Court: BOMBAY HIGH COURT
Bench: JUSTICE A.P. Bhangale
RAMRATAN Vs. MAYA & ANR. On 28 November 2011
Change in circumstances as Husband alleged to have retired from service. Applicant is at liberty to bring change in circumstances to notice of Judge of Family Court concerned and pray for alteration in quantum of maintenance allowance.
By this application, revision applicant questioned legality, propriety and correctness of the impugned judgment and order in Petition No. E-405 of 1996 and Petition No. E-2511/1996 delivered by learned Judge, Family Court, Nagpur on 1.10.2005 whereby present petitioner was made liable to pay maintenance @ Rs. 700 per month to respondent No. 2 Ku. Payal through respondent No. 1 Smt. Maya.
2. It is submitted on behalf of the applicant that he is not liable to pay maintenance to Ku Payal whose paternity was denied by him on the ground that he had no access to her mother at the relevant period as she was living at her parents’ house. Revision applicant, therefore, prayed for setting aside order of maintenance granted for girl Ku. Payal, his alleged daughter. It is submitted on behalf of the revision applicant that he had married with Maya d/o Bhaiyyalal Borkar on 19.4.1980, but Maya used to reside at her father’s house at Nagpur and claimed separate maintenance for herself and daughter Minal by filing Misc. Cri. Application No. 37 of 1981. Prayer for grant of maintenance by respondent Maya was rejected. However, it was allowed in respect of daughter Minal and according to applicant, he is still paying maintenance allowance to daughter Minal. Respondent Maya then filed Petition No. E-2511 of 1996 before the Family Court claiming maintenance for herself and Petition No. E-405 of 1996 claiming maintenance for daughter Payal. The Family Court has directed present applicant to pay maintenance @ Rs. 700 per month to petitioner Ku. Payal and Rs. 1,000 per month to respondent Maya.
3. According to learned Counsel for revision-applicant, in Second Appeal No. 280 of 1994, decided by this Court on 4.5.2010, marriage between revision applicant respondent No. 1 Maya came to be dissolved by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955. Thus, respondent Maya is no more the wife of applicant with effect from 4.5.2010. At the same time, learned Counsel for the applicant does not dispute that till her re-marriage, divorced wife Maya would be entitled to claim maintenance, but according to learned Counsel, respondent No. 2 Payal, alleged daughter of applicant is not entitled to claim maintenance.
4. None appears for respondents to oppose the submissions advanced by learned Counsel for applicants. Perused record and proceedings.
5. It appears that in the impugned judgment and order, considering
the rival pleadings, learned Judge of the Family Court framed the point, viz. “Does the guardian mother prove that the minor is born to her from the respondent ?” and this point is answered in the affirmative. Relevant discussion on this point finds in paragraph 27 of the judgment which reads as under:
“27. It is not disputed that after marriage they cohabited together and gave birth to daughter Payal. It is also not disputed that there was separation between them and she filed proceeding for maintenance against him for herself and for minor child Payal and maintenance was granted to the minor child at the rate of Rs. 75 p.m. in the year 1981 and it was rejected to guardian mother in Misc. Cri. Application No. 37/81 and Sessions Court also confirmed the order of J.M. F. C. for maintenance of guardian mother. Guardian mother has also filed a proceeding for enhancement for minor Minal and it was enhanced and granted @ Rs. 200 p.m. in Misc. Cri. Application No. 59/91. It is also not disputed that he filed the divorce petition against her bearing No. 231/84 and on 21.1.1991 that petition was dismissed. He preferred appeal. His appeal was also dismissed on 15.6.1994. He has challenged the order before the Hon’ble High Court. It is pending…”
6. Learned Judge of the Family Court mentioning that present applicant had denied paternity of the child, proceeded to discuss the evidence and circumstances and answered point No. 1 in the affirmative. The observations of the learned Judge were in connection with proceedings of maintenance under Section 125, Cr. P. C. Although second appeal preferred by the present applicant was decided on 4th May, 2010 while divorce was granted on the ground of cruelty by wife. The dispute as to paternity of Ku. Payal was not decided in the second appeal nor it is the contention of the applicant that he has filed any proceedings in a competent Court of Law to question paternity of Ku. Payal so as to avoid his liability to maintain her. Considering the observations made in paragraph 44 of the impugned judgment and order, I am not inclined to disturb the quantum of maintenance granted by the Family Court. Learned Counsel for the applicant submitted that there is change in the circumstances as the applicant has retired from service and, therefore, he would not be able to pay maintenance which is on higher side. If that is so, applicant is at liberty to bring the change in circumstances to the notice of learned Judge of the Family Court concerned and pray for alteration in the quantum of maintenance allowance. Needless to say, applicant shall be at liberty to challenge paternity of Ku. Payal, if so advised, by filing appropriate proceedings in the competent Court. With these observations, application dismissed.