Court No. - 34
Case :- FIRST APPEAL No. - 639 of 2018 Appellant :- Giraja Respondent :- Smt. Rinkoo Counsel for Appellant :- Rishabh Kumar,Archit Mandhyan Counsel for Respondent :- Nannhe Lal Tripathi,Nannhe Lal Tripathi,Rakesh Singh Yadava
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. This appeal under section 19 of Family Courts Act, 1984 (hereinafter referred to as 'Act, 1984') has been filed by defendant-appellant Giraja, challenging judgement dated 18.5.2018 and decree dated 3.7.2018, passed by Principal Judge, Family Court, Ballia in Case No. 735 of 2012 (Smt. Rinku Vs. Girja) filed by plaintiff-respondent, whereby Court below has decreed above mentioned case by directing defendant-appellant to pay maintenance at the rate of Rs. 1,500/- per month and also a lump sum amount of Rs. 50,000/- towards maintenance.
2. We have heard Mr. Archit Mandhyan, learned counsel for defendant- appellant (hereinafter referred to as 'Appellant') and Mr. Nanhe Lal Tripathi, learned counsel appearing for plaintiff-respondent (hereinafter referred to as 'Respondent').
3. It transpires from record that marriage of Anoop son of appellant was solemnized with respondent Rinku (plaintiff) on 2.8.2005 in accordance with Hindu Rites and Customs. From aforesaid wedlock, a son namely, Anuj was born. Just after expiry of a little more than four years and three months from date of marriage, Anoop husband of respondent died as he was suffering from cancer. It is the case of appellant that after death of her husband Anoop, she was not only ousted from her marital home on 7.3.2010 but custody of her minor son was also retained by her father-in- law i.e. appellant Girja.
4. On account of destitution faced by widowed daughter-in-law i.e. respondent herein, she instituted Case No. 735 of 2012 (Smt. Rinku Vs. Girja) in terms of Section 19 of Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as Act, 1956') against her father-in-law, appellant herein praying for a decree of maintenance at the rate of Rs. 5000/- per month from 7.3.2010. Further a sum of Rs. 80,000/- was claimed towards arrears of maintenance from 7.3.2010 to 21.7.2011.
5. According to plaint allegations, marriage of respondent (plaintiff) was solemnized on 2.8.2005 with Anoop son of appellant (defendant) herein in accordance with Hindu Rites and Customs. On the next day of marriage, respondent came to her matrimonial home. From the aforesaid wedlock, a son namely, Anuj was born. Husband of respondent (plaintiff) was subsequently diagnosed of having cancer. He, ultimately, died because of same on 26.11.2009. After death of Anoop husband of respondent conduct of appellant (defendant) i.e. father-in-law, his wife i.e. mother-in-law and his two married daughters i.e. nanad of respondent was neither conducive nor cordial towards respondent. She was continuously harassed and tortured mentally and physically on account of untimely death of her husband. So much so that on 7.3.2010, respondent was forcibly ousted from her matrimonial home. Custody of minor son of respondent was retained by appellant who is his grand-father. She has no independent source of income nor her parents are capable enough of maintaining her. Appellant being father-in-law of respondent is under legal and moral obligation to maintain her. As same has been refused to be done by respondent, she has now filed above mentioned case, claiming maintenance at the rate of Rs. 5000/- per month. Further a sum of Rs. 80,000/- was also claimed towards arrears of maintenance from 7.3.2010 to 21.7.2011.
6. Suit filed by respondent (plaintiff) was contested by appellant (defendant). Accordingly, appellant filed a written statement whereby not only plaint allegations were denied but also additional pleas were raised.
