IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY 2017
PRESENT
THE HON’BLE MR.JUSTICE JAYANT PATEL
AND
THE HON’BLE MR.JUSTICE N.K. SUDHINDRARAO
M.F.A.No.8901/2015 (FC)
BETWEEN:
SMT.JAYAMMA
WIFE OF LATE SHRI K S SIDDARAJU
AGED ABOUT 51 YEARS
RESIDING AT No.2304
12TH CROSS, ASHOKAPURAM
MYSURU CITY – 570 008.
WORKING AS WARD WOMEN
(‘D’ GROUP), K R HOSPITAL
MYSURU CITY – 570 008.
…APPELLANT
(BY SMT. GEETHA DEVI M P, ADVOCATE)
AND:
KUM. MANJULA
DAUGHTER OF LATE SHRI K S SIDDARAJU
AGED ABOUT 28 YEARS
RESIDING AT No.C/153
KHP, HOUSING BOARD
HOOTAGALLY, MYSURU – 570 008.
…RESPONDENT
(BY SRI P MAHESHA, ADVOCATE)
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THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT AGAINST THE JUDGMENT AND DECREE DATED
05.10.2015 PASSED IN O.S.No.61/2012 ON THE FILE OF THE
COURT OF PRINCIPAL JUDGE, FAMILY COURT, MYSURU,
DECREEING THE SUIT FILED UNDER SECTION 20(3) OF THE
HINDU ADOPTION AND MAINTENANCE ACT.
THIS MFA COMING ON FOR DICTATING ORDERS THIS
DAY, JAYANT PATEL J., PASSED THE FOLLOWING:
ORDER
The present appeal is directed against the order
dated 05.10.2015 passed by the Family Court, Mysuru,
whereby the appellant, who was defendant therein, was
directed to pay maintenance of Rs.5,000/- per month to
the plaintiff from the date of suit until the marriage of the
plaintiff in addition to the maintenance already awarded in
C.Mis.208/2002.
2. The short facts of the case appears to be that the
respondent who is the original plaintiff filed an application
under Section 20(3) of the Hindu Adoption and
Maintenance Act, 1956, claiming maintenance from the
appellant-original defendant, who is the mother of the
original plaintiff.
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3. The claim made for maintenance was on the ground
that the appellant, after the death of her husband/the
father of the original plaintiff, is receiving family pension of
Rs.6,000/- per month and also got compassionate
appointment and was getting salary of Rs.15,000/- per
month. As per the original plaintiff, the appellant was not
allowing the plaintiff to stay in the ancestral property of
her father. She had also filed petition for maintenance
under Section 125 of Cr.P.C. and ultimately, maintenance
was awarded at Rs.600/- per month, which as per the
original plaintiff was not sufficient and was inadequate
and, therefore, a petition was filed before the Family Court
seeking maintenance of Rs.5000/- per month in addition to
the maintenance granted in the proceedings under Section
125 of Cr.P.C.
4. The appellant-defendant appeared in response to the
process issued by the Family Court and the written
statement was also filed. Thereafter, the original plaintiff
entered into witness box and the evidence was recorded.
4
At the relevant point of time, the appellant did not cross-
examine the original plaintiff. But, after the evidence was
over, the appellant submitted an application to recall the
witness for the purpose of cross-examination which was
not granted by the Family Court. Ultimately, the Family
Court found that the original plaintiff is entitled to the
maintenance from the appellant in the capacity as the
mother and passed the order for payment of maintenance
at Rs.5,000/- per month as referred to hereinabove and
the decree was passed accordingly. Under the
circumstances, the present appeal before this Court.
5. We have heard Smt. Geetha Devi M.P, learned
counsel for the appellant and Sri P.Mahesha, learned
counsel for the respondent.
6. The contention raised on behalf of the appellant was
that the appellant has been deprived of the opportunity to
cross-examine the plaintiff and, resultantly, prejudice has
been caused. As per her submission, it is an ex parte
judgment and decree by the Family Court which needs to
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be interfered with by this Court. She submitted that the
appellant could not enter the witness box, but the written
statement was filed wherein defences were raised. The
Trial Court did not consider the said aspects and has
passed the decree which deserves to be set aside by this
Court.
7. The examination of the aforesaid contentions prima
facie may show substance, but upon further scrutiny of the
case as to whether any prejudice is caused or not, we had
called upon the learned counsel for the appellant to show
about the defence raised for denying the liability to pay
maintenance. We have also examined the record. The
written statement submitted on behalf of the appellant
shows only two defence; one is that all the ancestral
property are in the custody of the plaintiff and she is
enjoying the same and the maintenance is ordered in
Crl.Mis. proceedings and, therefore, there is no question of
enhancing the maintenance. The other defence is that
that the defendant is the only earning member of the
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family and, she has to maintain family and also to provide
medical treatment and, therefore, the maintenance may
not be ordered.
8. As per the original plaintiff, all the members of the
family including the son of the appellant are major. There
is no liability upon the appellant to maintain the
son/brother of the original plaintiff. The appellant has no
other liability to maintain any other person than herself.
The aspects of income being received by the appellant and
the pension being received by the appellant are not
disputed. The salary slip of the appellant was produced
and it show that the consolidated gross salary of the
appellant for the month of May, 2015 as Rs.23,334/-
minus the deductions of Rs.5,139/- and the net salary as
Rs.18,195/-. Further, an amount of pension of Rs.6,000/-
per month is also being received by the appellant. If both
the amounts are considered, it would be approximately
Rs.24,000/- per month being the income of the appellant.
It is not the case of the appellant that the original plaintiff
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who is daughter of the appellant has married or she has
any independent source of income. No material is
produced to show any independent income of the original
plaintiff. Under these circumstances, since the father has
expired and the mother of the original plaintiff who was
defendant in the lower Court is having the income of
Rs.24,000/-, the trial Court has exercised the discretion of
awarding maintenance of Rs.5,000/- per month. When
there is no genuine defence on the part of the appellant
raised in the written statement before the trial Court and
further when the appellant had also not entered into the
witness box and when the appellant did not cross-examine
the plaintiff at the relevant point of time, we find that
merely because the trial Court has not permitted the
appellant to recall the witness for the purpose of cross-
examination, no prejudice is caused. Had there been a
genuine defence on the part of the appellant raised in the
written statement, the matter might stand on a different
footing for different consideration. Further, the
relationship between the parties is not in dispute that the
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appellant is the mother of the original plaintiff and
respondent is the daughter.
As per law, there is liability to maintain an unmarried
daughter. Under these circumstances, it cannot be said
that the trial Court has committed error in accepting the
case of the original plaintiff in awarding maintenance of
Rs.5,000/- per month.
9. In view of the aforesaid observation and discussion,
we find that no interference is called for with the judgment
and decree passed by the Family Court.
10. In the result, the appeal is meritless. Hence,
dismissed.
Records be sent back to the trial Court.
Sd/-
JUDGE
Sd/-
JUDGE
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