Partly allowed

Dhaval Son of Kantilal Jain v. Kantilal Bherulal Jain

Bombay HC30 Oct 2014FCA/2/2009

Case brief

AI extract

What is this about?

Appeal filed by a minor son through his maternal uncle against a father seeking enhanced maintenance. The Court found the father's declared income and false statements to be inadequate and increased the monthly maintenance to Rs. 10,000.

What did the court decide?

Maintenance increased to Rs. 10,000 per month; respondent directed to pay arrears within one month.

Dhaval Son of Kantilal Jain Vs Kantilal Bherulal Jain — Maintenance and Alimony | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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FAMILY COURT APPEAL NO.2 OF 2009

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Dhaval Son of Kantilal Jain, Aged 8 years, Occupation- Student Presently residing at 6, Multigen, ) Co-operative Housing Society Ltd. Behind Canara Bank, Kalina, Santacrus (East), Mumbai-400029 Minor through his Maternal uncle) Rakesh Kumar Geharilal Jain.

) ) ) ) )

)...Appellant.

Vs.

Mr.Kantilal Bherulal Jain, ) Aged 32 years, Occupation: Business ) Residing at Manorama Nivas, ) Bhagarwada, Nathdwara, District ) Rajsamandi, Rajasthan-313301. )...Respondent

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Mr.Prem S.Gidwani with Ms.Rita S.Panjwani, for the Appellant.

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Mr.Rajesh Khobragade, for the Respondent.

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CORAM: A. S. OKA & G. S. KULKARNI, JJ.

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RESERVED ON : 28^th August,2014 PRONOUNCED ON: 30^th October,2014

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JUDGMENT :- ( Per G.S.Kulkarni, J. )

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This is an appeal of the minor child through his maternal uncle against his father - respondent, being aggrieved by the judgment and order dated 22^nd October,2008 passed by the learned Judge, Family Court, Mumbai, awarding the appellant only an amount of Rs.2,000/- per month towards maintenance.

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The maternal uncle of the appellant in the capacity as guardian had filed a petition against the respondent-father under Section 20 of the Hindu Adoption and Maintenance Act interalia praying that the respondent be directed to pay maintenance at Rs.50,000/- per month which will cover the appellant's food, clothing, shelter, school fees and expenses connected with the schools, transport and medical expenses.

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The respondent was married to the deceased mother of the appellant on 28.6.1998 which was solemnized in Rajasthan. On 19.9.1999 the appellant was born from the wedlock. On 5.12.2001 the mother of the appellant had received burn injuries and therefore, was brought to Mumbai on 10.12.2001. On 21.2.2002 the appellant's mother expired having succumbed to her burn injuries. It is the case of the appellant that the respondent did not take care for the medical expenses. Further the respondent did not take back the appellant alongwith him to Rajasthan or pay any money towards his maintenance.

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The appellant's maternal uncle secured admission for the appellant in Indian Airlines Ideal School, IAC Colony, Kalina, Mumbai and was taking care of the appellant. The appellant through his maternal uncle Shri.Rakesh Kumar Geharilal Jain had filed a petition under Section 20 of the Hindu Adoption and Maintenance Act read with Section 7(i)(a) of the Family Court Act,1984 interalia seeking maintenance and claiming certain other expenses. It was the case of the appellant before the Family Court that the appellant's deceased mother was given a grand marriage from her maternal side with a cash of Rs.2 lakhs and gold ornaments of about 50 tolas worth about Rs.2 lakhs, 2 kilograms of silver utensils, 141 silver coins, Sony colour TV, washing machine and various other household items as demanded by the respondent and his parents. On 30.6.1990, which was the day of reception held at Nathdwara, there further demands were raised for clothing material, CD Player, a necklace set of gold, a gold ring and cash of Rs.10,000/- and a Maruti Van, when already huge amount was spent at marriage.

