Maintenance, as per Black's Law Dictionary, inter alia, means sustenance , support, assistance, aid. The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc. particularly where the legal relation of the parties is that one is bound to support the other, as between father and child, or husband and wife. While the term primarily means food, clothing and shelter, it has also been held to include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utility and household expenses. Article 171 of the Civil Code, 1867 defines maintenance to mean all that is indispensable for the sustenance, habitation and clothing, and, in case of minors it also includes the bringing up of and education of the person maintained. Article 178 of the same Code provides that the maintenance shall be proportionate to the means of the one who has to provide it and to the needs of the one who will receive it. In other words, it is need based as far as the needs of the receiver are concerned and it is means based as far as the means of the provider are concerned.
N.A. Britto, J.
1. Challenge in this petition is to the Order dated 6-1-2007 of the learned Civil Judge, Senior Division, Mapusa, by which the son of the Petitioner and the Respondent has been granted maintenance of Rs. 50,000/- per month.
2. Briefly stated, the Petitioner and the Respondent after having known each other on friendly terms got married on 1-5-1993 and of the said marriage they have a son by name James, born in the year 1988 and who presently studies in Std. IVth.
3. The Respondent-wife on or about 13-5-2002 filed a suit for divorce, inter alia, on the ground of ill-treatment under Article 4(4) of the Law of Divorce and by a separate application dated 23-7-2002 sought maintenance for herself and for the said son. The learned trial Court by the impugned Order dated 6-1-2007 was pleased to allow the said application and order the payment of maintenance, as aforesaid, to be paid on 5th of every succeeding month. As against the said Order the Petitioner-husband filed the present writ petition. On 5-4-2007, the impugned Order was stayed, and, on 13-9-2007 this Court after hearing both the parties granted stay as far as the arrears at the rate of Rs. 50,000/-per month were concerned but refused to grant the stay of interim maintenance at the rate of Rs. 50,000/-from the date of the order and granted liberty to the Petitioner to make the payment on or about 10-10-2007 and directed further payments to be made pending the hearing and final disposal of this petition on or before the 10th day of the month for which it is due.
4. The Petitioner approached the Hon'ble Supreme Court with Special Leave to Appeal and an order was made by the Hon'ble Supreme Court on 29-10-2007 which was modified on 30-11-2007. The Apex Court noted that the Order of this Court was an interim order by which the Petitioner-husband was directed to pay interim maintenance at the rate of Rs. 50,000/-per month which would be payable from the date of the order of this Court. The Hon'ble Supreme Court did not entertain the Special Leave Petition which was filed against the interim order and chose not to interfere with the said order of this Court dated 13-9-2007 but ordered that the payment of interim maintenance for the period from 14-9-2007 to 30-9-2007 was extended by four weeks and thereafter the payment was to be made on or before 15th of each succeeding month.
5. I have heard the learned Counsel appearing on behalf of the parties at length. There is no dispute that the Respondent-wife is employed with Gulf Air in Mumbai and her gross salary for the month of May, 2007 was Rs. 37,224/-and take home salary of Rs. 28,592/-. The Petitioner-husband appears to be a well to do businessman though he has now pleaded that his very existence has been jeopardised by false and malicious allegations levelled by the Respondent and by ensuring the retention of his passport which has rendered him jobless and penniless. The learned trial Court held that the son could not be deprived from being given interim maintenance and as the Petitioner had admitted that he would like to see that his son got the best of education and best of all facilities, she was inclined to award Rs. 50,000/-per month towards the expenses of his education and other necessities. A grievance has been made on behalf of the Petitioner that the learned trial Court could not have awarded such a huge amount without there having been any material for the consideration of the trial Court on the basis of which the same could have been awarded. Another grievance of the Petitioner is that the material which has been referred to in the order of this Court dated 13-9-2007 was not there before the learned trial Court and the said material has been considered by this Court, as if it was an appellate Court and that too without considering the affidavit dated 12-9-2007 filed by the petitioner.
