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2009 DIGILAW 561 (MAD)

Krishnan v. T. Sasidevi & Others

2009-02-16

G.RAJASURIA

body2009
Judgment :- Inveighing the order dated 5. 2007 passed in I.A.No.105 of 2004 in O.S.No.13 of 2004 by the Family Court, Pudhucherry, these civil revision petitions are focussed. 2. A summation and summarization of the relevant facts, which are absolute necessary and germane for the disposal of these revision petitions, would run thus:- The plaintiffs, namely, Sasidevi, Dhanalakshmi and minor Thiagaprabakar, represented by his mother first plaintiff, filed the suit O.S.No.13 of 2004 seeking the following relief: "to direct the defendant to pay a sum of Rs.5000/-(Rupees five thousand only) as maintenance and for the educational expenses incurred by the plaintiffs for the higher education to the plaintiffs 2 and 3 upto their obtainment of their higher degree for their welfare and future bright life for each and every English Calendar month from the date of plaint till the plaintiffs 2 and 3 obtainment of their higher degree of education." as against Krishnan-the father-in-law of the first plaintiff and paternal grant father of D2 and D3. The husband of the first plaintiff and father of plaintiffs 2 and 3 died. I.A.No.105 of 2004 was filed by the plaintiffs in the said suit seeking the following relief: "to direct the respondent to pay interim maintenance at the rate of Rs.5000/-(rupees five thousand only) for each and every English Calender month from the month of February 2004 onwards till the disposal of the above suit." However, the Family Court ordered only a sum of Rs.750/-per month as interim maintenance in favour of Sasidevi-the first plaintiff only and that too for a short period from February 2004 to the end of December 2004. Being disconcerted by and dissatisfied with the said order, the plaintiffs as well as the defendants preferred these two civil revision petitions; viz., C.R.P.No.2118 of 2007 by T.Sasidevi, T.Dhanalakshmi and Minor T.Thiagaprabakar for enhancement and C.R.P.No.3636 of 2007 by Krishnan for dismissing the I.A.No.105 of 2007. 3. Despite printing the name of the counsel for Krishnan-the defendant, who is the petitioner in C.R.P.No.3636 of 2007 and respondent in C.R.P.No.2118 of 2007, there is no representation for him. Mr.H.Suresh Babu, learned counsel appearing for the respondents in C.R.P.No.3636 of 2007 argued the matter, however, Mrs.Senthil Vadivu representing Mrs.N.Mala, counsel for the same plaintiffs/petitioners in C.R.P.No.2118 of 2007 sought for adjournment. Mr.H.Suresh Babu, learned counsel appearing for the respondents in C.R.P.No.3636 of 2007 argued the matter, however, Mrs.Senthil Vadivu representing Mrs.N.Mala, counsel for the same plaintiffs/petitioners in C.R.P.No.2118 of 2007 sought for adjournment. It so happened that in one C.R.P. for the same party in both C.R.Ps, one Advocate is appearing in one C.R.P. and some other Advocate is appearing in one other C.R.P. .4. The learned counsel for the plaintiffs would put forth and set forth his argument that as per Section 19 of the Hindu Adoption and Maintenance Act, the father-in-law is bound to maintain his widowed daughter-in-law, who is having no source of income to maintain herself; the lower Court, without any clinching evidence available on record, jumped to the conclusion as though the first plaintiff is having enough source of income to maintain herself, ignoring the fact that the first plaintiff is not a single individual concerned with herself only, but she is bound to maintain her unmarried daughter-Dhanalakshmi (P2) and her minor son-Thiagaprabakar(P3). Accordingly, he prays for enhancement of the maintenance amount. He would also submit that P2 and P3 are helpless and the defendant should also be directed to pay maintenance for them also. 5. A bare reading of Section 19 of the Hindu Adoption and Maintenance Act would exemplify and demonstrate that a widowed daughter-in-law, who is having no source of income, could claim maintenance from her father-in-law. However, there is no express provision contemplated in the Hindu Adoption and Maintenance Act that a grand son could claim maintenance directly from the grand father. Even then, the matter has to be viewed holistically and in a practical manner. While assessing the financial wherewithal of the first plaintiff, her commitment to maintain her unmarried daughter as well as the minor son should necessarily be taken into account and in isolation the requirement of the daughter-in-law alone to meet her creature comforts should not be viewed or visualized. There is no embargo under the law that while assessing the financial wherewithal of a widowed lady her commitment to maintain her children should not be taken into account. No doubt, if taken into account, indirectly it might impinge upon the defendant-the father-in-law of the first plaintiff to some extent but not to the fullest extent. There is no embargo under the law that while assessing the financial wherewithal of a widowed lady her commitment to maintain her children should not be taken into account. No doubt, if taken into account, indirectly it might impinge upon the defendant-the father-in-law of the first plaintiff to some extent but not to the fullest extent. Even if there be, to some extent, additional commitment on the part of the father-in-law in paying maintenance to the daughter-in-law, that is well within the principle of natural justice and also the object of the Hindu Adoption and Maintenance Act. 6. No doubt, the Family Court is right in pointing out that in