1 3611-1.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 36 of 2011 WITH FAMILY COURT APPEAL NO. 38 of 2011 WITH CIVIL APPLICATION NO. 73 of 2011 IN FAMILY COURT APPEAL NO. 38 OF 2011 Vijaykumar Jagdishrai Chawla Indian inhabitant, Hindu, age: 53 years, Occ: Business, residing at: Gate No. 477, Naigaon, Kamshet, Bombay-Pune Road, Taluka – Mahval, Dist.Pune – 410 405 ...Appellant (orig. Petitioner) v/s. Reeta Vijaykumar Chawla Indian inhabitant, Hindu, age 47 years, Occ: Service, r/at: C/o. Chandra Rajkumar Deewan, 8/1/102, Kesar CHS Ltd., Charkop Market, Kandivali (west) Mumbai – 400 067. ..Respondent (orig. Respondent) 2 3611-1.sxw Mr. S.I. Jayakar (Lalwani) for the appellant. Ms. Veena Gowda for the respondent. CORAM:- A.M. KHANWILKAR AND R.Y. GANOO, JJ. ORDER RESERVED ON: 12th August, 2011 ORDER PRONOUNCED ON : 26th August, 2011 ORDER (PER A.M. KHANWILKAR, J.) The former appeal is directed against the impugned Judgment and decree passed by the Family Court, Mumbai in Petition No. A-2320/2007 whereby the prayer of the appellant-husband for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 has been dismissed. 2. The other appeal is against the Judgment and decree passed by the Family Court, Mumbai in Petition No.C-87/2008 providing for maintenance to the respondent-wife at the rate of Rs. 40,000/- per month including accommodation charges payable from the date of the order and direction to the appellant-husband to repay the loan amount to the daughter which she had taken for pilot training. The companion civil application is filed for interim relief of stay of operation of the impugned judgment and decree which is subject matter of challenge in the latter appeal. 3 3611-1.sxw 3. Both the appeals were listed for admission. Before the appeals were heard for admission, the matters were kept in Chambers to explore the possibility of settlement between the parties. Initially, it appeared that the parties may be able to amicably resolve their disputes but eventually the parties requested the Court to hear the appeals for admission on merits as settlement was not possible. 4. Accordingly, both the appeals were listed for admission on 12th August, 2011. The Counsel argued the respective appeals for admission. Insofar as Family Court Appeal No. 36/2011 is concerned, we indicated to the parties that the same may have to be admitted and heard finally after the appeal becomes ready for hearing. As regards the latter appeal filed by the husband being FCA No. 38/2011, since the matter in issue was only with regard to the question of maintenance amount awarded by the Family Court, we heard both the parties at length. That appeal, we propose to dispose of finally by this order by consent. 5. Briefly stated, the appellant and respondent got married as per Hindu Vedic Rites on 12th November, 1986. Out of the said wedlock daughter 4 3611-1.sxw Shraddha was born on 15th August, 1987. Later on son Siddhesh was born on 26th April, 1990. The parties, however, started staying separately due to their differences from 1999. The appellant, therefore, filed petition under Section 9 of the Hindu Marriage Act for decree of restitution of conjugal rights being Petition No. A-680/2001. The appellant, however, later on withdrew the said petition as he had reason to believe that the respondent was not willing to join him. He thereafter filed Petition No. A-2320/2007 on 13th September, 2007 for dissolution of marriage solemnized between the appellant and the respondent on the ground of cruelty and desertion. The Respondent on the other hand filed Petition No. C-87/2008 seeking maintenance for herself and her daughter and other consequential reliefs. This petition came to be filed by the respondent-wife on 23rd April, 2008. 6. With regard to the issue of maintenance, the Family Court analyzed the evidence adduced by both the parties and found as of fact that the respondent-wife was employed and getting salary of around Rs. 12,000/- per month. The Court also found that the daughter Shraddha was residing with her mother i.e. respondent-wife. Further, the respondent-wife alone was maintaining daughter Shraddha who had become major and also taking care of all her educational expenses. The son admittedly started staying 5 3611-1.sxw with appellant-father. The Family Court has also found as of fact that daughter Shraddha who was staying with the respondent was pursuing Pilot Training Programme. For that, she had obtained loan of substantial amount to pay fees therefor. The respondent-wife was not in a position to take the burden of the said education expenditure of Shraddha nor was in a position to pay the loan installments. The respondent was being helped by her mother and brother financially. The Court found that the respondent was not able to maintain herself with the limited salary drawn by her. The Family Court found that on the other hand the appellant-husband was well placed in life. His income was substantial. He was engaged in business of Restaurant/Dhaba. The Family Court has adverted to the properties owned and possessed by the appellant. 