Punjab-Haryana High Court
Rajdeep Singh vs Rajsher Singh on 19 July, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:090437-DB
RFA-100-2023 (O & M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
RFA-100-2023 (O & M)
Reserved on: 11.07.2024
Pronounced on: 19.07.2024
RAJDEEP SINGH .....Petitioner
Versus
RAJSHER SINGH ....Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Sunil Chadha, Senior Advocate with
Ms. Kashish Aggarwal, Advocate and
Mr. Raghav Chadha, Advocate
for the applicant-appellant.
Ms. Shubreet Kaur, Advocate
for the respondent.
****
SURESHWAR THAKUR, J.
CM-1181-CI-2024
1. The application is allowed subject to all just exceptions and the computation sheet annexed with the application is taken on record as Annexure A-17, contents whereof, are extracted hereinafter.
(i) As per the judgment and decree dated 08.12.2022 (Annexure A-9) passed under the DV Act, two separate appeals against which judgment and decree filed by both the parties is pending before the Court of learned Additional Sessions Judge, Patiala, the amount which becomes due is :
Period Amount Total 08.02.2012 till 17.05.2024 = 148 months Rs. 50,000/- Rs. 74,00,000/- Payment made so far
Appellant has already cleared the dues to the tune of Rs. 70,50,000/-
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ii) As per the impugned judgment and decree dated 17.12.2022 passed by the learned Family Court, Patiala, which is under challenge in the present appeal, the amount which becomes due :-
Period Amount Total
18.02.2012 till March, 2016=50 months Rs. 30,000/- Rs. 15,00,000/-
April 2016 till March, 2021= 60 months Rs. 50,000/- Rs. 30,00,000/-
April 2021 till May, 2024 = 38 months Rs. 70,000/- Rs. 26,60,000/-
Grant total Rs. 71,60,000/-
Payments made so far under HAMA :
Date Amount
03.11.2023 Rs. 1,00,000/-
29.01.2024 Rs. 1,00,000/-
12.03.2024 Rs. 1,00,000/-
26.04.2024 Rs. 50,000/-
Total Rs. 3,50,000/-
● Thus total amount paid as on date comes to Rs. 74,00,000/-. ● All payments, whether made under DV Act of HAMA have been made in the name of Manveen Kaur only.
● Now, in order to put pressure upon the appellant, his wife Manveen Kaur, besides filing and continuing with execution application, has filed yet another COCP-1475-2024 wherein by alleging that out of monthly maintenance of Rs. 50,000/- which she had been receiving from the appellant under the DV Act, Rs. 15,000/- was towards the interim maintenance awarded to the respondent herein i.e. Master Rajsher Singh in the present case i.e. under the Hindu Adoption and Maintenance Act and as such, she had been getting only Rs. 35,000/- per month under the DV Act. The said contempt petition is pending for 16.07.2024. CM-1213-CI-2024
2. The application is allowed subject to all just exceptions and the objections to the computation sheet (Annexure A-17) are taken on record.
RFA-100-2023 (O & M)
3. Through the instant appeal, the appellant herein, lays a challenge to the judgment and decree dated 17.12.2022, as became passed by the Court of the learned Additional Principal Judge, Family 2 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -3- Court, Patiala, wherebys, the learned Family Court, Patiala, thus decreed the suit filed by the respondent/plaintiff. The said suit became cast under Sections 18 and 20 of the Hindu Adoption and Maintenance Act (hereinafter refer to as the HAMA). Through the verdict (supra), the learned Additional Principal Judge, Family Court, Patiala, declared the respondent/plaintiff to become entitled to maintenance @ Rs. 30,000/- per month from the date of filing the suit till March 2016 i.e. till the minor had completed his 5th class, @ Rs. 50,000/- per month from April 2016 till March 2021, for the time the plaintiff had completed his 5th Class till 10th Class and @ Rs.70,000/- per month from April 2021, till the respondent/plaintiff completes his graduation/professional course.
Factual Backdrop of the case.
4. The appellant-father married the mother-Manveen Kaur of the respondent at Chandigarh on 27.05.2004. On 23.07.2005, the respondent-son was born out of the wedlock. The respondent is the only child born out of the wedlock of the present appellant and the respondent. Since October, 2011, Manveer Kaur and respondent-son resided together in the matrimonial house, whereas, the appellant and his father started living separately. On 08.02.2012, a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter for short called as the DV Act), became instituted by Manveen Kaur. The respondent/son was not a party in the said petition. In the proceedings under the DV Act, on an interim relief application filed by Manveen Kaur, the learned JMIC vide order dated 15.11.2012 (Annexure A-2), held respondent No.1-appellant herein liable to pay a 3 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -4- sum of Rs. 30,000/- per month towards the maintenance of his wife and his minor son, thus from the date of filing of the application besides the appellant was restrained from dispossessing them from the shared house. Both Manveen Kaur as well as respondent No. 1-appellant herein filed their respective appeal(s) against the order passed by the learned JMIC in the complaint filed under the DV Act. Both the appeals became dismissed by the learned Additional Sessions Judge, Patiala.
