Ku. Asmita D/O Sudhakar Wankhade … vs Sudhakar Tulshiram Wankhade on 22 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

First Appeal No. 669 of 2005

Appellants : 1) Ku Asmita d/o Sudhakar Wankhede, aged

about 19 years, Occ: Student

2) Ku Ankita Sudhakar Wankhede, aged about

14 years, Occ: Student

Both through natural guardian, mother Sau

Surekha Sudhakar Wankhede, aged about 45

years, resident of Postal Colony, Tapovan Road,

Camp, Amravati

versus

Respondent : SudhakarTulshiram Wankhede, aged about

50 years, Occ: High School Teacher, Kurha

High School, resident of Kurha, Tahsil Tiosa,

District Amravati

Ms S. W. Deshpande, Advocate for appellants

Shri J. B. Kasat, Advocate and Shri Vinay Dahat, Advocate with him for

respondent.

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Coram : S. B. Shukre, J

Dated : 20th September 2017

Oral Judgment

1. This is an appeal preferred against judgment and order dated

16th September 2005 passed in Special Civil Suit No. 83 of 2002 by the

Adhoc Additional District Judge, Amravati.

2. Appellants are the original plaintiffs and respondent is the

original defendant. Appellants are the daughters of the respondent. The

appellants filed a suit for maintenance under Section 20 of the Hindu

Adoption and Maintenance Act against the respondent being Special Civil

Suit No. 83 of 2002. It was their contention that they were residing along

with their mother who was estranged from the respondent about nine

years prior to the filing of the suit. The suit was filed on 26.4.2002.

They contended they were studying at that point of time in 10 th and 7th

standard and required considerable amount of money for their education,

day-to-day maintenance, expenses, books, means of conveyance etc. They

contended that since about nine years prior to the filing of suit, the

respondent, inspite of being father, did not care for the appellants and

never sent any remittances to enable them to meet their expenses on

account of receiving education and day-to-day existence. They submitted

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that their mother was somehow or the other managing to maintain them

from out of her paltry income but, she was not able to bear entire

expenses of the appellants. Therefore, the appellants claimed from their

father i.e. respondent a portion of their expenses towards maintenance @

Rs. 3000/- and Rs. 2500/- per month for appellants no. 1 and 2

respectively. They also claimed arrears of maintenance of Rs. 60,000/- @

Rs. 1000/- for both the appellants for first five years of separation and

Rs. 1,08,000/- @ Rs. 3000/- per month for both the appellants for three

years immediately before filing of the suit.

3. The suit was resisted by the respondent who put entire blame

upon the mother of the appellants for their separation from the

respondent. He submitted that till March 2002, he provided

maintenance to them @ Rs. 1000/- per month towards their education

and monthly expenses. He also submitted that he was not liable to pay

any arrears of maintenance.

4. The trial Court framed five issues and recorded finding on

each of them. It was concluded by the trial Court that the respondent

refused and neglected to maintain the appellants and, therefore, he was

liable to pay maintenance to the appellants no. 1 and 2 respectively @

Rs. 2000/- and Rs. 1500/- per month. The arrears of Rs. 1,68,000/-

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claimed by the appellants were refused. Marriage expenses of Rs.

100,000/- on the maximum for each of the appellants were also granted.

The maintenance was granted from the date of suit till marriage of the

appellants and arrears were directed to be paid within six months from

the date of order. However, no interest was granted . Accordingly, by the

judgment and order passed on 16.9.2005, the suit was partly decreed by

the trial Court. The appellants not being satisfied with what they have

been given under the impugned judgment and order, are before this Court

in the present appeal.

5. I have heard learned counsel for the parties. I have gone

through record of the case including the impugned judgment and order.

6. Following points arise for my consideration:

(1) Whether the respondent refused and neglected to maintain the

appellants ?

(2) Whether the respondent is liable to pay maintenance to the

appellants ?

(3) Whether the quantum of maintenance granted to the appellants by

the trial Court is insufficient and unjust in the facts and circumstances of

the case ?

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7. Learned counsel for the respondent submits that mother of

the appellants was, in fact, responsible for misery of the daughters as

without any proper cause, she chose to reside separately from the

respondent. This is refuted by learned counsel for the appellants.

However, on going through the evidence available on record, I find that

the respondent having admitted the fact of separation in the month of

March 2002 and also having not put in any efforts to resume cohabitation,

I do not find any substance in the argument of learned counsel for the

respondent that mother of the appellants was to be blamed for separation.

