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2010 DIGILAW 986 (KAR)

G. Savithri v. M. S. Subbukrishna

2010-09-09

D.V.SHYLENDRA KUMAR, K.N.KESHAVANARAYANA

body2010
JUDGMENT Keshavanarayana This appeal filed under Section 19(1) of the Family Courts Act, 1988, is directed against the judgment and decree dated 9.10.2007 passed by the Family Court at Mysore in O.S.No.47/2005, dismissing the suit filed for maintenance in so far as it relates to the first plaintiff is concerned and decreeing the suit in part insofar as it relates to the second plaintiff is concerned and directing the respondent to pay monthly maintenance of Rs.1,000/- only to the second plaintiff from the date of the petition and Rs.1,500/- per month from the date of the order, with an increase of 5% every year on the last payment made. 2. Appellants 1 and 2 were the plaintiffs 1 and 2 in the court below. The respondent was the sole defendant in the suit. During the course of this order, the parties herein will be referred to with their respective ranking in the court below. 3. The first plaintiff claiming to be the wife and second plaintiff claiming to be the son of the defendant, filed suit before the Family Court at Mysore seeking judgment and decree against the defendant directing him to pay a sum of Rs.3,60,000/- towards past maintenance for a period of 3 years prior to the date of filing of the suit and to direct the defendant to pay current and future maintenance at Rs.10,000/- per month. 4. The case of the plaintiffs in brief was as under: The first plaintiff is the legally wedded wife of the defendant and their marriage was solemnized on 1.5.1983 at Mysore. After the marriage, the first plaintiff started residing with the defendant in the matrimonial home at Mandagere Village, K.R.Pet Taluk, Mandya District and they led married life for about 10 years. Second plaintiff was born on 22.8.1993. After the delivery of the second plaintiff, the defendant never cared to look after her and her son and also did not bother to take her to the matrimonial home. Even prior to the birth of second plaintiff, the defendant was harassing and ill-treating the first plaintiff by coercing her to bring dowry or else to get a house in the city of Mysore through her brothers. However first plaintiff tolerating all the harassment and ill-treatment continued to stay with the defendant with the fond hope that he may change his behaviour at least after the birth of the child. However first plaintiff tolerating all the harassment and ill-treatment continued to stay with the defendant with the fond hope that he may change his behaviour at least after the birth of the child. Though the defendant was informed about the birth of the child, he did not come to see the child immediately nor attended the ceremony performed after the birth of the second plaintiff. Subsequently also, the defendant did not visit hr nor made any attempt to take her and the child to the matrimonial home. The second plaintiff is going to the school at Mysore and has been studying in fifth standard in Pragathi Vidyakhendra, Mysore. The first plaintiff has no source of income of her own to maintain herself and her son. Though the defendant has sufficient source of income, has failed to provide any maintenance to the wife and child. The defendant has moral and legal obligation to maintain the plaintiffs. The defendant as on the date of the suit was working as Head Master in the Government Primary School at Mandya drawing handsome salary and also has got huge income from the landed property in the village and from all sources he has monthly income of more than Rs.25,000/-. In spite of the same the defendant has neglected to provide any maintenance to the plaintiffs. Therefore, the plaintiffs are entitled for an order directing the defendant to pay maintenance. 5. Upon service of suit summons, the defendant appeared before the court and filed written statement. He admitted the marriage between him and the first plaintiff on 1.5.1983 and also the birth of the second plaintiff on 27.5.1993. He also admitted that the first plaintiff started residing with him in Mandagere Village after the marriage. However, according to him, the first plaintiff lived with him only for a short period and not for a duration of 10 years as contended by her. He denied the allegation that after the birth of the second plaintiff, he did not care to go and see them and that he did not bother to bring back the first plaintiff along with the child to the matrimonial home. He admitted that he is a native of Mandagere Village and his family owned agricultural lands as well as family house therein. He admitted that he is a native of Mandagere Village and his family owned agricultural lands as well as family house therein. According to the defendant, after the marriage, the first plaintiff resided with him in Mandagere Village only for about 10-15 days and thereafter returned to Mysore in the guise of attending some function there and thereafter she did not come back to Mandagere Village. He contended that the first plaintiff and her mother insisted him to settle down in Mysore, but he was not in a position