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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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