MANU/MH/1079/2011

Equivalent C itation: 2011(6)A L L MR40, 2012(2)BomCR418, 2011(113)B O ML R3098, I I I(2011)DMC687,

2011(5)MhLj715

IN THE HIGH COURT OF BOMBAY

Family Court Appeal Nos. 36 and 38 of 2011 and Civil Application No. 73 of 2011
Decided On: 26.08.2011
Appellants: Vijaykumar Jagdishrai Chawla, Indian inhabitant
Vs.
Respondent: Reeta Vijaykumar Chawla, Indian inhabitant
Hon'ble Judges/Coram:
A.M. Khanwilkar and R.Y. Ganoo, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.I. Jayakar (Lalwani), Adv.
For Respondents/Defendant: Veena Gowda, Adv.
Case Note:
Family - Maintenance - Dependants - Section 20(3) and Section 21 of the
Hindu Adoptions and Maintenance Act, 1956 - Family Court had concluded
after adverting to the evidence that the Appellant had substantial income
as compared to the Respondent's meager income - Whether wife can seek
relief of maintenance for and on behalf of her major daughter - Held, Sub-
section (3) of Section 20, is exception which provides for the obligation of a
person to maintain his or her daughter who is unmarried and is unable to
maintain herself out of her own earnings or other property and Section 21
of the Act of 1956 defines the term "Dependants". Clause (v) of Section 21
encompasses unmarried daughter as Dependant. Having regard to the
relevant provisions therefore, there can be no doubt that the unmarried
daughter is entitled to receive maintenance amount from her father or
mother, as the case may be, so long as she is unable to maintain herself
out of her own earnings or other property. Hence, Appellant was directed to
repay the remaining loan amount to his daughter.
ORDER
A.M. Khanwilkar, J.
1. The former appeal is directed against the impugned judgment and decree passed
by the Family Court, Mumbai in Petition No. A-2320/2007 whereby the prayer of the
Appellant-husband for dissolution of marriage under Section 13 of the Hindu
Marriage Act, 1955 has been dismissed.
2. The other appeal is against the judgment and decree passed by the Family Court,
Mumbai in Petition No. C-87/2008 providing for maintenance to the Respondent-wife
at the rate of Rs. 40,000/- per month including accommodation charges payable from
the date of the order and direction to the Appellant-husband to repay the loan
amount to the daughter which she had taken for pilot training. The companion civil
application is filed for interim relief of stay of operation of the impugned judgment

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and decree which is subject matter of challenge in the latter appeal.
3 . Both the appeals were listed for admission. Before the appeals were heard for
admission, the matters were kept in Chambers to explore the possibility of settlement
between the parties. Initially, it appeared that the parties may be able to amicably
resolve their disputes but eventually the parties requested the Court to hear the
appeals for admission on merits as settlement was not possible.
4. Accordingly, both the appeals were listed for admission on 12th August, 2011. The
Counsel argued the respective appeals for admission. Insofar as Family Court Appeal
No. 36/2011 is concerned, we indicated to the parties that the same may have to be
admitted and heard finally after the appeal becomes ready for hearing. As regards the
latter appeal filed by the husband being FCA No. 38/2011, since the matter in issue
was only with regard to the question of maintenance amount awarded by the Family
Court, we heard both the parties at length. That appeal, we propose to dispose of
finally by this order by consent.
5. Briefly stated, the Appellant and Respondent got married as per Hindu Vedic Rites
on 12th November, 1986. Out of the said wedlock daughter Shraddha was born on
15th August, 1987. Later on son Siddhesh was born on 26th April, 1990. The parties,
however, started staying separately due to their differences from 1999. The
Appellant, therefore, filed petition under Section 9 of the Hindu Marriage Act for
decree of restitution of conjugal rights being Petition No. A-680/2001. The Appellant,
however, later on withdrew the said petition as he had reason to believe that the
Respondent was not willing to join him. He thereafter filed Petition No. A-2320/2007
on 13th September, 2007 for dissolution of marriage solemnized between the
Appellant and the Respondent on the ground of cruelty and desertion. The
Respondent on the other hand filed Petition No. C-87/2008 seeking maintenance for
herself and her daughter and other consequential reliefs. This petition came to be
filed by the Respondent-wife on 23rd April, 2008.
6. With regard to the issue of maintenance, the Family Court analyzed the evidence
adduced by both the parties and found as of fact that the Respondent-wife was
employed and getting salary of around Rs. 12,000/-per month. The Court also found
that the daughter Shraddha was residing with her mother i.e. Respondent-wife.
Further, the Respondent-wife alone was maintaining daughter Shraddha who had
become major and also taking care of all her educational expenses. The son
admittedly started staying with Appellant-father. The Family Court has also found as
of fact that daughter Shraddha who was staying with the Respondent was pursuing
Pilot Training Programme. For that, she had obtained loan of substantial amount to
pay fees therefore. The Respondent-wife was not in a position to take the burden of
the said education expenditure of Shraddha nor was in a position to pay the loan
installments. The Respondent was being helped by her mother and brother
financially. The Court found that the Respondent was not able to maintain herself
with the limited salary drawn by her. The Family Court found that on the other hand
the Appellant-husband was well placed in life. His income was substantial. He was
engaged in business of Restaurant/Dhaba. The Family Court has adverted to the
properties owned and possessed by the Appellant.
7 . The Appellant in his cross-examination amongst others in paras 78-80 of his
evidence has stated thus:
78..... I came to know about obtaining loan by my daughter for her course

