Dharmendra S/O Bansilal Jain ... vs Mrs. Nidhi Dharmendra Jain ...
2016 Latest Caselaw 5609 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 1912 OF 2015




                                                                   
    Dharmendra Bansilal Jain (Choudhary),
    aged about 45 years, Occupation
    Business, 44 Prasadnagar, Bhamti,
    Nagpur - 440 016.                                                 ... PETITIONER




                                                                  
                                               VERSUS

    Mrs. Nidhi Dharmendra Jain (Choudhary),
    aged about 45 years, Occupation Business,




                                               
    R/o 49, Bajajnagar, Shri Narayan Complex,
    Nagpur.                   ig                                    ... RESPONDENT

                                          ....
    Shri S.M. Pande, Advocate for the petitioner.
                            
    Shri A.N. Ansari, Advocate for the respondent.
                                          ....


                                            CORAM : PRASANNA.B.VARALE, J.

DATED : 27TH SEPTEMBER, 2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties. Shri A.N. Ansari, the learned Counsel waives notice on behalf of

the respondent.

2. Heard Shri Pande, the learned Counsel appearing on behalf of

the petitioner and Shri Ansari, the learned Counsel appearing on behalf of

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the respondent. By way of present petition, the petitioner challenges the

order dated 16th October, 2014 passed by the learned Judge, Family Court,

Nagpur. By the said order, the learned Judge, Family Court allowed the

application filed by the respondent/wife under Section 24 read with

Section 26 of the Hindu Marriage Act.

3. It would be necessary to refer to certain facts. The marriage

between the parties was solemnized on 16th May, 1991. It seems that there

was a matrimonial discord between the parties. The petitioner/husband

had filed proceedings seeking decree of dissolution of marriage. It would

not be necessary to go into all those details or the allegations and counter

allegations of the parties levelled against each other. The respondent/wife

submitted an application before the learned Judge, Family Court seeking

direction to the petitioner to pay college and school fees of his sons.

Needless to state that the couple was blessed with two children i.e. sons. It

was submitted in the application that the petitioner/husband moved out

of matrimonial house on 01.11.2012. It was further submitted in the

application that the applicant i.e. respondent/wife was facing financial

difficulties and was somehow managing her household without any

support from the petitioner/husband. It was further submitted in the

application that the sons namely Harsh and Yash are the students of

reputed educational institutes of the city and the finances are required so

as to take care of the educational fees of the children. It was also

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submitted in the application that the son Harsh was prosecuting his

studies in third year in the course of Bachelor of Engineering in the private

institute namely Ramedeo Baba Kamla Nehru Engineering College,

Nagpur and the academic fees payable is Rs.89,600/-. It was further

submitted that the younger son Yash was studying in IX standard in a

school Jain Heritage and Cambridge School, Nagpur and his academic fees

is Rs.80,000/-. It was submitted that the directions be issued to the

petitioner/husband to pay an amount of Rs.1,69,600/- towards the fees of

the children i.e. two sons. The application was countered by filing reply.

4. It was submitted in the reply that the respondent/wife is

having sufficient means and there are certain insurance policies and on

maturity of these insurance policies, the respondent could have earned an

amount of rupees seven lakhs. It was further submitted that there was a

specific submission in the reply that the elder son Harsh is 21 years of age

and being a major son, the petitioner is not liable to maintain him. In

support of his submission, the learned Counsel for the petitioner i.e.

husband placed reliance on the judgment of this Court in the case of B.

(Husband) .v. A. (Wife) (reported in 1992 (2) Civil LJ, 408) to submit that

under Section 26 of the Hindu Marriage Act, the petitioner is liable to pay

maintenance only for minor children.

5. The learned Judge, Family Court admitted the position that out

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of two sons, Harsh had attained the majority and held that insofar as the

application seeking maintenance for major son Harsh is concerned, the

same is rejected. The learned Judge, Family Court then considering the

prayer for educational fees of another son Yash, found that son Yash is

prosecuting his studies in one of the reputed schools of Nagpur city. The

learned Judge further observed that there was nothing on record to submit

that the respondent/wife was having sufficient means to bear the expenses

of the academic fees of son Yash. The learned Judge further observed that

Yash being a minor son, the respondent/wife was required to have a

financial support. The learned Judge vide order dated 08.08.2013, allowed

the application partly and while rejecting the application of Harsh,

directed the petitioner/husband to deposit Rs.80,000/- for the educational

expenses of son Yash.

