IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 17 of 2008 Bakshish Ram Dhiman, S/o Battan Chand, R/o House No. 162 Hargovind Nagar Fagwara, District Kapoorthala. …………..Appellant. Versus Smt. Ashima W/o Shri Aashu @ Manjeet Singh, D/o Shivdayal Dhiman, R/o J-280 Shivalik Nagar, B.H.E.L. Haridwar, District Haridwar. ..….…..Respondent. Sri Dinesh Chauhan, Advocate, holding brief of Sri N.S. Negi, Advocate for the appellant. Sri N.C. Gupta, Advocate for the respondent. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral- Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and decree dated 10.05.2007, passed by learned Judge, Family Court, Haridwar, in Suit No. 32 of 2002, whereby the respondent’s petitions under Section 13 and 25 of Hindu Marriage Act, 1955, are allowed. Apart from decreeing the petition for divorce against respondent Aashu @ Manjeet Singh (son of the present 2 appellant), a decree of alimony is passed against both the respondents i.e. husband and father-in-law, by the trial court. (2) Heard learned counsel for the parties and perused the lower court record. (3) Brief facts of the case are that petitioner Ashima (present respondent) got married to Aashu @ Manjeet Singh (son of the present appellant) on 09.02.1995 in Haridwar. A daughter Vina was born out of the wedlock. However, thereafter parties to the matrimony could not pull on well. Petitioner Ashima (present respondent) filed a petition under Section 13 of Hindu Marriage Act, 1955, against her husband and father-in-law with the allegation that her husband is a drunkard and in drunken state he beats her. On 18.05.1998, the husband (Aashu @ Manjeet Singh) left for United States of America and did not bother to look after his wife or daughter. As such, it was alleged by the petitioner (present respondent) before the trial court that not only the husband committed cruelty against his wife but also deserted her and did not maintain her. Also, a petition under Section 25 of Hindu Marriage Act, 1955, was filed by the wife against her husband and against the father-in-law for permanent alimony claiming that the husband and father-in-law have many properties in Delhi and Phagwara. It was further prayed that she be given maintenance at the rate of Rs.50,000/- per month. (4) Aashu @ Manjeet Singh, husband of the present respondent did not contest the petition before the trial court 3 and suit proceeded ex-parte against him. However, the father- in-law (present appellant) Bakshish Ram Dhiman did appear before the court and filed his written statement. However, at the stage of final hearing, he too stopped coming before the trial court. In the circumstances the trial court heard the argument of the petitioner and decreed both the petitions i.e. one filed under Section 13 and other filed under Section 25 of Hindu Marriage Act, 1955. While granting decree of divorce between the parties to the matrimony, the trial court also directed both the defendants (husband and father-in-law) to pay Rs.7500/- per month to the petitioner (wife) and it further directed that Rs.7500/- per month be paid to the daughter Vina as maintenance. (5) Aggrieved by said judgment and decree dated 10.05.2007, passed by Judge, Family Court, Haridwar, this appeal is preferred before this Court by Bakshish Ram Dhiman (father-in-law). (6) Learned counsel for the appellant (father-in-law) drew attention of this Court to the provision of Hindu Marriage Act, 1955, and argued that it is not the liability or responsibility of the father-in-law to pay maintenance to the divorced wife of his son or son’s daughter. In this connection, we think it just and proper to quote the provisions contained in Section 25 of Hindu Marriage Act, 1955, which reads as under:- “25. Permanent alimony and maintenance.-(1) Any court 4 exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. 5 (3) If the court is satisfied that the party in whose favour an order has been made under this section has re- married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.” From perusal of the aforesaid provision it is very clear that the petition under Section 25 of Hindu Marriage Act, 1955, can be filed either by wife or husband against its spouse for the alimony and maintenance. It nowhere imposes liability or responsibility on the father-in-law to pay alimony or maintenance to the divorced wife of son or the daughter of the son. (7) Sri N.C. Gupta, learned counsel for the respondent Ashima (divorced wife) drew our attention to Section 19 of the Hindu Adoptions and Maintenance Act, 1956, and contended that father-in-law can be directed to maintain the daughter-in- law and her children. Section 19 of the Hindu Adoptions And Maintenance Act, 1956, reads as under:- “19. Maintenance of widowed daughter-in-law.-(1) A Hindu 6 wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided that to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own is unable to obtain maintenance- (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub- section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.” Aforesaid provision of Hindu Adoptions and Maintenance Act, in our opinion, evidently makes it clear that it applies to 7 the widowed daughter-in-law and it does not apply to the divorcee daughter-in-law. As such, we do not agree with the submission of learned counsel for the respondent Ashima that the decree passed by the trial court is valid to the extent it imposes the liability on the father-in-law to pay the maintenance. As far as decree of divorce is concerned, the same has attained finality as no-one has challenged the decree of divorce between respondent Ashima (who was petitioner before the trial court) and her husband Aashu @ Manjeet Singh. Also there is no dispute as to the fact that the husband is liable to pay the maintenance awarded by the trial court granted in favour of Ashima (present respondent) and her daughter Vina. (8) In the circumstances, and for the reasons discussed above, we are of the view that the decree passed by trial court is erroneous in law only to the extent that it imposes the liability on the father-in-law (present appellant) to pay maintenance to the divorced daughter-in-law and her daughter, that too under the provision of Hindu Marriage Act, 1955. It is also pertinent to mention here that the trial court has nowhere given any finding that there is any coparcenary property with the father-in-law. (9) Therefore, this appeal of appellant (father-in-law) deserves to be allowed. The same is allowed. The impugned judgment and decree dated 10.05.2007, passed by Judge, Family Court, Haridwar, in Suit No. 32 of 2002, is set aside only to the extent it directs the respondent Bakshish Ram Dhiman to 8 pay Rs.7500/- as maintenance to present respondent (Ashima) and her daughter Vina. While allowing the appeal of Bakshish Ram Dhiman (father-in-law), we clarify that the decree passed under Section 13 of Hindu Marriage Act, 1955, relating to dissolution of marriage between Ashima and her husband Aashu @ Manjeet Singh is affirmed, and the decree of maintenance passed under Section 25 of Hindu Marriage Act, 1955, to the extent it directs the husband to pay aforesaid amount of maintenance shall remain unaffected and can be executed against him. Costs easy. (Dharam Veer, J.) (Prafulla C. Pant, J.) 26.06.2008 NS