7 The appellant in his cross-examination amongst others in paras 78-80 of his evidence has stated thus:- “78. .... I came to know about obtaining loan by my daughter for her course during pending proceeding. I am ready to repay the loan amount which my daughter obtained. I am having my Bungalow and Hotel on the area ad measuring 2.1 R. The area of Bungalow is 1500 sq. fts and have 3 BHK. It is true to say that I am having 3 acres of land at Kanha Phata in 1994. I am not having any flat at Kharghar. I am having a flat at Lonavla ad measuring 750 sq. fts for Rs. 3,40,000/- in 2004. I have obtained the loan. I am not having any other property except the above property. I am not having 7 acres of land at Lonavla High Way. I am having property at Mawal in district Pune. It is 11 acres 8 gunthas. 6 3611-1.sxw 79. I have showed my all properties in my Income Tax Returns. It is not true to say that I have not disclosed my entire properties in my Income Tax Returns. Copy of Income Tax Returns is shown to the witness. Hence, Ex. 37 is given to it. I have booked a flat at Thane. Presently I am having SCODA car. I purchased it before two years for Rs. 13,98, 687/- after giving my HONDA CITI Car. I am filing zerox copy of the bill on record. It is at Ex.38. The witness volunteers that the Car was taken after obtaining loan of Rs. 9 lacs. 80. I am having income from the agricultural land and Restaurant and Dhaba. I was working as a Commission Agent of Sai Dutta Shipping Agency. The witness volunteers that I closed it before two years. I purchased 10,000 sq. fts land in the name of my son at Dahivali village before one year. My sister is residing in a flat. It is not true to say that I am getting Rs. 5 lacs per month from the Restaurant. I went two times to Dubai and one time to Singapore in my entire life to attend the marriage. It is not true to say that I am going to abroad regularly. I can file copy of passport on record.” ( emphasis supplied ) 8. Adverting to the evidence on record the Family Court proceeded to conclude that the appellant has substantial income. On the other hand, the respondent had meager income and was not in a position to maintain herself as well as her daughter Shraddha. On that finding, both the petitions have been disposed of by common judgment and decree which is impugned in the present appeals. The same reads thus: 7 3611-1.sxw “: O R D E R : PETITION NO. A-2320/2007 The petition is dismissed with costs. Decree be drawn up accordingly. PETITION NO. C-87/2008 The petition is partly allowed. The respondent shall pay maintenance to her at the rate of Rs. 40,000/- per month including accommodation charges payable from the date of this order. So far as her claim for maintenance of the son is concerned, it is rejected. He shall repay the loan amount of the daughter which she has taken for pilot training. So far as her claim for maintaining of the daughter is concerned, it is rejected. Decree be drawn up accordingly. Sd/- 24/12/10 (Kum. V.J. Lohiya) Judge, Dated:- 24-12-2010 Family Court No.2, Mumbai” 8 3611-1.sxw 9. By the latter appeal the appellant has assailed the order of the Family Court requiring the appellant to pay maintenance to the respondent-wife at the rate of Rs. 40,000/- per month including for accommodation charges payable from the date of the order. The appellant has also challenged the direction issued by the Family Court requiring him to pay the loan amount obtained by his daughter Shraddha for undergoing Pilot Training Programme. 10. After hearing Counsel for the appellant for sometime on instructions of the appellant who was present in Court, Learned Counsel submitted that the appellant would not press the appeal qua the impugned order of the Family Court requiring him to pay maintenance to the respondent-wife at the rate of Rs. 40,000/- per month including for accommodation charges payable from the date of the order of Family Court dated 24th December, 2010. He submitted that the appellant would press the latter appeal only to the extent of the second direction issued by the Family Court requiring the appellant to repay the loan amount of the daughter Shraddha which she had taken for Pilot Training. Thus, the hearing of the latter appeal is confined to this limited ground. Therefore, we proceeded to hear the Counsel appearing for the parties on the said question for final disposal of appeal by consent. 