Dr. Pradeep Ramteke vs Sau. Suchita Ramteke W/O Dr. ...
2021 Latest Caselaw 2090 Bom

                                                                             214 fca 33-2015.odt
                                                   1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH AT NAGPUR


                         FAMILY COURT APPEAL NO. 33 OF 2015


              Dr. Pradeep Ramteke,
              Aged about 45 years, Occ. Medical
              Practitioner,
              Address No.1 : R/o. Near Office of
              Shiv Sena, I/F. House of Suresh
              Kalpande, Balaji Nagar, MIDC
              Hingna, Tah. and Hingna, Distt.
              Nagpur.
              Address No.2 : R/o. Near house of
              Gawande, Malipura, Jani
              Shukkarwari, Nagpur.                                        .... APPELLANT

                                         // VERSUS //

     1]       Smt. Suchita w/o Dr. Pradeep
              Ramteke,

     2]       Ku. Priyanka d/o Dr. Pradeep
              Ramteke,
              Both R/o. C/o. Sami Ullah Kha
              Pahan Ajija Begum, Killa Mata
              Mandir, Near Kathiwale Babaki
              Dargah, Kills Road, Mahal,
              Nagpur.                                                     .... RESPONDENT

     ----------------------------------------------------------------------------------------------
                       Shri. S.D. Khati, Advocate for appellant.
                       Shri M.P. Kariya, Advocate for respondents.
     ----------------------------------------------------------------------------------------------


     CORAM             : A.S. CHANDURKAR AND N.B. SURYAWANSHI, JJ.

     DATE              : 02 FEBRUARY, 2021.

     JUDGMENT: [PER: A.S. CHANDURKAR, J.]




                                                                  214 fca 33-2015.odt

The challenge raised in the present proceedings is to

the judgment of the Family Court dated 19/05/2014 in Petition

No.C-62 of 2007.

2. The respondent no.1 herein claims to be the legally

wedded wife of the appellant. According to her, the marriage took

place on 20/07/1993 at Anand Mangal Karyalaya, Dhantoli, Nagpur.

From the said wedlock the respondent no.1-wife gave birth to a

child on 19/09/1994. It is the case of the respondent no.1 that on

07/07/1994, the appellant left her company and thereafter

performed another marriage. Since February, 1995, the appellant

did not take care of the respondents and hence in 1996, the

respondents filed proceedings under Section 18 of the Hindu

Adoption and Maintenance Act, 1956, (for short "the Act of 1956")

seeking maintenance of an amount of Rs.3000/- per month for both

of them.

3. In the written statement filed by the appellant, the

marriage was specifically denied. A stand was taken that the

respondent no.1 professed Muslim religion and therefore she was

214 fca 33-2015.odt

not entitled to claim maintenance under Section 18 of the Act of

1956. All other adverse allegations as made were also denied.

4. After the parties led evidence the trial Court by its

judgment dated 25/09/2000 held the respondent entitled to claim

maintenance. Being aggrieved by that order the appellant had filed

C.R.A. No. 993 of 2000 in this Court which was decided on

24/11/2004. By the said judgment, the order passed by the trial

Court was set aside and the proceedings were remanded to the trial

Court for fresh adjudication with liberty to the parties to lead fresh

evidence.

5. After remand the respondent no.1 examined herself and

two witnesses. The appellant did not lead any further evidence.

Thereafter, the Family Court by the impugned judgment held the

respondents entitled to receive maintenance at the rate of Rs.3000/-

each per month from the date of filing of the proceedings. Being

aggrieved the appellant-husband has challenged the aforesaid

judgment.

214 fca 33-2015.odt

6. Shri S.D. Khati, learned counsel for the appellant

submitted that while remanding the proceedings this Court has

observed that the respondent no.1 was required to prove that she

was entitled to claim maintenance under the provisions of the Act of

1956. It was the specific case of the appellant that the respondent

no.1 was Mohammedan by birth and therefore she was not entitled

to invoke the jurisdiction under Section 18 of the Act of 1956. He

referred to the order passed in C.R.A. No. 993 of 2000 and

thereafter submitted that the evidence on record after remand was

not sufficient to confer jurisdiction on the Family Court to entertain

the proceedings. Since it was clear that the respondent no.1 was not

converted from Muslim religion, she was not entitled to be granted

any maintenance. Without prejudice to the aforesaid it was

submitted that the amount of maintenance granted is on a higher

side and the earning of the appellant was not of such nature to

sustain the order of grant of maintenance. On this count it was

submitted that the impugned judgment was liable to be set aside.

7. Shri M.P. Kariya, learned counsel for the respondents on

the other hand submitted that after remand the respondent no.1

examined herself and other witnesses. It was specifically stated that

214 fca 33-2015.odt

the respondent no.1 before her marriage had got herself converted

to Bouddha religion. He submitted that there was no cross-

examination on these material aspects and therefore the Family

Court did not commit any error in holding that it had jurisdiction to

entertain the proceedings. The other witnesses examined also

supported the case of the respondent no.1. Moreover, the income of

the appellant was more than Rs.15,000/- per month and in the light

of the fact that the respondent no.2 was his daughter the amount of

maintenance granted was reasonable. He therefore submitted that

appeal was liable to be dismissed.

8. In the light of aforesaid submissions, the following

points arise for adjudication:

i) Whether the Family Court was legally correct in

awarding maintenance to the respondents?

ii) Whether the order passed by the Family Court

deserves to be interfered with?

