Chattisgarh High Court
Nand Kishore Lal vs Shrimati Chanchala Lal on 4 July, 2022
1
FAM No.200 of 2015
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No.200 of 2015
{Arising out of order dated 2-12-2015 passed by the Judge, Family
Court, Janjgir, District Janjgir-Champa, in CMJC No.30/12
1. Nand Kishore Lal S/o Late Shri Pyarelal, Aged About 71 Years
Caste Chandra, R/o C.M.I.G. 40, Nehru Nagar, Korba, District
Korba, Chhattisgarh
---- Appellant
Versus
1. Shrimati Chanchala Lal W/o Late Shri Ashwani Kumar Lal, Caste
Chandra, R/o Village Birra, Tahsil Champa, District Janjgir-
Champa Chhattisgarh
---- Respondent
For Appellant Mr. Sanjay Patel, Advocate
For Respondent Mr. Sourabh Sahu, Advocate
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Deepak Kumar Tiwari
Judgment on Board
Per Goutam Bhaduri, J.
04-07-2022
1. Challenge in this appeal is to the order dated 2-12-2015 passed by
the Judge, Family Court, Janjgir, District Janjgir-Champa, in CMJC
No.30/12 wherein maintenance has been directed to be paid to the
widowed daughter-in-law (respondent herein) as against her father-
in-law (appellant herein).
2. The facts, in brief, are that the respondent was married to the son of
the appellant namely; Ashwani Kumar Lal on 11-7-2008. The
FAM No.200 of 2015
husband of the respondent died on 21-6-2012. According to the
respondent, after the death of her husband there was a considerable
change in the behaviour of in-laws towards her and she was almost
deserted in the family. Having reported the facts to her father, she
was taken to her parental home. The respondent further pleaded
that the bank passbook and ATM card, which belong to her husband
were kept by the in-laws. The respondent also pleaded that at
village Haretikala, Tahsil Jaijaipur ancestral property of 11.78 acres
and at village Jaijaipur 3.97 acres of agricultural land are held by
the appellant. In addition, three shops and house situated at
different places of Korba wherein right of late husband of the
respondent is also vested. According to the respondent, she has no
source of income to maintain herself, as such, an amount of
Rs.7,000/- per month was claimed towards maintenance.
3. In reply to the averments made by the respondent, the appellant
contended that the respondent herself left the matrimonial home and
she was never deserted by his family members. He further contends
that in order to treat the ailment of his son (husband of the
respondent), considerable amount was spent, as such, the appellant
does not have any source of income and, therefore, he is unable to
pay the maintenance.
4. Learned family Court after evaluating the evidence by the order
impugned directed the appellant to pay an amount of Rs.2,500/- per
month towards maintenance of the respondent.
FAM No.200 of 2015
5. Mr. Sanjay Patel, learned counsel appearing for the appellant,
would submit that in order to get the maintenance from the father-
in-law, the daughter-in-law is required to plead and prove that she
does not have any source of income and she is unable to get the
maintenance from the estate of her husband. According to him,
these facts have not been proved by the respondent by placing
reliable and cogent evidence. He would further submit that the
document filed under Order 41 Rule 27 of the Code of Civil
Procedure (henceforth 'the CPC') before this Court would show
that certain lands have already been recorded in the name of
daughter-in-law, therefore, she can earn her livelihood from such
properties and consequently the father-in-law cannot be forced to
pay the maintenance. To buttress his contention, learned counsel
would place reliance upon the decisions rendered by this Court in
Dayali Sukhlal Sahu v Anju Bai Santosh Sahu1 and Parwati v
Danpatra Singh and Ors.2.
6. Mr. Sourabh Sahu, learned counsel for the respondent, per contra,
would submit that the respondent has pleaded that she is unable to
maintain herself and the property, which was held by the appellant
as a Manager, is a coparcenary property, wherein the right of the
deceased husband of the respondent was vested. He would further
submit that since the amount of maintenance was not paid from the
estate of her husband as such the respondent (daughter-in-law) was
entitled to get maintenance from the appellant (father-in-law).
1 2010 (3) CGLJ 459
2 2021 (1) CGLJ 328
FAM No.200 of 2015
7. We have heard learned counsel for the parties and perused the
evidence and documents available on record.
8. In order to ensure the maintenance to the daughter-in-law, Section
19 of the Hindu Adoptions and Maintenance Act, 1956 (henceforth
'the Act, 1956') would be relevant, which is quoted below :
19. Maintenance of widowed
daughter-in-law.--(1) A Hindu wife,
whether married before or after the
commencement of this Act, shall be
entitled to be maintained after the death
of her husband by her father-in-law:
Provided and to the extent that 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--
(a) from the estate of her husband
or her father or mother, or
(b) from her son or daughter, if
any, or his or her estate.