to heed to their demands and advised the first plaintiff to come back to matrimonial home in Mandagere Village but she flatly refused and thereby continued to live in her parental home, at Mysore deserting him. It was his further contention that in July 1986 he took a separate house in Mandagere Village for the sake of the first plaintiff and thereafter the first plaintiff came and resided with him in Mandagere Village and even then she used to stay with him only for about 8 to 10 days and she used to go back to her mother’s house at Mysore and stay there for 18-20 days during which time he was made to go to Mysore persuade her and bring her back to Mandagere Village, and this continued till November 1992. He contended that after the birth of the second plaintiff, in spite of repeated efforts made by him, the first plaintiff refused to comeback to matrimonial home, and she even did not attend funeral and obsequies ceremonies of his father who died on 30.6.1994, and that of his mother who died on 13.12.1994. Thus according to the defendant, the first plaintiff on account of her adamant attitude stayed back in her parental home and thereby deserted him without justifiable cause or reason, therefore she is not entitled for any maintenance,. Nevertheless he admitted that the first plaintiff has no source of income and the second plaintiff is a school going boy. He asserted that he is prepared to accept the plaintiffs and take them to his fold if only the first plaintiff is prepared to come and stay with him in Mandagere Village. He contended that he is a retired person drawing a pension of Rs.5,700/- per month and from agricultural lands he is deriving the actual income of Rs.25,000/- to 30,000/- per annum. He contended that he is a retired person drawing a pension of Rs.5,700/- per month and from agricultural lands he is deriving the actual income of Rs.25,000/- to 30,000/- per annum. Therefore he sought for dismissal of the suit. 6. On the basis of these pleadings the Family Court framed the following issues: i) Whether the plaintiffs prove that the defendant has neglected and refused to maintain them? ii) Whether the plaintiffs are entitled for the past, present and future maintenance? If so, at what rate? 7. During the trial, the first plaintiff examined herself as PW.1 and got marked Exs.P.1 to P.6 while the defendant examined himself as DW.1 and marked Exs.D.1 to D.8. 8. After hearing both sides and on appreciation of the oral and documentary evidence, the learned Judge of the Family Court, by the judgment under appeal, answered both the issues partly in affirmative in so far as the second plaintiff is concerned and in negative in so far as the first plaintiff is concerned holding that when the plaintiff has herself refused to live with the defendant inspite of best efforts made by him to go back to the matrimonial fold, she cannot attribute any part of negligence on the part of the defendant as such she is not entitled for any maintenance. However, the learned Judge held that the defendant is liable to provide maintenance to the second plaintiff. Taking into consideration, the financial status of the defendant, the learned Judge directed the defendant to pay Rs.1,000/- per month to the second plaintiff from the date of the petition and Rs.1,500/- from the date of the order. Consequently, the suit in so far as it relates to the first plaintiff came to be dismissed and in so far as it relates to second plaintiff, the suit was decreed in part. Being aggrieved by the dismissal of the suit and on being dissatisfied with the quantum of maintenance ordered in favour of the second plaintiff, both the plaintiffs have presented this appeal. 9. Upon service of notice of this appeal, respondent has appeared through his counsel. 10. We have heard Sri.H.Mujtaba, learned counsel appearing for the appellants and Sri.M.S.Rajendra Prasad, learned Senior Counsel appearing for the respondent. We have perused the oral and documentary evidence and perused the judgment under appeal. 11. 9. Upon service of notice of this appeal, respondent has appeared through his counsel. 10. We have heard Sri.H.Mujtaba, learned counsel appearing for the appellants and Sri.M.S.Rajendra Prasad, learned Senior Counsel appearing for the respondent. We have perused the oral and documentary evidence and perused the judgment under appeal. 11. In the facts and circumstances of the case, the points that arise for consideration in this appeal are; 1. Whether the Family Court is justified in holding that the first plaintiff herself refused to live with the defendant without any justifiable cause or reason, and therefore, she is not entitled to claim maintenance from the defendant? 2. Whether the first plaintiff is entitled for maintenance if so at what rate? 3. Whether the quantum of maintenance ordered in favour of the second plaintiff is inadequate, if so, whether he is entitled for enhancement of maintenance? 