Ngangom Dorendro Meitei vs Ngangom Haripyari Devi

M.V. Muralidaran, J

Being aggrieved by the order dated 11.06.2019 passed in Judl. Misc. Case No.146 of 2015 on the file of the Family Court, Imphal East, the appellant has preferred this appeal. The appellant is the respondent and the respondent herein is the applicant in Judl. Misc. Case No.146 of 2015.

Succinctly put, the facts of the case are as under:

The respondent herein has filed Judl. Misc. Case No.146 of 2015 under Section 25 of the Hindu Adoption and Maintenance Act, 1956, seeking to enhance the maintenance amount awarded vide order dated 26.05.2005 passed in Matrimonial (M) Case No.25 of 2004 stating that she and her mother have filed the above petition for maintenance from the appellant. By an order dated 26.5.2005, the said petition was ordered by directing the appellant to pay monthly maintenance of. Rs.1,000/- to the respondent and her mother commencing from the month of May, 2005. Pursuant to the order, the appellant has been paying a sum of Rs.500/- to the respondent and Rs.500/- to respondent's mother.

It is stated that the mother of the respondent disclaimed her entitled maintenance allowance on the ground that the mother of the respondent and the appellant have already filed a mutual divorce petition and that the appellant agreed to pay a sum of Rs.2,00,000/- out of Rs.2,50,000/- to the mother of the respondent and the remaining Rs.50,000/- was going to be paid on the date of passing divorce decree.

It is further stated that the respondent was about to appear in matriculation examination and the respondent's mother incurred huge expenses on the respondent and also the respondent's mother has no sufficient funds to maintain the respondent from the monthly maintenance allowance of a sum of Rs.500/-. It is also stated that the respondent's mother had spent total sum of Rs.27,910/-, excluding monthly school and van fees for the academic year. According to the respondent, due to increase in the academic expenses, the monthly maintenance of Rs.500/- paid by the appellant is not sufficient and, therefore, she prayed for increase of maintenance amount to Rs.8,000/- and also a lump-sum amount of Rs.10,000/- towards academic expenses.

The appellant has filed written statement contending that the respondent does her schooling at a school near to her residence and no van fee was necessary and also the respondent was not sent to any tuition. It Is stated that the respondent's mother became a Government servant in the year 2010 and was drawing monthly salary of Rs.50,000/-. It is also stated that the appellant had paid a sum of Rs.2,00,000/- to the respondent's mother by obtaining loan and after all deduction, he is receiving only Rs.9,000/- per month. According to the appellant, he has to look after his another wife and aged mother with the take home salary of Rs.9,000/- per month. Since there is change of circumstances, it is prayed that the Court may direct the mother of the respondent to bear the maintenance of the respondent.

Before the Family Court, the respondent examined herself as P.W.1 and her mother was examined as P.W.2. The appellant examined himself as D.W.1.

Upon consideration of the oral evidence and also upon perusal of the materials available on record, the Family Court, enhanced the monthly maintenance to Rs.3,000/- and, accordingly, directed the appellant to pay Rs.3,000/- per month to the respondent for her educational expenses. In this backdrop, the appellant has filed the present appeal.

Impugning the order of the Family Court, the learned counsel for the appellant submitted that pursuant to the order of the Court, the appellant was paying monthly maintenance of Rs.1,000/-to the respondent and her mother. The learned counsel further submitted that now the mother of the respondent became a Government employee and was drawing monthly salary and the respondent was maintained by her natural mother from the regular salary and, therefore, the contention of the respondent that her mother is unable to maintain her does not hold water.

The learned counsel for the appellant would further submit that during cross-examination, the mother of the respondent admitted that she was an employee and she had also received a sum of Rs.2,50,000/- from the appeIlant at the time of divorce. However, the Family Court has failed to look into the cross-examination of the mother of the respondent and without any basis, the Family Court, enhanced the monthly maintenance to Rs.3,000/-.

Per contra, reiterating the findings of the Family Court, the learned counsel for the respondent submitted that the Family Court had granted monthly maintenance to the respondent and her mother way back in the year 2005 and that till filing of the Petition by the respondent, the appellant was paying Rs.500/- to the respondent that too with default. The learned counsel further submitted that with the meagre amount of Rs.500/-, the mother of the respondent was not in a position to bear the educational expenses of the respondent. Therefore, the Family Court was right in increasing the maintenance amount to Rs.3,000/- and there is no need to interfere with the order of the Family Court.

We have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

The respondent, who is the daughter of the appellant, has filed Judl. Misc. Case No.146 of 2015 seeking enhancement of monthly maintenance from Rs.500/- to Rs.8,000/- on the ground that it is very difficult for her mother to manage and also pay the school fees with the meagre amount of Rs.500/-. According to the petitioner, her mother had spent a total amount of Rs.27,910/-, which excludes school monthly fees and van fees. Stating that the respondent's mother is facing lot of hardship for maintaining and looking after the respondent, the respondent prayed for enhancement of the monthly maintenance. The Family Court, after considering the rival submissions of both sides, enhanced the maintenance payable to the respondent to Rs.3,000/- per month.

On the other hand, the case of the appellant is that when the maintenance was ordered, the mother of the respondent was not in employment and now she was gainfully employed in Government service and, therefore, she was having sufficient means to maintain the respondent. Hence, in view of change of circumstances, the respondent is not entitled to enhancement of the monthly maintenance amount.

It is not in dispute that the respondent and her mother filed Matrimonial (M) Case No.25 of 2004 and as they agreed to meet halfway, the Family Court, decreed the said case by an order dated 26.05.2005 directing the appellant to pay a sum of Rs.1,000/-per month towards maintenance allowance both for the respondent and her mother commencing from the month of May 2005.

