KBP 532-95.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.532 OF 1995 Mrs.Anuradha Damodar Joshi and others. ..Petitioners Vs. Damodar Narayan Joshi ..Respondent ......... Mr.S.S.Kulkarni, for petitioners. Ms.P.R.Arjunwadkar, for respondent. ......... CORAM : A.S.OKA, J.. DATE : 5 th August, 2009. JUDGMENT : 1] Heard submissions of the learned counsel for the petitioners and learned counsel for the respondents. The first petitioner is the wife of respondent. Second to fourth petitioners are the children of the first petitioner and the respondent. A suit has been filed by the petitioners against the respondent in the Civil Court under the provision of the Hindu Adoption and Maintenance Act, 1956 ( hereinafter referred to as “ the said act” ). A prayer was made in the said suit for a decree directing the respondent to pay the petitioners maintenance at the rate of Rs.3,000/- from 1 st October, 1989 to 31 st January, 1990. A decree was also sought for KBP 532-95.sxw 2 directing the respondent to pay maintenance at the rate of Rs.3,000/- per month from 1 st February, 1990 onwards. A prayer was also made for keeping a charge for the maintenance amount on the joint family property as well as the flat described in prayer “C” of the plaint. 2] The first petitioner and the respondent married in the year 1969 and it appears that from the year 1990, they are residing separately. An application was made by the petitioners at exhibit 74 in the pending suit praying that the respondent be directed to pay an amount of Rs.One lack as ad-hoc marriage expenses of the second petitioner. A prayer was also made to direct the respondent to return the golden ornaments described in the application. The said application was rejected by order dated 10 th November, 1994. There were two other applications made by the respondent at exhibits 76 and 87. It must be noted that an interim order dated 2 nd April, 1991 was passed during the pendency of the suit directing the respondent to pay monthly maintenance to the third and fourth petitioners at the rate of Rs.300/- and Rs. 400/-, respectively. By the said interim order, the respondent was directed to pay monthly maintenance of RS.400/- to the 1 st petitioner. The third petitioner is born on 17 th November, 1973 and the fourth petitioner is born on 2 nd March, 1976. The applications were filed by the respondent at exhibits 76 and 87 praying that the order of maintenance to third and fourth petitioners KBP 532-95.sxw 3 be cancelled from the respective dates on which they attained the majority and excess amount paid to them by way of maintenance be refunded. By order dated 19 th October, 1994, the learned trial Judge cancelled the order of interim maintenance in favour of third and fourth petitioners from the date on which they attained the age of majority. Another direction was issued to the employer of the respondent not to deduct any amount towards maintenance of the 2 nd to 4 th petitioners. The learned Judge also directed that the excess amount of interim maintenance recovered by the 3 rd and 4 th petitioners be adjusted towards the future interim maintenance payable to the first petitioner-wife. 3] Aforesaid two orders passed below exhibit 74 as well as exhibits 76 and 87 have been challenged by the petitioners by filing this writ petition under Article 227 of the Constitution of India. On 17 th February, 1995 when this Court issued Rule on the petition, by way of interim order, respondent was directed to pay a sum of Rs.61,000/- to the second petitioner by way of expenses of her marriage. The amount was to be paid in eight weeks. The said order was passed as the marriage of second respondent was scheduled to be held in near future. As the respondent did not comply with said direction, a Contempt Petition was filed by the petitioners against the respondent. There is an undertaking filed by the respondent on record of KBP 532-95.sxw 4 civil application in this writ petition. It appears that by that time a sum of Rs. 15,000/- was deposited by the respondent. In the undertaking it was stated that a further sum of Rs.10,000/- will be deposited in the Nashik Court. An undertaking was also given by respondent to pay the balance amount of Rs. 36,000/- in two and half months. It is not in dispute that there is no material on record to show that the said balance amount has been paid by the respondent. 4] Civil Application No.2215 of 1995 was taken out by the petitioners and by order dated 17 th October, 1995 passed on the said application, this Court directed that the ad-hoc monthly maintenance at the rate of Rs.1,800/- per month shall be paid to the first petitioner from November, 1995. By the said order, this Court also directed that the trial court will not proceed with the suit unless the respondent complies with the orders passed by this court of payment of Rs.61,000/- as well as the direction given by the said order dated 17 th October, 1995 to pay monthly maintenance at the rate of Rs.1,800/- to the first petitioner. 