Bombay High Court
Smt. Laxmi Wd/O Parag Thaware, ... vs Shri Santosh S/O Rajaram Thaware on 23 February, 2021
Bench: A.S. Chandurkar, Nitin B. Suryawanshi
F.C.A. 42-2015 ..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO. 42 OF 2015
1) Smt. Laxmi wd/o Parag Thaware,
(Laxmi d/o Ramesh Dekate)
Aged about 45 years,
Occupation - Nil.
2) Ku. Pallavi d/o Parag Thaware,
Aged about 22 years,
Occupation - Student,
3) Manthan s/o Parag Thaware,
Aged about 17 years,
4) Mayur s/o Parag Thaware,
Aged about 17 years,
Occupation - Student,
(Appellant Nos.3 and 4 being minor
through their Mother Natural Guardian
Smt. Laxmi wd/o Parag Thaware)
All R/o C/o Smt. Shantabai Kawduji
Mendhe, Plot No.94, Lane No.3,
Vishwakarma Nagar, Nagpur .... APPELLANTS
// VERSUS //
Shri Santosh s/o Rajaram Thaware,
Aged about 74 years,
Occupation - Nil,
R/o 414, Hanuman Nagar, Behind
Pragati Hall, Nagpur .... RESPONDENT
----------------------------------------------------------------------------------------------
Shri S.P. Kshirsagar, Advocate for appellants.
None for respondent though served
CORAM : A.S. CHANDURKAR AND N.B. SURYAWANSHI, JJ.
RESERVED ON : 25/01/2021
PRONOUNCED ON : 23/02/2021
F.C.A. 42-2015 ..odt
ORAL JUDGMENT: [PER: N.B. SURYAWANSHI, J.]
1. This appeal is filed by the appellants under Section 19
and 22 of the of the Family Courts Act, 1984, challenging the
judgment of the Family Court, Nagpur in Petition No. C-25/2012, by
which the petition filed by the appellants against the respondent for
maintenance was dismissed.
2. Facts leading to this appeal bereft of unnecessary details
are as follows:
The appellant No.1 is the daughter in law and appellant
Nos. 2 to 4 are the grand children of the respondent. They filed
petition under Sections 19 and 22 of the Hindu Adoptions and
Maintenance Act, 1956 (for short Act of 1956), claiming
maintenance from the respondent contending that the marriage of
the first appellant with son of the respondent namely Parag was
solemnized on 14/08/1989 under the Special Marriage Act, 1954.
From the said wedlock the appellant Nos.2, 3 and 4 were born. The
marriage of the first appellant with Parag was against the wishes of
their family members. Cases and counter cases were filed by the first
appellant and the respondent against each others. Parag-husband of
the first appellant expired on 19/01/2000, leaving behind the
F.C.A. 42-2015 ..odt
appellants. After his death nobody was taking care of the appellants.
After the death of Parag though the first appellant tried to reconcile
with the respondent he refused to accept her as a daughter-in-law
and the appellant Nos. 2 to 4 as his grand children. It was claimed
that the respondent had sufficient financial resources however, he
had neglected and refused to maintain the appellants. The
appellants were constrained to go to the widowed mother of the
first appellant, who was then serving as Nurse with Nagpur
Municipal Corporation. She maintained the appellants in her meager
income till she expired on 03/02/2007. The appellants claimed that
they had no source of income and they were unable to maintain
themselves. The first appellant being widowed daughter-in-law,
second appellant being unmarried granddaughter and third and
fourth appellants being minor grandsons of the respondent were
entitled for maintenance from him. The details of proceedings
pending between first appellant and the respondent were also given
in the petition. It was further averred that the second appellant
could not pursue her studies after 12 th standard due to paucity of
funds. The third and fourth appellants were studying in 8 th standard
at that time, in Bishop Cotton School, Sadar, Nagpur till 2010 and
were not able to appear for exam as they could not pay exam fees
F.C.A. 42-2015 ..odt
and school fees. It was further averred that the appellants were
living in a rented premises and were unable to pay rent at the rate
of Rs.2,500/- per month. They were under a threat of being thrown
out for non-payment of rent. The appellants claimed that the
respondent was alone and was living a lavish lifestyle. He was
having landed property. The late wife of respondent had disposed
her agricultural land at Mouze Kalamana and from the sale
proceeds, a four storied building was constructed which stood in the
name of respondent. He sold two flats in the said building for
Rs.40,00,000/-. Further averment was that the late husband of the
first appellant had his share in the property situated at Plot No. 414,
Hanuman Nagar, Nagpur as the same was a coparcenary property.
