Tuesday, 15 September 2020

Bombay HC: Wife can claim maintenance from her father in law after the death of her husband from estate inherited by him

 At the outset, it is required to be submitted that the plain
reading of Section 19 of the Act contemplates that the respondents
have every right to claim the maintenance after the death of husband
from the estate inherited by her father-in-law i.e. the present petitioner.
That proviso to Sub-Section (1) of Section 19 contemplates that the
respondent has to demonstrate that she on her is unable to maintain
herself. It is in this eventuality she can claim maintenance from the
estate of her husband, still fact remains that the said burden can be
discharged by respondent no.1 at an appropriate stage. The object with
which the provision is made in the statute book for grant of interim
maintenance cannot be ignored.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.4054 OF 2020

Sardool Singh Sucha Singh Matharoo Vs.  Harneet Kaur widow of Bhupinder Singh Matharoo & Anr. 

Coram : NITIN W. SAMBRE, J.
Date : 7th September, 2020


1. Heard the respective counsel.
2. The petitioner takes an exception to the order dated 28th
January 2020 passed by the Family Court No. 3, Bandra, Mumbai below
Exhibit 15, an application for grant of interim maintenance in Petition
No. C-69 of 2018.
3. The facts necessary for deciding the present petition are as
under :

The petitioner was blessed with two sons. Late Bhupinder,
who was married to respondent no. 1 on 12th December, 2004 and died
on 21st May, 2015. Respondent no.2, son was born out of the above
marriage.
The mother of respondent no.1 died in the year 2016,
whereas her father died in February, 2017. It is her case that she has no
independent source of earning and she and her son are completely
dependent on the earnings of the petitioner.
4. It is, in this background, respondent no.1 preferred the
proceedings under Sections 19 and 22 of Hindu Adoption and
Maintenance Act, 1956 (hereinafter referred to as “the Act” for the sake
of brevity) with a prayer for grant of maintenance of Rs.1,50,000/- per
month to petitioner no.1 and Rs.50,000/- to petitioner no.2 to the
petition before the Family Court.
5. The claim was resisted by the present petitioner- original
respondent thereby alleging that apart from the fact that the present

petitioner is paying maintenance to the respondents and has provided
accommodation, an expenses of Rs.90,000/- are incurred by the
petitioner so as to meet day-to-day requirement, educational expenses
etc.. The break-up to that effect has been given in the reply filed to the
main petition before the Family Court.
6. Since the respondent no.1 claimed to have neglected to
maintain by the petitioner, the application Exhibit 15 seeking interim
maintenance under Section 19 of the Act came to be moved claiming
Rs.1,00,000/- per month for respondent no.1 and Rs.50,000/- per
month to respondent no.2, son.
7. Vide impugned order dated 28th January 2020, the Family
Court has allowed the prayer partly and granted maintenance of
Rs.40,000/- per month to respondent no.1, whereas Rs.30,000/- per
month to respondent no.2. As such this petition.
8. Learned counsel for the petitioner-original respondent
would invite attention of this Court to the provisions of Section 19,

Proviso to Sub-Section(2) of the Act so as to claim that the maintenance
ought to have been claimed by the respondent no.1 only after
demonstrating that she was unable to maintain herself from her own
earnings or from the estate of her parents.
9. Shri. Joshi, learned counsel appearing for the Petitioner
would urge that the aforesaid legal provision is ignored by the Court
below while allowing the application and that being so, the order goes
contrary to the provisions of Section 19 of the Act.
10. Further submission is even if presuming that the
respondents are entitled for maintenance, still fact remains that
exorbitant maintenance is awarded, as the Court below have failed to consider the liability of the petitioner to maintain himself, who was a cancer patient, his aged wife, his other son and his family.
11. Shri. Joshi would also invite attention of this Court to the
fact that the respondents are provided with accommodation in the
house owned by the petitioner. According to Shri. Joshi, the petitioner is incurring expenses about Rs.95,000/- per month on the respondents.
Shri. Joshi then would urge that the award of maintenance is as such
completely disproportionate to the known source of income of the
petitioner. According to the learned counsel for the petitioner
repayment of bank loan is already overdue and that being so, the order
impugned is liable to be quashed and set aside.
12. By inviting attention of this Court on the judgement as
reported in BCR (2008) Volume 5, page 441 in the case of Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patil & Ors., Shri. Joshi has tried
to substantiate his submissions that the respondent no.1 has not
discharged his initial burden contemplated under the proviso to Section
19 of the Act and further claimed that the maintenance ought not to
have been awarded.
13. Per contra, Shri. Bajaj, learned counsel for the respondent
supported the impugned order and and would urge that the order is
based on the admissions as are traced in the written statement as to
income of the petitioner. Shri. Bajaj would also rely on the Income-tax
return submitted by the petitioner for the assessment year 2018-2019.

14. Considered rival submissions.
15. At the outset, it is required to be submitted that the plain
reading of Section 19 of the Act contemplates that the respondents
have every right to claim the maintenance after the death of husband
from the estate inherited by her father-in-law i.e. the present petitioner.
That proviso to Sub-Section (1) of Section 19 contemplates that the
respondent has to demonstrate that she on her is unable to maintain
herself. It is in this eventuality she can claim maintenance from the
estate of her husband, still fact remains that the said burden can be
discharged by respondent no.1 at an appropriate stage. The object with
which the provision is made in the statute book for grant of interim
maintenance cannot be ignored.
16. At this stage, what was required to be appreciated by the
Court below and rightly so appreciated by the Family Court in the
impugned order is whether there was neglect to maintain and whether
the respondents are entitled for maintenance from the petitioner in
view of Section 19 of the Act.

17. The Family Court has relied on the statement made in the
written statement by the present petitioner that the income per month
of the petitioner from the HUF property is Rs.1,28,000/-.
18. Apart from above, the Court cannot be oblivious to the fact
that the income of the petitioner for the assessment year 2018-2019 as
was reflected in the income-tax return was Rs,74,87,007/-
19. That being so, it cannot be at this stage presumed that the
maintenance is disproportionate to the legal source of income of the
petitioner. Rather the maintenance awarded to the respondent no.1 to
the tune of Rs.40,000/- and to respondent no.2, grandson of
Rs.30,000/- appears to be justified, considering the income drawn by
the Petitioner as reflected in the hereinabove.
20. Apart from above, this Court cannot see any material
illegalities so as to infer that the order impugned runs contrary to the
scheme of Section 19 of the Act. That being so, no case for interference
is made out. Petition fails, dismissed.

21. Needless to clarify that the observations made hereinabove
are confined to the extent of adjudicating the rights of respondent no.1
for grant of interim maintenance. While deciding final proceedings, the
Court shall not be influenced by the findings recorded hereinabove as
same be decided on its own merits.
( NITIN W. SAMBRE, J. )

Print Page

No comments:

Post a comment