5. Feeling aggrieved, Manveen Kaur filed CRM-M No.34224 of 2013 before this Court, thus challenging the order of interim maintenance (supra). The above petition became allowed vide order dated 17.07.2015 (Annexure A-6) and the amount of interim maintenance was enhanced to Rs.50,000/- per month. Both the appellant as well as Manveen Kaur filed SLPs before the Apex Court wherebys became challenged the order dated 17.07.2015, but both the SLPs became dismissed by Hon'ble Supreme Court. Therefore, the sum of Rs.50,000/- as became adjudged by this Court, thus is to be construed to be the clinchingly assessed interim sums towards the maintenance of the wife of the appellant.
6. The final verdict on the complaint filed under the DV Act became pronounced on 08.12.2022 (Annexure A-9), whereins, the appellant/respondent therein was held to be legally bound to maintain his wife and was directed to pay her Rs. 50,000/- per month from the date of filing the complaint. An appeal reared thereagainst, is yet subjudice before the Appellate Court.
7. Thereafter, the respondent-son (then aged 6 ½ years) through his mother (guardian) filed a suit under Section 18 and 20 of 4 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -5- the HAMA seeking maintenance @ Rs. 50,000/- per month. Further, an amended suit was filed by the respondent-son seeking maintenance @ 1,50,000/- per month which was allowed by the learned Family Court vide order dated 13.09.2022. The said order became assailed by the appellant before this Court in Civil Revision No. 4878 of 2022. The said revision petition became dismissed by this Court vide order dated 31.10.2022. Ultimately, the amended suit under the HAMA became decreed with costs against the defendant. The operative part of the said verdict is extracted hereinafter.
"45. As an upshot of the discussion above, the suit of the plaintiff is hereby decreed with costs against the defendant to the effect that plaintiff is held entitled to Rs 30000/- per month as maintenance from the date of filing of the present suit till March 2016 ie. till the minor had completed his 5th Class, @ Rs.50,000/- per month from April 2016 till March 2021, for the time the plaintiff had completed his 5th Class till 10th Class and @ Rs.70000/- per month from April 2021 till the plaintiff would complete his graduation/professional course. If the accrued sum of maintenance remains unpaid for a period of three months from the date of decree, then the plaintiffs shall also be entitled to recover interest thereupon at the rate of 6% per annum from the date of decree till realisation. The already accrued as well as the accruing maintenance would remain a charge over the property (as detailed in the head-note of the plaint) of the defendant. In case the defendant wants to sell/transfer the said property he shall seek prior permission from the court and shall also incorporate a specific rider in the sale deed/ document of transfer that there is pre-existing charge over the property created by virtue of the present decree."
5 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -6- Submissions of the learned counsel for the appellant.
8. (i) The learned Senior counsel for the appellant submits, that while passing the impugned judgment dated 17.12.2022, the learned Court below failed to take into consideration, the gross ill act of Manveen Kaur, as comprised in the factum of hers filing a complaint under the DV Act, thus against the appellant, whereins too, she had also prayed for grant of maintenance for Rajsher Singh i.e. the present respondent. Consequently, therebys her very act of filing the present suit under the HAMA rather unveils her malafide(s).
(ii) The maintenance awarded in the complaint filed under the DV Act, has neither been adjusted nor has been set-off, while awarding maintenance in the impugned judgment. Reliance in this regard has been placed on a judgment rendered by the Apex Court, in case titled as Rajnesh Vs. Neha and Another reported in 2021 (2) SCC 324, whereins, it has been held that where successive claims for maintenance thus are made by a party but under different statutes, thereupon the Courts while considering the said raised successive claims, rather are required to be adjusting or setting-off the maintenance amounts awarded in the previous proceedings. The relevant paragraphs of the said verdict are extracted hereinafter.
"VI. Final Directions
130. In view of the foregoing discussion as contained in Part B - I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction
131. To overcome the issue of overlapping jurisdiction, 6 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -7-
and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:
(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance
132. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
133. For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B - III of the judgment.
(Extractions of Part B - III of the judgment) III Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. In Manish Jain v Akanksha Jain this 7 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -8- Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112. (2017) 15 SCC 801, be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303. Chaturbhuj v Sita Bai (2008) 2 SCC 316.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid down the following factors to be considered for determining maintenance :
"1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non- applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17."
