abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 94 OF 2003 1. Alisha d/o Dinesh Madhavji Pandhi 2. Twinkle d/o Dinesh Madhavji Pandhi .. Appellants V/s Dinesh Madhavji Pandhi .. Respondent Mr.Kamal Khatta i/b Mrs. Shashikala Sharma for the appellants. Mr.Munir Merchant for the respondent. CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ. DATE : 6TH FEBRUARY 2009 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: (Per B.H. Marlapalle, J.) 1. This appeal filed under section 19 of the Family Courts Act, 1994 arises from the judgment and decree rendered by the Family Court at Mumbai on 30th August 2003 thereby partly allowing Petition No.C-119 of 1995. - 2 - 2. The appellants are daughters of the respondent and they had filed the petition before the Family Court through their mother and natural guardian. 3. Charu and Dinesh were married on 20th March 1982 and they begot the first child - daughter Alisha on 19th November 1983, whereas the second daughter - Twinkle was born on 15th October 1989. For the reasons stated in paragraphs 5 to 9 of their petition, the appellants with their mother left the father’s home and joined their maternal grandparents at Mumbai some time in January 1993. It appears some attempts were made for reconciliation between the spouses for about 2 years and finally the petition for maintenance was filed by the appellants in April 1995 before the Family Court at Mumbai. The respondent father filed the written statement at Exhibit-3 and opposed the application. He denied all the allegations, but, at the same time, he did not deny in totality the claim of the appellants to receive maintenance. He stated that the appellants under the influence of their mother had left the father’s company and they must suffer the consequences. He also pointed out that they were free to come back and join his company and he was ready to maintain them, including their expenses for education. 4. During the pendency of the petition before the - 3 - Family Court, the mother left for the United States of America sometime in the year 1996-97 for a job (initially on stipend and subsequently on regular salary). The elder daughter Alisha though completed 18 years on 18th November 2001, left India to join her mother in May/June 2001 and thus the younger daughter Twinkle alone continued to stay with her grandparents and the maternal uncle and his family. 5. On behalf of the appellants, the maternal uncle stepped in the witness box (Exhibit-20) and the respondent stepped in the witness box to oppose the claim (Exhibit-25). The Family Court noted in the impugned judgment that Alisha had attained majority and did not remain present before the court to depose in support of her claim and consequently her claim was not considered. The Family Court was pleased to allow the claim of the younger daughter partly and directed the respondent father to pay an amount of Rs.7000/- per month towards her maintenance from the date of the order, i.e. 30th August 2003. No satisfactory reasons have been set out to deny the maintenance amount to Twinkle from the date of the application and, at the same time, to Alisha from the date of the application to the date of her departure for U.S.A. or till the date she was minor. - 4 - 6. The impugned judgment has been attacked on multiple grounds by the learned counsel for the appellants. He pointed out the oral depositions of the maternal uncle as well as the father and submitted that each of the children ought to have been granted Rs.25,000/- per month. He also submitted that though Alisha was not present before the court after she ceased to be a minor within the meaning of section 3(c) of the Hindu Adoptions and Maintenance Act, 1956 (for short "the Act"), her claim from the date of filing till she ceased to be a minor ought to have been considered by the Family Court and she should have been awarded maintenance amount more than what has been awarded to the younger daughter in view of the expenses being more for her. In support of his arguments, the learned counsel for the appellants placed reliance on the following decisions of the Supreme Court: (1) Padma Sharma v. Ratanlal Sharma, (2000) 4 SCC 266 (2) Ruma Chakraborty v. Sudha Rani Banerjee, (2005) 8 SCC 140 He also relied upon a decision of this Court (D.B.) in the case of Mansi A. Pusalkar v. Aniruddha R. Pusalkar, 2002 (6) Bom.C.R. 262. - 5 - 7. The learned counsel for the respondent father has supported the impugned decree passed by the Family Court. He pointed out that none of the appellants had stepped in the witness box and testimony of the maternal uncle could not have been considered by the Family Court in view of the decision in the case of Janki Bhojwani v. Indusind Bank Ltd., AIR 2005 SC 439. 