Madhya Pradesh High Court
Surendra Choubey vs Smt. Ritu Choubey on 19 October, 2023
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 19 th OF OCTOBER, 2023
FIRST APPEAL No. 1901 of 2022
BETWEEN:-
SURENDRA CHOUBEY S/O SHRI RISHABDEV CHOUBEY,
AGED ABOUT 50 YEARS, OCCUPATION: PRIVATE WORK,
R/O SHRI RAM COLONY, GOPALGANJ POLICE STATION,
GOPALGANJ, SAGAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ABHISHEK SINGH- ADVOCATE)
AND
1. SMT. RITU CHOUBEY WD/O LT. RAJNEESH
CHOUBEY, AGED ABOUT 27 YEARS, OCCUPATION:
NOT KNOWN, R/O BHUTESHWAR ROAD SANT
RAVIDAS WARD, THANA MOTINAGAR, DISTRICT
SAGAR (MADHYA PRADESH)
2. SMT. GAYATRI DEVI CHOUBEY, WD/O LATE SHRI
RISHABDEV CHOUBEY, AGED ABOUT 70 YEARS,
R/O SHRI RAM COLONY, POLICE STATION,
GOPALGANJ SAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY NONE, THOUGH SERVED )
Reserved on: 12.10.2023
Pronounced on: 19.10.2023
---------------------------------------------------------------------------
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, Justice Hirdesh passed the following:
JUDGMENT
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
This appeal under section 19 of the Family Courts Act, 1984 has been
preferred by appellant being aggrieved with an order dated 19.10.2022 passed
by the Principal Judge, Family Court, Sagar in MJCGW No.03/2018 whereby
the application of the respondent No.1 under section 19(1) of Hindu Adoptions
& Maintenance Act has been partly allowed and appellant has been directed to
pay maintenance at the rate of Rs.3,000/- per month from the date of
application i.e. 04.4.2018.
2. Facts, in brief, are that respondent No.1 (Smt.Ritu Choubey) filed an
application under section 19(1) of the Hindu Adoptions & Maintenance Act,
1956 stating that her marriage was solemnized on 18.4.2012 at Sagar according
to Hindu rites and rituals with Rajneesh Choubey, who is brother of appellant
(Surendra Choubey) and son of respondent No.2 (Smt.Gayatri Devi Choubey).
After marriage respondent No.1 was staying at her matrimonial home. On
27.3.2013, Rajneesh Choubey (husband of respondent No.1) committed
suicide. After death of her husband, the appellant and respondent No.2,
mentally harassed respondent No.1 and took her entire 'stridhan' as also ousted
her from the matrimonial home. Respondent No.1 had no source of livelihood
and the in-laws were not maintaining her, while her parents were not in a
position to maintain her. The in-laws owned a house, in which, deceased-
husband of respondent No.1 was shareholder. The in-laws were earning
Rs.20,000/- per month as rental income from the said house. Mother-in-law of
respondent No.1 is also receiving pension of Rs.30,000/- per month. The in-
laws were also receiving rent from the house owned by her husband (Rajneesh
Choubey) and further derived income of Rs.3 lacs per annum from agricultural
properties situated in State of Uttar Pradesh. In this factual backdrop,
Signature Not Verified
respondent No.1 claimed lump-sum maintenance of Rs.50 lacs or Rs.20,000/-
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
per month.
3. The appellant and respondent No.2 (who are brother-in-law and
mother-in-law) filed their reply before the court below stating that after marriage
the behavior of respondent No.1 with her husband and his family was not cruel
and, therefore, deceased-Rajneesh had filed report at Police Station on
09.2.2015 and divorce petition on 23.3.2013. The respondent No.1 on
27.3.2013 threatened her husband through mobile as a result of which, he
committed suicide. Thereafter, respondent No.1 never stayed at matrimonial
home. She took all her 'stridhan' alongwith her. She is an educated lady and
capable of maintaining herself. She has also received Rs.1,25.000/- from the
State Bar Council. The in-laws are neither receiving any rental income nor have
possession of any agricultural property belonging to deceased-Rajneesh. A
criminal case for offence under section 306 of IPC has been instituted against
respondent No.1 and thus it is pleaded that instant case for grant of
maintenance has been filed as a pressure tactics.
4. The Principal Judge, Family Court, Sagar vide impugned order dated
19.10.2022 passed in MJCGW No.03/2018 partly allowed the application by
holding that respondent No.1 is unable to maintain herself. It is further held that
appellant is in possession of joint Hindu family property, in which, Rajneesh
(husband of respondent No.1) was also having his share He was deprived of
such property during his lifetime and after his death his wife (respondent No.1)
has also not been granted any share, therefore, she is entitled for income from
such share. The respondent No.2 (mother-in-law) is not in possession of any
property, therefore, respondent No.1 is not entitled for any maintenance from
her, but only from appellant. The respondent No.1 has failed to bring on record
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
any proof of income from agricultural property. Hence, the respondent No.1 is
only entitled to receive maintenance of Rs.3,000/- per month from the appellant
from the date of application.
5. The grounds of challenge to impugned order in this appeal by the
appellant are that court below failed to appreciate that respondent No.1
admitted in her cross-examination that appellant is not doing any work. She
failed to proved that appellant owns a house in the city. The appellant only
holds some ancestral property in Uttar Pradesh, but is unemployed. The court
below ought to have observed that respondent No.1 should have file a civil suit
claiming title and partition for her husband's share in the property. The amount
of maintenance granted by the Family Court is on higher side.
