Bombay High Court
Smt. Bharti Wd/O Rajesh Zade And 2 ... vs Shri Shrawan S/O Mangruji Zade And ... on 7 March, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Family Court Appeal No. 178 of 2014
Appellants : 1. Smt Bharti wd/o Rajesh Zade, aged about 29
years, Occ: Household
2. Ku Ishika d/o Rajesh Zade, aged about 9 years,
Occ: Education
3. Ku Vaishali d/o Rajesh Zade, aged about 6
years, Occ: Education
Nos. 2 and 3 being minor, through their natural
guardian-mother, appellant no. 1 Smt Bharti.
All residents of c/o Shri Maroti Patil, 37, Vrindawan
Nagar, Nandanwan, Nagpur-440009
versus
Respondents : 1. Shrawan s/o Mangruji Zade, aged about 65
years, Occ: retired/business
2. Sau Kusum w/o Shrawan Zade, aged about
61 years, Occ: Household,
Both residents of 1069, Near Dada Saheb Thakre
High School, Ashirwad Nagar, Nagpur
::: Uploaded on - 15/03/2017 ::: Downloaded on - 27/08/2017 19:07:54 :::
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Shri S. R. Bhongade, Advocate for appellants
Smt R.D. Raskar, Advocate for respondents
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Family Court Appeal No. 179 of 2014
Appellant : Shrawan Mangruji Zade, aged about 65 years,
resident of 1069, Near Dadasaheb Thakre High
School, Aashirwad Nagar, Nagpur
versus
Respondents: 1. Smt Bharti wd/o Rajesh Zade, aged about 29
years, Occ: Household
2. Ku Ishika d/o Rajesh Zade, aged about 9 years,
Occ: Education
3. Ku Vaishali d/o Rajesh Zade, aged about 6
years, Occ: Education
Nos. 2 and 3 being minor, through their natural
guardian-mother, appellant no. 1 Smt Bharti.
All residents of c/o Shri Maroti Patil, 37, Vrindawan
Nagar, Nandanwan, Nagpur-440009
Smt R. D. Raskar, Advocate for appellant
Shri S. R. Bhongade, Advocate for respondents
Coram : Smt Vasanti A Naik And
V. M. Deshpande, JJ
Dated : 7th March 2017
Oral Judgment (Per Smt Vasanti A Naik, J)
Since these appeals arise from the judgment of the Family
Court dated 14th July 2011 and the parties to the appeals are the same,
they are heard together and are decided by this common judgment.
2. Shrawan Zade is the father-in-law of Smt Bharti Zade and the
grand-father of Smt Bharti Zade's daughters Ishika and Vaishali. Smt
Kusum is the wife of Shrawan and the mother-in-law of Smt Bharti. Smt
Bharti was married to Rajesh Zade. The marriage was solemnized on
11.5.2001. Ishika and Vaishali were born from the said wedlock.
Unfortunately, Rajesh, the husband of Smt Bharti suddenly expired on
21.4.2005. It is the case of Smt Bharti in the petition filed by her against
Shrawan and Smt Kusum for maintenance under Section 19 of the Hindu
Adoptions and Maintenance Act, 1956 (hereinafter referred to as "the Act"
for the sake of brevity) that after the death of her husband, she stayed in
the company of her in-laws for about 5-6 months, but she was subjected
to cruelty. Smt Bharti pleaded that she had to leave the matrimonial
home due to the ill-treatment by Shrawan and Smt Kusum. It was
pleaded that Smt Bharti was prosecuting her D. Ed. Studies and she was
required to spend a sum of Rs. 2000/- per month. It was pleaded that
her daughter Ishika was studying in kindergarten and she was required to
spend Rs. 2000/- per month for her. It was pleaded that Vaishali was a
toddler and she was required to spend Rs. 1500/- per month towards her
clothing, maintenance and medicine. It was pleaded that Shrawan, her
father-in-law was working as an Assistant Teacher in a private school and
was receiving monthly pension of Rs. 6000/-. It was pleaded that
Shrawan was running a kirana shop and fire-wood stall and was earning
Rs. 12,000/- to Rs. 15,000/- per month from the said shop and stall. It
was pleaded that Shrawan possesses ancestral agricultural property to the
extent of 15 acres in Tahsil Umrer and is earning Rs. 2,00,000/- to Rs.