Appellant in his written statement admitted marriage of respondent (plaintiff) with Anoop Kumar Verma, his son on 2.6.2005 in accordance with Hindu Rites and Customs. He further admitted that from the aforesaid wedlock a son namely Anuj was born. It was however pleaded that just after 15 days of marriage, plaintiff started residing with her husband Anuj separately in District Buxar, Bihar. On aforesaid premise, allegations made in plaint regarding commission of physical and mental cruelty upon her were denied on account of being non existent. It was further pleaded that on account of marital discord, parties have entered into mutual divorce which has been recorded by way of memorandum dated 5.8.2007. Respondent is having independent source of income, as she is running a general merchandise shop and also a flour mill (ata chakki). Consequently, she is not entitled to any maintenance from appellant. Appellant is aged about 75 years and his wife is aged about 70 years. On account of his old age, appellant is unable to employ himself in any service or do any kind of business. With difficulty, appellant is able to maintain himself, his wife and his grand-son. On above noted defence, appellant pleaded that suit of respondent be dismissed.
7. On aforesaid pleading of parties, Court below framed following issues for determination:
I. Whether plaintiff is entitled to receive maintenance from defendant.
II. Whether Plaintiff is entitled to any relief. If yes, then to what relief.
8. Subsequently two additional issues were framed:
IA. Whether suit filed by plaintiff is factually and legally maintainable.
IB. Whether suit filed by plaintiff is barred by principles of estoppel and acquiescence.
9. After aforesaid issues were framed parties went to trial. Respondent in support of her case adduced herself as P.W.-1 and Rajesh Prasad as P.W.-2 Respondent also filed documentary evidence namely photocopy of marriage card, certified copy of Khatauni of Village Madhopur. Appellant examined himself as OPW-1 and in documentary evidence submitted memo of divorce dated 05.08.2007.
10. In respect of issue no.1 regarding entitlement of plaintiff to receive maintenance, Court below concluded that burden is upon plaintiff to prove the same. Upon evaluation of material on record, Court below decided above mentioned issue in favour of plaintiff by holding that plaintiff is entitled to maintenance. While answering aforesaid issue in favour of plaintiff, Court below observed that it is an admitted fact that respondent is widowed daughter-in-law of appellant. It is also an admitted fact that from the wedlock of respondent and son of defendant, a son Anuj was born. Husband of plaintiff died on 20.11.2009 on account of cancer. Right of widowed daughter-in-law to seek maintenance is recognized in law by virtue of Section 19 of Hindu Adoption and Maintenance Act 1956 (hereinafter referred to as Act, 1956). There is no prohibition in Act, 1956 that after divorce a Hindu widow is not entitled to claim maintenance from her father-in-law. Further more divorce can be granted only by a Civil court of competent jurisdiction as per mandate of Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as Act, 1955). As no decree of divorce has been granted in favour of Anuj Kumar, husband of plaintiff, as such, memo of divorce dated 05.08.2007 is of no use.
11. Burden to prove issue no.2 i.e. whether respondent is entitled to any relief was upon appellant. Consequently, appellant was required to prove that respondent was earning and has independent source of income. Moreover, it was further required to be proved that respondent can maintain herself from property of her child. However, no such evidence was adduced by appellant on the basis of which it could be concluded that respondent is able to maintain herself from her own income or from income derived from property. Though, appellant has pleaded in written statement that respondent is having a general merchandise shop and is also running a flour mill, from which she is earning Rs. 10,000/- per month, as such, respondent is capable of maintaining herself, but, no documentary evidence was adduced by appellant in support of his defence as noted above. To the contrary in his cross examination, appellant admitted that his daughter-in-law i.e. respondent is not employed nor to his best knowledge respondent has any movable or immovable property. Placing reliance upon judgements of Punjab and Haryana High Court in Gurdeep Kaur Vs. Ghamand Singh, AIR 1965 (P & H) 235 and Balbeer Kaur Vs. Harinder Kaur, AIR 2003 (P & H) 174. Court below concluded that a widowed daughter-in-law can claim maintenance from self acquired property of her father-in-law. As such, Court below held that respondent is entitled to claim maintenance from her father-in-law under Section 19 of Act 1956.