(2) Any obligation under sub-section
(1) shall not be enforceable if the father-
in-law has not the means to do so from
any coparcenary property in his
possession out of which the daughter-
in-law has not obtained any share, and
any such obligation shall cease on the
re-marriage of the daughter-in-law.
9. In the application filed by the respondent, it has been pleaded that
after the death of her husband on account of ill treatment of her in-
laws she left the matrimonial home. She stated that the bank
passbook and ATM of her deceased husband were also kept by in-
laws and therefore, she was forced to be rescued by her father at her
FAM No.200 of 2015
parental home at village Birra. With respect to property, specific
pleading is made that at village Haretikala, Tahsil Jaijaipur
ancestral property of 11.78 acres and at village Jaijaipur 3.97 acres
of agricultural land are held by the appellant. In addition, three
shops and house situated at different places of Korba are in
possession of the appellant. She also pleaded that she has no
source of income to maintain herself and her father is also a poor
person as such he is unable to maintain her. The respondent
pleaded that neither she received any property from the estate of her
husband nor from her father or mother. The entire property is in
possession of the father-in-law, therefore, she, being not re-married,
is entitled for maintenance.
10. With regard to allegation of misbehaviour, it was vehemently
denied by the appellant and stated that the father of the respondent
is a rich person and he is running a crusher, therefore, he can
maintain the respondent. Thus, the in-laws would not be liable to
pay maintenance to the daughter-in-law. Except these facts no
specific denial was made.
11. Before this Court an application under Order 41 Rule 27 of the CPC
was filed to show that the respondent is in possession of certain
lands. Specific query when was made by the Court as to whether
these properties are joint property, it was stated by the appellant that
in respect of the property a partition suit was filed and after the
decree mutation has been made in the revenue records. Learned
FAM No.200 of 2015
counsel would submit that the said partition decree is subject of
appeal, which is pending consideration before this Court. When
specific query was made as to whether the respondent is in
possession of the said property no plausible answer was given on
the ground that certain litigation are pending, which may have
effect on that.
12. At this juncture, learned counsel for the respondent would submit
that still the respondent is not in physical possession of the said
properties and she has no source of income to maintain herself.
13. This Court in Parwati (supra) has considered the scheme of
maintenance to be granted to the daughter-in-law wherein it was
held that the daughter-in-law is required to specifically plead and
prove by leading cogent, reliable and clinching evidence that all
other sources of income as stated in sub-section (1) of Section 19
are not available to her, then only the subsequent provisions of sub-
section (2) of Section 19 can be pressed into.
14. This necessarily leads us to go back to sub-section (1) of Section 19
of the Act, 1956. It purport that a Hindu wife shall be entitled to be
maintained after the death of her husband by her father-in-law if 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; (a) from the estate of her husband or her father
or mother, or (b) from her son or daughter, if any, or his or her
estate.
FAM No.200 of 2015
15. The respondent examined herself as PW-1 wherein she deposed that
because of ill treatment meted out to her by the family members of
her in-laws she is constrained to stay at her parental home. In
respect of holding of immovable properties, the respondent further
adduced evidence that at village Haretikala, Tahsil Jaijaipur
ancestral property of 11.78 acres and at village Jaijaipur 3.97 acres
of agricultural land are available with superstructure. She also
deposed that House No.MIG-40 situated at Korba is a two storied
building and the ground floor has been rented out and another house
is at Jaminipal, which is also rented out. Shop situated at
Ghantaghar, Korba, has also been given on rent. In her cross-
examination, nothing has been rebutted. Instead suggestion was
given that on account of medical treatment of her husband hefty
amount was spent as such she is not entitled to get the estate of her
husband. The revenue record (Ex.P/1, P/2 & P/3) is placed before
this Court to show that the mutation has presumptive value of
correctness unless rebutted, which would show that the lands are
recorded in the name of Nand Kishore, S/o Pyarelal. The statement
of plaintiff is unrebutted that it was an ancestral property.
16. Only solitary statement is made by DW-1 Nand Kishore that in
order to provide maintenance, he does not hold any coparcenary
property. He denied the suggestion in cross-examination that in
village Haretikala he holds the land. Similar statement is made by
DW-2 Resham Lal Chandra and made a solitary statement that the
appellant do not hold any coparcenary property.