5] The learned counsel for the petitioners submitted that the order passed by this court directing respondent to pay Rs.61,000/- as marriage expenses should be continue to operate till the final disposal of the suit. He KBP 532-95.sxw 5 further pointed that an undertaking was given by the respondent to pay balance amount of Rs.36,000/-, but the same has not been complied with. He submitted that the interim order passed by this court in Civil Application No.2215 of 1995 be continued till the disposal of the suit. 6] The learned counsel for the respondent submitted that there was no prayer made in the main suit for grant of expenses on account of marriage of the second petitioner. It is submitted that the fact that second petitioner was employed and was earning has not been considered by this court. My attention has been invited to the order passed by this court on 17 th February, 1995. It is submitted that the said order was an interim order which was to operate only till the disposal of this petition and the entitlement of petitioners to claim said amount was to be decided at the time of final decision of this petition. He pointed out that the said order notes that in the year 1992 the second petitioner has got employment. He submitted that in absence of any material placed on record and in absence of any prayer made in the main suit, the said order directing payment of Rs.61,000/- on account of the marriage expenses of the 2 nd petitioner is required to be set aside. He further submitted that the petitioners have challenged interlocutory orders and in extraordinary jurisdiction under Article 227 of the Constitution, this Court should not entertain the challenge to the interlocutory orders which could KBP 532-95.sxw 6 have been challenged in an Appeal which may be preferred in Appeal. He submitted that the third and fourth petitioners are not entitled to receive any maintenance after they attained the majority and the amount of maintenance paid in excess to them has been obviously taken by first petitioner and, therefore, the learned trial Judge was justified in directing that the excess amount paid to third and fourth petitioners shall be adjusted towards the future interim maintenance payable to the first petitioner. He submitted that the said direction is just and proper and no interference is called for. He submitted that the petition be rejected and the interim order dated 17 th February, 1995 passed by this court be vacated. 7] I have given careful consideration to the submissions. It will be necessary to deal with the challenge to the order dated 19 th October, 1994 passed below applications at exhibits 76 and 87 made by respondent. The real challenge is to the that part of the order by which excess amount of interim maintenance received by the third and fourth petitioners has been ordered to be adjusted towards the maintenance payable to the first petitioner. The case made out by the respondent is that there was no liability to pay maintenance to third and fourth petitioners after they attained the age of majority. It must be noted here that the respondent has not challenged the said order. The perusal of the said order shows that the learned Judge came KBP 532-95.sxw 7 to the conclusion that on attaining majority, the third and fourth petitioners are not entitled to receive maintenance. The grievance of respondent was that the maintenance has been paid to the third and fourth petitioners even after they attained the age of majority. In the impugned order, there is no finding recorded that the excess amount, if any, payable to the third and fourth petitioners after attaining the age of majority has been in fact received by their mother – first petitioner. Assuming that the respondent was entitled to seek refund, the said order could have been passed only against third and fourth petitioners in absence of finding that any amount has been received by the first petitioner on behalf of third and fourth petitioners after they respectively attained the age of majority. The direction given in clause “3” of the impugned order dated 19 th October, 1994 which has the effect of recovering excess amount paid to the third and fourth petitioners from first petitioner is illegal and said order deserves to be quashed and set aside. 8] As far as the prayer for marriage expenses of the second petitioner is concerned, it is submitted that as the order of maintenance passed in favour of second petitioner was set aside in the year 1992, she was not entitled to receive the expenses on account of marriage. The submission is that as the second petitioner was found disentitled to receive maintenance, she was not entitled to claim any amount on account of marriage expenses. Under KBP 532-95.sxw 8 Section 3(b) of the said Act, the maintenance has been defined to include the reasonable expenses of incidental to marriage of unmarried daughter. It is necessary to consider Section 20 of the said Аct. Sub-section 1 provides that subject to the provisions of said section a Hindu in his lifetime is bound to maintain his legitimate or illegitimate