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2019 DIGILAW 676 (ALL)

Janki Prasad v. Sapna Rani Kashyap

2019-03-12

SAURABH SHYAM SHAMSHERY

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JUDGMENT : Saurabh Shyam Shamshery, J. 1. Prayer in the instant petition is to set aside the order dated 7.12.2018 regarding paper no 28 Ga passed by Family Judge/Family Court/Addl Sessions Judge/FTC-3 Moradabad and the order/judgment dated 1.1.2019 in case No 619 of 2017 (Old No 18 of 2017) Smt. Sapna Rani and others Vs. Sri Janki Prasad) passed by Family Judge/Family Court/Addl Sessions Judge/FTC-3 Moradabad. 2. (i) The facts emerging from the petition are that the respondent no 1, is daughter-in-law of the petitioner and respondent nos 2 and 3 are minor son of respondent no 1. (ii) The respondent no 1 was tied in nuptial knots with Suraj Prasad, son of the petitioner in accordance with Hindu rites on 14.10.2007 and out of the wedlock, two children were born (respondent Nos 2 and 3). (iii) Unfortunately, Suraj Prasad died on 10.10.2016. After his death, petitioner and his family members intentionally refused to look after the respondents and even took steps not to give them their due share in the ancestral property. (iv) The respondent no 1 being unable to maintain herself and her two minor sons filed application under section 19/22 of the Hindu Adoption and Maintenance Act 1956, (hereafter referred to as 'Act of 1956') and sought maintenance as widowed daughter-in-law, from the petitioner, (her father-in-law) as well as sought maintenance as dependents of her deceased husband out of the estate inherited from the deceased by her father-in-law (Petitioner herein) and prayed for Rs 40,000/-per month as maintenance. (iv) The said application was partially allowed vide order dated 1.1.2019 by the learned Judge, Family Court, Moradabad exparte and fixed Rs 1500/- to each of the respondents to be paid on 10th day of each month by the petitioner (father-in-law). (v) The learned Court below took note of the fact that the petitioner had opted not to appear before the Family Court after filing reply and the learned Court left with no other option except to proceed exparte against the petitioner by order dated 12.10.2018. (vi) The petitioner has filed Recall application on 29.10.2018. However, the same came to be rejected by order dated 13.12.2018 on the premises that after hearing the arguments, judgment was already reserved on 22.10.2018 and therefore, procedure prescribed under Order 1X Rule 12 CPC would not be followed and exercised. (vi) The petitioner has filed Recall application on 29.10.2018. However, the same came to be rejected by order dated 13.12.2018 on the premises that after hearing the arguments, judgment was already reserved on 22.10.2018 and therefore, procedure prescribed under Order 1X Rule 12 CPC would not be followed and exercised. (vii) The learned Court below after considering the materials on record, came to the conclusion that the petitioner here-in has property on which deceased husband had right and further respondent no 1 has no source of income to maintain herself and her two minor sons. Accordingly, the application filed by respondent came to be partially allowed by judgment and order dated 1.1.2019. (viii) Both the orders dated 7.12.2018 and 1.1.2019 are impugned in the present petition. 3. The learned counsel for the petitioner submits that marriage between her deceased son and respondent no 1 was voidable on the ground of being solemnized between Sapinda relationship. There is no ancestral property and entire the property is the self acquired property of the petitioner. The learned court below has not appreciated that due to illness of his wife, the petitioner could not attend the court and the learned court has wrongly proceeded exparte. The learned counsel also submits that according to section 19 of the 'Act of 1956', the father-in -law is not liable to maintain her daughter-in-law if her father has means to maintain and support her and in the present case, father of the respondent (daughter-in -law) has sufficient means to maintain her. Lastly it was submitted that the petitioner is an ex-serviceman and retired from Indian Railway and he is an old person and has no other source of income. 4. I have heard learned counsel for the petitioner and perused the record. 5. Section 19 of the 'Act of 1956' is for maintenance of widowed daughter in law. Section 19 is mentioned hereinafter. “19. 4. I have heard learned counsel for the petitioner and perused the record. 5. Section 19 of the 'Act of 1956' is for maintenance of widowed daughter in law. Section 19 is mentioned hereinafter. “19. Maintenance of widowed daughter-in-law.— (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance— (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.” From the above, it is clear that after the death of her husband, a Hindu wife is entitled to be maintained by her father-in-law in case she is unable to maintain herself out of her own earning or other property and in case she has no property of her own and she is unable to obtain maintenance out of estate of her husband or her father or her mother. The father-in-law is under legal obligation to maintain her daughter-in-law if he has means to do so from any coparcenary property in his possession out of which daughter-in-law has not obtained any share. 6. In the present matter, the respondent no.1 has specifically spelled out the ancestral properties in possession of her father-in-law (petitioner herein) in the application, which includes a flat measuring area 200 square yard at Karwal Nagar Delhi, a plot measuring area 250 square yard at Rudrapur Uttrakkhand and 20 bigha agricultural land in District-Moradabad. In reply, petitioner has not denied about existence of above mentioned properties, but only made a bald denial about the status of property, being ancestral. Petitioner has also admitted that he is a retired government employee. 7. On the other hand the respondent no.1 has been able to establish that she has not sufficient means to maintain herself and her two minor sons. 8. Petitioner has also admitted that he is a retired government employee. 7. On the other hand the respondent no.1 has been able to establish that she has not sufficient means to maintain herself and her two minor sons. 8. In view of above factual aspect, the respondent no.1 who is unable to maintain herself and his two minor sons and the fact that petitioner (father-in-law) is in possession of the ancestral property, the impugned order whereby maintenance of Rs. 1500/-for each of the respondent has been awarded does not warrant interference under supervisory power of this Court provided under Article 227 of the Constitution. 9. Similarly, once the petitioner opted not to appear before the Family Court after filing of reply, there is no error in proceeding ex-parte against him and therefore, there is no error in passing the order dated 12.10.2018 also. The amount awarded is also a meagre amount considering the present living conditions. 10. The Hon'ble Supreme Court in the matter of Shalini Shyam Shetty and another Vs. Rajendra Shanker Patil, reported in 2010 (8) SCC 329 has formulated principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution. Relevant paragraphs are mentioned hereinafter. “49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) x x x x x x x x x (b)x x x x x x x x x (c)x x x x x x x x x “(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this 4 Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.” 11. Considering the above principles and discussions, the facts of the present case do not warrant any interference under Article 227 of the Constitution as there is no patent perversity in the impugned order as well as there is no failure of justice. 12. Accordingly the writ petition deserves to be dismissed and is accordingly dismissed.