beat her. Therefore, report was lodged. Offences punishable under Sections 294, 323, 354, 506, 509 of the Indian Penal Code were registered against the appellant. He was in jail. On 8.10.2013, appellant agreed to pay Rs.6,000/- p.m. to his daughter/respondent and on the very day, he paid Rs.6,000/-. Thereafter, appellant came to be acquitted by the Judicial Magistrate, First Class, Kamptee.
10. The appellant has admitted in his cross-examination before the Family Court that he did not pay a single pie after payment on 8.10.2013. This itself shows that appellant is ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 ::: 6 fca59.16.odt intentionally neglected his own daughter. It is expected from the parents to develop their children; especially in the case of daughter, it is duty of father to maintain her in a good condition, provide her education etc. and perform her marriage. Instead of that, appellant is neglecting his own daughter. Not only that, appellant beat her and scolded her in obscene words and therefore, she had to take shelter of her sister. There is no dispute that the respondent is residing separately since the incident of beating and abusing her.
11. There is no doubt that the brother of respondent is residing with the appellant. Therefore, he supported his father to some extent. But, in his cross-examination, he has admitted that his father used to drink liquor sometime. Respondent and himself had lodged report against the appellant in Police Station, Kamptee. He has further admitted that after the report his father was in jail for about one month. When his father was in jail, he and his sister Ankita were residing in the house of his father. He has further admitted that, after lodging report, he and his sister were out of house for few days. This itself shows that after the second marriage of appellant, his behaviour is changed towards his own children. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 :::
7 fca59.16.odt Therefore, it is clear that the appellant has refused and neglected to maintain his own daughter/respondent.
12. The petition was filed before the Family Court u/s.20 of the Hindu Adoption and Maintenance Act, 1956. Section 20 reads as under :
20. Maintenance of children and aged parents.--
(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.
--In this section "parent" includes a childless step- mother.::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 :::
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13. Evidence on record shows that, being father, the appellant has not taken care of his daughter/respondent. There is no dispute that respondent has no any permanent source of income. No evidence is brought on record to show that she is doing service and earning some salary. There is no evidence to show that she is doing part-time job. On the other hand, it is brought on record by the respondent that she is residing separately. She is studying in G.S.
Commerce college. Her tuition fees was outstanding and notice was issued by College. Looking to the expenditure and age of respondent, Rs.8,000/- p.m. towards amount of maintenance granted by Family Court is not exorbitant.
14. In respect of pay capacity of the appellant, it is clear that appellant is getting pension of the post of Police Constable. He was also in the Military. Therefore, it is obvious that he is getting pension from the Central Government also. He is having agricultural land about 1 H. 0.1 R. It is the moral as well as legal duty of the appellant to maintain his unmarried daughter. There is no dispute that the respondent is unmarried and taking education. She is unable to maintain herself. She has no any source of income and therefore, the order passed by the learned Family Court granting maintenance of ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 ::: 9 fca59.16.odt Rs.8,000/- p.m. to the respondent is perfectly legal and correct. There is no merit in the appeal. Hence, we pass the following order.
// ORDER // The appeal is dismissed.
The record and proceedings be sent back to the trial Court.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 ::: 10 fca59.16.odt ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:55 :::