12. Re Point No.1: There is no dispute with regard to relationship between the parties. Admittedly, the marriage between the first plaintiff and the defendant was solemnized on 1.5.1983 and after the marriage, the first plaintiff started residing with the defendant in her matrimonial home at Mandagere Village. It is also not in dispute that the second plaintiff was born on 27.5.1993. From the evidence on record, it is also noticed that the couple are living apart at least after the birth of second plaintiff. The suit for maintenance came to be filed on 17.03.2004, and the defendant retired from service as Head Master of Government Higher Primary School upon attaining the age of superannuation on 31.8.2004. Maintenance was sought on the ground that the defendant has failed and neglected to maintain the plaintiffs and that the first plaintiff had justifiable cause for residing separately from the defendants. However, the defendant sought to defend the claim for maintenance on the ground that the first plaintiff herself deserted him and his efforts to bring her back to the matrimonial fold failed only because of the adamant attitude of the first plaintiff, therefore the first plaintiff has no reason for staying separately from him and as such the plaintiffs are not entitled for any maintenance. 13. The parties, through their evidence before the Family Court reiterated their respective stands. 13. The parties, through their evidence before the Family Court reiterated their respective stands. However, the learned Judge of the Family Court in the light of the few admissions made by the first plaintiff and also referring to the contents of the letters written by her to the defendant which are marked as Exs.D.1 to D.3, D.6 and D.7, was of the opinion that the first plaintiff herself had left the matrimonial home without any justifiable reason and therefore, the first plaintiff was not justified in living separately from her husband and as such, she is not entitled for any maintenance. Correctness of the said finding of the Family Court is challenged in this appeal. 14. Sri. Mujtaba, learned counsel for the appellant contended that the finding of the court below in this regard is perverse and illegal inasmuch as the learned Judge of the Family court has failed to appreciate the evidence on record as a whole, as according to the learned counsel, if the evidence is read in a comprehensive manner, it would indicate that the first plaintiff was forced to leave the matrimonial home as the atmosphere there made it impossible for her to live therein and her reasonable request to the husband to arrange for a small accommodation at Mysore for their stay therein was not met by the defendant which resulted in the defendant deserting the wife, that therefore, the first plaintiff had justifiable cause for staying separately from her husband in which even she is entitled for separate maintenance. It is the submission of the learned counsel that the contents of the letters written by the first plaintiff to the defendant would also reiterate this very fact and the demand made by her to have a house in Mysore was not an unreasonable request, so as to desert her and therefore, the court below is not justified in rejecting the claim of the first plaintiff for maintenance. 15. 15. Per contra, Sri.M.S.Rajendra Prasad, learned Senior Counsel sought to justify the judgment under appeal and contended that the learned Judge of the Family Court, on proper appreciation of the entire evidence and more particularly in the light of the various admissions made by P.W.1 in the cross-examination and also noticing the tenor of the letters written by her to the defendant, is justified in holding that the first plaintiff herself left the matrimonial home without justifiable reasons and thereby she is guilty of deserting her husband and as such, the court below is justified in holding that the first plaintiff is not entitled for any maintenance. 16. In this regard, the learned Senior Counsel has drawn our attention to the provisions of Section 18(2) and Section 23(2)(c) of the Hindu Adoption and Maintenance Act, 1956 (for short Act). Placing reliance on the judgment of the Division bench of this Court in the in the case of Kenchawwa Vs. Amogonda and others reported in ILR 2003 KAR 2548, Sri. M.S. Rajendra Prasad, has contended that the first plaintiff has not discharged the onus of proving the facts alleged by her by placing before the court cogent and acceptable evidence nd therefore, the judgment under appeal does not suffer from any perversity or illegality and therefore it does not call for interfere4nce by this Court. 17. We have bestowed our anxious consideration to the submissions made at the Bar and have reevaluated the evidence on record. 