Interim Maintenance
   Date :21-Sep-2020

current trends in law_1&n
 
By Adv. R. S. Agrawal :
 
The respondent has to demonstrate that she on her is unable to maintain herself. It is in this eventuality she can claim maintenance from the estate of her husband, still facts remains that the said burden can be discharged by the first respondent at an appropriate stage.
 
 
QUITE recently, the Bombay High Court has pointed out that it has not seen any material illegalities so as to infer that the order challenged runs contrary to the scheme of Section 19 of the Hindu Adoption and Maintenance Act, 1956. The plain reading of Section 19 of the Act contemplates that the respondents –Harneet Kaur, widow of Bhupinder Singh Mathraoo & Another have every right to claim the maintenance after the death of her husband from the estate of her father-in-law, that is the present petitioner- Sardool Singh Sucha Singh.
 
That proviso to sub-Section 1 of Section 19 contemplates that the respondent has to demonstrate that she on her is unable to maintain herself. It is in this eventuality she can claim maintenance from the estate of her husband, still facts remains that the said burden can be discharged by the first respondent at an appropriate stage. The object with which the provision is made in the statute book for grant of interim maintenance cannot be ignored. “At this stage”, the High Court has pointed out that, what was required to be appreciated by the Court below and rightly so appreciated by the Family Court in the impugned order is whether there was neglect to maintain and whether the respondents are entitled for maintenance from the petitioner in view of Section 19 of the Act. In this case, the petitioner took an exception to the order of January 28, passed by Family Court, Mumbai, on a application for grant of interim maintenance in the petition in hand.
 
The petitioner was blessed with two sons. Late Bhupinder, who was married to the first respondent on December 12, 2004 and died on May 21, 2015. The second respondent –son was born from out of the said marriage. The mother of the first respondent died in the year 2016, whereas her father died in February, 2017. It is her case that she has no independence source of earning and she and her son are completely dependent on the earnings of the petitioner. It is, against this background, the first respondent filed the proceedings under Sections 19 and 22 of the Hindu Adoption and Maintenance Act, 1956, with a prayer for grant of maintenance of Rs 1,50,000/- per month to the first petitioner and Rs 50,000/- to the second petitioner to the petition before the Family Court.
 
The claim was resisted by the present petitioner- original respondent thereby alleging that apart from the fact that the present petitioner is paying maintenance to the respondents and has provided accommodation, an expenses of Rs. 90,000/- are incurred by the petitioner so as to meet day-to-day requirement, educational expenses etc. The break-up to that effect has been given in the reply filed to the main petition before the Family Court. Since the first respondent claimed to have neglected to be maintained by the petitioner, the application seeking interim maintenance under Section 19 of the Act came to be moved claiming Rs 1,00,000/- per month for the first respondent and Rs 50,0000/- per month to the respondent-No. 2 (son).
 
Through the impugned order, of January 28, 2020, the Family Court allowed the prayer in part and granted maintenance at Rs 40,000/- per month to the first respondent, whereas Rs 30,000/- per month to the second respondent –son. The petitioner (original respondent) invited to the HC’s attention to the provisions of Section 19 (Proviso to sub-Section (2) of the Act) so as to claim that the maintenance ought to have been claimed by the first respondent only after demonstrating that she was unable to maintain herself from her own earnings or from the estate of her parents. It was urged by the petitioner’s counsel the said provision has been ignored by the Court below while allowing the application and that being so, the order is in breach of Section 19 of the Act.
 
Further, it was submitted to the Court that even if presuming that the respondents are entitled for maintenance, still facts remains that the exorbitant maintenance has been awarded, as the Court below have failed to consider the liability of the petitioner to maintain himself, who was a cancer patient, his aged wife, his other son and his family. The Court’s attention was also invited to the fact the respondents have been provided with accommodation in the house owned by the petitioner, who is incurring expenses about Rs 95,0000/- per month on the respondents.
 
The Counsel also urged that the award of maintenance is as such completely disproportionate to the known source of income of the petitioner. Repayment of bank loan is already overdue and that being so, the impugned order was liable to be quashed and set aside. The HC’s attention was invited to its judgement of the case –Vimlaben v. Ajitbhai Patel BCR (2008) 5 page 441 for substantiating the petitioner’s submission that the first respondent has not discharged his initial burden contemplated under the proviso to Section 19 of the Act and further claim has been made that the maintenance ought not to have been awarded. On the other hand, it was urged by the respondent’s counsel that the order is based on the admissions as traced in the written statement as to income of the petitioner. The respondent’s counsel also relied upon the Income Tax Return submitted by the petitioner for the Assessment Year – 2018-19.
 
The Family Court has relied upon the statement in the written statement made by the present petitioner that the income per month of the petitioner from the Hindu Undivided Family –HUF property is Rs. 12,80,000/- Apart from this, the Court cannot remain oblivious to the fact that the income of the petitioner for the assessment year 2018-2019 as reflected in the Income Tax Return was Rs 74,87,007/-. This being so, it cannot be at this stage presumed that the maintenance is disproportionate to the legal source of income of the petitioner. Rather the maintenance awarded to the first respondent to the tune of Rs 40,000/- and to the respondent- grandson of Rs 30,000/- appears to be justified, considering the income drawn by the petitioner as reflected in the hereinabove. Apart from this, the High Court could not see any material illegalities so as to infer that the impugned order runs contrary to the Scheme of Section 19 of the 1956 Act. It being so, according to it, no case for inference was made out.