Mangala Kishor Pedgaonkar And … vs Kishor Mukundrao Pedgaonkar on 5 October, 2017

F.C.A.No.7/2015
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

FAMILY COURT APPEAL NO. 7 OF 2015

1. Sau Mangala w/o Kishor Pedgaonkar,
Age 37 years, Occu. Household
R/o Kabra Nagar,
New Cotton Mill (Sutgirni),
Aurangabad

2. Shubham s/o Kishor Pedgaonkar
Age 18 years, Occu. Education
R/o Kabra Nagar,
New Cotton Mill (Sutgirni),
Aurangabad .. Appellants

Versus

. Dr. Kishor s/o Mukundrao Pedgaonkar,
Age 48 years, Occu. Medical Practitioner
R/o Dr. Bandorwal Leprosy Hospital,
Yeolewadi, Taluka Haveli, Dist. Pune .. Respondent

Mr D.P. Palodkar, Advocate for appellants
Mr P.M. Gaikwad, Advocate for respondent

CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ

DATE : 5th October 2017

ORAL JUDGMENT (Per A.M. Dhavale, J.)

1. This is an appeal by the appellants who are wife and son of

respondent against the judgment and decree dated 10.4.2014 in

Petition No.C-29/2012 for maintenance under Section 18 and 20 of

Hindu Adoption and maintenance Act, which came to be dismissed by

learned Principal Judge, Family Court, Aurangabad.

2. The facts relevant for deciding this appeal may be stated as

follows:

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::

F.C.A.No.7/2015
2

3. Appellant no.1 Mangala married to respondent Kishor on

19.5.1993 at Aurangabad as per Hindu Vaidic rites. Out of wedlock,

she was blessed with one son Shubham on 13.6.1996. who was 16

years old at the time of institution of petition. Appellant No.1 Mangala

made several allegations against her husband. The only relevant fact

is that her Marriage Petition No.79/1997 was dismissed and in appeal,

there was compromise by mutual consent, as per the terms of the

compromise Exh.17 dated 19.10.2011.

4. The appellant contended that as per the terms of compromise,

the respondent had deposited Rs.5 lakhs for Shubham’s education and

maintenance, but the said amount was spent much earlier. She had

sustained 65% burns in 1994. She has no source of income. The

respondent was serving as a doctor, drawing salary of Rs.1,30,000/-

p.m. He has neglected to maintain the appellants. Appellant no.1 had

demanded Rs.30,000/- per month for their maintenance. She had

filed proceedings (M.A.No.1119/2012) under the Protection of Women

from Domestic Violence Act. She, therefore, claimed maintenance of

Rs.30,000/- per month.

5. The respondent inter alia stated that at the time of divorce as

per mutual terms, the lump-sum maintenance of Rs.5 lakhs was

granted and the said amount was deposited in the Bank by the

respondent. Appellant no.1 Mangala has given up all her monetary

claims including claims for her minor son Shubham whose custody

was given to her. Since she had relinquished her rights of

maintenance, she cannot claim maintenance for herself as well as for

Shubham.

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::

F.C.A.No.7/2015
3

6. The learned Principal Judge, Family Court, Aurangabad accepted

the plea of respondent and dismissed the petition.

7. Heard learned Advocate Mr D.P. Palodkar for the appellants and

Mr P.M. Gaikwad, learned Advocate for the respondent. Mr Palodkar

argued that the statutory right under Section 18 of the Hindu

Adoptions and Maintenance Act, 1956 cannot be relinquished and

particularly in respect of minor son Shubham who was not party to the

Hindu Marriage Petition. He argued that the respondent is serving as

a doctor and earning huge salary, whereas the appellants are facing

financial difficulties. Appellant no.2 was taking education in

Engineering and he required lot of educational expenses. Hence, the

judgment of dismissing the claim of the appellants is not sustainable

and the appellants be granted maintenance as per the income of the

respondent and as per the status of the parties.

8. Learned Advocate Mr P.M. Gaikwad relied on terms of

compromise at Exh.17 whereby the appellant no.1 herein as a

respondent in the said proceedings relinquished the shares in

following terms :

“6. The respondent submits that she is hereby absolutely
relinquishing all her rights of maintenance already accrued and
shall not claim any future maintenance from the petitioner or
his relatives in future or of the past under any law time being in
force. The Respondent shall receive from the petitioner
Rs.5,00,000/- (Rs. Five lakhs only) as permanent and final
alimony which shall be deposited in the name of the minor
child in fixed deposit in any nationalised bank till he attains

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::
F.C.A.No.7/2015
4

majority, the interest of which the respondent may withdraw.