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 during pending proceeding. I am ready to repay the loan amount which my
daughter obtained. I am having my Bungalow and Hotel on the area ad
measuring 2.1 R. The area of Bungalow is 1500 sq. fts and have 3 BHK. It is
true to say that I am having 3 acres of land at Kanha Phata in 1994. I am not
having any flat at Kharghar. I am having a flat at Lonavla ad measuring 750
sq. fts for Rs. 3,40,000/- in 2004. I have obtained the loan. I am not having
any other property except the above property. I am not having 7 acres of
land at Lonavla High Way. I am having property at Mawal in district Pune. It
is 11 acres 8 gunthas.
79. I have showed my all properties in my Income Tax Returns. It is not true
to say that I have not disclosed my entire properties in my Income Tax
Returns. Copy of Income Tax Returns is shown to the witness. Hence, Ex. 37
is given to it. I have booked a flat at Thane. Presently I am having SCODA
car. I purchased it before two years for Rs. 13,98, 687/- after giving my
HONDA CITI Car. I am filing zerox copy of the bill on record. It is at Ex.38.
The witness volunteers that the Car was taken after obtaining loan of Rs. 9
lacs.
8 0 . I am having income from the agricultural land and Restaurant and
Dhaba. I was working as a Commission Agent of Sai Dutta Shipping Agency.
The witness volunteers that I closed it before two years. I purchased 10,000
sq. fts land in the name of my son at Dahivali village before one year. My
sister is residing in a flat. It is not true to say that I am getting Rs. 5 lacs per
month from the Restaurant. I went two times to Dubai and one time to
Singapore in my entire life to attend the marriage. It is not true to say that I
am going to abroad regularly. I can file copy of passport on record.
(Emphasis supplied )
8. Adverting to the evidence on record the Family Court proceeded to conclude that
the Appellant has substantial income. On the other hand, the Respondent had meager
income and was not in a position to maintain herself as well as her daughter
Shraddha. On that finding, both the petitions have been disposed of by common
judgment and decree which is impugned in the present appeals. The same reads
thus:
: ORDER :
PETITION No. A-2320/2007
The petition is dismissed with costs.
Decree be drawn up accordingly.
PETITION No. C-87/2008
The petition is partly allowed.
The Respondent shall pay maintenance to her at the rate of Rs. 40,000/- per
month including accommodation charges payable from the date of this order.
So far as her claim for maintenance of the son is concerned, it is rejected.
He shall repay the loan amount of the daughter which she has taken for pilot
training.