6. Heard the learned counsel for the appellant. Though respondents
have been served, they have neither been represented nor filed any reply.
Perused the record.
7. Now the question arises whether the respondent No.1 is entitled to
get maintenance from appellant-Surendra Choubey, who is her brother-in-law.
8. Section 19(1) of the Hindu Adoptions & Maintenance Act, 1956
reads as under:-
"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
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
(b) from her son or daughter, if any, or his or her
estate."
9. In Devi Prasad vs. Gunvati Koaer (1894) ILR 22 Cal 410 while
deciding an action brought for maintenance by a Hindu widow against the
brother and nephew of her deceased husband after the death of her father-i-law,
the Calcutta High Court held that the plaintiff's husband had a vested interest in
the ancestral property and could have, even during his father's life time,
enforced partition of that property, and as the Hindu Law provides that the
surviving coparceners should maintain the widow of a deceased coparcener,
the plaintiff was entitled to maintenance.
10. In Appavu Udayan vs. Nallammal, AIR 1949 Mad 24, the
Madras High Court dealt with the claim of daughter-in-law against her father in
law and his estate in the hands of his heirs. It was held that the father-in-law is
under a moral obligation to maintain his widowed daughter-in-law out of his self
acquired property and on his death if his self acquired property descends by
inheritance to his heirs, the moral liability of the father-in-law ripens into a legal
one against his heirs. (Emphasis is by us)
11. After introduction of Act of 1956, the previous moral obligation is
reduced in writing in the shape of statutory obligation to pay maintenance. A
Division Bench of this Court in AIR 1964 MP 168 (Gowardhan
Sheocharan & Ors. vs. Smt. Gangaba) opined that Sections 21 & 22 read
together, do not, in any way, affect the general rule of the Hindu Law that where
a husband leaves share in the Hindu joint family property, his widow is entitled
to maintenance out of it from those coparceners hold that by survivorship. The
similar argument of the counsel for appellant therein that the liability to maintain
a widow is only on the father in law was repelled.
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
12. In AIR 1983 All 425 (Bitola Kunwari vs. Girand Singh),
the Allahabad High Court opined that plaintiff being a dependent of her father-
in-law as per clause (vii) of Section 21 of Act of 1956 is entitled to get
maintenance from the father-in-law to maintain her out of the estate inherited by
them. It was clearly held that widowed daughter-in-law being a dependent of her
father-in-law can seek maintenance from his heirs. The said heirs are bound to
maintain her out of the estate inherited by them from him under Section 22. In
AIR 2003 P & H 174 (Balveer Kaur & Anr. vs. Harinder Kaur & Ors. ), the
High Court opined that widowed daughter in law of pre deceased son is entitled
to claim right of maintenance even against self acquired property of her father in
law in his hand or in the hand of his heirs or donee.
13. The common string in these judgments is that in
cases of coparcenary/self acquired property after the death of father-in-law,
the right of widowed daughter-in-law will not be extinguished. Indeed, it can be
enforced against coparceners who held the said property by survivorship. The
judgment of Apex Court in Vimal Ben Ajitbai Patel Vs. Vatslabeen
Ashokbhai Patel and others, (2008) 4 SCC 649 protects only such property
of mother-in-law which is her own property and does not deprive the widowed
daughter-in-law from claiming maintenance based on coparcenary
property. At the cost of repetition, in our view, in a case of this nature where
property is coparcenary in nature, the widowed daughter-i-law's right to get
maintenance will not vanish in thin air merely because father-in-law had died.
We find no infirmity in the impugned order to the extent the Court below opined
that the applicant therein are entitled to get maintenance.
14. So, as discussed above, it is clear that daughter-in-law is entitled
Signature Not Verified
to get maintenance.
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
15. The appellant submitted that after death of husband of respondent
No.1, she never resided in her in-laws and had gone to her parents after taking
the family wealth. In the case of Gowardhan Sheocharan (supra) and in
F.A.No.500/2019 [Jyoti & others Vs. Seema Rathore and others] the Division
Bench of this Court has held that widow does not forfeit her right to property
or maintenance merely on account of her going and residing with her parents. A
Hindu widow is not bound to reside with the relatives of her husband and the
relatives of her husband have no right to compel her to live with them.
16. The appellant further submitted that respondent is well educated
and capable enough to earn. But, on perusal of record of courts below there is
no evidence that respondent No.1 is a earning lady or she is doing some job
and is earning money. So, this submission of appellant has no substance.
17. On perusal of record of court below it is also found that
respondent No.1 had produced a document (Exhibit-A/1) which is Khasra
reflecting that appellant and others have some ancestral agricultural property, in
which, it is also mentioned that land was irrigated one and it is also mentioned
that crops of wheat and pulses ('urad' & 'moong') are grown from it. So it is
clear that appellant is in possession of joint Hindu agricultural property, in
which, husband of respondent No.1 has also share. These agricultural lands are
irrigated and yield crops.
18. The appellant has further submitted that maintenance granted by the
Family Court is on higher side. But, perusal of record it is found that merely
Rs.3,000/- per month as maintenance has been granted by the Family Court,
which is not on higher side in the present scenario.
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
19. So, in view of forgoing analysis, we are unable to hold that Family
Court has committed any error in allowing the claim of the respondent No.1
herein for grant of maintenance under the Act of 1956. Resultantly, the appeal
fails and is hereby dismissed.
(SHEEL NAGU) (HIRDESH)
JUDGE JUDGE
RM
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 20-10-2023
15:31:49
