Smt Jayamma vs Kum Manjula on 30 May, 2017

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 30TH DAY OF MAY 2017

PRESENT

THE HON’BLE MR.JUSTICE JAYANT PATEL

AND

THE HON’BLE MR.JUSTICE N.K. SUDHINDRARAO

M.F.A.No.8901/2015 (FC)
BETWEEN:

SMT.JAYAMMA
WIFE OF LATE SHRI K S SIDDARAJU
AGED ABOUT 51 YEARS
RESIDING AT No.2304
12TH CROSS, ASHOKAPURAM
MYSURU CITY – 570 008.
WORKING AS WARD WOMEN
(‘D’ GROUP), K R HOSPITAL
MYSURU CITY – 570 008.
…APPELLANT
(BY SMT. GEETHA DEVI M P, ADVOCATE)

AND:

KUM. MANJULA
DAUGHTER OF LATE SHRI K S SIDDARAJU
AGED ABOUT 28 YEARS
RESIDING AT No.C/153
KHP, HOUSING BOARD
HOOTAGALLY, MYSURU – 570 008.
…RESPONDENT

(BY SRI P MAHESHA, ADVOCATE)
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THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT AGAINST THE JUDGMENT AND DECREE DATED
05.10.2015 PASSED IN O.S.No.61/2012 ON THE FILE OF THE
COURT OF PRINCIPAL JUDGE, FAMILY COURT, MYSURU,
DECREEING THE SUIT FILED UNDER SECTION 20(3) OF THE
HINDU ADOPTION AND MAINTENANCE ACT.

THIS MFA COMING ON FOR DICTATING ORDERS THIS
DAY, JAYANT PATEL J., PASSED THE FOLLOWING:

ORDER

The present appeal is directed against the order

dated 05.10.2015 passed by the Family Court, Mysuru,

whereby the appellant, who was defendant therein, was

directed to pay maintenance of Rs.5,000/- per month to

the plaintiff from the date of suit until the marriage of the

plaintiff in addition to the maintenance already awarded in

C.Mis.208/2002.

2. The short facts of the case appears to be that the

respondent who is the original plaintiff filed an application

under Section 20(3) of the Hindu Adoption and

Maintenance Act, 1956, claiming maintenance from the

appellant-original defendant, who is the mother of the

original plaintiff.

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3. The claim made for maintenance was on the ground

that the appellant, after the death of her husband/the

father of the original plaintiff, is receiving family pension of

Rs.6,000/- per month and also got compassionate

appointment and was getting salary of Rs.15,000/- per

month. As per the original plaintiff, the appellant was not

allowing the plaintiff to stay in the ancestral property of

her father. She had also filed petition for maintenance

under Section 125 of Cr.P.C. and ultimately, maintenance

was awarded at Rs.600/- per month, which as per the

original plaintiff was not sufficient and was inadequate

and, therefore, a petition was filed before the Family Court

seeking maintenance of Rs.5000/- per month in addition to

the maintenance granted in the proceedings under Section

125 of Cr.P.C.

4. The appellant-defendant appeared in response to the

process issued by the Family Court and the written

statement was also filed. Thereafter, the original plaintiff

entered into witness box and the evidence was recorded.
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At the relevant point of time, the appellant did not cross-

examine the original plaintiff. But, after the evidence was

over, the appellant submitted an application to recall the

witness for the purpose of cross-examination which was

not granted by the Family Court. Ultimately, the Family

Court found that the original plaintiff is entitled to the

maintenance from the appellant in the capacity as the

mother and passed the order for payment of maintenance

at Rs.5,000/- per month as referred to hereinabove and

the decree was passed accordingly. Under the

circumstances, the present appeal before this Court.

5. We have heard Smt. Geetha Devi M.P, learned

counsel for the appellant and Sri P.Mahesha, learned

counsel for the respondent.

6. The contention raised on behalf of the appellant was

that the appellant has been deprived of the opportunity to

cross-examine the plaintiff and, resultantly, prejudice has

been caused. As per her submission, it is an ex parte

judgment and decree by the Family Court which needs to
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be interfered with by this Court. She submitted that the

appellant could not enter the witness box, but the written

statement was filed wherein defences were raised. The

Trial Court did not consider the said aspects and has

passed the decree which deserves to be set aside by this

Court.

7. The examination of the aforesaid contentions prima

facie may show substance, but upon further scrutiny of the

case as to whether any prejudice is caused or not, we had

called upon the learned counsel for the appellant to show

about the defence raised for denying the liability to pay

maintenance. We have also examined the record. The

written statement submitted on behalf of the appellant

shows only two defence; one is that all the ancestral

property are in the custody of the plaintiff and she is

enjoying the same and the maintenance is ordered in

Crl.Mis. proceedings and, therefore, there is no question of

enhancing the maintenance. The other defence is that

that the defendant is the only earning member of the
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family and, she has to maintain family and also to provide

medical treatment and, therefore, the maintenance may

not be ordered.

8. As per the original plaintiff, all the members of the

family including the son of the appellant are major. There

is no liability upon the appellant to maintain the

son/brother of the original plaintiff. The appellant has no

other liability to maintain any other person than herself.

The aspects of income being received by the appellant and

the pension being received by the appellant are not

disputed. The salary slip of the appellant was produced

and it show that the consolidated gross salary of the

appellant for the month of May, 2015 as Rs.23,334/-

minus the deductions of Rs.5,139/- and the net salary as

Rs.18,195/-. Further, an amount of pension of Rs.6,000/-

per month is also being received by the appellant. If both

the amounts are considered, it would be approximately

Rs.24,000/- per month being the income of the appellant.

It is not the case of the appellant that the original plaintiff
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who is daughter of the appellant has married or she has

any independent source of income. No material is

produced to show any independent income of the original

plaintiff. Under these circumstances, since the father has

expired and the mother of the original plaintiff who was

defendant in the lower Court is having the income of

Rs.24,000/-, the trial Court has exercised the discretion of

awarding maintenance of Rs.5,000/- per month. When

there is no genuine defence on the part of the appellant

raised in the written statement before the trial Court and

further when the appellant had also not entered into the

witness box and when the appellant did not cross-examine

the plaintiff at the relevant point of time, we find that

merely because the trial Court has not permitted the

appellant to recall the witness for the purpose of cross-

examination, no prejudice is caused. Had there been a

genuine defence on the part of the appellant raised in the

written statement, the matter might stand on a different

footing for different consideration. Further, the

relationship between the parties is not in dispute that the
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appellant is the mother of the original plaintiff and

respondent is the daughter.

As per law, there is liability to maintain an unmarried

daughter. Under these circumstances, it cannot be said

that the trial Court has committed error in accepting the

case of the original plaintiff in awarding maintenance of

Rs.5,000/- per month.

9. In view of the aforesaid observation and discussion,

we find that no interference is called for with the judgment

and decree passed by the Family Court.

10. In the result, the appeal is meritless. Hence,

dismissed.

Records be sent back to the trial Court.

Sd/-

JUDGE

Sd/-

JUDGE
mv

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