IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.474 of 2009 SMT.ANUPAMA RANI @ SMT.ANUPAMA WIFE OF SRI RABINDRA KUMAR, D/O SRI KRISHNDEO PRASAD SINGH, RESIDENT OF B-1, AVIYANTA NAGAR, AT PRESENT E-4, AVIYANTA NAGAR, NEAR RAM NAGARI MORE, ASHIANA COLONY, P.S. SHASTRI NAGAR, IN THE TOWN AND DISTRICT PATNA.............................................................- APPELLANT Versus RABINDRA KUMAR, SON OF SRI AWADHESH KUMAR, RESIDENT OF ‘ SHAKUNTALA SADAR’, 50 A/842 CHITRAGUPTANAGAR, P.S. PATRAKAR NAGAR (KANKARBAGH), IN THE TOWN AND DISTRICT- PATNA.. .............................................................................RESPONDENT. ----------------- 9 4-2-2010 Heard the parties. The appellant is wife of the respondent and has preferred Matrimonial Case No. 36 of 2006 under section 24 of the Hindu Marriage Act ( hereinafter called the Act) for claiming maintenance for herself and for her minor son, a child born on 22-1-2003. By the order under appeal dated 27-7-2009 the learned Principal Judge, Family Court, Patna declined to award any maintenance for the minor child on the ground that the petition was labelled under section 24 of the Act. Further, against claim of the appellant for a monthly maintenance of Rs.12,500/- she was held entitled for a monthly maintenance amount of Rs.1500/- only. Aggrieved by the quantum of maintenance granted to her and denial of maintenance to her minor child she has preferred this appeal. On behalf of appellant her oral evidence and pleadings were referred to support the contention that the respondent had a flat in Calcutta, a house in Kankarbagh Colony, Patna, agricultural land to the extent of 18 Bigha in Nalanda District, Bihar and at the time of - 2 - marriage his parents and he disclosed that he is in Merchant Navy and earning Rs.50,000/- per month. As against this learned counsel for the respondent has submitted that not a chit of paper has been filed to substantiate the aforesaid claim. It has been submitted that the flat in Calcutta was jointly occupied by the parties for sometime on rent. It is further case of the appellant that the house at Patna belongs to his mother and is recorded in her name and as per deposition of his father in the court below, the family does not have any ancestral land at the village in question. It has further been submitted that it is consistent case of the respondent that he is not in service in Merchant Navy and is unemployed having no source of income. Thus, according to learned counsel for the respondent the award of Rs.1500/- per month as maintenance needs no interference and since the petition was under section 24 of the Act, as per decision of this Court reported in AIR 1972 Patna 80 rendered in the case of Bankim Chandra Roy Vrs. Anjali Roy no monthly allowance can be granted under section 24 of the Hindu Marriage Act for maintenance of children. In reply, learned counsel for the appellant has placed reliance upon a later judgment of this Court in the case of Indudhari Sinha Vrs. Rita Singh, reported in 1997 (1) PLJR 696 in support of the proposition that if while considering the petition under section 24 of the Act, the Court directed husband to pay maintenance to minor children, the order cannot be treated as illegal only because a separate petition under section 26 of the Act was not filed by the wife. From paragraphs 22 and 23 of the aforesaid judgment it was shown that - 3 - while taking the aforesaid view in the later judgment, the Hon’ble Judge also took into consideration the judgment in the case of Bankim Chandra Roy Vrs. Anjali Roy (supra). On considering the rival contentions in respect of maintenance for the minor child, we are of the considered view that as a Family Court the learned Principal Judge of that court did not act properly in refusing maintenance for the minor child only on the technicality that the petition was not labeled under section 26 of the Act. If he thought the labelling to be so important, in the interest of justice he should have permitted the appellant -wife to label the petition properly through technical amendment. So far as quantum of maintenance is concerned, we find that the appellant has been mis-led to believe that only by oral evidence and giving location of property she can succeed in getting maintenance . She has to bring on record further materials by way of monthly rent receipts or agricultural rent receipts, Zamabandi Khatian etc. to show that there was substantial property belonging to the respondent and the same was earning or was sufficient to earn income in favour of the respondent. In absence of such particulars, at present it will not be proper for us to interfere with the quantum of maintenance granted to the appellant. Further, we are of the considered view that the claim for maintenance on behalf of minor child of the appellant and respondent must be considered on merits by the learned court below and such claim cannot be denied on the technicality that the petition filed by the appellant-wife is only under - 4 - section 24 of the Act . It goes without saying that when the appellant- wife would pray, she should be given opportunity to insert section 26 of the Act also in her petition for maintenance or otherwise also the court below must consider the claim for maintenance of the minor child on merits. Having held so, we think that the present matrimonial case no. 36 of 2007 requires to be considered and heard along with matrimonial case no332 of 2002 filed by the respondent in which, allegedly now a claim for divorce has also been made by the respondent. A family court is expected to consider entire facts and circumstances of the family for resolving the dispute between the members. Piece-meal consideration of a case for compensation like the present one separately from another case for divorce will not serve the purpose of the Family Court. In that view of the matter it is expected that after this order through which we remand the matter to the Family Court, the issue of quantum of maintenance passed for the appellant and her minor child shall be considered on merits in accordance with law. A reasonable opportunity shall be given to the appellant to produce further materials if she wants to corroborate her claim by giving better particulars relating to property and income of the respondent. The court below shall make an effort to decide the claim for maintenance of the minor child as well as the quantum of compensation for the appellant as indicated above within a reasonable time, preferably within six months. We have not interfered with the cost of litigation which has - 5 - been awarded by the Family Court to the tune of Rs.5,000/- treating it as interlocutory. Such matter shall be dealt by the Family Court finally at the appropriate stage. From the submissions of the parties, it appears that even after the order under appeal was passed on 27-7-2009 directing for payment of maintenance by 7th of each month, neither the maintenance amount nor the lump-sum cost amount has been paid as yet by the respondent. Such attitude must be deprecated. We direct the respondent to deposit the arrears of maintenance of Rs.15,00 per month in lump sum within a period of one month from today as also the amount of costs of Rs. 5,000/-. The maintenance for current period must also be regularly deposited by 7th of each month. If the direction is violated by the respondent the learned court below will take recourse to provision of the law for taking suitable action against the respondent. The appeal is disposed of. ( Shiva Kirti Singh,J) ( C.M. Prasad, J) Naresh