18. In the plaint, the first plaintiff has averred that after the marriage, she started residing with the defendant in the matrimonial home at Mandagere Village and they lived together for about 10 years and after the birth of the second plaintiff on 27.5.1993, the defendant never cared or bothered to look after the plaintiffs nor made any effort to bring them back to the matrimonial home, thereby he has neglected the plaintiffs and all the efforts made by the brothers and other family members of the first plaintiff did not yield any result. She has alleged that the defendant harassed and ill-treated her and she was coerced to bring dowry or else to get a house in the city of Mysore. She has alleged that the defendant harassed and ill-treated her and she was coerced to bring dowry or else to get a house in the city of Mysore. The defendant in his written statement apart from denying the aforesaid allegations asserted that after the marriage though the first plaintiff started residing in the matrimonial home she stayed there only for about 10 to 15 days and left matrimonial home to her parental home and after great persuasion, she came back to the matrimonial home but stayed there only for about 10-15 days. According to the defendant, the first plaintiff used to live for nearly 15-20 days every month with her parents and used to stay in the matrimonial home hardly for about 10-15 days and she was always pestering him to establish a house in Mysore as she was not willing to live in a village since she was born and brought up in Mysore city. 19. Perused of the letters marked as Exs.D.1 to D.3 indicates that within about 3 months after the marriage, some bickering started between the couple. The contents of Exs.D.1 to D.3 no doubt indicate that the first plaintiff expressed her inability to stay in the village as she was born and brought up in Mysore city. Through these letters she requested the defendant to take atleast a small accommodation in Mysore on rent, where she and her husband could live and her husband could attend to his work by itinerating from Mysore. The contents of these letters also would indicate that all was not well in the matrimonial home for her, in the sense that she was feeling insecure, hurt and insulted by other family members of the defendant. Nevertheless, one factor which is completely lost sight by the learned Judge of the Family Court is that though the defendant alleged that the first plaintiff was hardly residing in the matrimonial home for 10 days in a month and for the rest of the days she was staying in her parental home at Mysore, they appear to have led a happy married life which is evident from the fact that second plaintiff was born after 10 years of the marriage. This fact indicates that though there were some bickerings between the couple as in the common phenomena in any matrimonial relationship and each one of them was discharging their mutual marital obligations. This fact indicates that though there were some bickerings between the couple as in the common phenomena in any matrimonial relationship and each one of them was discharging their mutual marital obligations. In fact, according to the defendant, in the year 1984, he filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and the same came to be allowed and thereafter the first plaintiff joined him. Therefore, in our opinion, what had transpired between the couple prior to the birth of the 2nd plaintiff cannot be a basis to form any opinion as to their conduct since during this period though there were some differences between them, by mutually condoning the same, they have continued their matrimonial relationship which ultimately resulted in the birth of the second plaintiff. Therefore, the admissions made by PW.1 during her cross-examination as to the reason for her staying in Mysore for some time and her insistence on the defendant for establishing a house at Mysore cannot be a circumstance to form an opinion that the first plaintiff herself deserted the defendant without justifiable reason and left the matrimonial home. It is pertinent to note that the matrimonial home of the first plaintiff at Mandagere is in a remote village. In this regard, it is necessary to note that the first plaintiff was born and brought up in the city of Mysore. She appears to be an educated lady and accustomed to the city life. Therefore, it is reasonable to accept that it was very difficult for the first plaintiff to adjust herself to the village life. At the time fo thee marriage, the defendant was working a a teacher in a Government school. Probably the parents of the first plaintiff thinking that since the defendant is employed as a teacher, gave their daughter in marriage to the defendant hoping that they would lead an happy married life in a semi-urban area if not in a big city like Mysore. It is quite normal for a person like first plaintiff go to her matrimonial home, with lot of dreams and hopes and when she could not find a congenial atmosphere for realizing her dreams and hopes, perhaps she became dejected and frustrated and this might have led her frequent visits to her parental home. 20. It is quite normal for a person like first plaintiff go to her matrimonial home, with lot of dreams and hopes and when she could not find a congenial atmosphere for realizing her dreams and hopes, perhaps she became dejected and frustrated and this might have led her frequent visits to her parental home. 20. Under these circumstances, in our opinion, the conduct on the part of the first plaintiff in requesting the defendant to establish a small house in Mysore cannot be termed as unreasonable or as unethical. But what is important to be noticed is that, in spite of such instances on the part of the first plaintiff, the couple continued their marital relationship, which led to the birth of second plaintiff on 27.5.1993. Therefore, in our considered opinion the court below is not justified in attaching greater importance to the contents of letters Exs.D.1 to D.3 and also the admissions made by PW.1 in the cross-examination with regard to events that transpired from the date of the marriage up to the birth of the second plaintiff on 27.5.1993. We are of the view that, the events that transpired during this period has no significance in considering the question as to whether the first plaintiff voluntarily abandoned the matrimonial home. The court below was required to consider only the events that transpired subsequent to the birth of the second plaintiff. 