9. We have heard the learned counsel for the parties at

length and we have perused the records of the case. It is not in

dispute that pursuant to the order dated 24/11/2004 in C.R.A.

214 fca 33-2015.odt

No.993 of 2000, the proceedings were remanded for fresh

adjudication. After remand the respondent no.1 filed her affidavit at

Exhibit-18 and contended that her marriage took place on

12/06/1993 which marriage was thereafter registered on

28/07/1993. She further stated that from the said marriage the

respondent no.2 was born. In her evidence the memorandum of

registration of marriage was exhibited as Exhibit-24 and the birth

report of respondent no.2 was marked as Exhibit-25. The

respondent no.1 examined another witness at Exhibit-38 who was

the wife of one Munir Ahamad. This witness stated that respondent

no.1 was not married with Munir Khan. Yet another witness was

examined at Exhibit-39. The said witness was the elder sister of

respondent no.1 and she relied upon the document at Exhibits-40

and 41. The appellant did not lead any evidence.

10. On perusal of these documents, we find that the

memorandum of marriage refers to the name of the respondent no.1

as Ajija Pathan. However, the birth report at Exhibit-25 issued by the

Nagpur Municipal Corporation indicates the name of the appellant

as the father of the child born on 19/09/1994 and the name of

respondent no.1 is shown as Mrs. Suchita P. Ramteke. The other

214 fca 33-2015.odt

document includes the progress card of the respondent no.2 and

name of the appellant is shown as the father.

11. It was vehemently urged on behalf of the appellant that

Exhibit-24 which is the memorandum of marriage clearly indicates

that the respondent no.1 had not been converted to Bouddha

religion. It was for this purpose that the proceedings were

remanded. It would therefore be necessary to consider the reason

for remand of the proceedings by virtue of the order passed in

C.R.A. No.993 of 2000. The memorandum of marriage as well as the

birth extract of respondent no.2 were already on record of the trial

Court. This is also clear from the observations in paragraph no.13 of

that judgment. In paragraph no.17, this Court observed as under:

"17. Thus, from the judgment of learned Trial Court and from the evidence on record, it is clear that there is no actual evidence adducted on record by the respondent no.1 and her conversion to Hindu religion (Boudha) to enable her to claim maintenance from her alleged husband under section 18 of Hindu Adoption and Maintenance Act, 1956. The learned trial Court has also not considered the entire material available before it. Even if it is presumed that respondent no.1 and revision applicant where staying together, that will not prove the conversion of respondent no.1 from Mohammaden to Hindu. The Imam of Killa Masjid has deposed about the subsequent marriage of respondent no.1 with Moonir

214 fca 33-2015.odt

Ahmad on 16/6/1993 and in that marriage, she has used her Mohammaden name i.e. Ajijabegum."

12. The aforesaid observations therefore clearly indicate

that with a view to grant an opportunity to the respondent no.1 to

adduce evidence about her conversion to Bouddha religion, the

proceedings were remanded. After remand the affidavit at Exhibit-

18 filed by the respondent no.1 clearly states that she had embraced

Bouddha religion and had married the appellant. Except this

statement nothing further has been stated. Though the learned

counsel for the respondents submitted that there was no cross-

examination on this material aspect we find that the initial burden

to prove the conversion was on the respondent no.1 and it is for that

purpose that the proceedings had been remanded. The deposition of

other witnesses is also silent on the aspect of conversion. The

learned Judge of the Family Court in paragraph no.14 of the

impugned order has clearly observed that it was difficult for the

respondent no.1 to have documentary evidence about her

conversion to Bouddha religion. While making such observation,

learned Judge of the trial Court lost sight of earlier order of remand

that was passed in C.R.A. No.993 of 2000. We find that despite

214 fca 33-2015.odt

granting opportunity to the respondent no.1 to lead evidence about

her conversion, she has failed to do so. The learned Judge of the

trial Court therefore was not justified in holding that the respondent

no.1 was entitled to claim maintenance under the Act of 1956 by

virtue of her conversion to Bouddha religion. The provisions of

Section 2 of the Act of 1956 preclude a person who does not profess

to be a Hindu by religion or Buddhist, Jaina or Sikh to invoke

jurisdiction under the Act of 1956. Since the respondent no.1 has

failed to prove that she was converted from Mohammedan religion

to Bouddha religion she would not be entitled to invoke jurisdiction

under Section 18 of the Act of 1956 for herself.

13. At the same time, it cannot be lost sight of that though

the appellant sought to challenge the paternity of respondent no.2,

he failed to substantiate the same. On the contrary, the document at

Exhibit-25 clearly refers to the appellant as the father of respondent

no.2. The minor daughter therefore would be a dependent of the

appellant under Section 21 of the Act of 1956. To that extent the

judgment of the Family Court granting maintenance to the

respondent no.2 is liable to be maintained. The points as framed are

answered accordingly.

214 fca 33-2015.odt

14. In the light of aforesaid discussion the judgment of the

Family Court in Petition No.C-62 of 2007 is modified. The order

granting maintenance to the respondent no.1 at the rate of

Rs.3000/- per month shall cease to operate from 01/02/2021. The

respondent no.2 would be entitled to continue to receive

maintenance at the rate of Rs.3000/- per month in accordance with

the impugned judgment.

15. It is clarified that observations made in this judgment

are only for deciding the entitlement of the respondents to the grant

of maintenance. The respondent no.1 is free to take further steps to

secure her interests in accordance with law. The Family Court

Appeal is partly allowed in above terms. Parties to bear their own

costs.

                        JUDGE                                   JUDGE



     R.S. Sahare