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BOMBAY HIGH COURT
B.P.Dharmadhikrari and A.S. Chandurkar, JJ.
Madhukar s/o. Kisan Lokhande —Appellant
versus
Shalu wd/o. Narendra Lokhande —Respondent
First Appeal No.734 of 2012
Decided on 20.8.2013
Counsels for the Parties:
For the Appellant:Mr.C.S. Samudra, Advocate.
For the Respondent:Mr. P.D. Meghe, Advocate.
IMPORTANT POINT
First obligation to maintain his widowed daughter-in-law is always on father-in-law.
Headnote:Hindu Adoptions and Maintenance Act, 1956—Sections 19 and 22—Maintenance—Ouster of widow from matrimonial home—Family Court arrived at finding that respondent had proved that she was unable to maintain herself—Widowed daughter qualifies as a dependent only when she cannot get any maintenance or due maintenance from her father-in-law or father of deceased father-in-law—First obligation to maintain his widowed daughter-in-law is always on father-in-law—It shifts to the father of such widow only in case of inability of father-in-law or to the extent of such inability—Respondent is entitled to maintenance under Section 19—She is entitled to amount of maintenance from appellant—If respondent can be granted maintenance from estate of her husband, then it is not necessary for her to claim maintenance from her father or mother—Family Court committed no illegality in awarding maintenance of amount of Rs.3,000 per month to respondent and Rs.2,000 per month to her son—Appeal dismissed. (Paras 12, 15, 21 to 24)
Result: Appeal dismissed.
A.S. Chandurkar, J.— 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.5,000 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 wedlock, 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 (hereinafter referred to as the said Act).
5. The present appellant opposed the claim made by the respondent by filing his written statement vide Ex.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.6,000 to 7,000 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 Ex.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 Ex.41 and one Nagorao Sakhale below Ex.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.5,000 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 Ex.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 Judgment of the Allahabad High C
