A division bench of Patna High Court held as follows,
Ram Prasad Sahni Vs Punita Devi and Ors on 22 Jun 2017Now, the question arises as to whether the applicant has been able to prove that her husband left behind the estate which she has inherited but is not in possession and whether the father-in-law is in possession of such estate? For better appreciation of this, the evidence led by the respective sides requires to be analyzed. The applicant-respondent no.1 has examined herself as AW 2. Though she has stated that she does not have any means to maintain herself and has also stated that the father-in-law has 6 kathas of agricultural land and pond and he is running a business of fishery and Makhana and also an orchard and from the aforesaid he is earning Rs.10,000/- per month, if it is compared to the statement made in her application, to some extent, it falsifies the same as she has categorically stated in paragraph no.13 of the application that her father-in-law‟s earning is about Rs.35,000/- to Rs.40,000/- per month. On the point of torture and being thrown out of the house, a question was asked in the cross-examination as to whether on such act done by the father-in-law with the help of his daughter and son-in-law, she filed any complaint case or first information report to which she denied. In the cross-examination, she further states that there is no land or any property in the name of her deceased-husband and she could not show any document or paper in support of her case that the father-in-law is possessing land or orchard and pond etc. She also denied that she could produce any document in support of her contention regarding the monthly income of the father-in-law. She has admitted that she is working as Angawari Sahika and is getting Rs.700/- per month. Now it is interesting to peruse the deposition of AW 1 who happens to be the father of the applicant – respondent no.1. He, in his examination-in-chief, has also stated the factum of marriage, the death of his son-in-law and also that she does not have any means to maintain herself and her children and also that she has been driven away forcibly after assault by the father-in-law. He has categorically stated that Ram Prasad Sahani, i.e., appellant-opposite party has 26 kathas of land and orchard and his earning is Rs.30,000/- to Rs.35,000/- from the aforesaid property. However, in the cross-examination, he has admitted that though his daughter was driven away but he and his daughter did not file any case and there was no property in the name of his deceased son-in-law and also admitted the fact that his Samdhi, i.e., father-in-law of his daughter, is pulling rickshaw for his livelihood. He has also stated that he does not have any document regarding any landed property of his Samdhi and at the same time, has also admitted that his daughter was working as Anganwari Sahiaka in his village and she is doing so for the last 15 years which demolishes his statement in examination-in-chief that she does not have any earning to maintain herself.
The appellant, who has been examined as OPW 1, has stated in his Chief that immediately after the death of his son, the daughter-in-law along with her children went to her Naihar. He does not have any landed property or pond etc. He is only having one thatched house and is having one minor daughter who is to be married but he does not have any means for her marriage and his income is Rs.50/- to Rs.60/- daily. Thus, he is unable to maintain his daughter-in-law, grandsons and granddaughter. In the cross-examination, he has stated that his son, though he was a student, used to do tuition to maintain him and his family. From the perusal of the aforesaid, it is apparent that the applicant as well as her father could not withstand the test of cross-examination and her case was demolished. They could not spell out the details of any landed property. Her father denied in the cross-examination that his son-in-law had any landed property. Thus, it has to be understood that her husband died without leaving any estate. He has also admitted that his Samdhi, i.e., father-in-law of his daughter earns his livelihood by pulling a rickshaw and does not have sufficient means to pay the maintenance amount. Thus, the case of the applicant-petitioner-respondent no.1 does not withstand the legal test under Section 19 or Section 22 of the Act as apparently there is no estate which she has inherited from her husband and even father-in-law is not having sufficient income to maintain her.
Though the materials were available as discussed above, the court below has also not recorded any finding as to whether the opposite party no.1 has sufficient means to maintain herself or not as it has come in the evidence led by the parties that she is working as Aganwari Sahaika for the last 15 years. It is also apparent from the order dated 04.02.2011, passed in the maintenance case that at the time of reconciliation, the father-in-law was ready to take her back but it was the applicant who refused to go with him though she has given a reason that there was threat upon her life but in view of the fact that the said action could not be proved by her, that would also be meaningless.
Unfortunately, the court below without recording any finding whether the husband has left any estate for the applicant or whether her father-in-law has sufficient income or not, has simply directed him without any rhyme and reason to pay maintenance of Rs.1,000/- for applicant no.1 and Rs.300/- per month towards maintenance of her children without holding as to whether the father-in-law is liable in law and in the facts and circumstances to pay such amount or not.
Citations:
Other sources:
https://indiankanoon.org/doc/114233990/
https://www.casemine.com/judgement/in/5e96f0b24653d05364588a37
Index of judgments under HAMA 1956 are here.