6. Mr. S. G. Dessai, learned Senior Counsel on behalf of the Petitioner submits that the impugned Order of the trial Court is without any reasons and therefore the same needs to be set aside and the matter is required to be remanded for fresh consideration to decide the application giving an opportunity to the parties to lead evidence. In this context, learned Senior Counsel Mr. Dessai has placed reliance on Achutananda Baidya v. Prafullya Kumar Gayen and Ors. wherein the Apex Court has held that the High Court can interfere under Article 227 in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law , arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. Learned Senior Counsel has also placed reliance on the case of State of Andhra Pradesh v. Chevireddi Venkatakrishna Reddy wherein the Apex
Court has stated that an order without reasons is grass without root. Learned Senior Counsel has further submitted that in the execution proceedings the Petitioner has deposited a sum of Rs. 50,000/-on 15-12-2007. Learned Senior Counsel submits that pending the inquiry and without prejudice to his rights, the Petitioner would be willing to pay a sum of Rs. 10,000/-as maintenance and the deposit of Rs. 50,000/-made be considered at the rate of Rs. 10,000/-from September to January and he will continue to pay Rs. 10,000/- hereinafter.
7. On the other hand, Mr. Sudin Usgaonkar, learned Counsel on behalf of the Respondent, firstly, submitted that the Petitioner has not complied with the order of this Court dated 13-9-2007 and therefore the petition ought to be dismissed without any further hearing. Learned Counsel further submits that the Hon'ble Supreme Court also chose not to interfere with the order dated 13-9-2007 and therefore the Petitioner ought not to have been shown any indulgence whatsoever. Learned Counsel further submits that the Respondent-wife is a salaried person and therefore her salary income can at once be seen but the Petitioner is a businessman and therefore it is his assets which are required to be seen before any order could be made. Pointing out to letter dated 28-2-2002 by which a sum of Rs. 51,200/-was sent by the Petitioner on account of annual fees for their son, learned Counsel contends that it shows that the Petitioner is in a position to make the payment.
8. Maintenance, as per Black's Law Dictionary, inter alia, means sustenance , support, assistance, aid. The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc. particularly where the legal relation of the parties is that one is bound to support the other, as between father and child, or husband and wife. While the term primarily means food, clothing and shelter, it has also been held to include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utility and household expenses.
9. Article 171 of the Civil Code, 1867 defines maintenance to mean all that is indispensable for the sustenance, habitation and clothing, and, in case of minors it also includes the bringing up of and education of the person maintained. Article 178 of the same Code provides that the maintenance shall be proportionate to the means of the one who has to provide it and to the needs of the one who will receive it. In other words, it is need based as far as the needs of the receiver are concerned and it is means based as far as the means of the provider are concerned. The impugned Order of the trial Court did not at all take into consideration the needs of James before it ventured to award a sum of Rs. 50,000/-per month. Likewise, with respect, I must observe that the same was also not considered by this Court in Order 13-9-2007. Even if the Petitioner was a multimillionaire as claimed, there was no question of awarding Rs. 50,000/-per month unless the needs of James were first found out. To that extent the impugned Order deserves to be set aside and the matter remanded for inquiry.