2,50,000/- per annum from the said property.
3. Shrawan and Smt Kusum filed the Written Statement and
denied the claim of Smt Bharti and her daughters. The relationship of
Shrawan with Smt Bharti was admitted and it was also admitted that the
Kirana shop and fire-wood stall was being run by their son Rajesh.
Shrawan and Smt Kusum, however, denied in their Written Statement
that they were running the said shop and stall after the death of Rajesh.
It was pleaded that the kirana shop was closed after the death of Rajesh.
All the adverse allegations made against Shrawan and Smt Kusum were
denied by them and it was pleaded that Smt Bharti left the matrimonial
home immediately after the 13th Day ritual of her husband Rajesh. It was
pleaded that Vaishali was not even born when Smt Bharti had left the
matrimonial home. It was pleaded that Shrawan was paying for the
education of Smt Bharti and her daughters. It was pleaded that Shrawan
was receiving a monthly pension of Rs. 5000/- and he maintained himself
and his wife Smt Kusum from the said amount. It was denied that his
monthly income was Rs. 25,000/- to Rs. 30,000/-. It was pleaded that the
fire-wood stall was owned by the brother of Rajesh and that he was
maintaining himself from the said income. Shrawan denied that he
received the income from the agricultural field. It was pleaded by
Shrawan and Smt Kusum that they were ready to look after the needs of
Smt Bharti and their two grand-dahghters and that they should reside
with Shrawan and Smt Kusum in the matrimonial home. Shrawan and
Smt Kusum sought for the dismissal of the petition.
4. On the aforesaid pleadings of the parties, the Family Court
framed only two issues, first being - "whether Shrawan and Smt Kusum
neglected to maintain Bharti and her two daughters ?" and the second
being, "whether Bharti and her daughters were entitled to claim
maintenance under the Hindu Adoptions and Maintenance Act ?" Both
the aforesaid issues were answered by the Family Court in favour of
Bharti and her daughters and the Family Court directed Shrawan to pay
the amount of Rs. 3000/- towards monthly maintenance of smt Bharti
and her two daughters. The Family Court also directed Shrawan to pay a
sum of Rs. 40,000/- to Smt Bharti towards arrears of maintenance in
lumsum. The judgment of the Family Court is challenged by Shrawan in
Family Court Appeal No. 179 of 2014 and by Smt Bharti, Ishika and
Vaishali in Family Court Appeal No. 178 of 2014.
