Happy Anand @ Prabhjot Singh vs Baby Deepali (Minor)
2005 Latest Caselaw 1701 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order passed by the learned Additional District Judge in Petition No. 199/2003, which was filed by the respondent, who is a minor against her father seeking maintenance under Section 20 of the Hindu Adoptions and Maintenance Act.

2. The respondent herein was born on 5th December, 1996 and she was about seven years old when the aforesaid petition was filed by her against her father. She is now living under the care and custody of her mother, namely, Ms. Anju @ Dolly. The parents of the respondent have obtained decree of divorce under order dated 22nd May, 1999 passed by the Additional District Judge, Delhi. The respondent along with her mother are now residing with the respondent's grand-father, who allegedly bore the expenses relating to delivery and post natal care of her mother. It was stated before the Additional District Judge that the monthly income of the petitioner was Rs. 20,000 per month but despite the said fact the appellant failed to maintain the respondent and that, therefore, the aforesaid petition was filed claiming maintenance @ Rs. 4,500 per month.

3. The appellant contested the petition by filing a written statement raising preliminary objection mainly on the ground that the mother of the respondent compromised the matter with the appellant in the divorce proceedings not only on her behalf but also on behalf of the respondent. It was pointed out that pursuant to it a compromise deed was executed on 12th November, 1996. It was submitted that in view of the aforesaid compromise deed and the mother of the respondent having received maintenance on behalf of the respondent, the appellant has no obligation to maintain the respondent as he has already paid an amount of Rs. 25,000 towards the claim of the mother as also that of the respondent for past, present and future maintenance.

4. On the pleadings of the parties, the following three issues were framed:

(i) Whether the petitioner is entitled to maintenance?

(ii) Whether the petitioner is estopped from claiming maintenance, as her mother had compromised the issue with the respondent?

(iii) The quantum of maintenance to which petitioner is entitled.

5. After framing of the issues, the parties led their evidence. The respondent examined four witnesses whereas the appellant examined three witnesses. After recording of the evidence, arguments were heard before the learned Additional District Judge, who, upon going through the records and the evidence adduced, passed an order holding that the respondent is entitled to maintenance @ Rs. 2,500 per month from the date of filing of the aforesaid petition. To the aforesaid extent a finding was recorded by the learned Additional District Judge, which is under challenge in the present appeal.

6. Counsel appearing for the appellant mainly relied upon the aforesaid compromise deed, which was entered into between the mother of the respondent and the appellant. The said deed was also exhibited in the proceedings, which is Ex. PW1/R1 and also on the statements recorded and exhibited as Ex.PW1/R2. The mother of the respondent was examined as PW-1, who was the natural guardian of the respondent. The respondent was born on 5th December, 1996. The mother of the respondent has categorically stated in her deposition that she has no means to maintain the respondent and that the appellant is refusing to maintain the respondent. No challenge was made in the cross-examination in respect of the aforesaid statement regarding entitlement of the respondent to maintenance. There was no question put to her also during cross-examination that the appellant had refused to maintain the respondent. The statement made by the mother of the respondent that she has no independent source of income was not challenged in the cross examination by the appellant.

7. The entire reliance, therefore, is placed by the appellant on the divorce proceedings which were instituted and decided by the learned Additional District Judge, Delhi. The said proceedings were under Section 13B of the Hindu Marriage Act. Grandfather of the respondent (Nana) Mr. K.S. Arora was examined in the proceeding as PW-2, who deposed about the aforesaid proceedings. He stated that under certain misconceived impressions and pressures from the appellant and appellant's relations, he compelled the mother of the respondent to sign the papers for divorce and settled the dispute by requiring the appellant to pay Rs. 50,000 but only an amount of Rs. 25,000 was received of the assured sum of Rs. 50,000 and the balance amount of Rs. 25,000 was never received. The appellant herein was examined as RW-1. He has stated in his deposition that the mother of the respondent declined to receive the balance amount of Rs. 25,000 and also to make a statement before the High Court for quashing of the FIR. It is, therefore, clear that a compromise deed was entered into between the appellant and the mother of the respondent in the Court of the Additional District Judge, Delhi during the proceedings under Section 13B of the Hindu Marriage Act. A compromise deed was also executed which is exhibited as Ex. PW1/R2 in terms of which a part payment of Rs. 25,000 was received. The aforesaid contract which was entered into as a compromise deed cannot be said to be a concluded contract having binding force in view of the provisions of Section 39 of the Indian Contract Act inasmuch as neither full payment there under was made to respondent nor it was acted upon. It is an admitted position on evidence that the mother of the respondent has no independent source of income on the date when the petition for maintenance was filed. The respondent was only seven years old and as of date she is about 10 years old. She has to maintain herself and has to receive education befitting the status and has to fend for herself with the amount of maintenance that she may receive out of the income of her father. There can be no denial of the fact that the appellant who is the father is bound and has an obligation to maintain his daughter, who is the respondent till she gets married or is in a position to maintain herself through her own financial means. It is also his obligation to see that his daughter receives proper education and also receives proper health care during her infancy and till she becomes a major and is able to look after herself with her own earnings.

8. Accordingly, considering the evidence on record we find no reason to take a different view than what is taken by the learned Additional District Judge/Trial Court upon appreciation of the evidence on record. It was also sought to be submitted by the Counsel for the appellant during the course of his arguments that the appellant is only a truck driver and is not in a position to pay Rs. 25,000 per month as maintenance to his daughter. The aforesaid contention and the plea was disbelieved by the learned Additional District Judge. The learned Trial Court referred to the evidence adduced by the appellant who was examined as RW-1 and he had stated that his income as truck driver is only Rs. 2,800 in support of which statement he has also produced the salary certificate proved as Ex-RW1/A. It is also stated that in the transport business which is being carried out by his brothers he has no interest and no dealings. He stated that he did not own any truck. He, however, in his statement could not disclose the source from which he arranged Rs. 25,000 which was paid to the mother of the respondent. The brother of the appellant, who was also examined in the proceedings as RW-2 stated that the appellant is sharing food in the common kitchen with him and that they jointly stay in the house which belongs to their mother. The salary certificate Ex.

RW-1/A was considered by the learned Trial Court. Upon scrutiny of the same, the learned Trial Court held that the said salary certificate does not inspire any confidence as none from the firm who had issued the same was examined to prove authenticity of the said salary certificate. The said certificate was, therefore, kept outside the purview of the consideration by the learned Trial Court. We find no error in the aforesaid finding recorded by the learned Trial Court in respect of the aforesaid salary certificate. Two brothers of the appellant are running a joint business in the name and style of M/s. Anand Brothers. The appellant herein is living along with his other brother Surjit Singh, who worked as a Sales Officer in a limited company. They are staying in their own house in South Extn. Therefore, it cannot be said that Rs. 2,500 per month fixed as maintenance by the learned Trial Court is on the higher side. The said amount when considered in the context of present day economy is very meagre. The respondent has to receive her education, medical attention as and when necessary and also her entire livelihood would be dependent on the aforesaid amount of Rs. 2,500/-. We, therefore, find no error in the judgment passed by the learned trial Court and order that the respondent is entitled to maintenance as awarded till she gets married or is in a position to maintain herself through her own financial means.

9. We dismiss the appeal filed by the appellant with cost.