8. After it is found that without there being any just and proper

cause the respondent was residing separately, the question would arise as

to what was done by respondent to at least take care of the financial

needs of his daughters and the answer would have to be found by

scanning evidence available on record. On behalf of the plaintiffs,

plaintiff no. 1 Asmita and her mother Surekha have examined themselves

as P. W. 1 and P. W. 2 and on behalf of the respondent, respondent has

examined himself as his own witness. The evidence of appellants shows

that they have asserted in a specific manner that the respondent never

cared for his daughters and did not pay a single pie to enable them to

meet their financial needs arising from pursuing of education by them and

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their day-to-day maintenance. There is nothing in the evidence of P. W. 1

Asmita and P. W. 2 Surekha so as to enable me to entertain any

doubt about what they have asserted on oath before the Court. On the

other hand, D. W. 1 Sudhakar in his examination-in-chief admits that he

paid them something but only till prior to March 2002 and this payment

that he used to send was of Rs. 1000/- approximately on account of

maintenance of his daughters. This would show that at least after March

2002, according to own claim of the respondent, nothing was paid to the

appellants. This would also show that even though the requirement of

appellant on account of incurring of educational expenses and

maintenance expenses was of Rs. 5000/- per month, as seen from the

evidence of P. W. 1 Asmita and P. W. 2 Surekha, till March 2002, the

respondent paid only Rs. 1000/- to both of the appellants against their

total requirement of Rs. 10,000/-. This would come to spending of 10%

of the total monthly requirement of Rs. 10,000/- by the respondent and if

one goes by the admission given by the respondent, the spending was

only upto February 2002. These facts, therefore, will be sufficient to

conclude in a reasonable manner that there has been refusal and neglect

to maintain properly and adequately the appellants by the respondent.

The first point is answered accordingly.

9. If it is found and it has been found here that there has been a

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neglect on the part of the respondent to maintain his daughters properly

and adequately, the liability of the respondent to pay monthly

maintenance to both the appellants would inevitably arise for, there is no

denial of inter se relationship between the appellants on the one hand and

the respondent, on the other. The second point is answered accordingly

as in the affirmative.

10. Now, the question will be as to whether or not maintenance

of Rs. 2000/- and Rs. 1500/- per month granted to appellants no. 1 and 2

as also maximum marriage expenses of Rs. 100,000/- granted to each of

them by the trial Court are just and proper in the facts and circumstances

of the case or otherwise.

11. To my mind, the maintenance granted by the trial Court and

its refusal to at least allow these arrears of maintenance which fell within

the period of limitation was unjust and improper. The reason being that

the evidence of the plaintiffs is so specific and has not been controverted

at all by the respondent that it is difficult to ignore it and whereas such is

not the case with the evidence of DW 1 Sudhakar, the respondent. While

evidence of DW 1 Sudhakar only in general terms discloses that in his

opinion, monthly maintenance of the appellants would not exceed the

requirement of Rs. 1000/- per month, he does not state any basis for

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forming his such opinion. On the contrary, it appears such opinion is

based upon his own conjuncture and imagination.

12. There is a basis for reaching such a conclusion. The

admissions given by the respondent in his cross-examination taken on

behalf of the appellants show that he cared least for his daughters when

he admitted that he did not enquire from the school authorities about the

percentage that his daughters were securing and the progress that the

daughters were making from time to time. Then, he also admits that

additional expenses on account of tuition, means of conveyance etc. are

required to be incurred, but does not elaborate anything on the quantum

of such additional expenses. Against this background of facts established

on record, the respondent forms an opinion that not more than Rs. 1000/-

per month for each of the appellants would be sufficient towards their

total maintenance inclusive of fees. This can hardly be accepted by any

man of prudence and this Court certainly would be the last in accepting it.

On the other hand, PW 1 Astima asserts that while in 12 th standard, she

joined Dole Coaching Classes and she was required to pay Rs. 9600/-

towards her tuition fees. She also stated on oath that she was required to

spend additional expenses on account of consumption of petrol for her

moped purchased for her by her mother; school dress, shoes, books, note-

books and so on and so forth. She has also stated that her total monthly

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requirement is of Rs. 5000/- out of which she wants Rs. 3000/- from her

father. There is nothing in her evidence which would show that PW 1

Asmita may be stating falsely or making exaggerated claim. Same is the

evidence of PW 2 Surekha who has stated that the other daughter Ankita

requires additional maintenance of Rs. 2500/- from her father. She also

elaborates upon the total expenditure being incurred on monthly basis by

her on account of school fees, daily needs and other necessities of

appellant no. 2. Such evidence together only shows that a substantial

portion of the monthly needs of appellants are being already met by the

mother of the appellants. It can, therefore, be found that appellants are

claiming the amounts which they additionally require and naturally, that

would be required from their father.

