1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 1675 OF 2010 Sovind Chandewar ...Petitioner Vs. Ketki Chandewar ...Respondent Mr.R.T. Lalwani a/w Mrs. S.I.Jayakar (Lalwani), Advocate for the Petitioner Mr.H.R.Pawar, Advocate for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 12TH MARCH, 2010 P.C. : 1. The Petitioner has challenged two orders both dated 11 th December 2009 of the 2 nd Family Court at Bandra in the Petition filed by the Respondent herein who is the daughter of the Petitioner. The Respondent has sued the Petitioner for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act 1956 (HAMA). 2. It is the Petitioner’s case that his wife carries on wine business and has her own separate independent income therefrom. The Petitioner also contends that his wife earns from an eatery which she runs from her house and from 2 the licence fees paid under a licence granted to her in respect of one residential flat. She is capable of and obliged to maintain her daughter. The Petitioner does not dispute his obligation to maintain his daughter. He contends that the Petitioner as well as his wife must both maintain their daughter and hence the extent of maintenance payable by the Petitioner must be decided only after considering the wife’s income and her obligation to maintain her daughter. 3. The Petitioner relies upon the judgment in the case of Padmja Sharma Vs. Ratan Lal Sharma, A.I.R. 2000 S.C.1398, in which, taking into account the ability of the wife to earn, it has been held that it is as much of an obligation of the father to maintain his daughter as that of the mother since under Section 20 of the HAMA the obligation is for maintenance of children and aged parents of a Hindu during his or her life time. The Supreme Court has hence considered that S.20 would include the wife or the daughter by the pronoun “her” in the Section. The Supreme Court has observed that it is not the law that even if the mother is affluent, it is only the obligation of the father to maintain his minor child. The Supreme Court has, therefore, held that the mother, who in that case was a Lecturer in the Government College whilst the husband was a Clerk in Reserve Bank of India was also obliged to maintain their children. In that case the Supreme Court considered that the salary of the husband was twice as much as of that of the wife and hence they were bound to contribute for the maintenance of their children in that proportion. A sum of Rs.3000/- per month of maintenance was fixed by the Supreme Court in that case as amount sufficient to maintain the child. That amount was directed to be 3 contributed in the proportion of 2:1 so that the husband would be liable to pay Rs.2000/- and wife Rs.1000/- per month. Based upon this ruling the Petitioner applied for adding his wife as a party Respondent in Petition No.C-102/2009 filed by his daughter against him for maintenance. The learned Family Court Judge has rejected that application which order is impugned in this Petition. 4. The learned Judge has considered not only the law laid down in the aforesaid precedent, but the merits of the case of the parties as shown by the Respondent daughter in her reply to the application taken out by the Petitioner, her father for joining her mother as a party Respondent. The learned Judge has considered that the mother looked after and maintained the daughter for her education, up-keep as well as incidental expenses. The learned Judge also considered certain fees paid by the mother for obtaining the licence for running a wine shop alleged by the father. The learned Judge has further considered that the mother has been maintaining the daughter since February 2005 and was now not in a position to maintain her solely and to the exclusion of the Petitioner, father. The learned Judge has concluded that it is a sweet choice of the Respondent herein not to ask for maintenance from her mother. 5. Mr. Lalwani on behalf of the Petitioner, father conceded that it may be a choice of the daughter not to demand maintenance from her mother. However he argued that the extent of maintenance payable by father would be required to be worked out by the Court upon considering on merits of the income of both the mother and the father and then the 4 daughter may be entitled not to claim the rightful share of the mother. 6. I am sure the mother would not grudge maintaining her daughter until she not able to maintain herself out of her own earnings. It may be that the Petitioner father, who has yet not maintained the Respondent since February 2005, may resist solely maintaining her. However the determination of the truthful picture of the earnings of both the parents would be required to determine the amount of maintenance to be granted to the Respondent daughter in her Petition. 7. The Respondent daughter relied upon 8 documents mentioned in the list of documents annexed to her Petition. She has given inspection of some documents to the Petitioner. The Petitioner concedes that inspection of some other documents need not be given for eg., his marriage certificate, though relied upon by the daughter. The Petitioner essentially applied for giving copies of the document at serial No.4 to the list of documents. That is agreement entered into with the flat purchasers (I take it that this item was meant to be in plural). The Respondent daughter has contended that the Petitioner father is a builder/developer and earns in crores. She has relied upon various agreements that he has entered into with the flat purchasers to show his income from the constructions/developments. She would certainly be required to rely upon those documents, if she requires to prove before the Court the earnings of the Petitioner father in that regard. Her Advocate states that these agreements were not in her possession and control at the time the Petition was filed and hence, could not be offered for inspection. He states that the Respondent daughter has 5 received from the Registration Authority or otherwise certain agreements entered into by the Petitioner with the flat purchasers. She would rely on those and offer them for inspection. 8. Though the Petitioner, father refuted his earning from the sale of flats by the particular business firm in which a building has been constructed on the ground that he was not a partner in that firm when the building was constructed and has not shown his actual earning, he has produced certain documents before this Court to show that his wife does carry on wine business under a licence issued by the Government. It appears that that is an admitted fact from the reply of the Respondent daughter relied upon by the learned Judge in the impugned order dated 11 th December 2009. Consequently, the earnings of her mother from that wine shop taking into account of the expenses including the fees paid to the Government of Rs.6 lakhs would have to be considered by the Court whilst considering the husband’s income from the sale of flats as alleged by the Respondent daughter. 9. Consequently the impugned orders dated 11 th December 2009 are required to be interfered with and corrected. 10.The impugned orders are set aside. 11.The mother of the Respondent herein and the wife of the Petitioner herein shall be made a party Respondent as Respondent No.2 in the Petition No.C-102/2009 filed by the Respondent daughter against the Petitioner 6 herein. The Respondent herein shall offer for inspection such of the agreements relied upon by her in item No.4 as she would rely upon to show her further income therefrom to the Petitioner’s father. 12.The Petitioner shall be entitled to show the income earned by his wife as much as the Respondent daughter shall be entitled to show the income earned by the Petitioner herein. 13.The learned Judge shall consider the respective incomes of the mother and father of the Petitioner in Petition No.C-102/2009 and decide the amount of maintenance payable to her by either or both of them. 14.The Writ Petition is accordingly allowed and Rule is granted in the aforesaid terms. (SMT. ROSHAN DALVI, J.)