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In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.S. CHANDURKAR, JJ.
Madhukar S/o Kisan Lokhande
Versus
Smt. Shalu wd/o Narendra Lokhande
First Appeal No.734 of 2012
Decided on : 20-08-2013
Since father-in-law of widowed daughter-in-law is in custody of estate of deceased son hence widowed daughter-in-law entitled to claim maintenance from her father-in-law. - Father of respondent-wife should be shown not able to support her and burden to prove such inability is/was upon her; is, therefore, misconceived. If said aspect is relevant, the burden squarely lay on the appellant himself. It may become relevant only if as a matter of fact, she is already receiving any support from her father or then, even from some other source. The fact that her father is well placed and can easily support his widowed daughter, is also not material in these proceedings when such daughter claims maintenance from her father-in-law as a widowed daughter-in-law. The respondent was entitled to maintenance from the estate of her husband. The appellant himself being in custody of the estate of deceased, the question of the respondent seeking maintenance from her father or mother does not arise. If the respondent can be granted maintenance from the estate of her husband, then it is not necessary for her to claim maintenance from her father or mother. In this view of the matter, the order of the Judge of the Family Court rejecting the application below Exh. 46 that was moved by the appellant to examine the father of the respondent cannot be said to be illegal. In the wake of material on record, it would not be legally correct to drive the respondent to claim maintenance from her father or mother especially when her father-in-law was having control over the estate of her deceased husband. The aforesaid submission made on behalf of the appellant, therefore, cannot be accepted.
Hindu Adoption and Maintenance Act, 1956 - Section 19 - Claim of maintenance.
Since share of deceased husband would constitute "other property" from which widow is entitled to maintain herself hence widow is entitled to maintenance from her father-in-law under Section 19 of Act. - The share of deceased in the said agricultural land is clearly admitted even by the appellant. It is further clear that the share of deceased Narendra would, therefore, constitute "other property" from which the respondent is entitled to maintain herself. In any event, it would be a part of the "estate of her husband". The appellant being in possession of share of Narendra from sale consideration of said agricultural land, it is clear that it is he who is in possession of her husband’s estate and is thus, liable to maintain the respondent. That the respondent is a dependent under Section 21(iii) is not in dispute.
Thus, it is clear that the respondent is entitled to maintenance under Section 19 of the said Act. She is entitled to the amount of maintenance from the appellant in view of the fact that it is he who is in possession of the amounts of sale proceeds of the share of Narendra i.e. his estate. The appellant having refused to pay maintenance from said estate of deceased Narendra which is in his custody even after issuance of legal notice, the right of the respondent to claim the same from the appellant stands crystallized. Court, therefore, answered Point No. 2 in the affirmative and held that the respondent has proved that she is entitled to maintenance under Section 19 of the said Act.
Hindu Adoption and Maintenance Act, 1956 - Section 19 - Order granting maintenance.
Where respondent was unable to maintain herself on account of death of her husband therefore order granting maintenance to her against father-in-law after death of his son, not improper. - The Family Court after considering the evidence on record arrived at the finding that the respondent had proved that she was unable to maintain herself. It was further held that though the appellant had received consideration from the sale of agricultural field, no amount was given to the respondent. On that basis, it was held that the respondent had proved that she was unable to maintain herself. The aforesaid finding is based on the material on record and the same cannot be said to be illegal or perverse. In fact, no serious effort was made on behalf of the appellant to challenge the said finding that the respondent was unable to maintain herself. Court, therefore, answered point No. 1 in the affirmative and held that the respondent had proved that she was unable to maintain herself.
Oral Judgment: (A.S. Chandurkar, J.)
1. Heard Shri Samudra for the appellant and Shri Meghe for the respondent.
2. Admit. Since the notice was issued for final disposal of the appeal, with consent of parties, same is being finally decided.
3. The appellant in the present appeal that has been filed under Section 19 of the Family Courts Act challenges the Judgment dated 11-4-2012, passed by the learned Judge, Family Court No.2, Nagpur whereby the appellant has been directed to pay a sum of Rs.5000/- per month to the respondent towards her maintenance.
FACTS
4. The respondent and one Narendra Lokhande were married on 27-5-1996. Out of the said wed lock, a son named Kartik was born. Narendra expired on 7-9-2009. According to the respondent, she was unable to maintain herself and her son after the death of her husband Narendra. The present appellant who is the father-in-law of the respondent did not seek to maintain them. According to the respondent, an agriculture field, in which her deceased husband – Narendra also had a share, was sold by the appellant and his other son for an amount of Rs.90 lakhs. However, the respondent did not receive any amount therefrom. As the appellant was refusing to maintain the respondent and her minor son, on 17-11-2009, a legal notice was issued to the appellant making a demand for maintenance. There being no response to the same, the respondent filed Petition No.C-26/2010 seeking maintenance under Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (herein after referred to as the said Act).
5. The present appellant opposed the claim made by the respondent by filing his written statement vide Exh.14. While denying the liability to maintain the respondent and her son, it was stated that the respondent was doing Tailoring business and was earning a sum of Rs.6000/- to 7000/- per month. It was also stated that the respondent's father was having a big house from which rental income was also being earned. The present appellant stated that on account of his advanced age, he was unable to maintain himself.
6. In support of her claim for maintenance, the respondent examined herself below Exh.17 and one Sanjay Nilawar below Exh.34 who was serving as the Manager at Allahabad Bank. The appellant was having his saving account in the said Bank. The appellant examined himself below Exh.41 and one Nagorao Sakhale below Exh.45. The learned Judge of the Family Court on consideration of the evidence as led, was pleased to hold that the respondent was unable to maintain herself from the estate of her husband, her father and her mother. It was further held that the appellant though having means to maintain the respondent from the co-parcenery property had not given any share to her. On that basis, it was held that the appellant was liable to pay an amount of Rs.5000/- per month towards the maintenance from the date of filing of the petition i.e. 11-3-2010. It is this Judgment that has been assailed by the appellant in the present appeal.
7. According to Shri Samudra, learned Counsel for the appellant, the obligation of the appellant to maintain his widowed daughter-in-law would arise only when such widowed daughter-in-law was unable to maintain herself from the estate of her deceased husband or by her parents. It was submitted that the obligation of the appellant who was the father-in-law to maintain the respondent was not absolute and it was necessary for the respondent to have first shown that even her parents were unable to maintain her. Relying upon the provisions of Section 19(1) of the said Act, it was submitted that the appellant had moved an application below Exh.46 seeking permission to examine the father of the respondent, but said application was rejected on 1-3-2010. Hence, according to the learned Counsel the impugned judgment fastening liability of payment of maintenance on the appellant was contrary to the provisions of Section 19(1) of the said Act. The learned Counsel relied upon the Ju
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