Shri. Ruprao Mahipatrao … vs Miss. Ankita Ruprao Wadibhasme on 17 November, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

FAMILY COURT APPEAL NO.59 OF 2016

Ruprao Mahipatrao Wadibhasme,
Aged about 58 years., Occ. Retired,
r/o. C/o. Bhujang Wadke,
Palora, Tq. Parshivani,
District Nagpur. ………. APPELLANT

// VERSUS //

Miss Ankita Ruprao Wadibhasme,
Aged about 21 years, Occ. r/o.
c/o. Roshani Vaidya, Plot No.
34, Mata Nagar, Pimpla Road,
Hudkeshwar, Nagpur. ………. RESPONDENT

Mr.P.S.Kosare, Advocate for the Appellant.
Mr.D.A.Sonwane, Advocate for the Respondent.

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—————————
Date of reserving the Judgment : 10.11.2017.
Date of pronouncement of the Judgment : 17.11.2017.
—————————

CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.

JUDGMENT (Per M.G.Giratkar, J) :

1. By the present appeal, the appellant has challenged the

Judgment of Family Court, Nagpur in Petition No.C-97 of 2013,

dt.23.6.2016, by which the appellant is directed to pay maintenance

of Rs.8,000/- p.m. to the respondent (daughter).

2. The case of the appellant, in short, is as under :

That the respondent herein is daughter of the appellant.

His first wife died in the year 2013. He has three daughters and one

son from his first wife. On 9.6.2013, appellant performed second

marriage. It is the case of appellant that since then his

daughter/respondent was not behaving properly. She lodged false

report and has filed false case against him. It is the case of the

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appellant that the Family Court has not considered evidence properly

and has wrongly passed the impugned order.

3. It is submitted that the appellant is a retired Government

employee. His home take salary is very meagre i.e. Rs.10,320/- p.m.

He cannot pay the amount of Rs.8,000/- p.m. to the respondent.

Learned Family Court has not considered the same and wrongly

directed him to pay maintenance of Rs.8,000/- p.m. Being aggrieved

by the Judgment, dated 23rd June, 2016 of the Family Court, the

appellant has filed the present appeal.

4. Heard Ms P.S.Kosare, learned Counsel for the appellant.

She has submitted that respondent is intentionally not residing with

her father/respondent. She has filed false report against her father.

Appellant is a retired Police Constable and he is getting only

Rs.10,320/- p.m. towards pension. He has to maintain his second

wife and son. His second wife is suffering from heart ailment and

therefore, he is not in a position to pay amount of maintenance.

5. Learned Counsel for the appellant has submitted that, in

the report itself, respondent has stated that she was doing some job.

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Now she is major, aged about 23 years and she can maintain herself.

At last, it is prayed to allow the appeal and quash and set aside the

impugned Judgment.

6. Heard Mr.D.A.Sonwane, learned Counsel for the

respondent. He has pointed out report lodged by the respondent. He

has submitted that the appellant, after his second marriage, has

changed his behaviour. He was behaving arrogantly and in an

obscene manner with his own daughter/respondent. He tried to

outrage her modesty. Therefore, there was no any option but to

lodge report. Learned Counsel has submitted that the appellant was

in jail. Therefore, he entered into compromise and agreed to pay

Rs.6,000/- p.m. to the respondent. But, thereafter, he did not pay a

single pie till filing of the petition before the Family Court. Learned

Counsel has pointed out his admission in the cross-examination.

7. Learned Counsel Mr.D.A.Sonwane has submitted that the

respondent is studying in G.S. Commerce College. She has to pay

college fee etc. She has no other income. Therefore, amount of

maintenance @ Rs.8,000/- p.m. is not exorbitant. At last, it is prayed

to dismiss the appeal.

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8. Perused the evidence on record. There is no dispute that

appellant was in service in Military. After his retirement, he joined

the Police department. In the year 2013, his first wife died. He has

three daughters and one son. Two daughters are married and are

residing with their husbands.

