Shri Vinod Babbar vs Baby Swati
2006 Latest Caselaw 761 Del

JUDGMENT

Swatanter Kumar, J.

1. This Regular First Appeal under Section 96 of the CPC is directed against the judgment and decree dated 3.3.2004 passed by the learned Additional District Judge, Delhi. Vide the impugned judgment and decree, the trial court had granted the following reliefs:-

RELIEF

15. In view of the finding on issue No. 1 to 3, the suit of the plaintiff is decreed. The defendant shall pay or deposit arrears of maintenance @ Rs. 5000/- per month from the date of filing of the petition i.e. 6/2/03 till today, on or before 3/6/04 failing which the plaintiff shall be entitled to claim interest @ Rs. 6% per annum on the amount of arrears. The defendant shall also keep on paying or depositing, month by month on or before the 7th of succeeding month, the maintenance amount @ Rs. 5000/- per month failing which the plaintiff shall be entitled to claim interest @ Rs. 6% per annum on the amount not paid by the defendant, as ordered here. Since the petition has been filed Section 33 C.P.C., therefore, the court fee shall be deducted from the amount payable to the plaintiff by the defendant. The amount of the court fee be calculated. Decree sheet be prepared and file be consigned to Record Room.

2. The above finding and reliefs recorded by the learned trial court are questioned in the present appeal primarily on the ground that the trial court has erred in granting the relief of maintenance to the plaintiff particularly in view of the fact that the wife who was a Post-Graduate teacher in a school and was getting a handsome salary, could not claim any maintenance for herself as well as for the child.

3. According to the appellant, there is an equal obligation, if not more, upon the respondent's mother to bring up the child and she cannot claim maintenance in the present proceedings. It was stated that the trial court has not appreciated the evidence on record in its correct perspective.

4. The appellant was married to Ms. Sona. The marriage between the parties was dissolved by a decree of divorce. The paternity and birth of the child is not disputed by the appellant. It is also an admitted position on record that the child is living with the mother. The respondent child filed the present suit for maintenance against her father claiming arrears of maintenance @ Rs. 15,000 p.m. from 6.12.01 to 31.12.02 and interest @ 24% per annum and future maintenance. This suit was contested by the appellant who contended that the daughter born from the wedlock of the parties, was studying in first standard in Springdales School, Pusa Road, New Delhi. It was averred that Ms. Sona was the owner of a house in Maya Puri and she was getting rent @ Rs. 5,000 p.m. and she was also working as a Post-Graduate teacher in Sanatan Dharm Girls Senior School, Jhandewalan, Delhi for number of years and was getting more than Rs. 20,000/-. The total added up income of Ms. Sona, thus, was more than Rs. 27,500/-. Thus, there was no occasion for her to claim maintenance for the minor from the appellant.

5. The petition for maintenance was filed under the provisions of the Hindu Adoption and Maintenance Act, 1956 read in conjunction with Order 33 of the CPC which was allowed vide order dated 13.5.03 and the petition was treated as the suit. The trial court had framed the following three issues:-

1. Whether the defendant is not liable to pay the maintenance as claimedOPD

2. Whether the plaintiff is entitled to maintenance as claimed OPD

3. Whether the plaintiff is entitled to interest if so at what rate and for what periodOPP

6. After permitting the parties to lead evidence, the learned trial court decided all the issues in favor of the plaintiff and decreed the suit as afore- noticed, giving rise to the filing of the present appeal.

7. From the above narrated factual matrix of the case, it is clear that there is hardly any dispute in regard to the facts pleaded by the respondent in this appeal. The only question that calls for consideration of the court is whether defendant is liable to pay maintenance. If so, to what amount It is also not in dispute that the mother is serving in a school and is getting salary.

8. On the other hand, the documents Ex.DW1/1 to Ex.DW1/7 were placed on record which were salary certificates of the husband for the period from April, 2003 to October, 2003. As per these, the salary of the defendant was Rs. 21,994.06/- in April, 2003 which was raised to Rs. 22,889.17/- in October, 2003. The defendant has taken loan and certificate to that effect was placed on record.

9. It is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means. The mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child, even if, the salary/income of that spouse may be less than the income of the other spouse. Therefore, the view of the trial court that both the parents need to contribute to maintain the said child, does not suffer from any legal infirmity. Furthermore, it was an admitted case on record that the child was staying with the mother and the obligation of the father to contribute towards maintenance of the said child was disputed on a flimsy ground like less salary or passing of an order under Section 125 Cr.P.C by the court of competent jurisdiction. Both these grounds are without any merit. Learned counsel appearing for the appellant has not been able to demonstrate before the court as to what evidence has been ignored or misread by the trial court. We have already noticed that the facts are hardly in dispute. There is not much dispute even with regard to the salary of the parties being received. The plaintiff had failed to establish that the defendant was earning a sum of Rs. 40,000/- in terms of its affidavit Ex.PW1/A. But at the same time, it was proved on record by cogent evidence that the defendant was receiving a salary of more than Rs. 22,000 p.m. The loan that the husband had taken even if deducted from the said salary, leaves the defendant with sufficient means to make contribution towards the maintenance and welfare of his child. The maintenance @ Rs. 5,000/- p.m. as fixed by the trial court is neither excessive nor suffers from an infirmity which would require this Court to judicially intervene in exercise of its appellate powers.

10. Reference in this regard can be usefully made to the judgment of the Punjab and Haryana High Court in the case of Dr. R.K. Sood v. Usha Rani Sood 1996(3) 114 PLR 486 where the court held as under:-

16. Hindu Marriage is not yet looked at or recognised in our society and law, as a pure and simple contract like other contracts. This bond is considered more as a religious, moral and social bond of mutual duties and obligations giving marriage a religious and meaningful basis keeping in view the rituals performed at the marriage and consequent solemnization of marriage between the parties.

17. Under the Hindu Law father not only has a moral but even a statutory obligation to maintain his infant children. The scope of his duty is to be regulated directly in relation to the money, status, that the father enjoys. The right of maintenance of a child from his father cannot be restricted to two meals a day but must be determined on the basis of the benefit, status and money that the child would have enjoyed as it he was living with the family, including his mother and father. Irrespective of the differences and grievances which each spouse may have against the other, the endeavor of the Court has to be to provide the best to the child in the facts and circumstances of each case and more so keeping the welfare of the child in the mind for all such determinations. Liability to maintain one's children is clear from the text of this statute as well as the various decided cases in this regard. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds.

11. Having perused the records, we do not find any infirmity in the judgment of the trial court and resultantly the appeal is dismissed while leaving the parties to bear their own costs.