8. We are required to consider - (a) Whether the maintenance amount granted to the younger daughter is adequate? (b) Whether Alisha was required to be granted maintenance till she attained the age of 18 years or till May/June 2001 when she left to join her mother in U.S.A.? and (c) Whether the maintenance was required to be granted from the date of the application? 9. As noted earlier, on behalf of the appellants their maternal uncle Shri Atul Sonpal was examined as a witness. He stated that when the appellants along with their mother came to stay in his house, Alisha was 11 years whereas Twinkle was 5 years of age in 1993. The - 6 - annual expenses for Alisha were Rs.1.30 lacs whereas for Twinkle the said amount was Rs.1.5 lacs. He further stated that at the relevant time when he was in the witness box, the expenditure for Twinkle was Rs.1.80 lacs per annum. He pointed out that the respondent is a well-known surgeon and has his own hospital and on an average he was earning Rs.1 lac per month whereas his present income ought to be Rs.8-10 lacs per month. He also stated that the monthly expenses on each daughter would be around Rs.75,000/- and that they needed a separate residence as they were grown up. He was cross examined on behalf of the respondent and his depositions regarding monthly or annual expenditure remained unchallenged. 10. The respondent examined himself to oppose the maintenance application. He stated that the wife continued to work in U.S.A. since 1996 and as per his information, she was getting about $100,000 per year. In his cross examination, he admitted that he had no definite information about her employment as well as monthly or annual income. He further stated that his income was Rs.1,80,000/- per annum and in 1992 the same was Rs.80,000/- per annum. He admitted that since 1992 he had not paid any amount for the maintenance of his daughters, but he was ready and willing to pay Rs.3,000/- per month for both the daughters. He also - 7 - admitted that he runs a hospital on his own and initially it was named as "New Hospital" and subsequently it has been named as "Yogi Hospital". The hospital was constructed on the land purchased by him and started from 18th November 1998. The building consists of three floors and on the first floor there is a general hospital, operation theatre on the second floor and on the third floor he has his residence. He denied that there were about 35-40 employees in the hospital, but admitted to have about 9 employees. He denied that he was earning Rs.1 lac per day. He also denied that his income was Rs.1 crore per month and admitted to have immovable assets of the hospital premises and the flat purchased At Amreli. He also denied that he had constructed a complex at Pune along with his brother. He also admitted about his investments in shares and debentures. 11. Section 20 of the Act provides for maintenance of children and aged parents and states that a Hindu is bound to maintain his legitimate or illegitimate children and a child may claim maintenance from his or her father or mother so long as the child is a minor. As per sub-section (3) of section 20 of the Act, the obligation of a person to maintain his or her unmarried daughter extends insofar as the unmarried daughter is unable to maintain herself out of her own earnings or - 8 - other property. In the instant case, admittedly in November 2001 the elder daughter Alisha ceased to be a minor and, therefore, it was necessary for her to appear before the court and either in person or through her constituted attorney to depose about her earnings or other property more so when she had left India sometimes in May/June 2001 and has been staying with her mother in U.S.A. The learned Judge of the Family Court, therefore, noted that Alisha attained majority and did not remain present before the court to demonstrate that she was without any earnings or property and consequently her claim was not considered. In our opinion, no fault could be found with the view taken by the leaned Judge of the Family Court so far as the payment of maintenance to Alisha is concerned after she attained the age of 18 years. However, we do not agree that her claim was required to be rejected in its entirety. From the date of filing of the application till 18th November 2001, her claim could have been considered and dealt with on merits and to this extent, we are of the view that the Family Court fell in error. 