Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 28 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Rev. Application No. 286 of 2004
Applicant : Ramratan son of Pandurang Sunwani,
aged about 50 years, occ: service,
resident of Ramtek, District Nagpur
versus
Respondents : 1) Smt Maya wife of Ramratan Sunwani,
aged about 40 years, occupation: Household,
2) Ku Payal d/o Ramratan Sunwani, aged
about 13 years, being minor, through her
natural guardian-mother, applicant no.1
Both residents of Circle No. 10/15,
Maskasath, Itwari, Nagpur
Mr Junnaid Ahmed, Advocate for applicant
None appears for respondents
Coram : A. P. Bhangale, J
Dated : 28th November 2011
Oral Judgment
1. By this application, revision applicant questioned legality,
propriety and correctness of the impugned judgment and order in
Petition No. E-405 of 1996 and Petition No. E-2511/1996 delivered by
learned Judge, Family Court, Nagpur on 1.10.2005 whereby present
petitioner was made liable to pay maintenance @ Rs. 700/- per month
to respondent no. 2 Ku Payal through respondent no.1 Smt Maya.
2. It is submitted on behalf of the applicant that he is not
liable to pay maintenance to Ku Payal whose paternity was denied by
him on the ground that he had no access to her mother at the relevant
period as she was living at her parents' house. Revision applicant,
therefore, prayed for setting aside order of maintenance granted for girl
Ku Payal, his alleged daughter. It is submitted on behalf of the revision
applicant that he had married with Maya d/o Bhaiyyalal Borkar on
19.4.1980, but Maya used to reside at her father's house at Nagpur and
claimed separate maintenance for herself and daughter Minal by filing
Misc. Cri. Application No. 37 of 1981. Prayer for grant of maintenance
by respondent Maya was rejected. However, it was allowed in respect
of daughter Minal and according to applicant, he is still paying
maintenance allowance to daughter Minal. Respondent Maya then filed
Petition No. E-2511 of 1996 before the Family Court claiming
maintenance for herself and Petition No. E-405 of 1996 claiming
maintenance for daughter Payal. The Family Court has directed present
applicant to pay maintenance @ Rs. 700/- per month to petitioner Ku
Payal and Rs. 1000/- per month to respondent Maya.
3. According to learned counsel for revision-applicant, in
Second Appeal No. 280 of 1994, decided by this Court on 4.5.2010,
marriage between revision applicant respondent no.1 Maya came to be
dissolved by a decree of divorce under Section 13 of the Hindu
Marriage Act, 1955. Thus, respondent maya is no more the wife of
applicant with effect from 4.5.2010. At the same time, learned counsel
for the applicant does not dispute that till her re-marriage, divorced
wife Maya would be entitled to claim maintenance, but according to
learned counsel, respondent no.2 Payal, alleged daughter of applicant
is not entitled to claim maintenance.
4. None appears for respondents to oppose the submissions
advanced by learned counsel for applicants. Perused record and
proceedings.
5. It appears that in the impugned judgment and order,
considering the rival pleadings, learned Judge of the Family Court
framed the point, viz. "Does the guardian mother prove that the minor
is born to her from the respondent ?" and this point is answered in the
affirmative. Relevant discussion on this point finds in paragraph 27 of
the judgment which reads as under :
"27. It is not disputed that after marriage they cohabited
together and gave birth to daughter Payal. It is also not
disputed that there was separation between them and she
filed proceeding for maintenance against him for herself
and for minor child Payal and maintenance was granted to
the minor child at the rate of Rs. 75/- p.m. in the year
1981 and it was rejected to guardian mother in Misc. Cri.
Application No. 37/81 and Session Court also confirmed
the order of J.M. F. C. for maintenance of guardian mother.
Guardian mother has also filed a proceeding for
enhancement for minor Minal and it was enhanced and
granted @ Rs. 200/- p.m. in Misc. Cri. Application No.
59/91. It is also not disputed that he filed the divorce
petition against her bearing No. 231/84 and on 21.1.91
that petition was dismissed. He preferred appeal. His
appeal was also dismissed on 15.6.94. He has challenged
the order before the Hon'ble High Court. It is pending..."
6. Learned Judge of the Family Court mentioning that present
applicant had denied paternity of the child, proceeded to discuss the
evidence and circumstances and answered point no. 1 in the
affirmative. The observations of the learned Judge were in connection
with proceedings of maintenance under Section 125 Cr. P. C. Although
second appeal preferred by the present applicant was decided on 4th
May 2010 while divorce was granted on the ground of cruelty by wife.
The dispute as to paternity of Ku Payal was not decided in the second
appeal nor it is the contention of the applicant that he has filed any
proceedings in a competent court of law to question paternity of Ku
Payal so as to avoid his liability to maintain her. Considering the
observations made in paragraph 44 of the impugned judgment and
order, I am not inclined to disturb the quantum of maintenance granted
by the Family Court. Learned counsel for the applicant submitted that
there is change in the circumstances as the applicant has retired from
service and, therefore, he would not be able to pay maintenance which
is on higher side. If that is so, applicant is at liberty to bring the change
in circumstances to the notice of learned Judge of the Family Court
concerned and pray for alteration in the quantum of maintenance
allowance. Needless to say, applicant shall be at liberty to challenge
paternity of Ku Payal, if so advised, by filing appropriate proceedings
in the competent court. With these observations, application dismissed.
A. P. BHANGALE, J
joshi