9 3611-1.sxw 11. The sole ground urged by the Counsel for the appellant, is that, the respondent had no locus to file application for maintenance for and on behalf of her daughter Shraddha who had already become major in August 2005. Now let us consider this ground of challenge. The fact that daughter Shraddha has joined the Pilot Training Programme for which she had to incur substantial expenditure and, therefore, had to take loan is not in dispute. It is also indisputable that the appellant in his evidence before the Family Court plainly conceded that he was ready to repay the loan amount which his daughter Shraddha had obtained. Nonetheless, the appellant has challenged the direction issued by the Family Court requiring him to repay the loan amount obtained by his daughter Shraddha for undergoing Pilot Training Programme, purely on the legal argument that the respondent wife has had no locus to file petition for maintenance amount to be paid to daughter Shraddha, by whatever name called, who has already become major. 12. The Counsel for the respondent-wife would contend that as the appellant-husband was not disputing the factum of daughter Shraddha having obtained loan of substantial amount for undergoing the Pilot 10 3611-1.sxw Training Programme; and in his evidence having admitted that he was ready to repay the loan amount so obtained by his daughter, it is not open to him to now resile from the said commitment. It is argued on behalf of respondent that even if the daughter was major on the date of filing of the maintenance petition, that would not preclude the mother from filing petition for maintenance for herself and her daughter, who was admittedly staying with her and was being looked after and maintained by her. According to respondent, the argument advanced by the appellant before this Court for the first time is nothing but a hyper technical plea. She submits that even if the appellant was right in said argument, it would be a mere formality for the daughter to file a fresh petition before the Family Court for the relief already granted in her favour in the concluded proceedings. That would result in multiplicity of proceedings. Relying on the exposition in the case of Madhavi Ramesh Dudani v/s. Ramesh K. Dudani {1(2006) DMC 386 (DB)} it is argued by the Counsel for the respondent that no interference by this Court is warranted in respect of the impugned directions against the appellant issued by the Family Court to repay the loan amount of the daughter Shraddha which was essentially founded on the admission of the appellant himself. 11 3611-1.sxw 13. Having considered the rival submissions on the above contention, we are of the considered opinion that the argument of the appellant though appears to be attractive at the first blush is devoid of merits and deserves to be stated to be rejected. The moot question is; whether the wife can seek relief of maintenance for and on behalf of her major daughter/son. Admittedly, the petition filed by the respondent before the Family Court was one under Section 18 read with Section 20 of The Hindu Adoptions and Maintenance Act, 1956. Section 18 governs the scheme for providing maintenance to the wife. Section 20, on the other hand, deals with the regime of providing maintenance of children and aged parents. Indeed, sub-section (1) obligates the father as well as the mother to maintain legitimate or illegitimate children. Sub-section (2) of Section 20 postulates that legitimate or illegitimate child can claim maintenance from his/her father or mother so long as the child is minor. Sub-section (3) of Section 20, however, is in the nature of exception which provides for the obligation of a person to maintain his or her daughter who is unmarried and is unable to maintain herself out of her own earnings or other property. 