Hence, the appellants had their share in the said property. It was
contended that the respondent was getting pension of Rs.15,000/-
per month and was also getting interest of Rs.50,000/- per month
on the sale proceeds of the ancestral property and the property of
his late wife at Kalamana i.e. Survey No. 14/1 and 14/2 and of the
two flats. The respondent had his own house and nobody was
dependent on him, on these contentions, the appellants claimed
maintenance at the rate of Rs.5,000/- per month for the first
F.C.A. 42-2015 ..odt
appellant and Rs. 3,000/- per month each for the appellant Nos. 2
to 4.
3. The respondent appeared and by filing written
statement denied the claim of the appellants. He claimed that he did
not receive any property from the ancestors. He was a senior citizen
aged 77 years, retired from the post of Assistant Engineer from
Nagpur Municipal Corporation. He had purchased the field property
and house property from his own income and those properties were
disposed of long before and there was no property remaining with
him. His monthly pension was the only source of income to him. He
denied the marriage of first appellant with his son Parag. He claimed
that Parag had bad habits and he was addicted to drugs and liquor.
He had ousted Parag out of the house due to his bad habits. Parage
was not doing any work or earning anything. He specifically denied
the averments pertaining to sale of flats, as well as property by his
wife Suman and that he was getting income from interests. He
therefore claimed that petition filed by the appellants be dismissed.
4. The learned Family Court, after recording evidence
dismissed the petition filed by the appellants, hence the present
appeal.
F.C.A. 42-2015 ..odt
5. Heard the learned counsel for the appellant. Though
served none appeared for the respondent. The learned counsel for
the appellant strenuously submitted that it is the moral duty of
father-in-law to maintain his widowed daughter-in-law and grand
children and the respondent can not run away from his duty. He
argued that though sufficient evidence was placed on record by the
appellants in support of their claim for maintenance, the Family
Court has erroneously denied maintenance to them. According to
him the impugned judgment of the Family Court was contrary to the
settled legal position. In support of his submissions he placed
reliance upon decisions in T.A. Laxhmi Narasamba Vs. T.
Sundaramma and others, reported in AIR 1981 Andhra Pradesh 88,
Rajkishore Mishra Vs. Smt. Meena Mishr reported in AIR 1995
Allahabad 70, BS Balbir Kaur and another v. Harinder Kaur and
others reported in AIR 2003 Punjab and Haryana 174.
6. Heard the learned Advocate for the appellant at length
and perused the record. In view of submissions advanced by the
learned Advocate for the appellant. following points arise for
adjudication:
F.C.A. 42-2015 ..odt
(i) Whether the appellants are entitled for maintenance
from the respondent ?
(ii) Whether the Family Court was justified in
dismissing the claim of maintenance of the appellants ?
(iii) What order ?
7. To decide the matter it is necessary to consider the
evidence on record. The first appellant filed affidavit in lieu of
evidence in terms of the pleadings in the petition. She placed on
record certified copy of judgment in Misc. Criminal Application No.
25506/2007 (Exh.22) i.e. judgment in application under Section 12
r/w Sections 17 and 20 of the Protection of Women from Domestic
Violence Act, 2005 filed by her, which was rejected, Marriage
Certificate (Exh.23), Birth Certificates of children (Exhs.24, 25 and
26 respectively), the 7/12 extracts (Exhs. 27 and 28), Mutation
Entries (Exhs. 29 and 30), Record of Rights (Exhs. 31 and 32),
Property Card (Exh.33), Copy of Ration Card (Exh.34).