21. It is the assertion of the first plaintiff during her evidence that after the birth of the child, the defendant did not care to visit her nor bothered to take her back to the matrimonial fold. A perusal of the entire cross-examination of PW.1 does not indicate that this part of the assertion of PW.1 has in any way been controverted or discredited. The defendant has not placed any acceptable evidence to establish that after the birth of the second plaintiff he made efforts to bring his wife and on to the matrimonial home. Therefore, the Family Court is not justified in holding that the first plaintiff voluntarily abandoned the matrimonial home and without any justifiable reasons she started living separately from her husband. 22. Section 18 of the Act governing grant of maintenance in favour of a Hindu wife is as under:- “18. Therefore, the Family Court is not justified in holding that the first plaintiff voluntarily abandoned the matrimonial home and without any justifiable reasons she started living separately from her husband. 22. Section 18 of the Act governing grant of maintenance in favour of a Hindu wife is as under:- “18. Maintenance of wife.-(1) subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.- (a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her; (b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) If he is suffering from a virulent form of leprosy; (d) If he has any other wife living; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) If he has ceased to be a Hindu by conversion to another religion; (g) If there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be Hindu by conversion to another religion.” 23. As per sub-Section (1) of Section 18 of the Ac t, a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance under the circumstances enumerated under clauses (a) to (g) therein. 24. According to clause (a), if the husband is guilty of desertion that is abandoning the wife without reasonable cause, and without her consent or against her wish or is guilty of willfully neglecting her, the wife is entitled to live separately from her husband. 25. The wife is entitled to live separately as per clause (b) if the husband has treated the wife with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband. 26. 25. The wife is entitled to live separately as per clause (b) if the husband has treated the wife with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband. 26. As per clause (g), if there is any other cause justifying the wife to live separately, the wife is entitled to live separately from her husband without forfeiting her her claim to maintenance. 27. Section 23 of the Act, provides guidelines for quantifying the maintenance is as below. “23. Amount of maintenance,- (1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the consideration set out in sub-section(2) or sub-section (3), as the case may be, so far as they are applicable. (2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to- a) The position and status of the parties; b) The reasonable wants of the claimant c) If the claimant is living separately, whether the claimant is justified in doing so; d) The value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; e) The number of persons entitled to maintenance under this Act. (3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to- a) the net value of the estate of the deceased after proving for the payment of his debts; b) the provision, if any, made under a will of the deceased in respect of the dependant; c) the degree of relationship between the two; d) the reasonable wants of the dependant; e) the past relations between the dependant and the deceased; f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other course; g) the number of dependants entitled to maintenance under this Act.” 28. As per Section 23 of the Act, the court has the discretion, while determining the quantum of maintenance and while computing the quantum of maintenance the court has to take into consideration various factors set out in the said section. The court while determining the quantum of maintenance is also required to take into consideration the fact if the claimant is living separately, whether the claimant is justified in doing so. 29. Even a conjoint reading of Sections 18 and 23 of the Act, does not indicate that the wife living separately without any justifiable reason, is automatically disentitled to claim maintenance. Sub-section (2) of Section 18, merely sets out various circumstances under which wife is entitled to live separately from her husband without forfeiting her claim to maintenance. The said sub-section does not deal with any circumstance under which the wife living separately is disentitled to claim maintenance. If the wife is living separately, whether wife is justified in doing so is only one of the factors, which is relevant while determining the quantum of compensation by the Court under Section 23 of the Act. Section 23 of the Act also per se does not specify any circumstance, which disentitles wife from claiming maintenance. 