12. Section 23 of the Act deals with the amount of maintenance which shall be in the discretion of the court to determine and in doing so, the court shall have due regard to the consideration set out in sub-section (2) or (3) thereunder. Sub-section (2) of section 23 of - 9 - the Act is for determining the amount of maintenance to be awarded to wife, children or aged or infirm parents, whereas sub-section (3) provided for determining the amount of maintenance to be awarded to the dependant. The Family Court, while computing the amount of maintenance, is required to consider the provisions of sub-section (2) or sub-section (3) of section 23 of the Act depending on the claimants’ relationship with the person from whom the maintenance is sought to be paid. 13. In the instant case, the appellants had provided sufficient reasons to leave separately from their father and undoubtedly the father did not extend any financial support after they had left his home in January 1993. The depositions of the maternal uncle having gone unchallenged on the amount of monthly expenditure separately for both the appellants and even if we presume that the mother, who was alleged to be earning in U.S.A., was required to share the monthly expenditure, the amount of Rs.7,000/- granted to Twinkle from the date of the order is not justified. The Family Court has not given any reasons as to why the claim from the date of the filing of the application could not be considered. We are also of the view that the Family Court has not been able to appreciate the oral evidence of the maternal uncle. He had clearly stated in his depositions that there were four family members earning - 10 - independently in his family and it was not that only one of the family members was engaged in the business. The Family Court has proceeded on the assumption of the deponent’s income alone, which, in our opinion, is an error apparent on the face of the record. The appellants’ guardians had sufficient income to meet their requirements financially despite the fact that there are other family members in the maternal uncle’s home. If we accept Rs.1.5 lacs to Rs.2 lacs as the yearly amount of maintenance required to be spent on Twinkle, on an average each of the parents would be required to share anywhere from Rs.75,000/- to Rs.90,000/-. The Family Court has granted Rs.7,000/- per month and we do not find any fault with this quantum, but as noted earlier the same is required to be provided from the date of the application, i.e. April 1995. In the case of Alisha, the evidence of the uncle speaks of less amount at least for the period when she was a minor. He stated that for Alisha, the annual expenditure was Rs.1.30 lacs and if it is required to be shared between the two parents, in our view, the father ought to have paid at least Rs.5,500/- per month from the date of the application till she attained the age of 18 years or left India sometimes in May/June 2001. The oral evidence adduced on behalf of the appellants is not elaborate on the point of other expenditure on account of their education by tuitions etc. and, therefore, we - 11 - have considered the amount as stated in the oral depositions of the uncle. Having regard to the financial capacity of the respondent father and the fact that he is owning and running a hospital with at least 9 employees, we find that it is well within his income to pay maintenance amount to both the daughters from the date of the application, i.e. April 1995. 13. The learned counsel for the respondent father had argued that the maternal uncle’s depositions could not be treated as the evidence on behalf of the appellants. We do not agree with the same. The appellants have been staying in his house right from the day they arrived in Mumbai along with their mother and along with his parents he has been one of the caretakers, the money was being spent from his home either from his earnings or the earnings of the other family members and, therefore, he was personally aware of the expenditure incurred on the upbringing of the minors. Hence, the decision in the case of Janki Bhojwani relied upon by the learned counsel for the respondent father is not applicable to the facts of this case. 14. In the premises, this appeal succeeds partly and we direct that appellant Twinkle shall be entitled for maintenance at the rate of Rs.7,000/- per month from the - 12 - date of the application till the date of the order of the Family Court and thereafter she will be entitled to the amount of Rs.10,000/- per month by way of maintenance till she attained the age of 18 years. . Appellant Alisha shall be entitled for maintenance at the rate of Rs.5,500/- per month from the date of the application till May 2001. . We direct the respondent to pay the maintenance accordingly and the arrears, if any, shall be paid by a demand draft drawn in the name of appellant no.2 - Twinkle having S/B bank account no.36222 with Bank of Baroda, Vile Parle (East) Branch within a period of 2 months from today. 15. The appeal is allowed in the above terms but with costs. (D.G. KARNIK, J.) (B.H. MARLAPALLE, J.)