Father In Law not responsible for Residence

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT: SEC.18 OF THE HINDU ADOPTIONS AND MAINTENANCE ACT

Suit No. 1225 of 2003

Date of decision: November 16th, 2004

Ms Radhika Narang & Ors. ….. Plaintiffs

Through Mr. Y.P. Narula, Sr Adv,

with Ms. Kirti Singh, Mr. Sanjay Ghose, Advocates.

Versus

Mr. Karun Raj Narang & Ors.. ….. Defendants

Through Mr. Prag Tripathi,Sr. Adv
with Mr. Balraj Dewan, Mr. Saket Sikri
for defendant No.2.
Mr.Valmiki Mehta, Sr Adv,
with Mr.Praveen Chauhan for the  appllicant.

H.R. Malhotra, J.

1. This is a suit for maintenance and separate
residence under Section 9 of the CPC read with Section 18 of the
Hindu Adoptions and Maintenance Act. This suit has been filed by the
wife against her husband and her father-in-law. Husband has been
arrayed as defendant No.1 whereas father-in-law has been shown as
defendant No.2. Defendant No.2 made an application under Order 7
Rule 11 CPC seeking rejection of the plaint on the ground that the
suit against him was barred as it did not disclose cause of action
against him at all. Instead of dealing with this application, this
Court passed an order dated 10th December,2003 framing the following
issue:

“”Whether plaint does not disclose a cause of action against
defendant No.2 and whether defendant No.2 is liable to be struck off
from the array of parties? OPD”

2. Since parties did not wish to lead any evidence
on this issue, it being a legal issue, therefore, this Court
proceeded to hear arguments on this issue.

3. I have looked into the plaint carefully and
written statement as also the replication. The father-in-law of the
petitioner has been joined as defendant No.2 primarily on the ground
that he is the Karta and the head of the joint family and is liable
to maintain and provide for the maintenance of the plaintiffs out of
the joint family income and assets which he is controlling
jointly with defendant No.1. It is the case of the
plaintiff that all the assets owned by the defendants are the joint
property of the joint family and all the companies are family
companies but are styled as private limited or limited companies.
It is further stated in the plaint that grand-father of the defendant
No 2 owned sugar mills which had been the source of funds for the
joint family for three generations. There is denial of such
averments in the corresponding para of the written statement i.e.
para 8. Defendant No.1 specifically denied about the existence of
joint family and defendant No.2 being Karta of the family. It was
stated in the written statement that property so mentioned in the
plaint was neither ancestral nor belongs to defendant No.2.
Similarly defendant No.2 denied such facts.

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4. The question before the Court is not if the
defendant No.2 is the Karta of the coparconary property and in that
capacity if he is under legal obligation to maintain his daughter-in-
law or not. The question which needs attention of this Court is if
at all the petitioner No.2 is under any legal obligation to maintain
the plaintiff, his daughter-in-law particularly when there is a
codified law with special reference to Section 18 and 19 of the Hindu
Adoption and Maintenance Act. Though plaintiff in the suit has
termed the defendant No.2 as Karta of the copartionary property and
defendants 1 and 2 have denied the same but that is not the question
before the Court to decide if he is Karta or not. Focus is on the
liability of defendant No.2 to maintain his daughter-in-law even
though he is held to be Karta of copartionary property. True the
uncodified law fastened the liability of the father-in-law to
maintain the defendants including his daughter-in-law but now since
there is a codified law therefore in view of Section 4 of the
Hindu Adoption and Maintenance Act, the Court has to determine if
uncodified law shall still have recognition..

5. I have heard learned counsel for the plaintiffs,
learned counsel for the defendant No.1 and also the counsel for
defendant No.2 on this issue. It was urged by learned counsel for
the plaintiffs that the plaintiffs have a right to claim maintenance
under Customary Hindu Law as defendant No.2 is the holder of
ancestral property being the Karta of copartionary company and thus
he is under obligation to maintain the plaintiffs out of such
copartionary properties. He further urged that the obligation of the
husband to maintain his wife under Section 18 of the Hindu Adoption
and Maintenance Act is a personal obligation whereas obligation of
the Karta of the family flows from the customs which have been in
existence since ages and those customs and usage according to the
learned counsel for the plaintiffs do not cease to exist by
enactment of the Act, viz, Hindu Adoption and Maintenance Act. It
was further contended that Section 19 of the Hindu Adoption Act does
not in any manner exclude the existing rights available to Hindu
women. To support such contention he referred to Mullah on Hindu Law
18th Ed. Vol. I Page 877 and 878 where he discussed the liability of
the Manager towards dependence. It read as under:

“The manager of a joint mitakshara family is
under a legal obligation to maintain all male members of the
family, their wives and their children. On the death
of any one of the male members, he is bound to
maintain his widow and his children. The obligation
to maintain these persons arises from the fact that the manager is
in possession of the family property.”