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It was the case of the appellant that the appellant's deceased mother complained of ill-treatment at the hands of the respondent and his family members in regard to the demand for car in dowry and she was physically and mentally tortured. In the seventh month of her pregnancy, the appellant's deceased mother was unceremoniously sent back to her parental house at Mumbai with a threat that if the demand of the respondent was not met, she would not be taken back in the matrimonial house. The birth of the appellant did

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not make any difference in the attitude of the respondent and his family members. In fact, more demand for money was made on the ground that the business of the respondent was not doing well. There was physical harassment of the appellant's deceased mother which was noticed by the family members of the appellant's deceased mother in the function held on 3.12.2001 at Udaipur.

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On 5.12.2001 the appellant's mother has received burn injuries as the respondent and family members had assaulted the appellant's deceased mother. She was admitted in the General Hospital at Udaipur and as there was no proper recovery, his family brought the deceased mother of the appellant to Mumbai by Air on 10.12.2001. At that time, the appellant was 2 years and 3 months of age. On 21.2.2002, the deceased mother succumbed to her injuries at Mumbai. The respondent did not pay the medical bills which amounted to about Rs.3 lakhs nor did the respondent bother to take back the appellant or to pay any money for his maintenance.

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In this situation, the appellant was required to stay with his maternal uncle who also was required to take responsibility of his family which consists of his wife and son alongwith the appellant. Since due to death of the appellant's mother, the respondent never bothered to see the appellant or bear his expenses, let alone to take custody of the appellant.

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The appellant was admitted to the Indian Airlines Ideal School at

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Kalina, Mumbai. His maternal uncle was taking care of all education and other expenses of the appellant.

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It was the case of the appellant that the respondent is in an affluent position and living in luxury and despite the same he was not providing a single rupee towards the expenses of his child. It was the appellant's case that the respondent had flourishing business of clothes and having two shops at Lal Bazar, Nathdwara which is the main market in Nathdwara viz. Bhurulal Laxmilal Bhamb which is a saree shop and another shop by name Bhamb Cloth Stores where men's clothes are sold. It was his case that apart from these shops, the respondent is also conducting other business like commission agent and that the individual income of the respondent was not less than Rs.10 lakhs. It was his case that the respondent also had family business and despite this position, he had grossly neglected to look after his child and provide any expenses towards upbringing of the appellant who was living in Mumbai. It was the case of the appellant that the appellant being the respondent's child, is entitled to live in accordance with the status of his father who was living luxurious life. The appellant also pointed out in his affidavit before the family Court that the respondent had contracted second marriage and had issues from the second marriage.

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The respondent appeared before the Family Court and opposed the petition of the appellant on the ground that the same was false and frivolous. The

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respondent admitted that the appellant was residing with his maternal uncle. He denied allegations of demand for any dowry as made in the petition filed by the appellant. He also denied all the allegations made in the petition. The respondent made certain counter allegations.

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In regard to the contention of the appellant that the respondent had flourishing business, the respondent denied the same. He submitted that Shop at Lalbazar Nathdwara belongs to his father i.e. Bherulal Laxmilal Bhamb which is a saree shop. He submitted that he was a salesman in the said shop and that he was drawing salary of Rs.72,000/- per year. He submitted that he was also doing work of brokerage and getting Rs.25,000/- to 30,000/- per year. He submitted that he was staying in a joint family and was to contribute household expenses to the tune of Rs.6,000/- per month. He submitted that he had son from the second marriage who was born on 30.6.2005. He stated that he was also required to maintain his daughter who was born on 26.1.2007. He submitted that he is earning Rs.1 lakh per year, the respondent relied on his income tax returns. He denied the case of the appellant that the appellant did not have adequate maintenance. He expressed his desire to maintain the appellant.

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In support of the petition before the Family Court, Mr.Rakesh Kumar Geharilal Jain has examined himself as also examined his father Mr.Gehrilal Khemraj Jain, who were cross-examined on behalf of the respondent. Further the respondent has also led his evidence and was cross

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examined.