(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional 8 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -9- factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years. 140 (2007) DLT
16.
(b) Right to residence Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja (supra) held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly. Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020. respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival. In Sunita Kachwaha & Ors. v Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander (2018) 12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 9 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -10- 2016 Cri LJ 4794. Chaturbhuj v Sita Bai, (2008) 2 SCC 316. Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252. (2014) 16 SCC 715. 2020 SCC OnLine Bom 694. Prakash.
The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra- curricular / coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.
134. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
135. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B - IV above.
(Extractions of Part B - IV) IV Date from which Maintenance to be awarded There is no provision in the HMA with respect to the date from which an Order of maintenance may be made effective. Similarly, Section 12 of the D.V. Act, does not provide the date from which the maintenance is to be awarded. Section 125(2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date of application. In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts in the country, with respect to the date from which maintenance must be awarded. The divergent views taken by the Family Courts are : first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent.
(a) From date of application The view that maintenance ought to be granted from the date when the application was made, is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependant children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years.
The Orissa High Court in Susmita Mohanty v Rabindra Nath Sahu held that the legislature intended to provide a summary, quick and comparatively inexpensive remedy to the neglected person. Where a litigation is prolonged, either on account of the conduct of the opposite party, or due to the heavy docket in Courts, or for unavoidable reasons, it would be unjust and contrary to the object of the provision, 10 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -11- to provide maintenance from the date of the order.
In Kanhu Charan Jena v. Smt. Nirmala Jena, the Orissa High Court was considering an application u/S. 125 Cr.P.C., wherein it was held that even though K. Sivaram v K. Mangalamba & Ors.1989 (1) APLJ (HC) 604. 1996 (I) OLR 361. 2001 Cri LJ 879 the decision to award maintenance either from the date of application, or from the date of order, was within the discretion of the Court, it would be appropriate to grant maintenance from the date of application. This was followed in Arun Kumar Nayak v Urmila Jena, wherein it was reiterated that dependents were entitled to receive maintenance from the date of application. The Madhya Pradesh High Court in Krishna Jain v Dharam Raj Jain held that a wife may set up a claim for maintenance to be granted from the date of application, and the husband may deny it. In such cases, the Court may frame an issue, and decide the same based on evidence led by parties. The view that the "normal rule" was to grant maintenance from the date of order, and the exception was to grant maintenance from the date of application, would be to insert something more in Section 125(2) Cr.P.C., which the Legislature did not intend. Reasons must be recorded in both cases. i.e. when maintenance is awarded from the date of application, or when it is awarded from the date of order. The law governing payment of maintenance u/S. 125 Cr.P.C. from the date of application, was extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava v Additional District Judge, Gonda & Ors. The Court held that the date of application should always be regarded as the starting point for payment of maintenance. The Court was considering a suit for maintenance u/S. 18 of HAMA, wherein the Civil Judge directed that maintenance be paid from the date of judgment. The High Court held that the normal inference should be that the order of maintenance would be effective from the date of application. A party seeking maintenance would otherwise be deprived of maintenance due to the delay in disposal of the application, which may arise due to paucity of time of the Court, or on account of the conduct of one of the parties. In this case, there was a delay of seven years in disposing of the suit, and the wife could not be (2010) 93 AIC 726 (Ori). 1993 (2) MPJR 63. 2019 (6) ADJ 850. made to starve till such time. The wife was held to be entitled to maintenance from the date of application / suit. The Delhi High Court in Lavlesh Shukla v Rukmani held that where the wife is unemployed and is incurring expenses towards maintaining herself and the minor child / children, she is entitled to receive maintenance from the date of application. Maintenance is awarded to a wife to overcome the financial crunch, which occurs on account of her separation from her husband. It is neither a matter of favour to the wife, nor any charity done by the husband.
(b) From the date of order The second view that maintenance ought to be awarded from the date of order is based on the premise that the general rule is to award maintenance from the date of order, and grant of maintenance from the date of application must be the exception. The foundation of this view is based on the interpretation of Section 125(2) Cr.P.C. which provides :
"(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be." (emphasis supplied) The words "or, if so ordered" in Section 125 has been interpreted to mean that where the court is awarding maintenance from the date of application, special reasons ought to be recorded. In Bina Devi v State of U.P., the Allahabad High Court on an interpretation of S.125(2) of the Cr.P.C. held that when maintenance is directed to be paid from the date of application, the Court must record reasons. If the order is silent, it will be effective from the date of the order, for which reasons need not be recorded. The Court held that Section 125(2) Cr.P.C. is prima facie clear that maintenance shall be payable from the date of the order. Crl.Rev.P. 851/2019 decided by the Delhi High Court vide Order dated 28.11.2019. Bina Devi & Ors. v State of Uttar Pradesh & Ors. (2010) 69 ACC 19. (2010) 69 ACC 19.
