Allahabad High Court
Smt. Priyanka And Anr. vs Saurabh Kumar Pathak And Anr. on 10 July, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- FIRST APPEAL No. - 256 of 2015 Appellant :- Smt. Priyanka And Anr. Respondent :- Saurabh Kumar Pathak And Anr. Counsel for Appellant :- Ramesh Chandra Dwivedi Counsel for Respondent :- Gautam Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Ramesh Chandra Dwivedi, learned counsel for the appellants and Sri Gautam, Advocate for the respondent Nos. 1 and 2.
2. This appeal has come up under order XLI Rule 11 against the judgement and order dated 23.2.2015 passed by Sri Sunil Kumar Mishra, Principal Judge, Family Court, Jalaun at Orai in Original Suit No. 09 of 2015 filed by the appellants under section 18 of the Hindu Adoptions and Maintenance Act, 1956. The Court below has awarded maintenance to the tune of Rs. 9,000/- per month to the appellant No. 1 Smt. Priyanka, wife of the respondent No. 1 and Rs. 1500/- per month to the appellant No. 2, son of the appellant No. 1 and respondent No. 1. In order to ensure compliance of the aforesaid order, the Trial Court has also passed further order creating charge over plot No. 45 of 535 area 2.0160 hectares and house situate at Kurukuru, boundaries of which are given at the bottom of the plaint.
3. Learned counsel for the appellants contended that the appellants by means of the plaint of O.S. No. 09 of 2015 had prayed that charge be created over other properties of the defendants-respondents i.e. plot No. 278/1. However, the aforesaid plot was sold by defendant-respondent No. 1. during pendency of the original suit. Consequently, Court below declined to create charge over the same. For maintenance of wife and children provisions have been made under sections 18 and 20 of Hindu Adoptions and Maintenance Act, 1956, (hereinafter referred to as the Act) and the same are being reproduced herein below:-
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 a Hindu by conversion to another religion.
20. Maintenance of children and aged parents.-- (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
Explanation.--In this section "parent" includes a childless step-mother.
4. The suit filed by the appellants before the Court below claiming maintenance in the context of sections 18 and 20 of Act 1956, has been allowed partly inasmuch as appellants claimed maintenance at the rate of Rs.10,000/- per month for appellant No. 1 and Rs. 2000/- for appellant No. 2, which has been partly accepted. Court below has awarded maintenance to the tune of Rs. 9,000/- per month to appellant No. 1 and Rs. 1,500/- per month to appellant No. 2.
5. So far as further direction to create charge is concerned, it is only to ensure compliance of the order of the Court, which has passed the order. Even though, Court below has refused to create charge over other properties but that by itself will not render the order impugned, illegal, as a general decree for maintenance has been passed, which is binding upon the respondent No. 1. The requirement of sections 18 and 20 of the Act is to award maintenance to wife and children and not to ensure that Courts create charge over certain properties.
6. Moreover, respondent No. 1 is a Divisional Accountant. If that be so, there is an inbuilt charge upon salary of the respondent No. 1 to ensure compliance of order passed by Court below and Court can also get it executed. If there is any default on part of the respondent No. 1, Court below by directing the employer of respondent No. 1 for ensuring payment of maintenance to the appellants can get the order executed. Despite repeated queries the learned counsel for the appellants could not point out any factual or legal error in the impugned judgement.
6. We find no merit in the appeal. It is dismissed.
Order Date :- 10.7.2019 HSM