6. The respondent/wife on 14.07.2014 submitted an application

under Section 24 read with Section 26 of the Hindu Marriage Act and it was

prayed in the application that the applicant i.e. respondent/wife was

constrained to file the said application as the husband failed to discharge

his burden of providing the financial support to the wife and the children

who were taking education. The application was filed on behalf of the

children Harsh and Yash. It was submitted in the application that the

applicant No.1-Master Yash was prosecuting his studies in XI standard in

the school namely Center Point School and the applicant No.2-Harsh

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completed his education in B.E. (Industrial Engineering). It was further

submitted that as the applicant No.2-Harsh was having no extra

qualification as such was unable to obtain good job in any company. It

was further submitted in the application that for prosecuting further

studies, post graduation course either in MBA or MS would be necessary

for getting an employment in any reputed company. It was submitted that

the post graduation studies in the stream of engineering requires

handsome amount. It was also submitted that for preparation of certain

examinations like GRE, the applicant No.2 would be required to pay

Rs.30,000/- towards preparation in addition to Rs.15,000/- for the allied

expenses such as books, internet and petrol expenses. It was submitted

that the applicant No.1 who is the student of XI standard would require

Rs.15,000/- as educational expenses i.e. academic fees plus the additional

fees for extra curricular activities, food, petrol, mobile recharge, medical

health etc. It was submitted that though the mother of the applicants

received rupees seven lakhs and odd towards premature surrender of

insurance policies, the amount was required for the basic needs and other

necessary commodities. It was submitted that as there is no other source

of income available with the mother of the applicants and as the father

who is the earning handsomely, the amount of Rs.50,000/- be granted

towards the preparation and examinations fees and other educational

expenses.

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7. The said application was also opposed by raising various

grounds and denying the submission that the petitioner was leading

luxurious life. The learned Judge of the Family Court though referring to

the fact that the earlier application filed by the respondent/wife seeking

directions for the educational expenses for the sons Harsh and Yash was

partly allowed and the claim of son Harsh was rejected, allowed the second

application. The learned Judge directed the petitioner/husband to pay an

amount of Rs.5,000/- per month to each son i.e. total Rs.10,000/- per

month towards interim maintenance from the date of application i.e.

14.07.2014. The order passed by the learned Judge, Family Court was

challenged by filing a review application. It was submitted that the learned

Judge, Family Court committed an error on the facts as well as on

erroneous appreciation of the provisions of law. The learned Judge, Family

Court finds no favour with the application seeking review, the learned

Judge while deciding the review application observed that the earlier

application rejecting the claim of the major son Harsh was by relying on

the judgment of this Court in the case of B. (Husband) .v. A. (Wife) (cited

supra). Considering the aspect of Section 26 of the Hindu Marriage Act,

the learned Judge, Family Court then by observing that there was no

impediment for the Court to grant maintenance under Section 24 of the

Hindu Marriage Act to major sons, rejected the application.

8. Shri Pande, the learned Counsel for the petitioner vehemently

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submits that the order passed by the learned Judge, Family Court dated

16.10.2014 is clearly unsustainable. It is the first submission of the learned

Counsel for the petitioner that when the learned Judge, Family Court at the

first instance i.e. when the respondent/wife submitted an application

seeking direction for payment of the education fees for sons Harsh and

Yash allowed the application partly only in respect of son Yash, the learned

Judge, Family Court could not have taken a diagonally opposite view while

allowing the application by order dated 16.10.2014. The learned Counsel

for the petitioner submits that this Court in the the case of B. (Husband) .v.

A. (Wife) (cited supra), in clear terms, held that the remedy under Section

26 could be availed only in respect of minor children. He further submits

that there could not have any other distinction for allowing the application

in case of major son Harsh.