The Madhya Pradesh High Court in Amit Verma v Sangeeta Verma & Ors. directed that maintenance ought to be granted from the date of the order.
(c) From the date of service of summons The third view followed by some Courts is that maintenance ought to be granted from the date of service of summons upon the respondent.
The Kerala High Court in S. Radhakumari v K.M.K. Nair was considering an application for interim maintenance preferred by the wife in divorce proceedings filed by the husband. The High Court held that maintenance must be awarded to the wife from the date on which summons were served in the main divorce petition.
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The Court relied upon the judgment of the Calcutta High Court in Samir Banerjee v Sujata Banerjee, and held that Section 24 of the HMA does not contain any provision that maintenance must be awarded from a specific date. The Court may, in exercise of its discretion, award maintenance from the date of service of summons.
The Orissa High Court in Gouri Das v Pradyumna Kumar Das was considering an application for interim maintenance filed u/S. 24 HMA by the wife, in a divorce petition instituted by the husband. The Court held that the ordinary rule is to award maintenance from the date of service of summons. It was held that in cases where the applicant in the maintenance petition is also the petitioner in the divorce petition, maintenance becomes payable from the date when summons is served upon the respondent in the main proceeding.
In Kalpana Das v Sarat Kumar Das, the Orissa High Court held that the wife was entitled to maintenance from the date when the husband entered appearance. The Court was considering an application for interim maintenance u/S. 24 HMA in a petition for restitution of conjugal rights filed by the wife. The Family Court awarded interim maintenance to the wife and minor child from the date of the order. In an appeal filed by the wife and minor child seeking CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated 08.01.2020. AIR 1983 Ker 139. 70 CWN 633. 1986 (II) OLR 44. AIR 2009 Ori 133. maintenance from the date of application, the High Court held that the Family Court had failed to assign any reasons in support of its order, and directed :
"9. ...Learned Judge. Family Court has not assigned any reason as to why he passed the order of interim maintenance w.e.f. the date of order. When admittedly the parties are living separately and prima facie it appears that the Petitioners have no independent source of income, therefore, in our view order should have been passed for payment of interim maintenance from the date of appearance of the Opposite Party-husband..." (emphasis supplied) Discussion and Directions The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded. Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.
In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak, this Court held that the entitlement of maintenance should not be left to the uncertain date of disposal of the case. The enormous delay in disposal of proceedings justifies the award of maintenance from the date of application. In Bhuwan Mohan Singh v Meena61, this Court held that repetitive adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application. 2008 9 SCC 632. 2015 6 SCC 353.
The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court. In Badshah v Urmila Badshah Godse 62 , the Supreme Court was considering the interpretation of Section 125 Cr.P.C. The Court held :
"13.3. ...purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice"
which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a 12 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -13- particular provision, the court is supposed to bridge the gap between the law and society." (emphasis supplied) It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant. (2014) 1 SCC 188.
(e) Enforcement / Execution of orders of maintenance
136. For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.....
(iii) In terms of Section 20 of HAMA, the learned Court below ought to have assessed the income of the mother of the respondent as well, especially when the Court below gave a specific finding, that both husband and wife belong to a status family and have sufficient funds, to maintain their only son. Manveen Kaur, the mother of respondent, has untenably not been burdened with the liability to pay maintenance to her son.
(iv) Moreover, in terms of Section 20 of HAMA, provisions whereof are extracted hereinafter, maintenance could have been awarded only till the attainment of majority by the respondent and in no eventuality, rather maintenance could have been awarded beyond 23.07.2023, when the respondent attained majority.
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
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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 in so far 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.
(v) Further, the impugned judgment is completely silent as to how the maintenance amount became assessed to the respondent- son.
(vi) In addition, the creation of a charge on the whole of the land of the appellant, measuring 202 Bighas 05 Biswas, thus has been contended to be completely illegal. Reliance in this regard has been placed on a verdict rendered by the Apex Court in case titled as Sai Enterprises Vs. Bhimreddy Laxmaiah and Another reported in 2007 (2) RCR (Civil) 876, whereins, it was held that if the property is large and the decretal amount requiring satisfaction thereof, is but proportionately smaller, thereupon the Court concerned may attach only such portion of the property, sale proceeds whereof would be sufficient to satisfy the decretal amount.
(vii) The learned Court below wrongly allowed the plaintiff to sue as an indigent person, especially when the mother and son started getting maintenance in the complaint filed under the DV Act.
Submissions of the learned counsel for the respondent.
9. The appellant-father has failed to bring on record any cogent or adequate reason for setting aside the money decree dated 17.12.2022 passed by the learned Family Court.