10. At the stage of hearing of this petition a statement was produced on behalf of the Respondent-mother showing the monthly expenses of James as Rs. 19,700/-and annual and long term expenses as Rs. 74,000/-. This was not acceptable to the Petitioner-father. As per Article 24 of the Family Laws in force in the State of Goa the father as well as the mother are bound to contribute to the maintenance of their children in proportion to their own income and personal properties. It also provides that the amount of maintenance due to the children shall be legal charge over the properties of the spouses. At one stage, the Respondent-wife appears to have stated in her petition for divorce that she was employed and was capable of looking after the son and educate him with her own finance at the same time stating that the Petitioner was also required to contribute towards the education and upbringing of the child. At no stage did the Respondent-wife state as to what would be her contribution or what contribution she expected from the Petitioner. Again, all these aspects can be gone into after an inquiry into the application filed by the Respondent-wife is completed. Nevertheless some interim arrangement is certainly required to be made till the application is decided on merits. The Petitioner has always stated that their son James should get the best of education so as to give him proper upbringing. The Petitioner has also been willing right from the inception of the proceedings, without prejudice to his rights, to pay a sum of Rs. 5000/-per month. Likewise, the Petitioner has now been willing, without prejudice to his rights, to contribute a sum of Rs. 10,000/-per month. However, I am not inclined to accept the suggestion made by learned Senior Counsel on behalf of the Petitioner that the Petitioner would pay Rs. 10,000/-per month after adjusting Rs. 50,000/-paid by him in December, 2007. As a matter of interim arrangement till the application is heard and decided on merits I am of the view that the Petitioner should be directed to pay in the hands of the Respondent towards the maintenance of their son James the said sum of Rs. 5000/-agreed to be paid by him from the date of the application. The arrears due thereon should be paid in six installments within a period of six months, till the order of this Court dated 13-9-2007. Since the said order dated 13-9-2007 has not been complied with and the Hon'ble Apex Court also chose not to interfere with the same, in my view, the Petitioner's request for its modification at this stage cannot be entertained. The Petitioner is also directed to pay the arrears due thereon within a period of six months, considering overall view of the matter. The Petitioner is directed to pay Rs. 10,000/-per month from the date of this order till the application is disposed of by the trial Court on merits as agreed to by him. Payments made by virtue of this order, needless to say, will be adjusted towards the maintenance to be granted by the trial Court. Rs. 10,000/ to be paid on or before 10th of the next month.
11. One fails to understand as to how an application for maintenance remained pending for such a long time. The learned trial Court is directed to dispose of the same on merits as expeditiously as possible and in any event within a period of six months.
12. At this stage, learned Counsel on behalf of the Petitioner prays for suspension of the Judgment. Learned Counsel on behalf of the Respondent objects. Considering the facts and circumstances of the case prayer for stay is rejected.
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Bombay High Court
Shri Francis Milton Kevin Noronha ... vs Aloma Ana Gomes Alias Aloma Ana ... on 20 February, 2008
Equivalent citations: 2008 (2) MhLj 805
Bench: N Britto
JUDGMENTN.A. Britto, J.
1. Challenge in this petition is to the Order dated 6-1-2007 of the learned Civil Judge, Senior Division, Mapusa, by which the son of the Petitioner and the Respondent has been granted maintenance of Rs. 50,000/- per month.
2. Briefly stated, the Petitioner and the Respondent after having known each other on friendly terms got married on 1-5-1993 and of the said marriage they have a son by name James, born in the year 1988 and who presently studies in Std. IVth.
3. The Respondent-wife on or about 13-5-2002 filed a suit for divorce, inter alia, on the ground of ill-treatment under Article 4(4) of the Law of Divorce and by a separate application dated 23-7-2002 sought maintenance for herself and for the said son. The learned trial Court by the impugned Order dated 6-1-2007 was pleased to allow the said application and order the payment of maintenance, as aforesaid, to be paid on 5th of every succeeding month. As against the said Order the Petitioner-husband filed the present writ petition. On 5-4-2007, the impugned Order was stayed, and, on 13-9-2007 this Court after hearing both the parties granted stay as far as the arrears at the rate of Rs. 50,000/-per month were concerned but refused to grant the stay of interim maintenance at the rate of Rs. 50,000/-from the date of the order and granted liberty to the Petitioner to make the payment on or about 10-10-2007 and directed further payments to be made pending the hearing and final disposal of this petition on or before the 10th day of the month for which it is due.
