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2013 DIGILAW 618 (BOM)

Agostinho Cardozo v. Alzira Cardoza

2013-03-12

F.M.REIS

body2013
JUDGMENT Heard Shri J. Godinho, learned Counsel appearing for the Petitioner and Shri Joshi, learned Counsel appearing for the Respondent no. 1. 2. The above Petition challenges an Order dated 17.04.2011, passed by the learned J.M.F.C., Panaji, whereby the objections raised by the Petitioner to the application for maintenance filed by the Respondent no. 1, came to be dismissed. 3. Shri Godinho, learned Counsel appearing for the Petitioner, has pointed out that an application has been filed by the Respondent no.1 to modify the amount of maintenance awarded in favour of the son Thomas Cardozo who was a minor at that time. Learned Counsel further pointed out that on the date of the filing of the said application, the said minor son had already attained majority and, as such, the application filed by the Respondent no. 1 itself is not maintainable. Learned Counsel further pointed out that the relief which is sought by the Respondent no. 1 is to modify the amount of maintenance for the period after the said son became a major. Learned Counsel further pointed out that the learned Judge was not justified to pass the impugned Order and dismissed the said application filed by the Petitioner. 4. On the other hand, Shri Joshi, learned Counsel appearing for the Respondent no. 1, pointed out that the learned Judge was justified to pass the impugned Order as, according to him, the Petitioner who is the father of the said son is bound to maintain him in the facts and circumstances of the case. Learned Counsel further pointed out that the Respondent no. 1 is not in a position to support her son and as such, it is the obligation of the Petitioner to provide such maintenance. Shri Joshi, learned Counsel, however, upon instructions does not dispute that when the said application was filed, the said minor son had already attained majority. Learned Counsel as such submits that the Petition be rejected. 5. I have considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. It is not in dispute that the said minor son Thomas Cardozo had already attained majority as on the date of the filing of the application. Hence, the question of the Respondent no. 1 filing an application on his behalf would not arise. 1t is not the contention of the Respondent no. I have also gone through the records. It is not in dispute that the said minor son Thomas Cardozo had already attained majority as on the date of the filing of the application. Hence, the question of the Respondent no. 1 filing an application on his behalf would not arise. 1t is not the contention of the Respondent no. 1 that the son is suffering from any disability or any other impediment to file such proceedings through the next friend/guardian. It is also not in dispute that the maintenance awarded by the J.M.F.C. Panaji, earlier, has been duly paid by the Petitioner to the Respondent no. 1. Considering that the Respondent no.1 was not entitled to file such application as the said son Thomas Cardozo had already attained majority, I find that the learned Judge was not justified to dismiss the application filed by the Petitioner on the ground that the said application for modification of the amount of maintenance filed by the Respondent no. 1 was not maintainable. 6. In the facts and circumstances of the case, the impugned Order passed by the learned J.M.F.C. Panaji, cannot be sustained and deserves to be quashed and set aside. Hence the impugned Order dated 17.04.2011 is quashed and set aside and the application filed by the Respondent no. 1 for modification of the maintenance stands accordingly dismissed as not maintainable. 7. Rule is made absolute in the above terms. Ordered accordingly.