Under Section 19 one of the conditions for the father-in-law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents. A clear finding is necessary whether her parents have estate sufficient to maintain her and on what circumstances, she is unable to maintain herself or by her parents. For this purpose parents of plaintiff arc required to be heard. This is possible if they are made parties to the suit. In their absence any finding will not bind them. Where, from the estate of the parents, the daughter-in-law can maintain herself, question of obligation of father-in-law does not arise. It is also to be found out whether there is any coparcenary property in the hands of the father-in-law from which daughter-in-law is deprived of her share. This aspect of the matter has not been examined in this case.
Allahabad High Court
Allahabad High Court
Raj Kishore Mishra vs Smt. Menna Mishra on 22 September, 1994
Equivalent citations: AIR 1995 All 70
Bench: S Mohapatra, D Trivedi
1. This is an appeal under Section 19 of the Family Court Act against decree directing payment of maintenance at the rate of Rs. 500/- per month by the appellant. Case of plaintiff-respondent is that she is widow of the son of appellant. Appellant, despite approach, is not maintaining her or permitting her to reside in the family house. On the other hand appellant has deposited compensation amount of Rs. 10,000/- in his name depriving the widow-plaintiff from the same. Therefore, she is residing with her brother at Kanpur. In this circumstance direction should be given to defendant for granting maintenance to her. Case of defendant is that marriage of his deceased son with plaintiff is void under Hindu Marriage Act and as such he has no obligation to maintain her. Besides plaintiff is residing with her parents and is being maintained by them for which he has no obligation to maintain her.
2. Learned trial Judge held that plaintiff is daughter-in-law of defendant and is residing with her brother and accordingly, defendant is to maintain her. On this finding he has directed payment of Rs.500/- per month towards maintenance. This is grievance of the appellant.
3. Liability of a father-in-law to maintain daughter-in-law arises from statutory provi-
sions contained in S. 19 of the Hindu Adoptions and Maintenance Act, 1956. It reads as follows :--
"Section 19
Maintenance of widowed daughter-in-law :--
(1) A Hindu wife whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law :
Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, whether she has no properly of her own, is unable to obtain maintenance-
(a) from the estate of her huaband or her father or mother, or
(b) from her son or daugther, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law."
Bare perusal indicates that father-in-law has an obligation to maintain widowed daugther-in-law whether the daughter-in-law is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance from the estate of her husband or her father or mother. Apart from other things, obligation of father-in-law shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share.
4. In order to give direction to father-in-law to discharge obligation. Family court is required to give clear finding that the daughter-in-law plaintiff is unable to maintain herself out of her own earnings or other properly or, where she has no property of her own she is unable to obtain maintenance from
the estate of her husband or her father or mother and father-in-law has means to dis-charge obligation from any coparcenary pro-perty in his possession out of which plaintiff daughter-in-law has not obtained any share. On perusal of the judgment we find that trial court has not considered the requirements of Section 19 to be satisfied for putting the obligation on defendant-father-in-law to maintain the plaintiff-daughter-in-law. Order is, therefore, vulnerable.
5. Under Section 19 one of the conditions for the father-in-law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents. A clear finding is necessary whether her parents have estate sufficient to maintain her and on what circumstances, she is unable to maintain herself or by her parents. For this purpose parents of plaintiff arc required to be heard. This is possible if they are made parties to the suit. In their absence any finding will not bind them. Where, from the estate of the parents, the daughter-in-law can maintain herself, question of obligation of father-in-law does not arise. It is also to be found out whether there is any coparcenary property in the hands of the father-in-law from which daughter-in-law is deprived of her share. This aspect of the matter has not been examined in this case.
6. Some documents have been filed in this court lo be accepted as additional evidence. No explanation has been given why those documents have not been produced before the trial court. Accordingly, we are not inclined to entertain the same as additional evidence in this appeal.
7. Onerous duty of the Family Court under Section 9 of the Family Courts Act for making endeavour to conciliation between the parties, does not appear to have been discharged in this case. If at all such conciliation failed the Family Court ought to have given a clear finding lo that effect in the judgment itself specially when order of the Family Court is subject matter of appeal in this Court. This is more necessary because lawyers are not permitted to appear in the
Family Court. Therefore, the responsibility of the Family Court is heavy which ought not to be discharged like civil court only. Other provisions should have been complied with.
8. In view of the aforesaid discussions, we set aside the order of the family Court and direct the suit to be heard by it afresh in the light of the observations made above and in the light of the provisions of law. We make it clear that nicety of the rules of pleading should not be insisted upon, as the parties are not represented by lawyers. Both parties are directed to appear before the Family Court on 24-10-1994. On which date the trial court shall fix date for conciliation and on failure of such conciliation proceed to hear the suit giving opportunity to both the parties to adduce their documentary and oral evidence. Since the matter is old one, we direct the Family court to dispose of the suit before ensuing Christmas holidays of 1994.
9. Subject to the aforesaid directions, the appeal is allowed. If an application is made by plaintiff for interim maintenance in the trial court, the same shall be considered on its own merits. However, till today the maintenance directed to be paid, shall be cleared by the appellant at the rate of Rs. 300/- per month. There shall be no order as to costs.
10. Let a copy of this order, if applied for, be granted to learned counsel for the parties within three days.
11. Order accordingly.
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