14. In the present case, it is not in dispute that daughter Shraddha is residing with her mother. She is admittedly unmarried. Her mother has no 12 3611-1.sxw own earnings or other property except the income by way of meager salary earned by her. She is thus not in a position to take the burden of education expenditure of her daughter Shraddha which is quite substantial for undergoing the professional course. We may usefully refer to Section 21 of the Act of 1956 which defines the term ‘Dependants’. Clause (v) of Section 21 encompasses unmarried daughter as Dependant. Having regard to the relevant provisions therefore, there can be nodoubt that the unmarried daughter is entitled to receive maintenance amount from her father or mother, as the case may be, so long as she is unable to maintain herself out of her own earnings or other property. Admittedly, Shraddha has no earning of her own and is pursuing her further education. She has no property of her own from which she can derive income. As has been noticed earlier, the income of the respondent-wife from her salary is very meager. For that reason, Shraddha would be entitled to maintenance amount and her education expenses from her father (appellant). Rather the father would be obliged to pay the amount towards maintenance of her daughter and for education expenditure, in law. 15. In the case of Madhavi Dudani (supra) the wife had filed petition for judicial separation and also for permanent maintenance for herself and 13 3611-1.sxw for the minor daughters. When the matter came up to this Court by way of appeal, the daughters had become major. The father resisted the relief of maintenance amount payable to the daughters who had become major, even though they were unmarried. The Division Bench of this Court negatived the said objection in the following words:- “ We have however to note that she is looking after her two daughters. The daughters are treated as "dependants" until they get married under section 21(v) of the Hindu Adoption and Maintenance Act, 1956. They are entitled to get their maintenance from their father. Considering the fact that the appellant has been looking after these two daughters and she will be continuing to look after them hereafter until they get married. In our view, that is a "circumstance" which has got to be considered when one decides the permanent alimony to be paid to the appellant wife. Section 25 of the Hindu Marriage Act provides that a court exercising jurisdiction under the Act at the time of passing of the decree may direct the respondent to pay the applicant for her maintenance and support such gross sum or such monthly or periodical sum, 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. The Court is empowered that such payment may be secured by a charge on the immovable property of the respondent. In the circumstances of the case, we have to note that the appellant is looking after the two daughters. They have completed their education. They have become graduates in engineering and management respectively. They intend to further prosecute their studies and then get married. They do not have any income of their own. The appellant is undoubtedly spending for their education and will spend on their marriage. It will not be proper to drive the daughters to file an application under the Hindu Adoption and Maintenance Act, 1956. In our view, the phrase "other circumstances of the case" appearing in section 25 of the Hindu Marriage Act is quite elastic and while passing an order under that section, the necessary provision can be appropriately made if the circumstances so justify. 30. The respondent has been made to make such payment from time to time and Mr. Thakkar has stated that he has been making additional payment for education of her daughters on his own. The fact however remains that the burden has been on the appellant all throughout. The burden for further education and thereafter marriage is much more. 14 3611-1.sxw They are daughters of an industrialist who are being looked after by the mother. In the circumstances, though we may not provide separately for the appellant, considering these circumstances, we deem it just that separate provision should be made for the two daughters along with the appellant. The provision of such an amount will take care of their future education and marriage. In our view, it will be just and appropriate that an amount of Rs. 10,00,000/- is provided for each of the daughters. Such an amount shall be kept in RBI Bonds and the interest would be payable to the daughters concerned. At the present rate of 6% interest (tax free), each of them will get annually an amount of about Rs. 60,000/- which will be quite proper considering the cost of living and their status as daughters of an industrialist. In the circumstances, we direct the respondent to invest an amount of Rs. 10,00,000/-in the name of each of the daughters. That will reduce the burden on the appellant hereafter. That will be a contribution which is expected of the respondent as a father. He is an industrialist and quite well of. He had divorced his earlier wife. His daughter from the earlier marriage is already married and his son is an adult and is in business. He does not have any