Before the Family Court, the mother of the respondent was examined as P.W.2 and she categorically deposed that the appellant at times failed to pay the monthly allowance of Rs.1,000/-to the respondent and herself regularly, and as such there was due from the appellant. In her evidence, P.W.2 further deposed that she was a divorcee living with the respondent and Rs.500/- paid by the appellant towards the respondent is not enough to meet the day to day expenses of the respondent as well as her school fees.

In his evidence, the appellant deposed that he had divorced his wife Toijam Bijentimala Devi in the year 2014 by way of Court decree and at the time of divorce, he had given Rs.2,50,000/- to his wife by taking loan from State Bank of India and he was repaying the said amount by way of deduction from his salary. The appellant further deposed that the respondent is living with her mother and no one is dependent on Toijam Bijentimala Devi, except the respondent and since Toijam Bijentimala Devi is getting more salary, she is liable to maintain the respondent.

It is admitted by the appellant that he was drawing monthly salary of Rs.30,000/- and that the cost of living/prices of the materials taken and/or fixed in the year 2004 are increasing day by day and as such, his monthly salary was also increased. Though the appellant contended that at the time of divorce, he had paid Rs.2,50,000/- to his wife towards final settlement by obtaining loan, nothing has been produced to show that the appellant had availed loan and paid the said sum of Rs.2,50,000/- to the mother of the respondent.

By the impugned order dated 11.06.2019, the Family Court, Imphal East, enhanced the monthly maintenance to Rs. 3,000/- payable to the respondent observing as under:

"This is to dispose of the application filed by the petitioner/plaintiff praying for enhancement the monthly maintenance allowance at the rate of Rs.500/-p.m. after the amount of Rs.5000/- p.m. As per the application the o.p./defendant has been paying the maintenance allowance at the rate of Rs.500/- p.m. by an order dtd. 26.5.2005. It is also submitted by the Id. Counsel of the petitioner that the expense of the petitioner has been increased for her educational as well as daily expenses and the petitioner prays for enhancing the amount upto the rate of Rs.5000/p.m.

The o.p./defendant has filed the W/O that the petitioner does her school nearby her residence no van fee is required for necessary. Moreover her mother also is a government employee drawing a salary. I have considered the situation faced by the o.p./defendant however it is not possible for a meagre amount of Rs.500/- p.m. for the petitioner to survive now a days.

In the result the o.p./defendant is to pay Rs.3000/-p.m. to the petitioner for her educational expenses. "

Before adverting to the merits of the judgment passed by the Court below, it is apposite to refer to the relevant provisions of the Act, which read thus :

"Section 3. Definitions- In this Act unless the Context otherwise requires-

(a) xxx

(b) "maintenance" includes-

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage. "

Section 23. Amount of maintenance-

(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the consideration set out in sub-section (2) or sub-section (3) , as the case maybe, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to-

(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect, of the dependent;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependent;

(e) the past relations between the dependent and the deceased;

(f) the value of the property of the dependent and any income derived from such property, or from his or her earnings or from any other course;

(g) the number of dependents entitled to maintenance under this Act.

Section 25. Amount of maintenance may be altered on change of circumstances-The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration."

(emphasis supplied)

The term "Maintenance" as defined in the Advanced Law Lexicon, 3rd Edition 2005 as published by Wadhwa Nagpur includes in all cases, provision for food, clothing, residence, education and medical attendance and treatment. As per Bouvier Law Dictionary "Maintenance" is also the means of subsistence, supply of necessaries and conveniences; aid, support, assistance; the support which one person, who is bound by law to do so, gives to another for his living.

The grounds on which the respondent sought enhancement of monthly maintenance, inter alia, to meet her educational expenses, appear to be bona fide. As per Section 25 of the Hindu Adoptions and Maintenance Act, 1956, the amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of this Act, might be altered subsequently if there is a material change in the circumstances justifying such alteration.

The change of circumstances claimed by the respondent is based on the increase in the academic expenses, which appears to be reasonable and also justified. On the other hand, the change in circumstances pleaded by the appellant to the effect that the mother of the respondent was working in Government office and was drawing higher pay and, therefore, she can maintain her daughter, i.e., the respondent, cannot be countenanced.

Naturally, the expenses incurred in 2004-2005 got increased steeply by efflux of time. Further, it is quite impossible for the mother of the respondent to maintain the respondent with the meagre maintenance amount of Rs.500/- per month. Even assuming that the mother of the respondent was earning Rs.30,000/- by working in Government office, that by itself cannot be a ground to enjoin the respondent from seeking enhancement of maintenance. Therefore, we are of the considered view that, at this point in time, it is very difficult for the respondent to survive with the meagre amount of Rs.500/- per month.

It is settled that an unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and Maintenance Act, 1956. The father is obliged to maintain the unmarried daughter even if she is living separately with her mother. Thus, it is clear that it is the bounden duty of the appellant to maintain the respondent, who is his legitimate daughter, till her marriage by paying reasonable maintenance, which the Family Court has rightly considered and enhanced vide the impugned order. Further, the respondent has established the means of the appellant to pay the enhanced maintenance. The Family Court has got ample power to alter the maintenance amount after taking into considering the changed circumstances by virtue of the power conferred under Section 25 of the Act. In such view of the matter, we are of the opinion that there is no infirmity and/or perversity in the order of the Family Court.

We find no ground to interfere with the order of the Family Court, Imphal East and the Family Court has rightly enhanced/altered the monthly maintenance from Rs.500/- to Rs. 3,000/- payable to the respondent. Therefore, the appeal preferred by the appellant is liable to be dismissed.

Accordingly, the appeal is dismissed. No costs. The appellant is directed to pay the enhanced maintenance amount to the respondent from the month of July, 2015, within a period of twelve weeks from the date of receipt of a copy of this judgment.