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10. That admittedly the Appellant/father, is a wealthy and influential landlord of Patiala, with substantial properties and assets inasmuch as he owns a palatial house in Patiala with a swimming pool; farm-house; vast holdings of agricultural land; marriage palace namely Rajsher Resorts; petrol pump namely Dudhan Filling Station; commercial shops; bank accounts in India and Canada, luxury cars etc. It is not the case of the Appellant/father that any hardship would be caused to him if the decretal amount is paid to the respondent/son, who is his own son and only child.
11. That a father is legally and morally duty bound to maintain his child, besides the maintenance is to be paid from the ancestral properties, whereins, the son has a right and qua which even otherwise he is the sole heir. The Appellant has no other dependents as his parents are no more.
12. That the decretal amount i.e. arrears of maintenance and further monthly maintenance are required for the payment of the college fee and other expenses of the respondent/son. Also, the respondent/son is entitled to the same standard of living as his father. The son is studying BBA LL.B (H) in Amity University, Mohali where the fee is substantial.
Arguments with regard to adjustment or set-off of the amount awarded to the wife-Manveen Kaur under the DV Act.
13. The learned counsel for the respondent further submits, that two separate proceedings for maintenance were instituted against the Appellant. First, proceedings under the DV Act were initiated by the wife. Second, proceedings under HAMA were initiated by the 15 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -16- Respondent/son only. The interim maintenance awarded in the proceedings under the DV Act, is now inconsequential, as the final judgment dated 08.12.2022 (Annexure A-9) has been passed by the learned JMIC, Patiala. It is well settled that all interim orders merge into the final order. In para No. 46 of the said judgment dated 08.12.2022 the learned JMIC, Patiala, has considered and dealt with the fact that a separate matter is pending with regard to maintenance of the child (i.e. the present Respondent). Accordingly, the Appellant was directed to pay an amount of Rs. 50,000/- as per mensem maintenance only to his wife i.e. the mother of the Respondent herein. The relevant para no. 46 of the judgment dated 08.12.2022 (Annexure A-9) passed by the learned JMIC, Patiala, in the DV Act proceedings is extracted hereinafter.
"46. Further, it is admitted by learned counsel for both the parties that already a separate matter is pending with regard to the maintenance of minor child Rajsher Singh as well which is pending in the courts at Patiala itself. So, considering the above documents placed on file by both the parties and also the fact that respondent No.1 has more earnings that the complainant and also that he being husband, is legally bound to maintain the complainant being legally wedded wife, respondent No.1 is directed to pay an amount of Rs. 50,000/- per month as maintenance to the complainant from the date of filing of the present complaint."
14. It is, therefore, not a case where the same party has made successive claims for maintenance under different statutes. Thus, the question of adjustment or set off rather does not arise.
15. That appeal against the judgment dated 08.12.2022 (Annexure A-9) are pending before the learned Sessions Court, Patiala, however, there is no stay.
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16. That in the present proceedings under the HAMA instituted by the respondent, the learned Family Court, Patiala, had already considered the aforesaid fact of awarding of maintenance of Rs.50,000/- upto 06.11.2022. The relevant paragraph No. 36 of the impugned verdict is extracted hereinafter.
"36. However, with regard to the claim of plaintiff for grant of maintenance @ Rs. 1,50,000/- per month, this Court is of the considered view that the mother of plaintiff had filed the present suit on his behalf on 18.02.2012 and at that time the plaintiff was approximately of the age of 6 ½ years and was studying in 1st class and since he has completed his education from class 1st to class 10th from YPS School, his entire educational expenses, recreational expenses, coaching expenses and sports training expenses were borne by the plaintiff alone. Admittedly, in complaint filed by the mother of plaintiff under Domestic Violence Act and as per the interim maintenance assessed by the predecessor of this Court, both plaintiff and his mother were jointly granted maintenance @ Rs. 50,000/- per month which has been given by the defendant upto 06.11.2022. However, perusal of documents related to expenses incurred by mother of plaintiff and the income earned by defendant during that period clearly reveals that the defendant was having sufficient income since October 2011."
17. After considering the entire gamut of facts as also the judgment rendered by the Hon'ble Supreme Court in case titled as Rajnesh vs. Neha, reported in 2021 (2) SCC 324, maintenance has been validly granted to the respondent/son.
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18. Moreover, though the claimant parties in the proceedings under the DV Act and HAMA were different; however, assumingly even if they were the same, rather the question of adjustment or set off would not arise in view of Section 36 of the DV Act, provisions whereof are extracted hereinafter.
"36. Act not in derogation of any other law. The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force."