Union Territory of Puduchery (Pondicherry), the Hindu concept, namely, coparcenary was unknown. However, one should not forget the fact that Coromandal Hindu Law, as obtaining in Pondicherry before the introduction of the Hindu Succession Act and even after introduction of the Hindu Succession Act does contemplate a father-in-law to maintain his widowed daughter-in-law, who is reeling under penurious, impecunious and cash strapped situation. It cannot be taken that the Coromandal Hindu Law was abrogated or repealed in toto in Puducherry State. A bare reading of the famous French treatise, namely, Hindu Law by Sennar would exemplify that even under the Coromandal Hindu Law, father-in-law is bound to maintain his daughter-in-law, who is having no income of her own. As such, the liability of the father-in-law, namely, the defendant herein to maintain his widowed daughter-in-law, namely, the first plaintiff is beyond doubt and to that effect the Family Court correctly has given its finding. 7. The Family Court also rendered its finding to the effect that the first plaintiff got employment from January 2005 and in such a case, she was not entitled to maintenance from January 2005 onwards. 8. Whereas, the learned counsel for the plaintiffs would appropriately and convincingly argue that the amount which the first plaintiff was allegedly earning was not at all sufficient to meet her own requirements. In paragraph 21, the lower Court correctly observed that the first petitioner/plaintiff is getting a sum of Rs.300/- per month as rent from a portion of a house. 9. The contention of the defendant that the first plaintiff got a sum of Rs.48,000/-in total as terminal benefits of her husband and that she could maintain herself, cannot be countenanced. In paragraph 21, the lower Court correctly observed that the first petitioner/plaintiff is getting a sum of Rs.300/- per month as rent from a portion of a house. 9. The contention of the defendant that the first plaintiff got a sum of Rs.48,000/-in total as terminal benefits of her husband and that she could maintain herself, cannot be countenanced. Consequent upon the untimely death of the husband of the first plaintiff, leaving behind the first plaintiff and his two children, there might have been innumerable commitments and hardships to her and the Court cannot expect that such a widow, with two children, should have retained that amount of Rs.48,000/- with herself for maintaining herself. Hence, the plea of the defendant has to be rejected and it cannot be uphelp as tenable legally. 10. In paragraph 23 of the judgment, the Family Court has held that even as per the admission of the first plaintiff, she is getting Rs.70/-per day as Branch Post Master in Sirungeri Koil Post Office and that her monthly income would be Rs.2200/-. In paragraph 24, the Family Court also gave a finding that the first plaintiff was working as a Clerk in the Milk Producers Co-operative Society, on daily rated basis, initially at the rate of Rs.35/-, so to say from 1. 2005 onwards, and it might have got enhanced to Rs.55/- per day; but it is not a permanent job. 11. As such, even though the Family Court adverting to the evidence available and also based on the documents of the first plaintiff herself, held that the first plaintiff was getting income, nonetheless her financial commitments, as already referred to supra, should be considered by the Court. Accordingly if viewed, with that aforesaid income she will not be able to maintain her two children and also maintain herself. .12. Even assuming that from all her three sources referred to supra, the first plaintiff would be getting around Rs.3000/-per month, in daily rated jobs, there would not be any fixed monthly salary and if she fails to attend even for one day, there will be cut in the salary. As such, her total income could only be taken as around Rs.3000/-. 13. The next question arises is as to whether the first plaintiff could maintain herself and also her two children with that amount of Rs.3000/-. 14. As such, her total income could only be taken as around Rs.3000/-. 13. The next question arises is as to whether the first plaintiff could maintain herself and also her two children with that amount of Rs.3000/-. 14. At the first instance the first plaintiffs liability to maintain P2 and P3 should be taken into consideration and if we do that exercise, the aforesaid amount of Rs.3000/-would not be sufficient to maintain even the two children. Hence, in such a case the requirement of P1 to maintain herself remains unmet. The Court cannot expect that from out of the income of P1 she should maintain herself and if at all anything remains, she should maintain her children; if that be the order of the day that would tantamount to misapplication of the law relating to maintenance. The Family Court though fit to award only a sum of Rs.750/- per month in favour of P1, which itself is on the lower side. But taking into consideration the first plaintiffs income from January 2005, the Family Court rejected her claim for maintenance. 15. In view of the ratiocination adhered to in analyzing this case, I would like to point out that the sum of at least Rs.750/- per month, which the lower Court awarded in favour of the wife should not be restricted till the end of December 2004, but it should be from February 2004 till pending disposal of the suit itself. As such, to that extent the order of the Family Court should stand modified and accordingly, both the Civil revision petitions are ordered. No costs. Consequently, connected miscellaneous petition is closed.