IN THE HIGH
COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3905 of 2019
Babru Bahan Kumbhkar, son of Biswanath Kumbhkar
1.Kalyani Kumbhakar, wife of Late Arjun Kumbhkar
2.Deepika Kumbhakar, D/o Late Arjun Kumbhkar
…. … … Respondents
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
For the Petitioner : Mr. Akshay Kr. Mahato, Advocate
For the Respondents : —
Order No. 04 : Dated 24th September, 2019
This writ petition is under SectionArticle 227 of the
Constitution of India whereby and whereunder the
judgment/order dated 15.03.2019 passed in O.M. No. 36 of
2017 by Principle Judge, Family Court, Seraikella-Kharsawan
has been assailed by which the maintainable allowance of Rs.
4000/- per month has been granted to the petitioners by
directing the Opp. Party to pay maintenance per month to the
petitioner no. 1 from the date of filing of the petition and the
Opp. Party shall make payment of the said maintenance
amount to the petitioners on or before 10 th of every English
2. Learned counsel for the petitioner at the outset has
argued out the case on the ground of quantum of
maintenance, which is the subject matter of adjudication by
the trial Court by way of point no. (iv), on the ground that the
petitioner is old person and is also keeping other two children
of the petitioner (respondent no. 1 herein) and there is no
independent source of income, save and except, some piece of
land, which is also not cultivable and therefore, the amount of
maintenance of Rs. 4000/- is highly excessive.
3. This Court before scrutinizing the finding recorded with
respect to the issue of quantum, deem it fit and proper to
refer certain factual aspects, which are necessary for
adjudication of the issue:
The respondent no. 1 is the daughter-in-law of the
petitioner and respondent no. 2 is his granddaughter.
The respondents have filed Original Maintenance Case
being O.M. No. 36 of 2017 before the Court of Principal Judge,
Family Court, Seraikella-Kharsawan praying therein for
maintenance amount of Rs. 6000/- per month to each
petitioner as maintenance, under the provisions of Hindu
Adoptions and SectionMaintenance Act, 1956 (herein after referred to
as ‘Act 1956’).
The petitioner has appeared before the trial Court on
being noticed and defended himself by taking a plea that two
minor daughters of respondent no. 1 is residing with him,
whom the petitioner has been maintaining on the income
derived from a chunk of land having an area of 6-7 bighas
and further stand has been taken that he is ready to keep the
respondents in his house.
The learned Family Court has allowed the interim
maintenance to the tune of Rs. 3000/- per month vide order
dated 18.07.2018 passed in O.M. No. 36 of 2017, against
which, the petitioner has filed Criminal Revision, being Cr.
Rev. No. 1537 of 2018, which is pending before this Court.
The Principal Judge, Family Court, Seraikella-
Kharsawan has allowed the maintenance application vide
order dated 15.03.2019 passed in O.M. No. 36 of 2017
directing the petitioner to pay Rs. 4000/- per month from the
date of filing of the petition to respondent no. 1 as
maintenance, against which, the present writ petition has
been filed under its revisionary jurisdiction conferred under
SectionArticle 227 of the Constitution of India.
4. This Court, having heard learned counsel for the
petitioner and after going across the pleadings made in the
writ petition and findings recorded in the impugned order, is
not going into the issue of maintainability and applicability of
the provision of the Act, 1956 in the present case, since the
petitioner is not raising the aforesaid issues, save and except,
the issue pertaining to quantum of maintenance.
5. This Court has appreciated the submission/ground
agitated by the petitioner, therefore, the deposition, recorded
by the trial Court, of the witnesses along with their cross-
examinations, are being referred herein below for better
appreciation of the aforesaid issue pertaining to the quantum
The petitioner, namely, Babru Bahan Kumbhkar, has
filed show cause on 27.04.2018 denying his liability to
maintain on the plea that he is ready to keep the respondents
in his residence after the death of his only son, namely, Arjun
Kumbhkar, who has died on 01.07.2016.
Kalyani Kumbhakar, the respondent no. 1 herein, who
was the petitioner no. 1 before the trial Court has been
examined as P.W. 1, who in her examination-in-chief has
deposed that the Opp. Party/petitioner always has had evil
eyes on her, which ultimately lead her to leave her
matrimonial hose and come to her parental house with her
youngest daughter. Two minor daughters were kept forcefully
by the petitioner although respondent no. 1 has tried her level
best to get the custody of her two daughters but she has failed
in the said efforts ultimately she has lodged a Guardianship
case bearing no. 2 of 2017, which is pending before the
It has been deposed that 2 and ½ acres of land was in
the name of husband of respondent no. 1 but the opp. party
(petitioner herein) has transferred the said land in his name
as also the petitioner has 50 bighas of landed property and
brick kiln and a tractor.
In the cross examination, she has stated that after birth
of three daughters the petitioner has started torturing her.