In the cross examination, the first appellant admitted
that in the year 1993 they lived in the house of the respondent and
her relationship with the respondent and his wife became strained
from 1993. She had filed case under Section 498-A of the Indian
Penal Code against them. She deposed that she was not aware
F.C.A. 42-2015 ..odt
whether the respondent and his wife were acquitted from that case.
She further admitted that she was not staying in the house of
respondent at the time of her deliveries. She admitted that Parag
had purchased gold ornaments, small necklace, some household
items for the second appellant. She also admitted that Parag had not
purchased any immovable property. She admitted that Sumanbai
wife of respondent died on 18/09/2007. She could not give the
source of the funds used for purchasing land Survey No.16 at
Kalamana. She also admitted that land mentioned in 7/12 extract
(Exhs. 27 and 28) was sold to one Ishant Hatwar in the year 1999.
She admitted that father of respondent was a farmer. She deposed
that father of respondent had sold out some part of agricultural land
and collected the funds for purchasing of house for the respondent.
The said fact was informed to her by deceased Parag. She admitted
that she had no document to show that the respondent had sold two
flats for Rs.40,00,000/- and that he received Rs.50,00,000/- from
the sale of lands, so also she had no document to show that the
respondent was getting Rs.50,000/- per month by way of interest.
8. Sister of first appellant Kirti, w/o Mangalsingh
Randhava was examined as PW.2. She deposed that when she and
F.C.A. 42-2015 ..odt
her mother asked Late Parag about property, he took them to the
agricultural field at Umrer Road, Kalamana and told that it was his
ancestral property and he had a share in it. In the cross-examination
she deposed that she got married in the year 2005. The parents of
Late Parag had transferred their agricultural land in the year 1993.
She admitted that the house where respondent was residing
belonged to him. She admitted that respondent had one son and
three daughters and all the three daughters were married. She also
admitted that livelihood of respondent depended on pension.
9. The respondent filed affidavit in lieu of evidence in the
line of the written statement filed by him. During cross examination
he deposed that the name of his father was Rajaram and his
grandfather was Ganpatrao. He denied that Rajaram Ganpatrao
owned land at Kalamana and after partition some land was given to
his wife. He however admitted that his wife sold out the land. He
denied that his son Parag had undivided share in that land. He
further deposed that he had not sold out any house property in his
lifetime. He stated that the statement made in his affidavit that he
had purchased house property and agricultural property from his
own earned money was false. He admitted that he was residing on
F.C.A. 42-2015 ..odt
the ground floor of the four storied house owned by him. He also
denied that other floors were let out by him.
10. The marriage of the first appellant with Parag, the
deceased son of respondent is proved by filing marriage card
(Exh.23). The birth of the appellant Nos.2, 3 and 4 from the said
wedlock is also proved by filing birth certificates (Exhs. 24, 25 and
26) respectively. Therefore it is proved that the first appellant was
widow of deceased Parag, who was son of the respondent and the
appellant Nos. 2 to 4 are his grandchildren. There is no evidence on
record that the first appellant was able to work and her deceased
parents had left some property for her. It was therefore proved that
the appellants were unable to maintain themselves.
11. The appellants have proved on record 7/12 extract
Exhs. 27 and 28 of Gut No.16 and the mutation entries Sr. No. 171
and 172 at Exhs. 29 and 30. It shows that land admeasuring 2.62
hectare out of Gut No.16 was sold by late Sumanbai for
Rs.3,00,000/-. Remaining land out of the said gut number was also
sold for Rs.3,50,000/- in the year 1999. The most important
documents proved on record by the appellants were Exhs. 31 and
F.C.A. 42-2015 ..odt
32. Vide Exh.31 a partition was effected between late Sumanbai-
wife of the respondent and Rajaram (father of respondent) of all
properties bearing Nos. 14/1 and 14/2. The property 14/1 stood in
the name of Sumanbai and gut No. 14/2 stood in the name of
Rajaram. The partition took place on 05/02/1977. Though the
appellants could not bring on record as to who was the owner of
property gat No. 14/1 before Sumanbai, it was proved on record
that property No. 14/2 was owned by Rajaram Ganpatrao Thaware.