19. That the issue of adjustment and set off does not arise. It is reiteratedly submitted, that in both the proceedings i.e. under the DV Act and HAMA, the respective learned Courts below have considered, the separate claims for maintenance by separate claimants i.e. the wife and son respectively and have rather also dealt respectively with the same in the judgment dated 08.12.2022 (Annexure A-9) and in the impugned judgment dated 17.12.2022. The orders of interim maintenance passed previously are inconsequential, as the same stand merged in the final judgment(s).
20. Furthermore, the Id. Family Court has taken a pragmatic view of granting maintenance till the respondent/son completes graduation/professional course. An Hon'ble Single Bench of the Hon'ble Delhi High Court in case titled as Urvashi Aggarwal vs. Inderpaul Aggarwal, reported in 2021 SCC Online Del 3242, in paragraph No. 13 has expostulated that "it cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age. And the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the 18 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -19- father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son..."
Inferences of this Court.
21. The hereinabove expostulation of law, as carried in judgment rendered by rendered by the Apex Court in case titled as Rajnesh Vs. Neha and Another reported in 2021 (2) SCC 324, thus candidly speaks about the necessity of the learned Court seized with successive claims for maintenance, as become preferred by a party but rather under different statutes, thus while determining maintenance amounts vis-a-vis any party, hence considering the adjustment(s) or setting(s) off amounts awarded in any previous proceedings. Consequently, the said expostulation of law is required to be applied to the facts at hand. Necessarily the determination of per mensem amount of interim maintenance by this Court, as comprised in a sum of Rs.50,000/- becomes the conclusively and clinchingly settled amount of per mensem interim maintenance, as the determination of the said amount has been upheld by a verdict made by the Hon'ble Supreme Court. Imperatively, the above assessed amount of interim maintenance was not only towards maintaining the respondent but also was for ensuring the maintenance of the son of the estranged marital couple.
22. The above binding and conclusively settled per mensem amount of interim maintenance as comprised in a sum of Rs.50,000/-, but obviously was prima facie required to be considered to set off and 19 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -20- adjusted by the learned Additional Principal Judge, Family Court, Patiala, vis-a-vis, the amounts which became ultimately decreed as maintenance.
23. Importantly, yet there is a disclosure of the said fact (supra) in the suit filed under the HAMA, before the learned Additional Principal Judge, Family Court, Patiala. Consequently, therebys it cannot be concluded that the judgment under challenge before this Court is rendered vitiated, thus on account of the above facts becoming suppressed from the learned Family Court rather by the plaintiff or by his mother through whom he sued against the appellant-defendant, thus in HAMA petition.
24. Furthermore, it has also got to be determined whether as a matter of fact, the declaration of law (supra), made in verdict (Supra) rendered by the Apex Court, thus makes unequivocal speakings therein, that the Court seized with a successive application for maintenance, thus preferred by any party but under different statutes, rather is peremptorily bound to not only consider the makings of apposite setting(s) off and adjustments, but is also required to be thus subsequently rather peremptorily either adjusting or setting off the previously adjudged sums of interim maintenance, as awarded under a statute contra to the one whereunders the subsequent claim for maintenance was raised. In other words, if the said apposite discretion to consider, is construable to be only foisting a directory discretion in the Family Court concerned, thus for making the relevant adjustment(s) or settings off and rather is not be construed to be foisting a peremptory diktat, upon the learned Family Court concerned, thereupon, the said 20 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -21- vested discretion in the Family Court concerned, is but construed to be obviously directory in nature but yet the said discretion is to be exercised most carefully and with an insightful wisdom.
25. The reason for drawing the inference (supra), is formidably etched in the premise, as echoed in the apposite underlined mandate thereins inasmuch as, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceedings. Therefore, in the evident factual situation, unless the learned Family Court concerned, had utterly failed to consider the makings of adjustment(s) or setting(s) off, of amounts previously awarded under the complaint filed under the DV Act, thereupon there would be an unwanted swerving away or an unwanted breach of the apposite underlined mandate (supra).
26. For determining whether as a matter of fact, the learned Family Court concerned, did consider the makings of setting(s) off or adjustment(s) vis-à-vis the previously awarded amounts of interim maintenance, it is relevant to refer to the above extracted paragraph No.36, which occurs in the impugned verdict. An insightful analysis thereofs, thus makes trite unfoldings qua the previously awarded sums of interim maintenance by the learned Family Court concerned, upon a complaint filed under the DV Act, rather resulting in the mother of the plaintiff expending the said sums of money towards the educational expenses, recreational expenses, coaching expenses and sports training expenses of the plaintiff. Therefore, the said determined amount even if it is construed to be awarded even vis-à-vis the plaintiff, thereupon the said awarded amounts in the previous proceedings thus became well considered, besides also it is abundantly clear from the insightful 21 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -22- wisdom employed by the learned Family Court concerned, that yet since the defendant was evidently financially well resourced, thus impliedly it also became stated, that thereby it was apt to decline the espousal of the present appellant qua the said determined amounts being set off or adjusted vis-a-vis the previously clinchingly settled assessed amounts of interim maintenance comprised in a sum of Rs.50,000/- per mensem.