Saraswati Bhagat, who is mother of respondent no. 1
has been examined as P.W. 2, who in her examination-in-
chief has stated about the solemnization of marriage of
respondent no. 1 with Late Arjun Kumbhkar, son of petitioner
herein and deposed about the cruelty meted out upon the
respondent no. 1 after death of her husband, for which, she
has also been hospitalized for the injury sustained due to
brutal assault on respondent no. 1. She has corroborated
about the means of the petitioner.
One Uday Nath Kumbhakar, has been examined on
behalf of petitioner as O.P.W. 1, defending the averments
made by the opp. party/petitioner, has deposed that the case
has been filed only to make this a means of earning income.
The fact about the availability of 50 bighas of land has been
Babru Bahan Kumbhkar, who is petitioner herein, has
been examined as O.P.W. 2, who in his cross-examination,
more particularly at paragraph 19 thereof, has admitted that
land of an area 2 acres 59 decimals, which stood in the name
of his son Arjun Kumbhkar was transferred in his name. In
paragraph 22 of his cross-examination, he has stated that he
possessed a deed of gift and the said land is in his possession
but without any sources of income from the said land.
6. The trial Court has proceeded by scrutinizing the
deposition of the aforesaid witnesses and after considering the
provisions of Section 19 and Section21 of the Act, 1956 hold the
respondents as dependents for getting the maintenance under
the provisions of Act, 1956.
7. The question, which has been agitated by the petitioner
about the quantum of maintenance, which the trial Court has
assessed to the tune of Rs. 4000/- to be segregated in the
ratio of Rs. 3000/- and Rs. 1000/- to be paid in favour of
respondent no. 1 and 2 respectively, is stated to be excessive
by the petitioner.
8. To answer this question, which has been made as point
no. (iv) by the trial Court for its determination and which
pertains to quantum of maintenance, it would be necessary to
refer the provision of Section 23 of the Hindu Adoptions and
SectionMaintenance Act, 1956, which reads as under:
“23.Amount of maintenance. – (1).It shall be in the
discretion of the Court to determine whether any, and if so
what, maintenance shall be awarded under the provisions of
this Act, and in doing so, the Court shall have due regard to
the considerations set out in sub-section (2) or sub-section (3),
as the case may be, so far as they are applicable.
(2).In determining the amount of maintenance, if any, to
be awarded to a wife, children or aged or infirm parents
under this Act, regard shall be had to-
(a)the position and status of the parties;
(b)the reasonable wants to the claimant;
(c)If the claimant is living separately, whether the
claimant is justified in doing so;
(d)the value of the claimant’s property and any
income derived from such property, or from the
claimant’s own earnings or from any other source;
(e)the number of persons entitled to maintenance
under this Act.
(3)In determining the amount of maintenance, if any,
to be awarded to a dependant under this Act, regard
shall be had to-
(a)the net value of the estate of the deceased after
providing for the payment of his debts;
(b)the provision, if any, made under a will of the
deceased in respect of the dependant;
(c)the degree of relationship between the two;
(d)the reasonable wants of the depandant;
(e)the past relations between the dependant and the
(f)the value of the property of the dependent and
any income derived from such property, or from his
or her earnings or from any other source;
(g)the number of dependants entitled to
maintenance under this Act.”
It is evident from the aforesaid provision that the
discretion lies with the Court to determine about quantum of
maintenance and while doing so, the Court shall have due
regard to the considerations set out in sub-section (2) or sub-
section (3), as the case may be that is the position and status
of the parties, the reasonable wants to the claimant, if the
claimant is living separately, whether the claimant is justified
in doing so and the value of the claimant’s property and any
income derived from such property, or from the claimant’s
own earning or from any other source.
9. In the instant case, as would appear from the
depositions made on behalf of parties that even the petitioner
who has been examined as O.P.W. 2 has admitted the fact at
paragraph 19 of his cross-examination that the land of 2
acres and 59 decimals, which was in the name of Arjun
Kumbhkar, the deceased son of the petitioner, was
transferred in his name on the basis of deed of gift. Further
the fact about the brick kiln and tractor has not been
disputed by the petitioner or the witnesses produced on his
behalf. Furthermore, the fact about having two-room pucca
house has also not been disputed.
10. Learned counsel for the petitioner in course of argument
has relied upon the stand taken by the respondents about
availability of 50 bighas of land, which however has seriously
been disputed but the fact remains that an area of land, 2
acres and 59 decimals, which was in the name of Arjun
Kumbhkar has not been disputed, which has been transferred
in the name of petitioner, as would appear from paragraph 19
of the cross-examination of O.P.W. 2- Babru Bahan
Kumbhakar, the petitioner herein, against whom the direction
has been passed by the trial Court for making payment of
amount of maintenance and therefore, it cannot be said that
the petitioner is not a man of means.
11. Further, the trial Court has taken conscious view by
making reference of the provision of Section 23 of the Act,
1956 which provides for determination of amount of the
maintenance depending upon the status of parties,
reasonable one of the claimants and if living separately the
claim of the claimants is justified or not and after taking into
consideration these aspects of the matter, the trial Court has
passed the order of maintenance of Rs. 3000/- to be paid in
favour of respondent no. 1 and Rs. 1000/- to be paid in
favour of respondent no. 2.