9. Per contra, Shri Ansari, the learned Counsel for the respondent

supports the order impugned in the petition and vehemently submits that

in an application moved by the respondent/wife for grant of maintenance

under Section 24 of the Hindu Marriage Act, the Court could not find

favour with the applicant/wife and the application was rejected. The order

of the learned Judge, Family Court was challenged by presenting writ

petition in this Court and as the writ petition was also dismissed, the

respondent/wife submitted Special Leave Petition before the Hon'ble Apex

Court. Shri Ansari, the learned Counsel places on record the copy of the

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order passed by the Apex Court. Perusal of the order shows that while the

petition was posted before the Hon'ble Apex Court on 05.11.2015, the Apex

Court passed the order as follows :-

"Prima facie, it appears that the petitioner is entitled to

maintenance and the reasoning given by the Family court as well as by the High Court disallowing the maintenance, prima facie, appears to be incorrect.

However, in course of arguments, learned counsel for the

respondent submitted that he will seek instructions from the respondent as to the amount which he shall be ready to pay by

way of maintenance to the petitioner-wife and the minor son."

When the matter was posted on 18.11.2015, a statement was made on

behalf of the respondent/wife who was the petitioner before the Apex

Court that the husband is paying maintenance to his children and he is

unable to pay maintenance to the respondent/wife. After hearing the

Counsel, the Hon'ble Apex Court directed the petitioner/husband who was

the respondent before the Apex Court to pay a sum of Rs.10,000/- per

month towards maintenance to the respondent/wife in addition to the

maintenance which he already paying to his children.

10. Thus, an attempt is made by Shri Ansari, the learned Counsel

for the respondent to submit before this Court that the petitioner/husband

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cannot be absolved from paying maintenance to both the children. The

issue for consideration before this Court is as to whether the order passed

by the learned Judge, Family Court dated 16.10.2014 directing the

petitioner/husband to pay an amount of Rs.5,000/- per month to the

major son Harsh towards interim maintenance is sustainable. It is the

submission of Shri Ansari, the learned Counsel for the respondent/wife

that the provisions of the Hindu Marriage Act though make a mention of

passing interim orders in respect of custody maintenance and education of

minor children, there is no such specific mention in the provision of

Section 24 of the said Act. It is further submitted by the learned Counsel

that even though son Harsh is a major son and he is prosecuting his study

as the respondent/wife is having no independent source of income and as

the major son Harsh is prosecuting his further study i.e. a post graduation,

the same analogy of Section 26 would be applicable for providing the

financial support to son Harsh by way of Section 24 of the said Act. This

being the issue for consideration, it would be necessary to refer to the said

provisions, as under :-

"24. Maintenance pendente lite and expenses of proceedings.

- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.

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[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty

days from the date of service of notice on the wife or the husband, as the case may be.]

25. ...

26. Custody of children. - In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes,

wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to

time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in

case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

[Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as

possible, be disposed of within sixty days from the date of service of notice on the respondent.]"

11. Perusal of the provisions clearly shows that under Section 26, a

provision is made to provide financial support to the wife in respect of the

custody maintenance and education of minor children. The said provision

takes care of the aspect of the education of minor children. (emphasis

supplied). There cannot be a dispute on the laudable object of the Act that

in case the wife who is facing financial hardship and the minor children

who are prosecuting the education, the minor children either should not

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be deprived of their education or should not suffer any such hurdle which

would prohibit them in pursuing their education, the provision is made to

give support in such cases. The language of Section 24 is clear. There is no

reference to such a provision for children. In the initial order of the family

Court, the judgment of this Court in the case of B. (Husband) .v. A. (Wife)

(cited supra), was relied upon. It is the submission of Shri Ansari, the

learned Counsel for the respondent that as there is no such a distinction

especially carved out under the provision of Section 24 of the said Act even

the major son Harsh would be entitled for the maintenance. In support of

his submission, Shri Ansari, the learned Counsel places reliance on the

judgment of the Madhya Pradesh High Court in the case of Lakhankant

Tiwari .v. Smt. Radha Tiwari (First Appeal No. 188/2015 decided on 12 th

May, 2016). In another judgment of the MP High Court in the case of Dr.