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 So far as her claim for maintaining of the daughter is concerned, it is
rejected.
Decree be drawn up accordingly.
Sd/-
24/12/10
(Kum. V.J. Lohiya)
Judge,
Dated: 24-12-2010
Family Court No. 2, Mumbai
9 . By the latter appeal the Appellant has assailed the order of the Family Court
requiring the Appellant to pay maintenance to the Respondent-wife at the rate of Rs.
40,000/- per month including for accommodation charges payable from the date of
the order. The Appellant has also challenged the direction issued by the Family Court
requiring him to pay the loan amount obtained by his daughter Shraddha for
undergoing Pilot Training Programme.
1 0 . After hearing Counsel for the Appellant for sometime on instructions of the
Appellant who was present in Court, Learned Counsel submitted that the Appellant
would not press the appeal qua the impugned order of the Family Court requiring him
to pay maintenance to the Respondent-wife at the rate of Rs. 40,000/- per month
including for accommodation charges payable from the date of the order of Family
Court dated 24th December, 2010. He submitted that the Appellant would press the
latter appeal only to the extent of the second direction issued by the Family Court
requiring the Appellant to repay the loan amount of the daughter Shraddha which she
had taken for Pilot Training. Thus, the hearing of the latter appeal is confined to this
limited ground. Therefore, we proceeded to hear the Counsel appearing for the
parties on the said question for final disposal of appeal by consent.
11. The sole ground urged by the Counsel for the Appellant, is that, the Respondent
had No. locus to file application for maintenance for and on behalf of her daughter
Shraddha who had already become major in August 2005. Now let us consider this
ground of challenge. The fact that daughter Shraddha has joined the Pilot Training
Programme for which she had to incur substantial expenditure and, therefore, had to
take loan is not in dispute. It is also indisputable that the Appellant in his evidence
before the Family Court plainly conceded that he was ready to repay the loan amount
which his daughter Shraddha had obtained. Nonetheless, the Appellant has
challenged the direction issued by the Family Court requiring him to repay the loan
amount obtained by his daughter Shraddha for undergoing Pilot Training Programme,
purely on the legal argument that the Respondent wife has had No. locus to file
petition for maintenance amount to be paid to daughter Shraddha, by whatever name
called, who has already become major.
1 2 . The Counsel for the Respondent-wife would contend that as the Appellant-
husband was not disputing the factum of daughter Shraddha having obtained loan of
substantial amount for undergoing the Pilot Training Programme; and in his evidence
having admitted that he was ready to repay the loan amount so obtained by his
daughter, it is not open to him to now resile from the said commitment. It is argued
on behalf of Respondent that even if the daughter was major on the date of filing of
the maintenance petition, that would not preclude the mother from filing petition for
maintenance for herself and her daughter, who was admittedly staying with her and