27. Furthermore, the apt underlined portion of the relevant paragraph of the verdict made by the Hon'ble Apex Court in case (supra), when thus merely underscores that therebys the Family Court concerned becomes encumbered with a necessity, rather to only consider the setting offs and adjusting the amounts awarded in the previous proceedings, and, not to in all situations, subsequently make settings off or adjustment(s) of amounts previously awarded as maintenance. Consequently, when for reasons (supra), this Court has concluded that there was a well consideration thereofs. Moreover, when there are further categorical expressions thereins vis-à-vis the criteria appertaining to the determination of maintenance amounts. Consequently, when in terms of the criteria extracted hereinabove, thus the learned Family Court after well considering the want(s) of makings of adjustment(s) or setting off(s) of the amount previously awarded vis- à-vis the plaintiff, did also, with a circumspect and keenest application of mind, thus make the impugned judgment and decree. Consequently, therebys it cannot be said that any legal fallacy, as such has been committed by the learned Family Court concerned.
28. Though the learned counsel for the appellant has 22 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -23- emphasized upon the financial resourcefulness of the plaintiff's mother, therebys though he contends that she too alike the present appellant is required to be encumbered with the liability to finance the education, recreational and other incidental expenses, appertaining to her minor son, thus for ensuring the well being of their only son. In that regard, since the amount of interim maintenance became adjudged only after an acerbic contest emerging amongst the estranged marital couple, but whereins the financial incapacity of the mother of the plaintiff also became clinchingly rested. Resultantly when the financial status of the plaintiff's mother, thus became declared to be not of a degree or a scale whereby she could be concluded to become deprived to claim interim maintenance under the DV Act. Resultantly the counsel for the appellant is estopped to contend before this Court that since the mother of the plaintiff rather is financially well resourced, thereby she too, is required to become encumbered to well maintain the plaintiff.
29. The further reason for making the above conclusion, that the mother of plaintiff, is not adequately financially resourced, is comprised in the factum that, the plaintiff had sued through his mother, thus as an indigent person, but only after leave in the said regard becoming granted. The order granting leave to the plaintiff to through his mother sue as an indigent person, rather has remained unchallenged, thereby the said grant of leave to the plaintiff, to through his mother sue as an indigent person, but is amplificatory vis-à-vis the financial incapacity of the plaintiff and his mother, who but as stated (supra), are only dependent upon maintenance sums of Rs. 50,000/- as became assessed as interim maintenance. The reason for concluding so, 23 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -24- becomes garnered from the trite factum, that the said assessed sums are completely disproportionate to the scale of financial standing and repute of the present appellant, therebys too, given the evident financial incapacity of the plaintiff's mother, who is even otherwise spoken in paragraph No. 36 (supra) to expend Rs. 50,000/- as became assessed towards the interim maintenance in proceedings under the DV Act, rather not only for herself, but also upon her son. Resultantly therebys, prima facie, their appears to be proactive abandonment(s) on the part of the present appellant to rather share his burden of responsibilities, emotional or financial, towards his son, despite the fact that there is un- controverted evidence vis-à-vis his owning substantial properties and assets inasmuch as, his owning a palatial house in Patiala with a swimming pool; farm-house; vast holdings of agricultural land; marriage palace namely Rajsher Resorts; petrol pump namely Dudhan Filling Station; commercial shops; bank accounts in India and Canada, luxury cars etc. Resultantly therebys, his obstructionist approach in maintaining his son, but prima facie brings disrepute to his financial standing.
30. Though the learned counsel for the appellant has argued with vigor before this Court that since the above extracted provisions, when make a statutory contemplation, that the assessed amounts of maintenance have to last only till the attainment of majority of the plaintiff. Though therebys, he seeks the modification of the judgment and decree under appeal, whereby the plaintiff has been declared to become entitled to receive the 24 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -25- thereins expressed sums of money thus till he completes his graduation/professional course. However, in the camouflage of the said statutory provision rather there would but ensue a ill consequence, wherebys the wealthy father of plaintiff/respondent, but is ill facilitated to deny to his only son, rather the benefits of best education besides he would become ill leveraged to make an ill attempt to deprive all the incidental expenses to his only non earning respondent-son.