5. Smt Raskar, the learned counsel for Shrawan submitted that
the Family Court committed a serious error in not considering the
principles laid down in Sections 19 and 23 of the Act while directing
Shrawan to pay a sum of Rs. 3000/- per month towards maintenance to
Smt Bharti, Ishita and Vaishali. It is submitted that the liability to pay
maintenance to the widowed daughter-in-law is on the father-in-law
provided that the daughter-in-law had no property of her own; is unable
to maintain herself out of the income from the estate of her husband or
her father or mother. It is submitted that the Family Court did not
consider whether Smt Bharti could have maintained herself and her
daughters from the estate of her father or mother. It is submitted that the
Family Court has failed to consider the provisions of Section 19 of the Act
in this regard before determining the maintenance payable to Smt Bharti
and her daughters. It is submitted by referring to the provisions of
Section 23 of the Act that while determining the amount of maintenance,
it is necessary for the Family Court to consider the position and status of
the parties; the reasonable wants of the claimant; whether the claimant is
living separately and is justified in living separately; the number of
persons entitled to maintenance; the net value of the estate of the
deceased and the number of dependents entitled to maintenance under
the Act. It is submitted that the Family Court failed to consider the
provisions of Sections 19 and 23 of the Act while partly allowing the
petition filed by Smt Bharti, Ishita and Vaishali. It is submitted that in the
suit filed by Smt Bharti for partition and separate possession, the trial
Court has declared that Smt Bharti, Ishika and Vaishali each have 1/15th
share in the ancestral agricultural landed property. The learned counsel
states, on instructions, that Shrawan is ready to deliver the possession of
the 1/5th share of Bharti, Ishika and Vaishali in the agricultural land to
Smt Bharti immediately so that she should be able to maintain herself and
her daughters out of the income from the said property which could be
said to be the share of her deceased husband. It is submitted that
Shrawan was a teacher and is a retired person, earning a monthly
pension of only Rs. 5000/- and since the agricultural properties are not
yielding any income, it would be extremely difficult for Shrawan and his
wife Smt Kusum to survive from the pension amount, more-so if he is
directed to pay a sum of Rs. 3000/- per month to Smt Bharti, Ishita and
Vaishali. It is submitted that Shrawan was ready to maintain Smt Bharti,
Ishita and Vaishali and that Smt Bharti has left the matrimonial home
without any just and reasonable excuse. It is submitted that Smt Bharti
had left the matrimonial home immediately after the 13 th day ritual of her
husband Rajesh were performed. It is stated that in this background, the
Family Court could not have directed Shrawan to pay monthly
maintenance to Bharti and her daughters particularly when Smt Bharti
had left their company without any reasonable excuse.
6. Shri Bhongade, the learned counsel for Smt Bharti, Ishita and
Vaishali has supported the judgment of the Family Court. It is submitted
that the Family Court was not justified in granting maintenance from the
date of judgment. It is stated that no reasons are recorded by the Family
Court for awarding only a sum of Rs. 40,000/- towards the arrears of
maintenance in lumpsum. It is submitted that the maintenance amount
should have been directed to be paid to Smt Bharti and her daughters
from the date of filing of the application and the amount of Rs. 40,000/-
could not have been awarded in lumpsum towards the past maintenance,
without recording any reasons. It is submitted that the Family Court has,
on an appreciation of the material on record, rightly come to a conclusion
that after the death of her husband, Smt Bharti was residing separately
from Shrawan and his wife Smt Kusum and Shrawan was taking income
from the property of the deceased husband of Smt Bharti. It is stated that
since the Family Court has held that as Shrawan has not made any
provision for Smt Bharti, Ishita and Vaishali from the income that he was
securing from the estate of his deceased son, he was liable to pay
maintenance to Smt Bharti, Ishita and Vaishali. It is stated that since a
finding is recorded that Shrawan had neglected and refused to maintain
Smt Bharti, Ishita and Vaishali, the appeal filed by Shrawan is liable to be
dismissed.
7. On hearing the learned counsel for the parties, it appears the
following points arise for determination in these appeals :
(1) Whether the Family Court was justified in directing Shrawan
to pay maintenance of Rs. 3000/- per month to Smt Bharti, Ishita and
Vaishali ?
(2) Whether the Family Court was justified in directing Shrawan
to pay the arrears of maintenance in lumpsum of Rs. 40,000/- ?
(3) What order ?
8. To answer the aforesaid points for determination, it would
be firstly necessary to consider the provisions of Sections 19 and 23 of the
Act. Admittedly, the petition is filed by Smt Bharti against Shrawan and
his wife Smt Kusum under Section 19 of the Act. It is provided in Section
19 of the Act that the father-in-law would be liable to maintain his
daughter-in-law provided she is unable to maintain herself out of her own
earnings or other property or, where she has no property of her own, is
unable to obtain maintenance from the estate of her husband or her
father or mother. The provision further stipulates that the obligation
against the father-in-law shall not be enforceable if the father-in-law does
not have means to pay maintenance from any coparcenary property in his
possession out of which the daughter-in-law has not obtained any share.