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In the affidavit in lieu of examination in chief, Mr.Rakesh Kumar Geharilal Jain reiterated the case of the appellant as set out in the petition and stated that the respondent had flourishing business of clothes and has two shops at Lal Bazar, Nathdwara which is a main market in Nathdwara. He stated that the respondent was also conducting other business of commission agent. He stated that the individual income of the respondent was not less than Rs.10 lakhs, apart from the family business and that the respondent had no interest for providing any expenses for upbringing of his child i.e. appellant who is living in Mumbai where the cost of living is very high. In the cross examination of Mr.Rakesh Kumar G.Jain, on a suggestion given to him on behalf of the respondent he stated that his income is Rs.7000/- to Rs.8000/- per month and that he is looking after his wife and two children. In the cross examination of Mr.Gehrilal Khemraj Jain, father of Mr.Rakesh Kumar G. Jain, it is recorded that it is the joint family who is looking after the appellant. He also stated that the appellant is taking eduction at Mumbai.

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The respondent in his affidavit in lieu of examination in chief stated that shop at Lal Bazar, Nathdwara belongs to his father Mr.Bherulal Laxmilal Bhamb which is a saree shop. He stated that he was one of the salesmen in the said shop and that he was drawing salary of Rs.20,000/- to Rs.22,000/- per year. He stated that that he was staying in a joint family and had to contribute in the

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household expenses to the tune of Rs.6000/- per month. He stated that he also has a son and daughter from the second marriage. He further stated that he was earning Rs.1 lakh per year and that he was filing income tax returns. The income tax returns for the year 2004-05, 2005-06 and 2006-07 were annexed to his affidavit. In the cross-examination, he stated that in the year 2001-2002 his salary was Rs.6,000/- per month and that he was getting the same salary. He also stated that there are two other salesmen in the shop. In paragraph 19 of the cross-examination, the respondent was confronted in regard to the averments in criminal Revision Application before the Sessions Court at Mumbai as filed by him. The respondent admitted the said document. The respondent in criminal Revision Application No.4161 of 2007 filed before the Sessions Court had stated that he is a businessman and carries on business of selling sarees and allied material all over India and was residing at Manorama Nivas, Bhagarwada, Dist.Rajasmandi, Rajasthan and was having his well reputation in the society as the honest businessman.

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In the income tax returns which were placed on record, for the assessment years 2004-05, 2005-06 and 2006-07. The computation of the income from salary and income from other sources like commission and brokerage for

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these three assessment years are as under:-

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Assessment Year	Income from Salary	Income from other sources like
		Commission & brokerage
2004-05	Rs.72,000/-	Rs.23,320/-/-

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2005-06	Rs.72,000/-	Rs.55,650/-
2006-07	Rs.72,000/-	Rs.33,500/-

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Apart from this, in the yearly accounts supporting the balancesheet as on 31.3.2005, some interesting information is revealed viz. in the fixed assets a plot at Kotharia Road of Rs.44,500/- is shown, in the current assets shop deposit (Manohar Lalji) of Rs.1,00,000/-, from M/s.Kapde Wala Bamb Rs.30,000/- and M/s.Bherulal Laxmila Bomb Rs.1,40,600/- and cash and bank balance of Rs.60,121/- has been shown. Similarly for the assessment year 2006-07, in fixed assets Plot at Kotharia Road is shown for Rs.44,500/-, in the current assets a shop deposit (Manoharlal ji) of Rs.1,00,000/-, M/s.Kapde Wala Bomb of Rs.30,000/-, M/s.Bherulal Laxmila Bamba Rs.3,90,600/- and cash and bank balance of Rs.9,815/- has been shown. In addition to that unsecured loan of Rs.10,000/from M/s.Jain Saree Centre and loan from the relatives Rs.1,42,500/- has been shown. Thereafter, for the assessment year 2006-07 the position is almost similar to that of earlier financial year.

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We have heard the learned Counsel for the parties. We have gone through the relevant documents placed in the paper book.