FAM No.200 of 2015
17. As against this when Ex.P/1, P/2 & P/3 are examined which are
revenue records though it is recorded in the name of Nand Kishore,
but the acquisition of such property how it was acquired has not
been placed before the Court. Neither any sale deed nor any gift
deed showing acquisition of lands to be exclusive property of Nand
Kishore is on record. It is obvious that when the property was said
to be a self acquired property then the source of it could be either by
way of purchase or gift. If the property has been purchased during
his life time then the sale deed should have been placed before the
Court to show the source of acquisition. If the sale deeds or gift
deeds are not produced, which obviously appears to be in
possession of appellant (father-n-law) and the Court is bound to
draw adverse inference that the property possessed by the appellant
is coparcenary property.
18. Sub-section (2) of Section 19 has the meaning and scope as that it
only be extended to "ancestral property", which is coparcenary
property on account of its being ancestral according to the
Mitakshara, therefore, the term "coparcenary property" occurring in
Section 19(2) would consist of ancestral property, or joint
acquisitions, or property thrown into the common stock and
accretions to such property.
19. As per the provisions enumerated under Section 19 of the Act, 1956
the widowed daughter-in-law can claim maintenance only if she is
unable to maintain herself out of her own earnings or out of estate
FAM No.200 of 2015
of her husband or her father or mother, or from her son or daughter,
if any, or his or her estate. The right to claim maintenance by
widowed daughter-in-law is conditional. The father-in-law having
in possession of coparcenary property out of which widowed
daughter-in-law has not obtained any share, therefore, the right to
receive maintenance from the father-in-law would be limited to the
share of coparcenary property held by the father-in-law in his hand
in which the widowed daughter-in-law has not taken any share.
The preferential right when is considered under sub-section (1) (a)
of Section 19 would show that the widowed daughter-in-law would
be entitled to claim maintenance firstly from the estate of her
husband and thereafter claim can be made from her father or
mother. Though the word in Section 'or' is used, which gives the
right to a widow to claim from either of the people enumerated in
Section, yet the Section is sub divided into part (a) & (b). So the
preferential precedents exists giving an option to widow. Thus, it
is crystal clear that the estate of husband comes first to claim
maintenance by widow.
20. It is the well settled proposition of law that the manager of a joint
Mitakshara family is under a legal obligation to maintain all male
members of the family, their wives and their children, and on the
death of one of the male members he is bound to maintain his
widow and his children. (See: Sri Raja Bommadevara Raja
Lakshmi Devi Amma Garu v Sr Raja B. Naganna Naidu Bahadur
FAM No.200 of 2015
Zamindar Garu and Another3 and Bhagwan Singh and Others v
Mt. Kawal Kaur and Others4).
21. In view of the above stated facts and circumstances, when the estate
of the husband is held in the hands of the father-in-law, the
daughter-in-law cannot be forced to leave the estate of her husband
and to follow the estate of her father or mother. Thus, we are of the
considered view that the estate of husband can be preferred to claim
over the father or mother of the daughter-in-law. Consequently, we
hold that the daughter-in-law (respondent herein) would be entitled
to claim maintenance from the father-in-law. Thus, the impugned
order is just and proper and there is no illegality or infirmity.
22. Section 23 (2) of the Act, 1956 prescribes power of the adjudicator
for fixation of maintenance. Considering the benevolent object of
the Act, which is meant for removal of disabilities of Hindu women
and also considering the evidence of the respondent that the
appellant has a considerable income apart from the properties, as
the properties have been diverted to two sons excluding the
deceased husband of the respondent, we deem it appropriate to
enhance the maintenance amount from Rs.2,500/- to Rs.4,000/- per
month taking into the consolidated share in the property and
estimated proposed income.
23. Accordingly, the appellant is directed to pay Rs.4,000/- per month
in favour of the respondent from the date of this judgment.
3 AIR 1925 Madras 757
4 AIR 1927 Lahore 280
FAM No.200 of 2015
24. In the result, the appeal is dismissed with the aforesaid observations
and directions, leaving the parties to bear their own cost(s).
25. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Tiwari)
Judge Judge
Gowri
FAM No.200 of 2015
FAM No.200 of 2015
4-7-2022
HEAD NOTE
Hindu widow can claim maintenance from her father-in-
law if 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.
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viuh vk; ;k vU; laifRr ls viuk Hkj.k&iks"k.k djus esa vleFkZ gks ;k
mlds ikl Lo;a dh dksbZ laifRr u gks rFkk og vius ifr ds laifRr ls
viuk Hkj.k&iks"k.k izkIr djus esa vleFkZ gksA