30. As noticed supra, from the date of the birth of the second plaintiff, the 1st plaintiff has been living with her brothers at Mysore. Though the defendant sought to contend that he made efforts even to set up a house at Mysore no acceptable evidence is placed in that regard by the defendant. Having regard to the background in which the first plaintiff was brought up, the insistence on her part to have a home at Mysore cannot be termed as unreasonable and under those circumstances, it cannot be said that the first plaintiff had no justifiable reason to live separately from her husband. The assertion on the part of the first plaintiff that after the birth of the second plaintiff the defendant did not make any effort to take her to the matrimonial fold is not seriously challenged in the cross-examination. Therefore, the court below is not justified in holding that the first plaintiff had voluntarily abandoned the matrimonial home and without any justifiable reason started living separately and as such she is not entitled for any maintenance. 31. Therefore, the court below is not justified in holding that the first plaintiff had voluntarily abandoned the matrimonial home and without any justifiable reason started living separately and as such she is not entitled for any maintenance. 31. The decision relied upon by the learned Senior Counsel has no application to the facts of this case. While the principle of law stated therein is well accepted, that the onus of proving the facts in issue, is on the party who asserts such facts. In the case on hand, the totality of the evidence on record would clearly indicate that the first plaintiff had justifiable reason for living separately from her husband, the husband has not made any serious effort to get her back to the matrimonial fold which resulted in the couple living separately for quite long. Therefore, in our opinion, the finding of the court below that the first plaintiff herself effused to live with the defendant without any justifiable cause or reason is perverse and cannot be sustained. Therefore, this finding of the court below is not sustainable. Hence we answer point No.1 in the negative. 32. Re Point No.2 & 3: The defendant in his written statement itself has categorically admitted that the first plaintiff has no independent source of income of her own for her living. She had justifiable reasons to live separately from her husband. Therefore, as per Section 18 of the Act she is entitled to claim maintenance from her husband. It is an admitted fact that the defendant retired from service on 31.8.2004 while the suit came to be filed on 17.3.2004 along with a petition under Order 33 Rule 1 of CPC seeking permission to prosecute the suit as an indigent person. After enquiry, the said petition came to be allowed and thereafter the plaint was registered. However before the suit could be registered the defendant retired from service upon attaining the age of superannuation on 31.8.2004. In his written statement, the defendant has contended that he is drawing a pension of Rs.5,7000/- in addition, he gets income of about Rs.25,000/- to Rs.30,000/-per year from the landed properties. During the trial, a certificate dated 16.3.2006 as to the amount drawn by the defendant as retrial benefits is produced at Ex.P.1 which shows that the defendant had drawn Rs.3,76,387/- as retirement benefits. During the trial, a certificate dated 16.3.2006 as to the amount drawn by the defendant as retrial benefits is produced at Ex.P.1 which shows that the defendant had drawn Rs.3,76,387/- as retirement benefits. Ex.D.8 is a certificate issued by Vijaya Bank indicating the amount of pension drawn by the defendant as on 17.8.2007. As per Ex.D.8 he was drawing pension of Rs.6,694/-. In this appeal the respondent – defendant has produced the copy of the pension payment order. As per this document, from September 2004 to January 2005, the defendant has drawn pension of Rs.7052/- per month. For the subsequent months he has drawn higher amounts as pension. During the months of June and July, 2010, he has drawn pension of Rs.10,402/-. From the perusal of this document, it is evident that on an average, the respondent/defendant has been drawing pension of not less than Rs.8,000/- per month. In addition to this, as admitted by the defendant, he has also substantial income form the landed properties. 