12. This Court is of the view that the finding recorded by the
trial Court cannot be said to be not passed upon any material
evidence rather this Court, after going across the evidence
recorded, is of the view that the determination of quantum of
maintenance, as has been made by the trial Court, is based
upon cogent evidence, as reflected herein above.
13. The question would be that whether if the finding is
based upon the cogent evidence can the High Court exercise
its supervisory jurisdiction conferred under SectionArticle 227 of the
Constitution of India.
14. For this, this Court intends to go through the scope of
SectionArticle 227 of the Constitution of India.
Dealing with the scope of SectionArticle 227 of the Constitution
of India, Hon’ble Apex Court in the case of Shalini Shyam
Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8
SCC 329 has been pleased to hold therein regarding the
scope of SectionArticle 227 which relates to the supervisory powers of
the High Courts and by taking aid of the judgment rendered
by the Hon’ble Full Bench of Calcutta High Court in the case
of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee,
reported in AIR 1951 Calcutta 193, wherein it has been laid
down that SectionArticle 227 of the Constitution of India does not
vest the High Court with limit less power which may be
exercised at the court’s discretion to remove the hardship of
particular decisions. The power of superintendence confers
power of a known and well recognized character and should
be exercised on those judicial principles which give it its
character. In general words, the High Court’s power of
superintendence is a power to keep the subordinate courts
within the bounds of the authority, to see that they do what
their duty requires and that they do it in a legal manner.
15. The power of superintendence is not to be exercised
unless there has been;
(a).An unwarranted assumption of jurisdiction, not vested
in a court or tribunal; or
(b).gross abuse of jurisdiction; or
(c).an unjustifiable refusal to exercise jurisdiction vested in
courts or tribunals.
16. Further, in the aforesaid judgment the Hon’ble Apex
Court has taken aid of a judgment rendered in the case of
Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported
in (1991) 3 SCC 141 wherein it has been laid down that in
exercise of jurisdiction under Article 227, the High Court can
set aside or reverse finding of an inferior court or tribunal
only in a case where there is no evidence or where no
reasonable person could possibly have come to the conclusion
which the court or tribunal has come to.
17. The Hon’ble Apex Court has made it clear that except to
this limited extent the High court has no jurisdiction to
interfere with the finding of facts.
18. Further, the judgment rendered by the Hon’ble Apex
Court in the case of Laxmikant Revchand Bhojwani Vrs.
Pratapsing Mohansingh Pardeshi, reported in (1995) 6
SCC 576 it has been laid down that the High Court under
SectionArticle 227 cannot assume unlimited prerogative to correct all
species of hardship or wrong decisions. Its exercise must be
restricted to grave dereliction of duty and flagrant abuse of
fundamental principles of law and justice.
19. It has been laid down at paragraph 47 of the aforesaid
judgment that the jurisdiction under SectionArticle 227 is not
original nor is it appellable. This jurisdiction of
superintendence under SectionArticle 227 is for both administrative
and judicial superintendence. Therefore, the powers conferred
under SectionArticle 226 and Section227 are separate and distinct and
operate in different fields. Another distinction between these
two jurisdictions is that under SectionArticle 226 the High Court
normal annuls or quashes an order or proceedings but in
exercise of its jurisdiction under SectionArticle 227, the High Court,
apart from annulling the proceeding, can also substitute the
impugned order by the order which the inferior tribunal
should have made.
20. It has further been laid down regarding the powers to be
exercised by the High Court under SectionArticle 227 of the
Constitution of India. The High Court, in exercise of its
jurisdiction of superintendence, can interfere in order only to
keep the tribunals and courts subordinate to it within the
bounds of its authority, in order to ensure that law is followed
by such tribunals and courts by exercising jurisdiction which
is vested with them and by not declining to exercise the
jurisdiction which is vested in them. Apart from that, High
Court can interfere in exercise of its power of superintendence
when there has been a patent perversity in the orders of the
tribunals and courts subordinate to it or where there has
been a gross and manifest failure of justice or the basic
principles of natural justice have been flouted.
21. In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or
courts subordinate to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.
22. It is thus evident that the legal position is settled that
the supervisory power conferred under SectionArticle 227 of the
Constitution of India is to be exercised by High Court, if the
finding recorded by the trial Court is erroneous that is suffers
from perversity and error is apparent on the face of record.
23. But, according to conscious view of this Court, the
finding recorded by the trial Court is based upon the evidence
and suffers from no perversity and, therefore, there is no error
on the face of record warranting interference by this Court
under SectionArticle 227 of the Constitution of India.
24. It is further settled position of law that in case of finding
of facts, the High Court should not interfere in exercise of its
jurisdiction under SectionArticle 227 of the Constitution, in the guise
of exercising its jurisdiction under SectionArticle 227 and converting
itself into a Court of appeal, accordingly, this Court refrains
itself from exercising the jurisdiction under SectionArticle 227 of the
Constitution of India.
25. In consequence thereof, this writ petition lacks merit,
fails and is dismissed.
(Sujit Narayan Prasad, J.)