children. Sub-section 3 provides that the obligation of a person to maintain unmarried daughter extends when she is unable to maintain herself from her own earnings. As stated earlier by virtue of Section 3(b), the maintenance in case of an unmarried daughter also includes reasonable expenses of her marriage. A father is under an obligation to discharge the said liability. It is not the case of the respondent that after the second petitioner became major, she was earning income which was sufficient to meet the expenditure on her marriage. Whether the daughter is earning or not is of no consequence as it is an obligation of the father to pay reasonable expenses to the daughter on account of her marriage. It is true that the order directing to pay sum of Rs.61,000/- is an interim order. However, it is not in dispute that the second petitioner has got married. Moreover, no reply has been filed by respondent contending that the expenses incurred on her marriage are less than a sum of Rs.61,000/-. Considering these peculiar facts, the order passed by this Court directing the payment of marriage expenses of Rs.61,000/- to the second petitioner will have to be confirmed. The case made out by the respondent was that there KBP 532-95.sxw 9 was no specific prayer in the plaint in that behalf. As per aforesaid, the maintenance includes the reasonable expenses payable to the daughter on account of her marriage. Hence, the said contention has no merit. 9] Apart from this, it must be stated here that the respondent had filed an undertaking in this court to pay the balance amount out of Rs.61,000/-. However, no compliance has been made by the respondent with that undertaking. The respondent did not challenge the aforesaid order of this court directing payment of marriage expenses of Rs.61,000/-. 10] Now coming to the order passed on 17 th October, 1995 on Civil Application No.2215 of 1995, it is obvious that the said order was to operate till the disposal of this petition. The present petition is directed against the rejection of prayer for direction to pay marriage expenses of Rs.One lac to the daughter. There is no prayer in this petition for enhancement of maintenance granted to the first petitioner. The order dated 17 th October, 1995 makes it clear that the same will operate only by way of ad-hoc arrangement till the disposal of this petition. It is true that the said order will not operate after the disposal of this writ petition by this order. It must be clarified that as the said order was valid and operative till today, the respondent will not be entitled to claim any refund or claim recovery on the KBP 532-95.sxw 10 ground that the said order is no more operative. It is for the first petitioner to take appropriate steps before the trial court for grant/enhancement of interim monthly maintenance. If the said application is made, the trial court is bound to consider the same in accordance with law. 11] It appears that the respondent has not complied with the order passed by this court and, therefore, by order dated 17 th October, 1995 the proceedings of the suit was stayed till the compliance of the said order is made by the respondent. Even the same order will come to an end as a result of disposal of this petition. However, it will be open for the petitioners to apply the trial court for appropriate relief in that behalf. Hence, I pass the following order: (a) The impugned order dated 10 th November, 1994 passed below exhibit 74 is quashed and set aside and the same be substituted by order dated 17 th February, 1995 passed by this Court directing the respondent to pay a sum of Rs.61,000/- to the second petitioner by way of marriage expenses. (b) The clause “3” of the operative part of the impugned order dated 19 th October, 1994 passed by the trial court below application exhibit 76 and 87, is quashed and set aside. It is, however, clarified that the amount of interim maintenance paid by the respondent by virtue of interim orders passed during the pendency of the suit is naturally subject to the final outcome of KBP 532-95.sxw 11 the suit. (c) As a consequence of disposal of this petition, the order dated 17 th October, 1995 passed by this court in Civil Application No. 2215 of 1995 will not operate from today. It is, however, clarified that the payment of the amounts made by the respondent as per said order will be subject to the final outcome of the main suit. It is also clarified that during the pendency of the main suit, will not be open for the respondent to seek recovery of amounts paid by under the order dated 17 th October, 1995. (d) It will be open for the petitioners to take out an appropriate application before the trial Court on account of non-compliance of the order of payment of Rs.61,000/- by the respondent and if such an application is made, it will be decided in accordance with law. (e) The writ petition is accordingly disposed of in the above terms. (f) It is made clear that all contentions of the parties in the pending suit are expressly kept open. ( A.S.OKA, J. )