33. Sub-section (2) of Section 23 of the Act sets out the factors to be kept in mind by the court while determining the amount of maintenance to be awarded to a wife, children or aged or infirm parents under the Act. These factors are, (1) the position and status of the parties; (2) the reasonable wants of the claimant; (3) if the claimant is living separately, whether the claimant is justified in doing so; (4) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source and (5) the number of persons entitled to maintenance under the Act. 34. In the case on hand, as noticed above, the defendant is a retired person and he has been drawing pension regularly which is now in the order of not less than Rs.10,000/-per month. In addition to this, he has substantial income from landed properties. The first plaintiff admittedly has no source of income not only for her but also for the maintenance of her son-the second plaintiff. It is proper to accept that she needs a reasonable accommodation in an appropriate place apart from adequate money to meet the basic needs of herself and her son like food, clothing etc. The first plaintiff admittedly has no source of income not only for her but also for the maintenance of her son-the second plaintiff. It is proper to accept that she needs a reasonable accommodation in an appropriate place apart from adequate money to meet the basic needs of herself and her son like food, clothing etc. The son is also to be educated and we can take judicial notice of the fact that the cost of educating one’s children now a days is the major expenditure for parental Both the parents of defendant have died. It is not the say of the defendant that apart from himself he is required to maintain any other person from out of his income. As already not5iced supra, the first plaintiff is residing separately and she is justified in doing so. 35. It is now judicially accepted principle that while determining the amount of maintenance, it is reasonable to apportion the income of the earning member amongst all members of the family including the earning member, dependent on that income. As noticed supra, in the case on hand, the defendant is under an obligation to maintain both plaintiffs apart from maintaining himself. Therefore, there are only 3 persons who are dependents on the income derived by the defendant from the pension as well as the landed properties. Even if the monthly income of the defendant from all sources is taken at Rs.12,000/-, each of the plaintiffs will be entitled to maintenance at the rate of Rs.4,000/-. However, the court below while determining the quantum of maintenance payable to the second plaintiff has directed payment of only a sum of Rs.1,000/-per month from the date of the petition and Rs.1,5000/-from the date of the order with an increase of 5% every year from the last payment. Admittedly, the second plaintiff is a school going boy. As on the date of the suit his age was shown as 11 years. By now he is around 16-17 years. Now he might be studying in College. If he is admitted to a professional course, the fee payable to the college will be very much high. Apart form paying tuition fee, he also requires a substantial amount for purchase of books and other needs. By now he is around 16-17 years. Now he might be studying in College. If he is admitted to a professional course, the fee payable to the college will be very much high. Apart form paying tuition fee, he also requires a substantial amount for purchase of books and other needs. Keeping the need of the second plaintiff and the income of the defendant, in our opinion, the quantum of maintenance determined by the court below payable to second plaintiff is on a very lower side. Taking into consideration the cost of living during 2004-2005, as also prior to and subsequent to 2004-2005, each of the plaintiffs needed at least Rs.2,000/- to Rs.3,000/-per month for their livelihood. As per the pension payment order, the average pension drawn by the defendant is not less than Rs.8,000/- per month. By taking into consideration, the income derived from the landed property, the monthly income of the defendant even during 2004-2005 could be safely taken around Rs.8,000/- to 9,000/-. Therefore, we are of the opinion that interest of justice would be met if the defendant is directed to pay monthly maintenance at the rate of Rs.2,000/- to each of the plaintiffs from the date of suit up to the date of the decree and at the rate of Rs.3,000/- per month from the date of the disposal of the suit up to 31.8.2010 and at the rate of Rs.3,5000/-per month to each of the plaintiffs from 1.9.2010 onwards. Of course, the liability for paying maintenance to the second plaintiff is up to the date of his attaining the age of majority. No doubt as per the Indian Majority Act, the second plaintiff attains the age of majority on attaining age of 18. However, the courts cannot lose sight of the fact that even after attaining majority at the age of 18, if at that stage he is still studying in a college and not earning anything at all, he will still be a dependent on his parents both for his personal needs and also for her educational expenses. As of now it is not clear as to whether the second plaintiff has been admitted to any technical or professional course requiring him to continue his studies even after he attains the age of majority. As of now it is not clear as to whether the second plaintiff has been admitted to any technical or professional course requiring him to continue his studies even after he attains the age of majority. In the event of the second plaintiff continuing his education even after attaining the age of 18 years and the first plaintiff, requiring to meet all educational expenses also it is open to the first plaintiff to file necessary application under Section 25 of the Act before the court below for alteration of the quantum of maintenance under changed circumstance, and also for modification of the amount awarded in his favour if he has already been admitted to any professional course. 