the child so that he will be ready to have access with his father but
staying the order of interim maintenance and thereby depriving him
from the essential requirements of the life cannot be called a legal,
equitable or correct. After all the grant of maintenance is for his
survival and such order of maintenance cannot be conditional, in the
way that if the child refuses to have access to his father, he will not
be entitled to maintenance. The impugned order passed by the
Family Court linking payment of maintenance to the access of child
being not justified or legal needs to be set-aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11308 OF 2015
Uma Ashish Ghate V/s. Ashish Anil Ghate
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATED : 9th OCTOBER, 2017.
Citation: 2018(4) MHLJ 365
1] Rule. Rule made returnable forthwith.
2] Heard learned counsel for both the parties finally at the
stage of admission itself.
3] By this Writ Petition, the Petitioner-mother is challenging
the order dated 10/09/2015 passed by the Principal Judge, Family
Court No.1, Pune thereby rejecting her application filed under
Section 26 of the Hindu Marriage Act for educational expenses of her
minor son Master Dhruva.
4] It is submitted by learned counsel for the Petitioner that
since Master Dhruva is in custody of the Petitioner-mother and at
present he is taking education in 6th standard in the Vigbyor High
School, she has to incur the expenses for his education which are
totally to the amount of Rs.1,39,750/-. She has to pay this amount
over and above the amount of Rs.18,000/- towards his co-curricular
activities. It is submitted that the Family Court, has vide its earlier
order granted an amount of Rs.5,000/- per month only, as interim
maintenance and in the said amount these educational expenses of
the child cannot be satisfied. Therefore, it has become necessary to
direct the Respondent to pay this amount for educational expenses
of the minor child Dhruva.
5] It is submitted that the Family Court has however
rejected this application only on the ground that the Petitioner has
changed the school of Master Dhruva without the knowledge and
consent of the Respondent-father. It was held that, earlier Dhruva
was taking education in Bharatiya Vidya Bhavan School. Thereafter,
the Petitioner has changed the said school and enrolled him in the
expensive school like Vigbyor High School without the knowledge
and consent of the Respondent. Therefore, when the Petitioner is
herself earning and she has taken decision to change the school of
Master Dhruva of her own, so at that time she must have considered
the school fees of Vigbyor High School. Thus, on this sole ground it
was held that the Petitioner cannot be entitled to get the school
expenses of Master Dhruva.
6] According to learned counsel for the Petitioner, the
reason given by the Family Court for rejecting the application cannot
sustain as the Petitioner has admitted Dhruva in the Vigbyor School
with consent of the Respondent and it was a joint decision of the
Petitioner and the Respondent. To substantiate this submission,
learned counsel for the Petitioner has pointed out to the application
of the enrollment of Master Dhruva to Vigbyor School to show that
on the application form, the signature of the Respondent is also
appearing thereby indicating that he was also a party to the said
decision. Hence, according to learned counsel for the Petitioner, the
reasoning given by the trial Court for rejecting the Petitioner's claim
for school expenses cannot be called as legal and proper.
7] As against it, learned counsel for the Respondent has
supported the said order but not for the reasons stated therein.
According to him, when the application for maintenance was filed
earlier in the said proceedings and the amount of Rs.5,000/- per
month was awarded towards the maintenance of Master Dhruva,at
that time also this fact that Master Dhruva was studying in Vigbyor
High School and these school expenses to the tune of Rs.1,39,750/-
per month were required to be incurred was considered by the
Family Court and thereafter only, the amount of Rs.5,000/- per
month was awarded. Hence on the same ground the Petitioner
cannot file another application seeking the same amount.
8] Secondly, it is submitted that in the proceeding filed
under the Protection of Women from Domestic Violence Act, the
Petitioner is already awarded an interim maintenance of Rs.15,000/-
per month and Rs.5,000/- towards the alternate rental
accommodation. Therefore, she is having sufficient means, hence no
interference is warranted in the impugned order.
9] In this case, perusal of the earlier application for interim
maintenance filed by the Petitioner shows in the said application also
the Petitioner has very much pleaded that as Master Dhruva was
studying in the Vigbyor High School, she has to spend this amount of
Rs.1,39,750/- for his educational expenses. In the said application,
she has also claimed the amount of Rs.1500/- per month towards his
co-curricular activities. It is pertinent to note that after considering
the said expenses, the Family Court has, at that time granted the
interim maintenance at the rate of Rs.5,000/- per month. In such
situation, there was no change in the circumstances, as such, for the
Petitioner to file this fresh application towards educational expenses
of Master Dhruva. Therefore, whether the admission of Master
Dhruva was taken with consent of the Respondent or otherwise, the
fact remains that this aspect of school expenses of the child was
considered as it was pleaded in the earlier application, when the
order of the interim maintenance at the rate of Rs.5,000/- was
passed.
10] Apart from and in addition to that, now in view of the
order passed in the proceedings under the D.V. Act by the Magistrate
Court and which is confirmed upto this Court in W.P. No.919 of 2017
by order dated 29/09/2017, the additional amount of Rs.15,000/- per
month is granted as interim maintenance and while granting the
same, this amount of Rs.5,000/- per month which is already granted
in this proceeding is also considered. Therefore, at this stage, I do not
find that any interference is called for in the impugned order passed
by the Family Court of rejecting the Petitioner's application for the
payment of the educational expenses of Rs.1,39,750/- for Master
Dhruva.
