The Family Court set aside a maintenance decree because the trial court failed to analyze the evidence and record findings regarding the maintenance quantum awarded earlier by another court in the same matter.
Set aside the impugned order and decree; matter remitted back to the Court below for reconsideration and disposal of the underlying O.P.
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THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE M.GANGA RAO
FAMILY COURT APPEAL No.305 of 2018
JUDGMENT : (per Hon’ble Sri Justice A.V. Sesha Sai)
Heard Sri V.V.L.N.Sarma, learned counsel for the appellant,
and Smt.T.V.Sridevi, learned counsel for the respondents, apart from perusing the entire material available on record.
In the present appeal, filed under Section 19 of the Family Courts Act, 1984 (for brevity, ‘the Act’), challenge is to the order and decree, dated 24.04.2017, passed by the learned Judge, Family Court-cum-V Additional District and Sessions Judge, Visakhapatnam in O.P.No.978 of 2009.
Respondent Nos.1 and 2 herein, who are the wife and daughter of the appellant herein, filed the O.P., under the provisions of Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956, praying the Court below to grant maintenance @ Rs.4,00,000/per mensum to the first respondent and Rs.3,00,000/- per mensum to the second respondent herein. The said O.P. was resisted by the appellant herein by way of filing a counter.
On the basis of the pleadings available on record, the learned Presiding Officer, Family Court framed the following points for determination:
“1. Whether the petitioners 1 and 2 are entitled for past maintenance at the rate of Rs.4,00,000/- per month to the first petitioner and Rs.3,00,000/- per month to the second petitioner from 17.08.2006 to 17.08.2009 for a period of three years, totalling Rs.2,52,00,000/-?, if not, at what rate?
2. Whether the petitioners 1 and 2 are entitled for maintenance at the rate of Rs.4,00,000/- and Rs.3,00,000/-
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per month each respectively as prayed for ? if not what shall be the quantum of maintenance?
The learned Presiding Officer rendered the impugned judgment
and decree and the impugned decree reads as under:
1. That the petition be and the same is hereby allowed in part;
2. That the petitioners 1 and 2 are hereby granted past maintenance from 17.08.2008 to 16.08.2009 at the rate of Rs.25,000/- to the 1st petitioner and Rs.15,000/- to the 2nd petitioner;
3. That the maintenance at the rate of Rs.27,000/- per month to the 1st petitioner and Rs.18,000/- per month to the 2nd petitioner from the date of filing of the petition till 31.03.2014 considering that the enquiry commenced on 28.04.2014;
4. That the maintenance at the rate of Rs.40,000/- per month to the 1st petitioner and Rs.20,000/- per month to the 2nd petitioner from 01.04.2024 still this day;
5. That the maintenance at the rate of Rs.60,000./- per month to the 2nd petitioner and Rs.40,000/- per month to the 2nd petitioner from this day i.e. dt.24.04.2017;
6. That the respondent is hereby granted three months time for payment of 50% of arrears of past maintenance and maintenance granted till this day and he is granted further time of three months for payment of balance of arrears of maintenance till this day;
7. That he shall, however, make payment of current maintenance for each month as per order regularly from now onwards i.e. on or before 10th of each current, month, for which, the maintenance is due; and
8. That there be no order as to costs.”
In the present appeal, challenge is to the said order and decree.
It is contended by the learned counsel for the appellant that the order passed by the learned District Judge is highly erroneous, contrary to law and probabilities of the case. In elaboration, it is further maintained by the learned counsel that, without appreciating the evidence available on record and without assigning any valid reasons, the learned Judge granted the maintenance. It is also the submission of the learned counsel that the order passed in D.V.C.No.3 of 2009,
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dated 28.02.2013, which was confirmed in Crl.A.No.116 of 2013 on 01.12.2015, was not taken into consideration.
On the contrary, it is strenuously contended by the learned counsel for the respondents that there is absolutely no error nor there exists any infirmity in the impugned order and, in the absence of the same, the impugned order is not amenable for correction under Section 19 of the Act. It is also the submission of the learned counsel that, having regard to the financial capacity of the appellant, the Family Court is perfectly justified in granting maintenance. It is also the submission of the learned counsel that, only after considering elaborately and meticulously the oral and documentary evidence available on record, the learned Judge passed the impugned order, as such, the same cannot be faulted.
In the above background, now the issue that emerges for consideration of this Court is:
“Whether the order passed by the Court below, which is impugned in the present appeal, is sustainable and tenable and whether the same warrants any interference of this Court, under Section 19 of the Family Courts Act”?.
The material available before this Court reveals that, in order to substantiate their case, as many as five witnesses were examined on behalf of the respondents i.e. P.Ws.1 to 5 and Exs.A1 to A38 were marked. On the other hand, appellant herein got examined himself as R.W.1 and marked Exs.B1 to B10.
The sum and substance of the case of the appellant herein, as advocated by the learned counsel for the appellant, is that the maintenance granted in the civil proceedings in favour of the respondents herein was not taken into consideration by the Family Court while awarding maintenance in the present O.P.
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A perusal of the order impugned in the present appeal demonstrates that the learned Judge recorded the pleadings and also the depositions of the witnesses.
The impugned order further discloses that the Court below referred to almost all the documents filed by both the parties but the evidentiary value of the same was obviously not considered by the Court below nor the Court below recorded any reasons, muchless valid reasons, while quantifying the maintenance. This sort of exercise undertaken by the Court below, in the considered opinion of this Court, cannot be countenanced. When evidence is available on record, the Court below ought to have analysed the said evidence and ought to have recorded the findings in one way or the other, as to the evidentiary value of the same, and, thereafter, ought to have arrived at the conclusions. In the impugned order, the same is conspicuously absent. Therefore, this Court is of the considered opinion that the present O.P. requires re-consideration by the Court below.
For the aforesaid reasons, the Family Court Appeal is allowed, setting aside the order and decree, dated 24.04.2017, in O.P.No.978 of 2009, and the matter is remitted back to the Court below for the purpose of hearing and disposal of the O.P. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall stand closed.
A.V.SESHA SAI, J
M.GANGA RAO, J
08th November, 2019. Tsy
1 issue framed by the court
Whether the order passed by the Family Court in the underlying maintenance petition is sustainable and tenable warranting interference under Section 19 of the Family Courts Act, 1984?
2 provisions across 2 enactments
Appellant
Respondents 1 and 2
A.V.Sesha Sai
M.Ganga Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