12. Issue No.3 was in respect of maintainability of suit. Aforesaid issue was decided in favour of respondent by holding that suit filed by her for claiming maintenance is duly maintainable by virtue of section 19 of Act 1956.
13. With regard to issue no.4, Court below held that suit filed by respondent is not barred on account of principles of estoppal or acquecense.
14. Upon consideration and evaluation of material on record, Court below vide judgement and order dated 18.5.2018 answered issue no. 2 in the affirmative and held that respondent is entitled to lump sum maintenance which was quantified as Rs. 50,000/- and further Rs. 1500/- per month towards monthly maintenance from the date of judgement.
15. Thus, feeling aggrieved by judgement and order dated 18.5.2018, passed by Court below, defendant i.e. appellant herein has approached this Court by means of present first appeal.
16. Instant first appeal was heard on 2.12.2019 and a co-ordinate Bench of this Court passed following order:
“Learned counsel for the parties jointly submitted that an effort may be made by this Court to get this matter, which has arisen out of matrimonial dispute between the appellant and the respondent, settled amicably before this Court.
In view of above, list this matter on 17th December, 2019.
On that date, the appellant Giraja as well as the respondent Smt. Rinkoo shall appear before us in person with the child.
Interim order already granted shall continue till the next date of listing. ”
17. In compliance of aforesaid order, appellant Giraja accompanied by his grand son as well as Smt. Rinkoo daughter-in-law of appellant appeared before the Court.
18. Looking into the delicate relationship and the conflicting claims of parties, we directed that matter shall be taken up in chambers. Accordingly, we held conversation with the minor child to ascertain his willingness to reside with his mother or with his grand-parents and whether any amicable settlement could be arrived at or not, between parties.
19. Child Anuj was not in compromising terms and in no circumstance was ready to leave his grand parents. Considering the fact that the child is a student of Class-VII and is not of a tender age as he is above ten years, we gave up the issue of custody of Anuj as any direction issued by us in this regard would be futile.
20. Coming to the next question i.e. just compensation for widowed daughter-in-law i.e. respondent, we specifically requested learned counsel for parties to resolve the dispute amicably as it is an undisputed fact that respondent (plaintiff) is widowed daughter-in-law of appellant She is unemployed and not having any income from property by which she can maintain herself. Further we also indicated learned counsel for appellant that Court below has awarded a sum of Rs. 1500/- per month only, which in our view, is insufficient for maintaining oneself.
21. Mr. Archit Mandhyan upon permission granted to him by appellant submits that appellant is ready for enhancement of compensation but this Court may take one fact into consideration and i.e. that appellant is a retired Police Constable who is getting only Rs. 12,000/- as pension in which he has to maintain himself his wife and his grand son.
22. Considering the harsh life led by both the parties we were ourselves in a fix as to how to adjust equities between parties. However, both counsel agreed that no useful purpose shall be served by keeping this appeal pending. Interest of justice can better be served in case some adjustment is made which shall be beneficial for both the parties as litigation shall come to an end.
23. Accordingly, in order to adjust equities between parties, we modify the judgement and decree passed by Court below by directing that the amount of lump sum compensation of Rs. 50,000/- awarded by Court below shall stand enhanced to Rs. 75,000/-. Further the amount of monthly maintenance awarded by Court below at the rate of Rs. 1,500/- per month shall stand modified at the rate of Rs. 3000/- per month. The monthly maintenance at the rate of Rs. 3000/- shall be payable from the date of order passed by Court below i.e. 18.5.2018. The enhanced amount of compensation i.e. Rs. 75,000/- as well as arrears of compensation at the rate of Rs. 3000/- per month from May, 2018 to December, 2019 i.e. 57,000/- shall be paid by means of two separate bank drafts payable in the name of respondent, within a period of one month from today.
24. With the aforesaid directions, this appeal stands finally disposed of. Cost made easy.
Order Date :- 17.12.2019 Arshad