31. Though the said statutory mandate is to be revered, but yet the complexion and tenor of the statutory diktat as enclosed therein, is required to be not engineered towards any parent who is ably, financialy resourced. Even the Hon'ble Apex Court in the above underlined portions of the verdict (supra), has taken into account the various criteria which are to be borne in assessing the maintenance amounts in different proceedings under different statutes. Now, unless the appellant intends to, with utmost obduracy as prima facie, he is so demonstrating, thus render asunder, his emotional ties, with his only son, thereupon only he would rest his argument on the rigor of the statutory provision (supra) besides would ask for its strictest application. The said attempt thus with utmost obduracy, as employed by the appellant rather would result in the ill happenings of both moral breakdown(s) besides the breakdown(s) of the emotional bondage, rather ensuing between a father and his son, who otherwise being a member of the purported ancestral coparcenary property, may 25 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -26- ultimately thus, as a coparcener upon his attaining majority, rather claim a share therein, thus in a prolonged legal battle, which may hereafter become entered into between the present appellant and his son.
32. In sequel, if the said obduracy to snap all emotional ties is not precluded thereupon there would ill castrophic consequences, upon the emotional bondage inter-se the appellant and his son. Therefore, the present appellant is required to facilitate his son in his emulating a life style at par with his life style. Moreover, he is required to be ensuring that he with utmost love and affection, hence grooms his son in a manner which may emulate his style and manner of living. The said would be done in case he bears all the expenses towards his upkeep besides ensures that his only son is also provided with all incidental benefits compatible to a most comfortable lifestyle which the present appellant also appears to lead, given the quantum of the monetizable assets available at his command. Contrarily, the present appellant has ill demonstrated extreme parsimony towards his son, especially given the said parsimony but evidently surfacing through his becoming engaged in an entrenched legal battle with his son. The above rather was required to be avoided.
33. Be that as it may, even otherwise the appellant has over emphasized upon the enforcement of the statutory provision, as carried in Section 20 of the HAMA, and thereby he has tethered most steadfastly to the mandate thereof, whereas, he has remained 26 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -27- entirely ill oblivious to the sensitive relationship inter-se a father and son. Moreover, when the father is wealthy and resourceful, thereupon when he is required to maximize the endowment of utmost love and affection towards his son, as therebys the biological knot inter-se but would become ensured to remain intact. Contrarily rather than ensuring the intactness of the biological knot, the appellant has steadfastly tethered on to the statutory knot, whereby he has caused immense emotional damage rather not only on to himself but also to the plaintiff-respondent.
34. The further effect of the ill unmindfullness of the present appellant to the necessity of his steadfastly holding on to the biological knot inter-se him and his son, is but that, his avoiding the dischargings of his paternal and moral obligation towards his son, who otherwise purportedly may be a coparcener alongwith him in the apposite ancestral property. Therefore, if so, it was an everlasting obligation of the appellant to, irrespective of the statutory knot to which he has ill opted to tether to, rather ensure the enriching of the personality of his son through well resourcing him with all amenities suitable to his status in life rather than his obstinately fighting a legal battle against his son.
35. Therefore, for ensuring the intactness of the moral and biological bondage inter-se both besides for ensuring that the appellant irrespective of the rigor of the statutory mandate (supra) discharges his moral obligations, as a loving father towards his only son, thereby this Court is clinchingly inclined to uphold the 27 of 29 ::: Downloaded on - 24-07-2024 17:53:38 ::: Neutral Citation No:=2024:PHHC:090437-DB RFA-100-2023 (O & M) -28- impugned verdict, thus in the hereinafter manner.
36. Be that as it may, since the learned trial Judge in respect of the decretal amount has created a charge over his entire property, whereas, after inviting from the jurisdictional Tehsildar concerned, thus a report with respect to the monetary value of a proportion of the property, rather may have been led him to conclude that only such a fraction thereof, was sufficient to satisfy the decree, but contrarily in a slipshod manner he has created a charge on the entire property. The said part of the impugned verdict is quashed and set aside.
37. Consequently, in the execution petition concerned, it is open to the present appellant to furnish the details about the monetary value of a fraction of his property, wherefrom the decretal amount can become satisfied.
Final Order of this Court.
38. In aftermath, the appeal is partly allowed. The impugned judgment is quashed and set aside to the extent as stated above with regard to an untenable charge being created on the entire property of the appellant, and with a direction to the present appellant to furnish the details about the monetary value of a fraction of his property wherefrom the decretal amount can become satisfied. Further, it will also be open to the respondent to plead his objections, if any, to the same before the Executing Court concerned.
39. Modified decree sheet be prepared accordingly.
40. No order as to costs.
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41. Since the main case itself has been decided, thus, all the pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA) 19.07.2024 JUDGE kavneet singh Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 29 of 29 ::: Downloaded on - 24-07-2024 17:53:38 :::