In view of admission of the respondent in the cross examination that
his father's name was Rajaram and his grandfather's name was
Ganpatrao, it can be held that property gut No.14/2 was the
ancestral property of the respondent.
12. Taking into consideration this evidence we are of the
considered view that the property gat No.14/2 was the ancestral
property in possession of respondent, in which deceased Parag had a
share. It is not the case of the respondent that Parag during his life
time or first appellant at any point of time were given share in gat
No. 14/2. It is not disputed that the first appellant has not
remarried. Admittedly the respondent is retired from the post of
Assistant Engineer from Nagpur Municipal Corporation and was
F.C.A. 42-2015 ..odt
getting pension. In that view the appellants in our considered view
were entitled to claim maintenance from the respondent.
13. It is a settled legal position that father-in-law has moral
responsibility to maintain the widowed daughter-in-law. In T.A.
Laxhmi Narasamba (supra) the Full Bench of Andhra Pradesh High
Court held thus ;
"The moral obligation of a father-in-law possessed of
separate or self-acquired property to maintain the
widowed daughter-in-law ripens into a legal
obligation in the hands of persons to whom he has
either bequeathed or made a gift of his property."
The Division Bench in Madhukar S/o Kisan Lokhande
Vs. Shalu wd/o Narendra Lokhande reported in 2013 (6) Mh.L.J.
Page 391 which is authored by one of us (Hon'ble Shri A.S.
Chandurkar, J.), it is held that to maintain the widowed daughter-in-
law is the legal responsibility of father-in-law. Sections 19 and 22 of
the Act create first obligation to maintain a widowed daughter-in-
law on the father-in-law. The obligation only shifts on the father of
the widow, if the father-in-law prove his inability to maintain her.
14. In the light of above ratio and considering the evidence
on record we are of a considered view that the appellants have
F.C.A. 42-2015 ..odt
proved that respondent held estate/coparcenary property of the
deceased Parag and therefore the respondent was under obligation
to provide maintenance to the appellants.
15. The learned Family Court has erred in rejecting
maintenance to the appellants. The impugned decision is contrary to
the settled legal position. The learned Family Court has misread and
misconstrued the provisions of Sections 19 and 22 of the said Act
and has recorded incorrect findings contrary to the evidence on
record. The impugned judgment is therefore liable to be set aside
and the petition filed by the appellants for maintenance deserves to
be allowed.
16. Considering the status of the parties and the fact that
the respondent is a pensioner, we are of the considered opinion that
grant of maintenance @ Rs.3,000/- per month to the first appellant
and @ Rs.2,500/- to the appellant Nos. 2, 3 and 4 would meet the
ends of justice.
17. Hence we pass the following order:
(i) The Family Court Appeal is allowed by setting aside
the impugned judgment passed by Family Court No. 2,
Nagpur in Petition No. C-25/2012 dated 14/07/2014.
F.C.A. 42-2015 ..odt
(ii) Petition No. C-25/2012 filed by the appellants is
allowed. The respondent is directed to pay maintenance
at the rate of Rs.3,000/- to appellant No.1 and
Rs.2,500/- each to the appellant No.2 to 4 from the
date of filing of the petition i.e. from 12/04/2012.
(iii) The appellant No.2 shall be entitled for the
maintenance till the date of her marriage.
(iv) The appellant Nos. 3 and 4 shall be entitled to
claim maintenance till they attain 18 years of age.
(v) The respondent is directed to pay the arrears of
maintenance amount to the appellant within a period of
eight weeks from today.
(vi) The respondent shall pay cost of Rs.10,000/- of
this proceeding to the appellants.
(vii) Decree be drawn up accordingly.
JUDGE JUDGE
J.Pethe..