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was being looked after and maintained by her. According to Respondent, the
argument advanced by the Appellant before this Court for the first time is nothing but
a hyper technical plea. She submits that even if the Appellant was right in said
argument, it would be a mere formality for the daughter to file a fresh petition before
the Family Court for the relief already granted in her favour in the concluded
proceedings. That would result in multiplicity of proceedings. Relying on the
exposition in the case of Madhavi Ramesh Dudani v. Ramesh K. Dudani (2006) DMC
386 (DB) it is argued by the Counsel for the Respondent that No. interference by this
Court is warranted in respect of the impugned directions against the Appellant issued
by the Family Court to repay the loan amount of the daughter Shraddha which was
essentially founded on the admission of the Appellant himself.
13. Having considered the rival submissions on the above contention, we are of the
considered opinion that the argument of the Appellant though appears to be attractive
at the first blush is devoid of merits and deserves to be stated to be rejected. The
moot question is; whether the wife can seek relief of maintenance for and on behalf
of her major daughter/son. Admittedly, the petition filed by the Respondent before
the Family Court was one under Section 18 read with Section 20 of The Hindu
Adoptions and Maintenance Act, 1956. Section 18 governs the scheme for providing
maintenance to the wife. Section 20, on the other hand, deals with the regime of
providing maintenance of children and aged parents. Indeed, Sub-section (1)
obligates the father as well as the mother to maintain legitimate or illegitimate
children. Sub-section (2) of Section 20 postulates that legitimate or illegitimate child
can claim maintenance from his/her father or mother so long as the child is minor.
Sub-section (3) of Section 20, however, is in the nature of exception which provides
for the obligation of a person to maintain his or her daughter who is unmarried and
is unable to maintain herself out of her own earnings or other property.
14. In the present case, it is not in dispute that daughter Shraddha is residing with
her mother. She is admittedly unmarried. Her mother has no own earnings or other
property except the income by way of meager salary earned by her. She is thus not in
a position to take the burden of education expenditure of her daughter Shraddha
which is quite substantial for undergoing the professional course. We may usefully
refer to Section 21 of the Act of 1956 which defines the term 'Dependants'. Clause
(v) of Section 21 encompasses unmarried daughter as Dependant. Having regard to
the relevant provisions therefore, there can be no doubt that the unmarried daughter
is entitled to receive maintenance amount from her father or mother, as the case may
be, so long as she is unable to maintain herself out of her own earnings or other
property. Admittedly, Shraddha has No. earning of her own and is pursuing her
further education. She has No. property of her own from which she can derive
income. As has been noticed earlier, the income of the Respondent-wife from her
salary is very meager. For that reason, Shraddha would be entitled to maintenance
amount and her education expenses from her father (Appellant). Rather the father
would be obliged to pay the amount towards maintenance of her daughter and for
education expenditure, in law.
15. In the case of Madhavi Dudani (supra) the wife had filed petition for judicial
separation and also for permanent maintenance for herself and for the minor
daughters. When the matter came up to this Court by way of appeal, the daughters
had become major. The father resisted the relief of maintenance amount payable to
the daughters who had become major, even though they were unmarried. The
Division Bench of this Court negatived the said objection in the following words:

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We have however to note that she is looking after her two daughters. The
daughters are treated as "dependants" until they get married under Section
21(v) of the Hindu Adoption and Maintenance Act, 1956. They are entitled to
get their maintenance from their father. Considering the fact that the
Appellant has been looking after these two daughters and she will be
continuing to look after them hereafter until they get married. In our view,
that is a "circumstance" which has got to be considered when one decides
the permanent alimony to be paid to the Appellant wife. Section 25 of the
Hindu Marriage Act provides that a court exercising jurisdiction under the Act
at the time of passing of the decree may direct the Respondent to pay the
applicant for her maintenance and support such gross sum or such monthly
or periodical sum, having regard to the Respondent's own income and other
property, if any, the income and other property of the applicant, the conduct
of the parties and other circumstances of the case, it may seem to the Court
to be just. The Court is empowered that such payment may be secured by a
charge on the immovable property of the Respondent. In the circumstances
of the case, we have to note that the Appellant is looking after the two
daughters. They have completed their education. They have become
graduates in engineering and management respectively. They intend to
further prosecute their studies and then get married. They do not have any
income of their own. The Appellant is undoubtedly spending for their
education and will spend on their marriage. It will not be proper to drive the
daughters to file an application under the Hindu Adoption and Maintenance
Act, 1956. In our view, the phrase "other circumstances of the case"
appearing in Section 25 of the Hindu Marriage Act is quite elastic and while
passing an order under that section, the necessary provision can be
appropriately made if the circumstances so justify.
30. The Respondent has been made to make such payment from time to time
and Mr. Thakkar has stated that he has been making additional payment for
education of her daughters on his own. The fact however remains that the
burden has been on the Appellant all throughout. The burden for further
education and thereafter marriage is much more. They are daughters of an
industrialist who are being looked after by the mother. In the circumstances,
though we may not provide separately for the Appellant, considering these
circumstances, we deem it just that separate provision should be made for
the two daughters along with the Appellant. The provision of such an amount
will take care of their future education and marriage. In our view, it will be
just and appropriate that an amount of Rs. 10,00,000/- is provided for each
of the daughters. Such an amount shall be kept in RBI Bonds and the interest
would be payable to the daughters concerned. At the present rate of 6%
interest (tax free), each of them will get annually an amount of about Rs.
60,000/- which will be quite proper considering the cost of living and their
status as daughters of an industrialist. In the circumstances, we direct the
Respondent to invest an amount of Rs. 10,00,000/-in the name of each of
the daughters. That will reduce the burden on the Appellant hereafter. That
will be a contribution which is expected of the Respondent as a father. He is
an industrialist and quite well of. He had divorced his earlier wife. His
daughter from the earlier marriage is already married and his son is an adult
and is in business. He does not have any major liability. He should provide
for these two daughters for their future education and marriage. Thus,
though we are passing this order under Section 25 of the Act, essentially we
are making provision for the two daughters whose liability is otherwise on