36. It is also the grievance of the plaintiffs that though they had sought for past maintenance for a period of 3 years to the date of the presentation of the suit, the court below has not considered the same. We see great force in this contention. The plaintiffs have sought for decree for Rs.3,60,000/-being the past maintenance for 3 years at the rate of Rs.10,000/- per month. The court below in the judgment under appeal has not made any reference to this prayer nor the prayer is specifically rejected. Having held that the plaintiffs are entitled for maintenance and in view of the fact that the defendant has not provided any maintenance to the plaintiffs right from the birth of second plaintiff, the court below is not justified in not granting any maintenance atleast for a period of 3 years prior to the date of the suit. Admittedly, prior to the date of the suit, the defendant was still in service. He was drawing a decent salary apart from income from the landed properties. From the evidence on record, it is also noticed that the parents of the defendant died prior to 1990. Therefore, in our considered opinion, the plaintiffs are entitled to get past maintenance for a period of 3 years prior to the presentation of the suit at least at the rate of Rs.1,500/-for each of them. Thus the plaintiffs are entitled for total sum of Rs.1,08,000/- (1,500/-x 2 x 12 x 3) towards past maintenance for a period of 3 years prior to the suit and current as well as future maintenance as indicated supra. 37. Thus the plaintiffs are entitled for total sum of Rs.1,08,000/- (1,500/-x 2 x 12 x 3) towards past maintenance for a period of 3 years prior to the suit and current as well as future maintenance as indicated supra. 37. Sri.M.S.Rajendra Prasad, learned Senior Counsel submitted that some reasonable time may be granted to the defendant to pay the arrears of maintenance and in installments. We find some justification in this submission. Therefore, we deem it fit to grant some reasonable time to the defendant to pay arrears of maintenance. 38. In view of the above discussion, the appeal deserves to be allowed. 39. Accordingly, the appeal is allowed. The judgment and decree passed by the Family Court at Mysore in O.S.No.45/2005 dismissing the claim of the first plaintiff for maintenance, is set aside. The suit is decreed in part with cost. (1) In modification of the judgment and decree passed by the court below, it is ordered that plaintiffs Nos.1 and 2 together are entitled for past maintenance of Rs.1,08,000/-for a period of 3 years prior to the date of the suit, from the defendant. (2) Each of the plaintiffs are entitled for maintenance at the rate of Rs.2,000/- per month from the date of suit up to the date of the decree and at the rate of Rs.3,000/- per month from the date of the disposal of the suit up to 31.8.2010 and at the rate of Rs.3,5000/-per month from 1.9.2010 onwards. (3) The maintenance to the first plaintiff shall be paid till her lie time while the maintenance payable to the second plaintiff is till the date of attaining the age of majority. However, liberty is reserved to the first plaintiff to seek alteration of quantum of maintenance under changed circumstance if any by resorting to the provisions of Section 25 of the Hindu Adoptions and Maintenance Act, 1956. (4) The defendant shall pay all the arrears of maintenance up to this date in terms of this judgment and order after deducting amounts, if any already paid pursuant to the Judgment of the Trial Court. Defendant is directed to pay 30% of the arrears of maintenance due as on 31.8.2010, on or before 30.9.2010 and the remaining 70% in two installments. The 1st installment shall be paid before the end of November, 2010 and the 2nd installment before the end of January 2011. Defendant is directed to pay 30% of the arrears of maintenance due as on 31.8.2010, on or before 30.9.2010 and the remaining 70% in two installments. The 1st installment shall be paid before the end of November, 2010 and the 2nd installment before the end of January 2011. If the defendant fails to pay any installment as above, entire balance amount due as on that date, shall be payable immediately and plaintiffs are at liberty to execute the decree. (5) The defendant is directed to pay the future maintenance as recorded above regularly on or before 5th of each calendar month. Appeal allowed with costs. Office to draw decree accordingly.