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.
(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.
…APPELLANT …RESPONDENT (BY SRI P MAHESHA, ADVOCATE) 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.
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.
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 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 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 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 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 mv