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 the Appellant but is being shared by the Respondent. This is to reduce her
liability for the daughters and to make the Respondent share his burden of
the responsibility. That takes care of the requirement for a separate
accommodation and alimony. The Respondent is directed to make these
deposits also within 3 months hereafter. In view of the above provision, we
are not passing any order for marriage expenses though we expect the
Respondent to act as a good father and share in the burden as and when the
occasion arises.
(Emphasis supplied )
1 6 . Going by the above exposition, the mother is competent to pursue relief of
maintenance for the daughters even if they have become major, if the said daughters
were staying with her and she was taking responsibility of their maintenance and
education. In addition, it will be useful to refer to the decision of the Apex Court in
the case of Jagdish Jugtawat v/s. Manju Lata and Ors. {MANU/SC/1416/2002 :
(2002) 5 SCC 422}. In that case the wife had filed application for maintenance for
herself as well as her minor daughter under Section 125 of the Code of Criminal
Procedure. The same was granted by the Family Court by providing amount of Rs.
500/- per month each. The husband filed revision before the High Court assailing the
order of the Family Court on the ground that the daughter was entitled to
maintenance only till she attained majority and not thereafter within the meaning of
Section 125 of the Code. This argument was negatived by the High Court. When the
matter went before the Apex Court, the Apex Court upheld the view taken by the High
Court and held that the learned Single Judge was right in taking the view that "with a
view to avoid multiplicity of proceedings", No. interference with the decision of the
Family Court was warranted. The High Court had observed that even though Section
125 limits the entitlement of the daughter for maintenance till she attains majority,
by virtue of Section 20(3) of the said Act of 1956, the daughter is entitled to receive
maintenance from her mother or father till her marriage.
17. Applying the principle underlying the above dictum, we have No. hesitation in
negating the objection of the Appellant. Instead, we hold that the Respondent is
justified in criticizing the objection of the Appellant being a hyper technical plea.
Inasmuch as, even if the Appellant were to succeed in the present appeal that would
not extricate him from the liability to maintain his unmarried daughter who is staying
with his estranged wife. The Appellant in law would be bound to not only maintain
his unmarried daughter but is also responsible for her education including higher
education until her marriage.
18. We may also refer to the decision of the Calcutta High Court in the case of Anwor
Ali Halder v. Sakina Bibi MANU/WB/0142/2005 : (2005) 3 CHN 649. Even in that
case, the wife had filed application for maintenance under Section 125 of the Court
for awarding maintenance in her favour as also her daughter. The Court allowed the
said application. After lapse of sometime, the wife filed application for enhancement
of maintenance amount under Section 127 of the Code. By that time, however, the
daughter had attained majority. The husband resisted the application under Section
127 on the ground that daughter had attained majority and would not be entitled to
get maintenance. The Court while adverting to the decision of the Apex Court in Noor
Saba Khatoon {MANU/SC/0827/1997 : (1997) 6 SCC 233} held that even if the
daughter had become major, she was entitled to get maintenance from her father till
she gets married. Even in that case the application for maintenance was filed by the
wife for herself and her daughter. In another case, decided by the Calcutta High Court