4. The Petitioner approached the Hon'ble Supreme Court with Special Leave to Appeal and an order was made by the Hon'ble Supreme Court on 29-10-2007 which was modified on 30-11-2007. The Apex Court noted that the Order of this Court was an interim order by which the Petitioner-husband was directed to pay interim maintenance at the rate of Rs. 50,000/-per month which would be payable from the date of the order of this Court. The Hon'ble Supreme Court did not entertain the Special Leave Petition which was filed against the interim order and chose not to interfere with the said order of this Court dated 13-9-2007 but ordered that the payment of interim maintenance for the period from 14-9-2007 to 30-9-2007 was extended by four weeks and thereafter the payment was to be made on or before 15th of each succeeding month.
5. I have heard the learned Counsel appearing on behalf of the parties at length. There is no dispute that the Respondent-wife is employed with Gulf Air in Mumbai and her gross salary for the month of May, 2007 was Rs. 37,224/-and take home salary of Rs. 28,592/-. The Petitioner-husband appears to be a well to do businessman though he has now pleaded that his very existence has been jeopardised by false and malicious allegations levelled by the Respondent and by ensuring the retention of his passport which has rendered him jobless and penniless. The learned trial Court held that the son could not be deprived from being given interim maintenance and as the Petitioner had admitted that he would like to see that his son got the best of education and best of all facilities, she was inclined to award Rs. 50,000/-per month towards the expenses of his education and other necessities. A grievance has been made on behalf of the Petitioner that the learned trial Court could not have awarded such a huge amount without there having been any material for the consideration of the trial Court on the basis of which the same could have been awarded. Another grievance of the Petitioner is that the material which has been referred to in the order of this Court dated 13-9-2007 was not there before the learned trial Court and the said material has been considered by this Court, as if it was an appellate Court and that too without considering the affidavit dated 12-9-2007 filed by the petitioner.
6. Mr. S. G. Dessai, learned Senior Counsel on behalf of the Petitioner submits that the impugned Order of the trial Court is without any reasons and therefore the same needs to be set aside and the matter is required to be remanded for fresh consideration to decide the application giving an opportunity to the parties to lead evidence. In this context, learned Senior Counsel Mr. Dessai has placed reliance on Achutananda Baidya v. Prafullya Kumar Gayen and Ors. wherein the Apex Court has held that the High Court can interfere under Article 227 in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law , arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. Learned Senior Counsel has also placed reliance on the case of State of Andhra Pradesh v. Chevireddi Venkatakrishna Reddy wherein the Apex
Court has stated that an order without reasons is grass without root. Learned Senior Counsel has further submitted that in the execution proceedings the Petitioner has deposited a sum of Rs. 50,000/-on 15-12-2007. Learned Senior Counsel submits that pending the inquiry and without prejudice to his rights, the Petitioner would be willing to pay a sum of Rs. 10,000/-as maintenance and the deposit of Rs. 50,000/-made be considered at the rate of Rs. 10,000/-from September to January and he will continue to pay Rs. 10,000/- hereinafter.
7. On the other hand, Mr. Sudin Usgaonkar, learned Counsel on behalf of the Respondent, firstly, submitted that the Petitioner has not complied with the order of this Court dated 13-9-2007 and therefore the petition ought to be dismissed without any further hearing. Learned Counsel further submits that the Hon'ble Supreme Court also chose not to interfere with the order dated 13-9-2007 and therefore the Petitioner ought not to have been shown any indulgence whatsoever. Learned Counsel further submits that the Respondent-wife is a salaried person and therefore her salary income can at once be seen but the Petitioner is a businessman and therefore it is his assets which are required to be seen before any order could be made. Pointing out to letter dated 28-2-2002 by which a sum of Rs. 51,200/-was sent by the Petitioner on account of annual fees for their son, learned Counsel contends that it shows that the Petitioner is in a position to make the payment.