9. We are surprised that the Family Court has not considered
the provisions of Section 19 of the Act while deciding the petition filed by
Smt Bharti, Ishita and Vaishali. The Family Court did not consider
whether Smt Bharti has the means to maintain herself either from her
own property or from the estate of her husband or from the estate of her
father or mother. The Family Court did not advert its mind to this aspect
at all. Smt Bharti is an educated woman and has secured the training
qualification apart from the degree possessed by her. The Family Court
did not advert its mind to this aspect. The Family Court also did not
consider whether Smt Bharti has sufficient cause for staying away from
the matrimonial home and away from her in-laws. It is the case of
Shrawan and his wife Smt Kusum that they were ready to maintain Smt
Bharti and their grand-daughters if they reside in the matrimonial home
with them. It is the case of Shrawan and his wife that Smt Bharti had left
the matrimonial home after the 13 th day rituals of her husband were
performed. On the other hand, it is the case of Smt Bharti that she was
compelled to leave the matrimonial home due to the ill-treatment by her
in-laws. The Family Court did not decide this issue at all and only
observed that since Smt Bharti was residing separately and Shrawan was
not maintaining her and her daughters from the income out of the estate
falling to the share of the husband of Smt Bharti, he had neglected and
refused to maintain Smt Bharti and her daughters and was liable to pay
maintenance to Smt Bharti, Ishita and Vaishali. There is non-consideration
of the provisions of Section 19 as well as the provisions of Section 23 of
the Act. The Family Court did not consider whether Smt Bharti was
justified in residing separately and how many persons were dependent on
Shrawan. The net value of the estate of the deceased husband of Smt
Bharti was also not considered and it was not considered as to what
would have been the income from the ancestral property falling to the
share of the deceased husband of Smt Bharti. The provisions of Sections
19 and 23 of the Act, that ought to have been considered by the Family
Court, are not considered by the Family Court at all while deciding the
petition filed by Smt Bharti. In our view, it was necessary for the Family
Court to have considered the principles laid down in the provisions of
Sections 19 and 23 of the Act before deciding the petition filed by Smt
Bharti, Ishika and Vaishali. Even today, as stated by the learned counsel
for Shrawan on instructions from Shrawan who is present in the Court
that he is ready to partition the ancestral field property immediately as
per the decree of the trial Court by metes and bounds and shall deliver
the possession of the share of Bharti, Ishita and Vaishali to Smt Bharti. If
that is so, it would be necessary to consider as to why Smt Bharti is not
ready to accept her share in the ancestral landed property at this stage.
In the circumstances of the case, as the trial Court has committed a
serious error in not considering the relevant provisions of Section 19 and
Section 23 of the Act, it would be necessary to remand the matter to the
Family Court to decide the petition filed by Smt Bharti, Ishita and Vaishali
in accordance with law. We find that as the Family Court has failed to
consider the provisions of Sections 19 and 23 of the Act and as we are
setting aside the judgment of the Family Court on that ground, it would
not be necessary to decide the question whether the Family Court was
justified in directing Shrawan to pay a sum of Rs. 40,000/- towards past
maintenance in lumpsum.
10. Hence, for the reasons aforesaid, Family Court Appeal No.
179 of 2014 is partly allowed. The judgment of the Family Court dated
14.7.2011 is hereby set aside. The Family Court is directed to decide the
petition filed by Smt Bharti, Ishita and Vaishali in accordance with law.
The parties undertake to appear before the Family Court on 27 th March
2017 so that service of notice could be dispensed with. As the judgment
of the Family Court is set aside, Family Court Appeal No. 178 of 2014
stands disposed of. No order as to costs.
V. M. Deshpande, J Smt Vasanti A Naik, J
joshi