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On behalf of the appellant, it is submitted that the learned Family Court has not appreciated the facts on record in awarding a meager maintenance of Rs.2,000/- per month to be paid to the appellant by the respondent-father. It is

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submitted that the evidence as placed on record before the Family Court clearly indicate that the respondent was in a position to pay a much higher amount. It is submitted that the respondent's story that he was working as a salesman in his father's shop was clearly falsified from his own statement as appearing in the Criminal Revision Application filed by him before the Sessions Court, Mumbai. It is submitted that the respondent has other businesses, has also been supported from the income tax returns alongwith the accounts filed before the Family Court. It is submitted that the respondent has given different versions at different places which completely go to show that the income of the respondent is sufficient so as to pay a higher maintenance as prayed by the appellant. It is urged that the respondent had shown an attitude of total negligence in offering a proper maintenance for the appellant – his minor son. It is submitted that reading of the evidence clearly shows that the respondent's case was a complete falsehood on oath and a serious view of this ought to be taken. It is submitted that the respondent is in fact guilty of suppression of the facts and of giving false information so as to avoid liability to pay maintenance and to make payment of adequate maintenance to his son. In support of the submissions that false statements are made by the respondent and the same amounts to a perjury, the learned Counsel for the appellant has relied on the judgment of the Supreme Court in the case of “ Perumal Vs. Janki, (2014) 5 SCC 377 ”.

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The learned Counsel appearing on behalf of the respondent has

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supported the impugned judgment and order passed by the learned Family Court. He submits that the respondent is a salesman drawing a meager salary. It is submitted that though the statements in the criminal revision application is on oath, same were inadvertently made by the respondent to state that he is a businessman. He submits that the respondent had remarried and has three children to support alongwith his wife and therefore, any enhancement in the amount as awarded by the Family Court would prejudicially affect the respondent. He submits that the learned Family Court has appropriately taken into consideration the income as received by the respondent as reflected in the Income Tax Returns so as to award the monthly maintenance of Rs.2,000/- to the appellant. He therefore, submits that the appeal deserves to be dismissed by confirming the maintenance of Rs.2,000/- per month as awarded by the learned Family Court.

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We have examined the record. We have considered the submissions as made on behalf of the respective parties.

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It is significant to note the following evidence which has come on record before the learned Family Court.

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(a) In the written statement at paragraph 19, the respondent stated that he is one of the salesman in the shop of his father i.e. Bherulal Laxmilal Bhamb at Lalbazar, Nathdwara which is a saree shop and that he was drawing salary of

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Rs.72,000/- per year and that he also had work of brokerage and getting Rs.25,000/- to Rs.30,000/- per year. He stated that he is in a joint family and was contributing Rs.6,000/- per month towards household expenses.

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(b) In the cross examination of Mr.Rakesh Kumar Geharilal Jain a suggestion was put on behalf of the respondent to the effect that the income of the respondent is Rs.7,000/- to Rs.8,000/- per month to which the witness had answered in the affirmative. In the affidavit in lieu of examination in chief of the respondent in paragraph 10 he stated that he was a salesman in the shop of his father and was drawing salary of Rs.20,000/- to Rs.22,000/- per year. At the same time, he stated that he was contributing Rs.6,000/- per month towards the household expenses of the joint family and that at the same time he was also maintaining his son and daughter born from his second marriage.

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(c) In the cross examination, the respondent stated that in the year 2001-02, his salary was Rs.6,000/- per month and that he was getting the same salary thereafter. He also stated that he was not making any false statement before the Court. Further in the cross-examination, he admitted the statement made in the criminal Revision Application that he described himself to be reputed businessman having his business of selling sarees and allied raw material all over India and is residing at Manorama Nivas, Bhagarwada, Dist. Rajsmandi, Rajasthan.

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(d) The income tax returns of the respondent as placed on record clearly indicate that the respondent was purportedly showing the salary income and the income from commission and brokerage. It show different assets held by him. What is shown in the balance sheet as on 31.3.2006 is a shop deposit of Rs.1,00,000/- of Mr.Manohar Lal Ji., and Rs.3,90,600/- of M/s.Bherulal Laxmila Bamb which is very significant.