Avinash Pawar .v. Dr. Sunita Pawar (Civil Revision No. 2992 of 1999

decided on 26.04.2000), the learned Single Judge of the MP High Court (as

he then was), had occasion to consider all the aspects including the aspect

of the judgment of the Apex Court granting maintenance to a married

daughter. As the very submissions which are advanced before this Court

by Shri Ansari, the learned Counsel for the respondent were made to claim

maintenance for major son, before the Hon'ble learned Single Judge of MP

High Court, it would be necessary to refer to the relevant observations.

"To appreciate the rival submissions raised at the Bar it is

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apposite to refer to Section 24 of the Act, 1955 which reads as

under :-

24. Maintenance pendente lite and expenses of proceedings. - Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no

independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding,

and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem

to the Court to be reasonable.

This provision came to be interpreted by the Apex Court in the case of Jasbir Kaur Sehgal and their Lordships have expressed the opinion that when the wife claims

maintenance under Section 24 of the Act she can claim maintenance for the daughter who stays with her and is

maintained by her. The MP High Court then further observed that Mr. Manish Verma, learned Counsel for the non-applicant, has submitted with immense emphasis that

when the daughter is maintained by the wife and she is entitled to maintenance from the husband there is no reason to make any distinction between the daughter and a son. One may keep the provisions of Hindu Adoption and

Maintenance Act, 1956 in view. The Apex Court in the case of Jasbir Kaur Sehgal, kept the provisions of said Act in view and held that the husband is under obligation to maintain an unmarried daughter and when an application under Section 24 of the Act, 1955 is filed there is no reason for not granting maintenance to the wife who maintains the daughter. Their

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Lordships did not desire to read Section 24 in the narrow

sense and appreciated the factual backdrop in the light of the provision enshrined under Hindu Adoption and

Maintenance Act, 1956. In this context I may profitably refer to Section 20 of the aforesaid Act which as under :

20. Maintenance of children and aged parents - (1) Subject to the provisions of the 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. (emphasis supplied).

(3) The obligation of a person to maintain his or

her aged or inform parent or a daughter who is unmarried extends insofar 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.

On a bare reading of the aforesaid provision it becomes

graphically clear that the child is entitled to maintenance as long as it is a minor. Exception has been carved out in Sub- section (3) which covers an unmarried daughter, but as far as a mojor son is concerned there is no exception. In my humble view a mojor son will not come within the perview of Section 24 of the Act, to be entitled to maintenance from the

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father. The decision rendered in the case of Jasbir Kaur

Sehgal, is distinguishable and is not applicable when a case of major son arises." (emphasis supplied).

12. It would be interesting to note that the claim in respect of the

applicant i.e. major son Harsh is not on the ground that he is prosecuting

his study but it is stated that the son Harsh has completed his engineering

course i.e. he has cleared a basic degree course and as he is unable to get

any job, as such he is willing to continue his further education. There is no

dispute that when the application under Section 24 read with Section 26

was filed, Harsh had already attained the majority and was a major son.

13. In view of the above referred facts, I am unable to accept the

submission of Shri Ansari, the learned Counsel for the respondent and I

see no reason to take a different view than the view expressed by the

learned Single Judge of the MP High Court in the matter of Dr. Avinash

Pawar .v. Dr. Sunita Pawar (cited supra). The order impugned in the

petition needs an indulgence at the hands of this Court. The order passed

by the learned Judge, Family Court dated 16.10.2014 is modified to the

effect that the petitioner/husband shall pay an amount of Rs.5,000/- per

month to the minor son Yash only towards interim maintenance from the

date of application i.e. 14.07.2014. It is submitted by the learned Counsel

for the petitioner that the other minor son Yash has attained the majority.

The petitioner is at liberty to approach the learned Judge, Family Court in

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case, it is so advised.

The petition stands disposed of in aforesaid terms. Rule is

accordingly made absolute.

JUDGE

*rrg.

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