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reported in the case of Amit Roy v. Mira Roy (1998) 4 ICC 348 (Cal) and in the case
of Shri Krishna Kanta Bhattacharya v. Smt. Shyamali Bhattacharya and Anr. C.R.R.
No. 4115/2008 decided on 21st April, 2009 similar view has been reiterated. Even in
this unreported decision when the application under Section 127 of the Code for
enhancement of maintenance amount was filed by the wife alone for awarding
maintenance amount to her as well as her daughter, by that time daughter had
already become major. The Court awarded enhanced maintenance amount in favour
of the daughter who had become major, to avoid multiplicity of proceedings as
otherwise she would be forced to file another petition under Section 20(3) of the Act
of 1956 for maintenance.
19. Thus understood, the argument of the Appellant that the Respondent wife would
have No. locus to ask for relief as granted by the Family Court in directing the
Appellant to repay the loan amount obtained by the daughter Shraddha for
undergoing Pilot Training Programme cannot be countenanced. The same will have to
be negatived. As a result, the appeal filed by the Appellant which has been pressed
only for this limited purpose would fail. The Appellant would, therefore, be liable to
repay the loan amount obtained by daughter Shraddha for pursuing her Pilot Training
Programme forthwith.
20. We may place on record that before we proceeded to hear these matters, the
parties explored possibility of settlement. In that process the Appellant has paid
amount in two installments which is around Rs. 8,00,000/-. That payment was made
and accepted without prejudice to the rights and contentions of the parties in the
pending proceedings. The payment so made by the Appellant has been invested in
fixed deposit scheme in the name of Shraddha. As the settlement negotiations have
failed and matter has been heard on merits, the parties would not be bound by the
commitment made by them as recorded in the interim orders which were obviously
without prejudice to the rights and contentions of the parties in the pending appeal.
The Appellant would, therefore, be obliged to repay the remaining loan amount to his
daughter after excluding the amount already paid by him during the pendency of the
appeal.
21. For the above said reasons, we proceed to pass the following order:
(A.) (i) Family Court Appeal No. 36/2011 is admitted.
(ii) Respondent waives notice through Counsel.
Printing of appeal paper-book is dispensed with. The parties are free to file
additional paper-book consisting of the documents/evidence which was
before the Family Court. That be done within three months from today.
(B.) (i) As regards Family Court Appeal No. 38/2011, the same is dismissed
with costs quantified at Rs. 15,000/- to be paid to the Respondent, forthwith.
(ii) The accompanying Civil Application No. 73/2001 in Family Court Appeal
No. 38/2011 is also dismissed.
(iii) The Appellant shall pay directly to the Respondent wife, entire arrears of
maintenance amount at the rate of Rs. 40,000/- per month including
accommodation charges w.e.f 24th December, 2010, not later than 10th
October, 2011.

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(iv) In addition, the Appellant shall pay future maintenance amount directly
in the designated bank account of the Respondent wife at the rate of Rs.
40,000/- per month including accommodation charges regularly on month to
month basis on or before 10th of every English calendar month hereafter.
(v) The Appellant may also repay the entire loan amount upfront obtained by
his daughter Shraddha, including the E.M.Is. already paid by her on or before
10th October, 2011, after deducting the amount of Rs. 8,00,000/-already
paid to Shraddha during the pendency of this appeal. In that case, the
amount invested by Shradha in fixed deposit scheme being sum of Rs.
8,00,000/- can be encashed by her prematurely for closing the loan account
by paying requisite interest or charges therefore.
(vi) In case the Appellant does not want to repay the entire loan amount
upfront, obtained by Shraddha for pursuing her further studies, shall pay the
amount towards equal monthly installments already paid, by and on behalf of
Shraddha, in the loan account, after deducting the amount of Rs. 8,00,000/-
already paid by the Appellant during the pendency of this appeal to
Shraddha. That amount shall be paid on or before 10th October, 2011.
Further, the Appellant shall also pay the future equal monthly installments of
the loan account directly in the designated Bank on or before the specified
date of every English calendar month by instructing his Bankers to pay the
EMI through ECS process until Shraddha starts earning and becomes capable
of paying the EMI amount herself or gets married, whichever is earlier.
(vii) Ordered accordingly.

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