7…..

8. The petitioner submits that he has absolutely
relinquished all his rights in respect of the movable and
immovable properties of the respondent which are in existence
today or which will be acquired in future by the respondents.
Similarly the respondent also has relinquished all her rights in
respect of movable and immovable properties of petitioner
which are in existence today of which will be acquired by
petitioner in future. That the respondent shall not claim any
rights n the property of petitioner either movable and
immovable through the minor son Shubham.

9. The petitioner and respondent have no monetary claim
left of whatsoever nature against each other and have received
all their movable and immovable valuables etc. from each
other.”

9. He submitted that in view of these terms, the appellant no.1

Mangala is estopped and has lost all her rights to claim maintenance

from the respondent, for herself as well as for Shubham.

10. After hearing the learned Advocates for the parties, we find that

the terms of compromise will bind only the husband and wife, who

were parties to the petition. The giving up right under Hindu

Adoptions and Maintenance Act by the wife is legal and she will not be

entitled to claim maintenance from her divorced husband, who is no

more legally bound to maintain her under the above Act.

11. However, as far as son Shubham is concerned, he was not a

party to Hindu Marriage Petition. Besides, he was a minor. If any

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::
F.C.A.No.7/2015
5

compromise was to be effected on his behalf, he should have been

joined as a party and there should have been compromise as per the

provisions of Order XXXII, Rule 7 of Code of Civil Procedure. The

parties were bound to seek leave to effect compromise on his behalf

and the Advocate for the minor was bound to file an affidavit of the

next friend and certificate of himself that the said compromise was in

the interest of minor. In absence of following this procedure, the said

compromise effected by minor’s mother will not bind the minor. The

Court while accepting the compromise is bound to record its

satisfaction that said compromise was for the benefit of minor. Since

nothing of this sort was happened, the said compromise would not

bind the minor. As per Order XXXII, Rule 14 C.P.C., the minor has a

right to get the suit dismissed on the ground that it was unreasonable

and improper.

12. We find that amount of Rs.5 lakhs was paid by the respondent

herein for the maintenance of his son Shubham way back in 2002.

The respondent is serving as a doctor and was earning salary of

Rs.75,684/- in the month of November 2012. Considering the

economical standard and status of the parties, we find that the

permanent alimony of Rs.5 lakhs awarded to Shubham was

inadequate. The statutory right of a son under the Hindu Adoptions

and Maintenance Act cannot be relinquished in this way.

13. We, therefore, hold that the compromise decree Exh.17 would

not bind the right of Shubham to claim maintenance under the

provisions of Hindu Adoptions and Maintenance Act.

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::

F.C.A.No.7/2015
6

14. The next question is about the quantum of maintenance to be

awarded. The salary certificate of the respondent is produced. It

shows that the respondent was drawing gross salary of Rs.75,684/- in

November 2012. There were some compulsory deductions including

income tax of Rs.1,500/-. For the purpose of convenience, we assume

his income at Rs.65,000/- per month. It is submitted at the bar that

the respondent has remarried and has two children from his second

marriage. Besides, his mother is dependent on him. Thus, there are

six dependents including the respondent himself and his son Shubham

from first wife. Considering the facts and circumstances, we feel that

maintenance of Rs.10,000/- per month to Shubham will meet the ends

of justice.

15. It may be stated here that Shubham was born on 13.6.1996 and

during pendency of the proceedings, he attained majority on

13.6.2014. We, therefore, hold that he will be entitled to get

maintenance from the date of the application i.e. 27.9.2012 to

12.6.2014.

16. In view of above findings, the appeal partly succeeds. Hence,

we pass the following order :

– ORDER –

(i) The Appeal of appellant no.2 – Shubham is allowed. The appeal

of the appellant no.1 is dismissed.

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::

F.C.A.No.7/2015
7

(ii) The judgment and decree of Family Court Petition No. 29/2012,

dismissing the proceeding of petitioner No.2 – Shubham is hereby set

aside.

(iii) The petition of Shubham is allowed. Respondent Dr. Kishor do

pay maintenance to appellant no.2 – Shubham at the rate of

Rs.10,000/- per month from 27.9.2012 to 13.06.2014. The amount is

to be deposited in this Court within three months from today, failing

which the amount shall carry interest at the rate of 9% p.a. A Decree

shall be prepared accordingly. No order as to costs.

( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)

vvr

::: Uploaded on – 12/10/2017 13/10/2017 00:53:37 :::

Leave a Comment

Your email address will not be published. Required fields are marked *