13. In this way, I find that the appellants no. 1 and 2 have

established in a reasonable manner their claim that they require monthly

maintenance from their father of not less than Rs. 3000/- and Rs. 2500/-

respectively which ought to have been granted by the trial Court. The

trial Court, it appears, has not considered all these finer details furnished

by the parties and, therefore, has reached an erroneous conclusion in the

matter. The findings of the trial Court, therefore, require modification.

14. At this stage, learned counsel for the appellant submits that

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as per the law settled by the Hon’ble Apex Court, when both the husband

and the wife are earning (as in the instant case, both the spouses are

earning equally), both of them should be made to share the maintenance

amount equally. He places reliance on Padmja Sharma v. Ratan Lal

Sharma reported in (2000) 4 SCC 266.

15. There can be no doubt about the principle laid down by the

Hon’ble Apex Court in Padmja Sharma (supra) that law does not enjoin

that father is exclusively responsible regardless of mother. But, in the

present case, the evidence available on record, which has been already

discussed, shows that it is not the case where the entire amount of

maintenance is claimed by the appellants from respondent-father alone,

but what they are claiming is a portion of monthly maintenance from

him. It has also been seen that the appellants have successfully

established the fact that their mother is already contributing substantially

towards their maintenance and now what they require from their father is

only those amounts which their mother is not able to provide. These facts

of the present case would show that this is a case where both the mother

and father are sharing the responsibility of maintenance of their

daughters almost in equal share and, therefore, the principle laid down in

the case of Padmja Sharma (supra) can be seen to be already followed

in the instant case.

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16. Now, the grievance about non-payment of arrears of

maintenance has to be considered. There is admission given by D. W. 1

Sudhakar that he paid maintenance of Rs. 1000/- to both the daughters

only till February 2002 and that was also to the extent of Rs. 500/- per

month for each of the appellants. The claim of the appellants for three

years immediately prior to filing of suit in April 2002 is of Rs. 1500/- per

month and for five years preceding those three years, it is @ Rs. 500/-

per month for each of the appellants. As rightly submitted by learned

counsel for the respondent, second part is a time barred claim and,

therefore, cannot be allowed. But, first part of the claim which is very

well within the period of limitation, needs consideration.

17. I have already found that the respondent has failed in his

duty to maintain his daughters properly and adequately and, therefore,

even for a period of three years immediately prior to filing of the suit, he

would be liable to pay maintenance to the appellants. The claim of the

appellants is at Rs. 1500/- each or Rs. 3000/- for both for every month.

If we consider the admission given by the respondent that he has only

borne, out of this amount, an amount of Rs. 500/-, for each of the

appellants it would be possible for us to hold that the respondent would

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now be liable to pay arrears of maintenance of three years, at least of Rs.

1000/- per month for each of the appellants, which would make the

amount of annual maintenance for both appellants as Rs. 24,000/-. This

would bring the arrears of maintenance payable to the appellants no. 1

and 2 for three years to Rs. 72,000/-. Learned counsel for the respondent

submits that even this amount of maintenance could be equally

apportioned between mother of the appellants and the respondent.

However, considering the assertions made by the appellants, I am of the

view that this will not be a permissible exercise or otherwise, it would go

against the facts established on record. Therefore, this amount will have

to be additionally paid by the respondent to both the appellants. As

regards the claim for enhancement in marriage expenses, I do not find

that it is possible for this Court to accept it, there being no evidence

available in this regard. The third point is answered accordingly.

18. In the result, I find that the appellants no. 1 and 2 are

entitled to receive maintenance @ Rs. 3000/- and Rs. 2500/- per month

respectively from the respondent from the date of petition till their

marriage. I further find that the appellants are entitled to receive from

the respondent arrears of maintenance @ Rs. 72000/- together with

interest @ 6% per annum from the date of petition till realization. Appeal

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is partly allowed and the impugned judgment and order stand modified in

the above terms.

S. B. SHUKRE, J

joshi

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