Ashok Digambar Varangaonkar And ... vs The State Of Maharashtra Thr. ...
2018 Latest Caselaw 1030 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



Criminal Writ Petition No.  860  of 2017

 

Petitioner :             Vijay son of Govinda Raut, aged about 59
                         years,  resident of Siddheshwar Nagar, Borban,
                         Umarkhed.  At present, resident of Government
                         Colony, Bandra, Mumbai

                          Versus

Respondents:             1. Collector, Yavatmal

2. Sub-Divisional Officer & Appellate Tribunal, Umarkhed, District Yavatmal

3. Sitabai w/o Govindrao Raut (real name Sitabai Ramrao Paikrao), aged about 79 years, Occ: Household, resident of Kharus (bu), Tahsil Umarkhed, District Yavatmal

4. Waman son of Govinda Raut, aged about 68 years, Occ: Labour, resident of Dighi, Tahsil Kalamnmuri, District Hingoli

Shri N. S. Deshpande, Advocate for petitioner Ms Ritu Kaliya, APP for respondents no. 1 and 2 Respondents no. 3 and 4 served

Coram : S. B. Shukre, J

Dated : 25th January 2018

Oral Judgment

1. Heard learned counsel for the petitioner and learned

Additional Public Prosecutor for respondents no. 1 and 2. None appears

for respondents no. 3 and 4 though they are duly served. Rule. Rule

made returnable forthwith in terms of notice dated 14.11.2017.

2. The contention of learned counsel for the petitioner is that

the procedure as laid down under Sections 6 and 8 of the Maintenance

and Welfare of Parents and Senior Citizens Act, 2007 (for short, the "Act

of 2007") has not been followed in this case by the Sub-Divisional Officer

and the petitioner has been deprived of sufficient opportunity to present

his case before the learned Sub-Divisional Officer. The next contention of

learned counsel is that the basic issue of denial of sufficient opportunity of

defence to the petitioner has also not been considered by the Appellate

Authority, the Collector, Yavatmal. Learned Additional Public Prosecutor

submits that the provisions of the Act of 2007 are clear enough and the

same must be followed by the Authority appointed under the Act of 2007

for deciding the issue of maintenance. She submits that in case it is found

that there is non-compliance of the provisions of the Act, this Court can

pass appropriate orders, though she would submit at the same time that

there is a substantial compliance with the provisions of law in the present

case.

3. On going through the impugned order, I do not find that

there is any compliance, muchless substantial compliance, with the

procedural requirements of the Act of 2007. In the case of Dnyaneshwar

Rambhau Shinde v. Rambhau Govind Shinde and anr delivered by me

in WP No. 1954 of 2016 on 1st February 2017 while sitting at Aurangabad

Bench, I have already taken a view that the procedure contemplated

under Sections 6 and 8 of the Act of 2007 is mandatory and as an

essential requirement of these provisions, opportunity of putting up the

defence must be given to the person against whom order for payment of

maintenance is proposed to be made. I have also taken a view that sub-

section (4) of Section 6 of the Act of 2007 does not do away with the

need for recording of evidence and evidence should be recorded, though

in a summary case, in the presence of the children or relatives against

whom the maintenance order is proposed to be made.

4. This is a case wherein it has been the defence of the

petitioner that his mother (respondent no. 3) performed marriage with

another person after the death of his father Govinda and conceived even

three children. However, it appears, this aspect has not been considered

in any manner by the Competent Authority. It is also seen, as stated

earlier, the basic procedural requirement has not been followed in the

present case. Even the Appellate Court ignored these material aspects

emerging from the case. Therefore, both the orders challenged in the

present petition deserve to be quashed and set aside.

5. In the result, the impugned orders are quashed and set aside.

Maintenance Application is remitted back to respondent no. 2 for decision

afresh by following the procedure prescribed under Sections 6 and 8 of

the Act of 2007. Adequate opportunity of hearing shall be granted to the

petitioner and respondents no. 3 and 4. Both the parties shall cooperate

with respondent no. 2 for expeditious disposal of the maintenance

application. Maintenance Application shall be decided expeditiously and

in any case within two months from the date of appearance of the parties.

The contesting parties are directed to appear before respondent no. 2 on

12th February 2018. Rule is made absolute accordingly. No costs.

S. B. SHUKRE, J

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