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A perusal of the aforesaid evidence clearly indicates that the versions of the respondent varied from time to time. It also indicates that the respondent has done this with the object of avoiding his liability to pay maintenance to the appellant-his minor son. It can also be gathered that the respondent has in fact made false statement on oath before the Family Court that he is earing a salary and that he is not a businessman, which is very serious. In the affidavit in lieu of examination in chief, contrary to his earlier statements, he falsely deposed that he was drawing salary of Rs.20,000/- to Rs.22,000/- per year. This is to say that he was drawing about Rs.1,600/- to 1,700/- per month going by the statement. When in fact on his behalf a suggestion was given in the cross examination of the father of Mr.Rakesh Kumar Jain that the income of the respondent was Rs.7,000/- to Rs.8,000/- per month. Further in the cross examination of the respondent, he has categorically admitted that in the year 2001-02 his salary was Rs.6,000/- per month and further he himself supported

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his evidence with the income tax returns and financial statements/ balancesheet which showed the salary income of Rs.72,000/- as also the additional income from commission and brokerage as also number of other assets as observed above. All these clearly show the falsity of the pleas as taken by the respondent before the Family Court.

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Further the respondent has categorically stated in his application made before the Sessions Court that he is a reputed businessman and is carrying on business of selling sarees and allied materials all over India. He has also stated that he was carrying on said business alongwith the parents and brother for last more than 35 years all over India of selling of sarees and allied business materials. All these different versions do not inspire any confidence in the case of the respondent. This clearly indicates that the respondent has come out with different version before the Family Court for avoiding his liability to maintain the appellant – his minor son. In fact the various statements as made by the respondent show that they are false and are nothing but an attempt on the part of the respondent to wriggle out of his parental obligation to provide adequate maintenance towards his minor son/ appellant.

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The learned Counsel appearing for the appellant in fact would be justified in relying on the decision of the Supreme Court in the case of “Perumal Vs. Janaki” (supra) to state that this is a fit case where this Court should exercise

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power under Section 194 of the Code of Criminal Procedure, considering the falsity of the statements as made by the respondent before the Trial Court. Learned Counsel for the appellant submits that the false statements constitute offence under Section 193 of the Indian Penal Code in view of the fact that as the respondent has intentionally given false evidence in the judicial proceedings. However, we keep the said issue open for the appellant to take appropriate steps in that regard. The appellant, if so, desires would be at liberty to pursue appropriate proceedings before the appropriate Court in this regard.

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In the light of the aforesaid facts, we are of the clear opinion that the amount of maintenance of Rs.2000/- as awarded by the learned Family Court to the appellant – minor son of the respondent is meager and inadequate by all standards to meet the financial requirements of his son towards his livelihood which includes not only food and clothing but also education. We direct that the respondent shall pay an amount of Rs.10,000/- per month to the appellant with effect from the date of the impugned judgment and decree of the family Court. This amount shall be directly transferred by the respondent to the bank account of the appellant. The appellant is directed to supply the details of the bank account to the Advocate for the respondent within one week from today.

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As regards the amount of maintenance of Rs.10,000/- per month to be paid with effect from the month of November,2014, the same shall be paid on

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or before 10^th day of every month.

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We partly allow the appeal in terms of the aforesaid directions. The respondent is directed to pay to the appellant cost of Rs.25,000/- within a period of six weeks. Civil Application does not survive and is disposed of accordingly.

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At the request made by learned counsel for the Respondent, time of one

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month is granted to deposit the arrears.

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(G. S. KULKARNI, J.) (A.S.OKA, J.)

Dhaval Son of Kantilal Jain v. Kantilal Bherulal Jain

Case brief

What is this about?

What did the court decide?

Dhaval Son of Kantilal Jain v. Kantilal Bherulal Jain

Case brief

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What the court decided

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