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6. He also placed reliance on an authority reported
in Maharashtra Law Journal 1977 Page 402 to show that the
obligation to maintain arises from the fact that the Manager is in
possession of the family property. He also referred to another
authority reported in 1977 Maharashtra Law Journal page 406 of Full
Bench and also yet another authority on the aspect of Order 7 Rule 11
CPC.

7. Former two authorities deal with the import of
codified law and uncodified law. True, the aforesaid two authorities
particularly the later authority deals with Section 4 of Hindu
Adoption Act. Their Lordships while dealing with Section 4 of the
Hindu Adoption and Maintenance Act observed that though radical
changes have been brought in the prior law and Section 4 gives
overriding effect to the provisions of the Act but codifying does
not however altogether obliterate the old law. From the perusal of
Section 4 it follows that with respect to matters for which provision
is made in the Act, the prior law ceases to have effect to the extent
laid down in that section. As an inevitable corollary it also
follows that in respect of matters for which no provision is made in
the Act the old law must continue to remain applicable.”

8. Though the learned counsel for the plaintiff has
tried to take benefit of this judgment but in fact it goes against
the plaintiffs as there is express provision now in the Hindu
Adoption and Maintenance Act which deals with the cases of
maintenance and residence for wife. Sections 18 and 19 are the
provisions incorporated in the statute in explicit terms. Therefore
by virtue of insertion of Section 4 in the statute, all customary
laws prior to coming into force of this Act, shall cease to have
effect and what is inserted in the statute shall prevail and not the
customary laws. I am impressed by the arguments of learned counsel
for the defendants 1 and 2 that if a particular provision of law is
capable of being given its literal meaning, that should be accepted
and not its interpretation particularly when the words used are so
unambiguous that no interpretation in fact is required for
construing meaning. He urged that plain reading of Section 18 makes
it more than clear that it is only the husband who has an obligation
to maintain his wife and none else. He further urged that the
underlying idea of enacting of Section 18 and 19 of Hindu Adoption
Act was that during the lifetime of the husband, he shall be under
legal obligation to discharge his duties towards his wife for the
purpose of maintenance and only after his death his father shall
maintain his daughter-in-law. Section 19 rather makes a further
ride on the aspect of maintaining his daughter-in-law. It has
further been limited to the extent that if she was unable to maintain
herself out of her own earning only then her father-in-law would be
under legal obligation to maintain her. This section further goes to
the extent that her father-in-law shall only be liable to maintain
her if she has no other property from the estate of her husband or
her father or mother or from her son or daughter. Reading of Section
18 and 19 indicates that at first instance, it is the husband who is
under legal obligation to maintain his wife of course subject to
exceptions as provided in Clause 2 of Section 18 and after the death
of her husband her father-in-law shall maintain her not in absolute
terms but subject to the condition that she is unable to maintain
herself out of her own earnings or other properties. That goes to
show that even after the death of her husband firstly she has to
maintain herself out of her own earnings from the property and if
she is not able to do that only then her father-in-law’s obligation
starts. If that is the spirit of these two provisions how can father-
in-law at the first instance be asked to maintain his daughter-in-
law when the husband is alive.

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9. To sum up provisions of Sections 18 and 19 of the
Act are so plain, clear and unambiguous that literal meaning as
provided in these two provisions are to be given as described plainly
in the two provisions. Secondly in view of Section 4 of the Act the
old customary law in existence prior to coming into force of this
Act cannot be made applicable to the present case it being governed
by codified law and therefore question of defendant No.2 being Karta
or his obligation to perform his duties as Karta do not arise in this
case.

10. For these reasons I have no hesitation in holding
that defendant No.2 is neither a proper party nor a necessary party
and that defendant No.2 has been improperly joined and therefore no
cause of action can be said to have arisen against defendant No.2 and
as such this issue is decided against the plaintiff and in favour of
defendant No.2. Ordered accordingly.

November 16th ,2004. H.R. MALHOTRA, J.

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