8. Maintenance, as per Black's Law Dictionary, inter alia, means sustenance , support, assistance, aid. The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc. particularly where the legal relation of the parties is that one is bound to support the other, as between father and child, or husband and wife. While the term primarily means food, clothing and shelter, it has also been held to include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utility and household expenses.
9. Article 171 of the Civil Code, 1867 defines maintenance to mean all that is indispensable for the sustenance, habitation and clothing, and, in case of minors it also includes the bringing up of and education of the person maintained. Article 178 of the same Code provides that the maintenance shall be proportionate to the means of the one who has to provide it and to the needs of the one who will receive it. In other words, it is need based as far as the needs of the receiver are concerned and it is means based as far as the means of the provider are concerned. The impugned Order of the trial Court did not at all take into consideration the needs of James before it ventured to award a sum of Rs. 50,000/-per month. Likewise, with respect, I must observe that the same was also not considered by this Court in Order 13-9-2007. Even if the Petitioner was a multimillionaire as claimed, there was no question of awarding Rs. 50,000/-per month unless the needs of James were first found out. To that extent the impugned Order deserves to be set aside and the matter remanded for inquiry.
10. At the stage of hearing of this petition a statement was produced on behalf of the Respondent-mother showing the monthly expenses of James as Rs. 19,700/-and annual and long term expenses as Rs. 74,000/-. This was not acceptable to the Petitioner-father. As per Article 24 of the Family Laws in force in the State of Goa the father as well as the mother are bound to contribute to the maintenance of their children in proportion to their own income and personal properties. It also provides that the amount of maintenance due to the children shall be legal charge over the properties of the spouses. At one stage, the Respondent-wife appears to have stated in her petition for divorce that she was employed and was capable of looking after the son and educate him with her own finance at the same time stating that the Petitioner was also required to contribute towards the education and upbringing of the child. At no stage did the Respondent-wife state as to what would be her contribution or what contribution she expected from the Petitioner. Again, all these aspects can be gone into after an inquiry into the application filed by the Respondent-wife is completed. Nevertheless some interim arrangement is certainly required to be made till the application is decided on merits. The Petitioner has always stated that their son James should get the best of education so as to give him proper upbringing. The Petitioner has also been willing right from the inception of the proceedings, without prejudice to his rights, to pay a sum of Rs. 5000/-per month. Likewise, the Petitioner has now been willing, without prejudice to his rights, to contribute a sum of Rs. 10,000/-per month. However, I am not inclined to accept the suggestion made by learned Senior Counsel on behalf of the Petitioner that the Petitioner would pay Rs. 10,000/-per month after adjusting Rs. 50,000/-paid by him in December, 2007. As a matter of interim arrangement till the application is heard and decided on merits I am of the view that the Petitioner should be directed to pay in the hands of the Respondent towards the maintenance of their son James the said sum of Rs. 5000/-agreed to be paid by him from the date of the application. The arrears due thereon should be paid in six installments within a period of six months, till the order of this Court dated 13-9-2007. Since the said order dated 13-9-2007 has not been complied with and the Hon'ble Apex Court also chose not to interfere with the same, in my view, the Petitioner's request for its modification at this stage cannot be entertained. The Petitioner is also directed to pay the arrears due thereon within a period of six months, considering overall view of the matter. The Petitioner is directed to pay Rs. 10,000/-per month from the date of this order till the application is disposed of by the trial Court on merits as agreed to by him. Payments made by virtue of this order, needless to say, will be adjusted towards the maintenance to be granted by the trial Court. Rs. 10,000/ to be paid on or before 10th of the next month.
11. One fails to understand as to how an application for maintenance remained pending for such a long time. The learned trial Court is directed to dispose of the same on merits as expeditiously as possible and in any event within a period of six months.
12. At this stage, learned Counsel on behalf of the Petitioner prays for suspension of the Judgment. Learned Counsel on behalf of the Respondent objects. Considering the facts and circumstances of the case prayer for stay is rejected.
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