major liability. He should provide for these two daughters for their future education and marriage. Thus, though we are passing this order under section 25 of the Act, essentially we are making provision for the two daughters whose liability is otherwise on the appellant but is being shared by the respondent. This is to reduce her liability for the daughters and to make the respondent share his burden of the responsibility. That takes care of the requirement for a separate accommodation and alimony. The respondent is directed to make these deposits also within 3 months hereafter. In view of the above provision, we are not passing any order for marriage expenses though we expect the respondent to act as a good father and share in the burden as and when the occasion arises.” ( emphasis supplied ) 16. Going by the above exposition, the mother is competent to pursue relief of maintenance for the daughters even if they have become major, if the said daughters were staying with her and she was taking responsibility of their maintenance and education. In addition, it will be useful to refer to the decision of the Apex Court in the case of Jagdish Jugtawat v/s. 15 3611-1.sxw Manju Lata & ors. {(2002) 5 Supreme Court Cases 422}. In that case the wife had filed application for maintenance for herself as well as her minor daughter under Section 125 of the Criminal Procedure Code. The same was granted by the Family Court by providing amount of Rs. 500/- per month each. The husband filed revision before the High Court assailing the order of the Family Court on the ground that the daughter was entitled to maintenance only till she attained majority and not thereafter within the meaning of Section 125 of the Code. This argument was negatived by the High Court. When the matter went before the Apex Court, the Apex Court upheld the view taken by the High Court and held that the learned Single Judge was right in taking the view that “with a view to avoid multiplicity of proceedings”, no interference with the decision of the Family Court was warranted. The High Court had observed that even though Section 125 limits the entitlement of the daughter for maintenance till she attains majority, by virtue of Section 20(3) of the said Act of 1956, the daughter is entitled to receive maintenance from her mother or father till her marriage. 17. Applying the principle underlying the above dictum, we have no hesitation in negating the objection of the appellant. Instead, we hold that the respondent is justified in criticizing the objection of the appellant being 16 3611-1.sxw a hyper technical plea. Inasmuch as, even if the appellant were to succeed in the present appeal, that would not extricate him from the liability to maintain his unmarried daughter who is staying with his estranged wife. The appellant in law would be bound to not only maintain his unmarried daughter but is also responsible for her education including higher education until her marriage. 18. We may also refer to the decision of the Calcutta High Court in the case of Anwor Ali Halder v/s. Sakina Bibi {(2005) 3 CHN 649}. Even in that case, the wife had filed application for maintenance under Section 125 of the Court for awarding maintenance in her favour as also her daughter. The Court allowed the said application. After lapse of sometime, the wife filed application for enhancement of maintenance amount under Section 127 of the Code. By that time, however, the daughter had attained majority. The husband resisted the application under Section 127 on the ground that daughter had attained majority and would not be entitled to get maintenance. The Court while adverting to the decision of the Apex Court in Noor Saba Khatoon {(1997) 6 SCC 233} held that even if the daughter had become major, she was entitled to get maintenance from her father till she gets married. Even in that case the application for maintenance was 17 3611-1.sxw filed by the wife for herself and her daughter. In another case, decided by the Calcutta High Court reported in the case of Amit Roy v/s. Mira Roy {(1998) 4 ICC 348 (Cal)} and in the case of Shri Krishna Kanta Bhattacharya v/s. Smt. Shyamali Bhattacharya & anr.{C.R.R. No. 4115/2008 decided on 21st April, 2009} similar view has been reiterated. Even in this unreported decision when the application under Section 127 of the Code for enhancement of maintenance amount was filed by the wife alone for awarding maintenance amount to her as well as her daughter, by that time daughter had already become major. The Court awarded enhanced maintenance amount in favour of the daughter who had become major, to avoid multiplicity