11] The Second order of the learned Family Court passed in
the same proceeding and which is also challenged in this Writ
Petition is dated 03/11/2015, by which the application filed by the
Petitioner for dismissing the petition of the Respondent under Order
39 Rule 11 of C.P.C. was rejected. However, at the same time, the trial
Court has stayed the order of interim maintenance awarded to
Master Dhruva on the ground that the access of Master Dhruva is
not given to the Respondent.
12] According to learned counsel for the Petitioner, the
Family Court has committed a grave error in linking the access of
the child with the payment of maintenance, especially when the
Petitioner is not at all responsible for the child being not ready to
meet his father. It is submitted that the Family Court itself has
categorically held that non-compliance of the order of giving access
to the Respondent father is not intentional, deliberate or willful and
hence rejected the prayer of the Respondent of striving out the
Petitioner's defence under Order 39 Rule 11 of C.P.C.. However,
against its observation and finding, the Family Court has stayed the
order of interim maintenance.
13] In this respect, learned counsel for the Petitioner has
pointed out to the following observations made by the Family Court
in its impugned order, “the Court had after interviewing the child
suggested the Petitioner to counsel Master Dhruva and make him
ready to meet his father but even thereafter, there is no access to the
Master Dhruva by the Petitioner. The age of Master Dhruva is 12
years, so he is of tender age. He is not completely matured but at this
age children have their views and specific opinions. Sometimes they
are impressed by their custodial parents. In the present case, we do
not know the exact reason why Master Dhruva is not ready to meet
his father. The child of 12 years is not an article which can be given
forcefully to another person. We have to understand his mindset and
respect his wishes. No doubt the father has right to have access of
child but at the same time we have to understand the wishes of the
child. In the present case, it appears prima facie that Master Dhruva
himself does not wish to have access. It does not appear that the
Petitioner herself has denied the access of Master Dhruva. So, the
Petitioner cannot be held responsible for the denial of access of
Master Dhruva and she cannot be punished for the same by
dismissal of the petition”.
14] In considered opinion of this Court, these very
observations made by the learned Family Court in paragraph No.6 of
the order, very well make out a clear case for interference in the
impugned order passed by the Family Court of staying the order of
maintenance. It is pertinent to note that for these very reasons, the
Family Court has rejected the prayer to dismiss the petition under
Order 39 Rule 11 of C.P.C., holding that the Petitioner should not be
held responsible for denial of access of Master Dhruva to the
Respondent and she cannot be punished for the same by dismissal of
the petition. The same analogy need to be applied now. The order of
interim maintenance therefore cannot be stayed on the ground that
access of the child is not extended. When trial Court itself has
observed that child of 12 years is not an “article” whose custody or
access can be forcefully given then one fails to understand how the
child's maintenance order can be stayed. There is absolutely no
connection between the two. If the child does not want to meet his
father or mother, it does not mean that the child does not require
any amount for his livelihood. It also does not absolve the father
from his liability of maintaining his dependent child. The reasons for
not meeting the father, from the child's point of view may be totally
different as observed by the Family Court itself and may not
necessarily because of the influence or tutoring by the custodial
parent.
15] Though, the learned counsel for the Respondent in this
respect has relied upon the order of the Apex Court in the case of
Vivek Singh vs. Romani Singh, (2017)3 SCC 231, in respect of “The
Parental Alienation Syndrome”, to point out that such denial of
access may be on account of the influence exerted by the custodial
parent, however here in the present case, the Family Court has not
at all held that on account of the influence exerted by the Petitionermother,
the child is not ready for meeting his father. The Family
Court has observed that, in this case, “we do not know the exact
reason that why Master Dhruva is not ready to meet his father”.
Further, it is also observed that, “though he is not completely
mature, at this stage, the children have their views and specific
opinions”. It is also observed that, “Master Dhruva himself does not
want to have access”. In such situation there is absolutely no
justification for staying the interim order of maintenance.
16] The only remedial measure in such situation is to counsel
the child so that he will be ready to have access with his father but
staying the order of interim maintenance and thereby depriving him
from the essential requirements of the life cannot be called a legal,
equitable or correct. After all the grant of maintenance is for his
survival and such order of maintenance cannot be conditional, in the
way that if the child refuses to have access to his father, he will not
be entitled to maintenance. The impugned order passed by the
Family Court linking payment of maintenance to the access of child
being not justified or legal needs to be set-aside.
17] Hence, the Writ Petition is allowed to that extent and the
impugned order passed by the trial Court on 03/11/2015 staying the
order of maintenance of Master Dhruva till the access is given to the
Respondent stands quashed and set-aside. However, it is done so,
with a fervent hope that child is counseled by mother or if necessary
by an expert to meet his father.
18] Learned counsel for the Petitioner submits that vide
order passed by this Court on 05/02/2016 the Respondent has
deposited an amount of Rs.65,000/- in this Court towards arrears of
maintenance and the Petitioner may be allowed to withdraw the said
amount. In view of the disposal of this petition, the Petitioner is at
liberty to withdraw the said amount of Rs.65,000/-.
19] As regards further arrears of maintenance learned
counsel for the Respondent fairly concedes that the Respondent will
deposit 50% of the arrears before Diwali Vacation and remaining
50% before the Chrismas Vacation. The statement is accepted.
20] The Writ Petition stands disposed off in above terms.
21] Rule is made absolute in above terms.
(DR. SHALINI PHANSALKAR-JOSHI, J.)
No comments:
Post a Comment