9. Respondent Ankita and her brother were only residing

with the appellant. It is not disputed that the respondent lodged

report against the appellant stating that he directed her to serve meal

to his friends, who were under the influence of liquor. When she

refused, he abused her in obscene words. He beat her. Therefore,

report was lodged. Offences punishable under Sections 294, 323,

354, 506, 509 of the Indian Penal Code were registered against the

appellant. He was in jail. On 8.10.2013, appellant agreed to pay

Rs.6,000/- p.m. to his daughter/respondent and on the very day, he

paid Rs.6,000/-. Thereafter, appellant came to be acquitted by the

Judicial Magistrate, First Class, Kamptee.

10. The appellant has admitted in his cross-examination

before the Family Court that he did not pay a single pie after

payment on 8.10.2013. This itself shows that appellant is

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intentionally neglected his own daughter. It is expected from the

parents to develop their children; especially in the case of daughter,

it is duty of father to maintain her in a good condition, provide her

education etc. and perform her marriage. Instead of that, appellant

is neglecting his own daughter. Not only that, appellant beat her

and scolded her in obscene words and therefore, she had to take

shelter of her sister. There is no dispute that the respondent is

residing separately since the incident of beating and abusing her.

11. There is no doubt that the brother of respondent is

residing with the appellant. Therefore, he supported his father to

some extent. But, in his cross-examination, he has admitted that his

father used to drink liquor sometime. Respondent and himself had

lodged report against the appellant in Police Station, Kamptee. He

has further admitted that after the report his father was in jail for

about one month. When his father was in jail, he and his sister

Ankita were residing in the house of his father. He has further

admitted that, after lodging report, he and his sister were out of

house for few days. This itself shows that after the second marriage

of appellant, his behaviour is changed towards his own children.

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Therefore, it is clear that the appellant has refused and neglected to

maintain his own daughter/respondent.

12. The petition was filed before the Family Court u/s.20 of

the Hindu Adoption and Maintenance Act, 1956. Section 20 reads as

under :

20. Maintenance of children and aged parents.–

(1) Subject to the provisions of this section a Hindu is
bound, during his or her lifetime, to maintain his or her
legitimate or illegitimate children and his or her aged or
infirm parents.

(2) A legitimate or illegitimate child may claim
maintenance from his or her father or mother so long as
the child is a minor.

(3) The obligation of a person to maintain his or her aged
or infirm parent or a daughter who is unmarried extends
in so far as the parent or the unmarried daughter, as the
case may be, is unable to maintain himself or herself out
of his or her own earnings or other property. Explanation.

–In this section “parent” includes a childless step-
mother.

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13. Evidence on record shows that, being father, the

appellant has not taken care of his daughter/respondent. There is no

dispute that respondent has no any permanent source of income. No

evidence is brought on record to show that she is doing service and

earning some salary. There is no evidence to show that she is doing

part-time job. On the other hand, it is brought on record by the

respondent that she is residing separately. She is studying in G.S.

Commerce college. Her tuition fees was outstanding and notice was

issued by College. Looking to the expenditure and age of

respondent, Rs.8,000/- p.m. towards amount of maintenance

granted by Family Court is not exorbitant.

14. In respect of pay capacity of the appellant, it is clear that

appellant is getting pension of the post of Police Constable. He was

also in the Military. Therefore, it is obvious that he is getting pension

from the Central Government also. He is having agricultural land

about 1 H. 0.1 R. It is the moral as well as legal duty of the appellant

to maintain his unmarried daughter. There is no dispute that the

respondent is unmarried and taking education. She is unable to

maintain herself. She has no any source of income and therefore, the

order passed by the learned Family Court granting maintenance of

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Rs.8,000/- p.m. to the respondent is perfectly legal and correct.

There is no merit in the appeal. Hence, we pass the following order.

// ORDER //

The appeal is dismissed.

The record and proceedings be sent back to the

trial Court.

JUDGE JUDGE

[jaiswal]

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