Babru Bahan Kumbhkar vs Kalyani Kumbhakar And Ors

This writ petition is under Article 227 of the Constitution of India whereby and whereunder the judgment/order dated 15.03.2019 passed in O.M. No. 36 of 2017 by Principle Judge, Family Court, Seraikella-Kharsawan has been assailed by which the maintainable allowance of Rs. 4000/- per month has been granted to the petitioners by directing the Opp. Party to pay maintenance per month to the petitioner no. 1 from the date of filing of the petition and the Opp. Party shall make payment of the said maintenance amount to the petitioners on or before 10th of every English calendar month.

Learned counsel for the petitioner at the outset has argued out the case on the ground of quantum of maintenance, which is the subject matter of adjudication by the trial Court by way of point no. (iv), on the ground that the petitioner is old person and is also keeping other two children of the petitioner (respondent no. 1 herein) and there is no independent source of income, save and except, some piece of land, which is also not cultivable and therefore, the amount of maintenance of Rs. 4000/- is highly excessive.

This Court before scrutinizing the finding recorded with respect to the issue of quantum, deem it fit and proper to refer certain factual aspects, which are necessary for adjudication of the issue:

The respondent no. 1 is the daughter-in-law of the petitioner and respondent no. 2 is his granddaughter.

The respondents have filed Original Maintenance Case being O.M. No. 36 of 2017 before the Court of Principal Judge, Family Court, Seraikella-Kharsawan praying therein for maintenance amount of Rs. 6000/- per month to each petitioner as maintenance, under the provisions of Hindu Adoptions and Maintenance Act, 1956 (herein after referred to as 'Act 1956').

The petitioner has appeared before the trial Court on being noticed and defended himself by taking a plea that two minor daughters of respondent no. 1 is residing with him, whom the petitioner has been maintaining on the income derived from a chunk of land having an area of 6-7 bighas and further stand has been taken that he is ready to keep the respondents in his house.

The learned Family Court has allowed the interim maintenance to the tune of Rs. 3000/- per month vide order dated 18.07.2018 passed in O.M. No. 36 of 2017, against which, the petitioner has filed Criminal Revision, being Cr. Rev. No. 1537 of 2018, which is pending before this Court.

The Principal Judge, Family Court, Seraikella-Kharsawan has allowed the maintenance application vide order dated 15.03.2019 passed in O.M. No. 36 of 2017 directing the petitioner to pay Rs. 4000/- per month from the date of filing of the petition to respondent no. 1 as maintenance, against which, the present writ petition has been filed under its revisionary jurisdiction conferred under Article 227 of the Constitution of India.

This Court, having heard learned counsel for the petitioner and after going across the pleadings made in the writ petition and findings recorded in the impugned order, is not going into the issue of maintainability and applicability of the provision of the Act, 1956 in the present case, since the petitioner is not raising the aforesaid issues, save and except, the issue pertaining to quantum of maintenance.

This Court has appreciated the submission/ground agitated by the petitioner, therefore, the deposition, recorded by the trial Court, of the witnesses along with their cross-examinations, are being referred herein below for better appreciation of the aforesaid issue pertaining to the quantum of maintenance:

The petitioner, namely, Babru Bahan Kumbhkar, has filed show cause on 27.04.2018 denying his liability to maintain on the plea that he is ready to keep the respondents in his residence after the death of his only son, namely, Arjun Kumbhkar, who has died on 01.07.2016.

Kalyani Kumbhakar, the respondent no. 1 herein, who was the petitioner no. 1 before the trial Court has been examined as P.W. 1, who in her examination-in-chief has deposed that the Opp. Party/petitioner always has had evil eyes on her, which ultimately lead her to leave her matrimonial hose and come to her parental house with her youngest daughter. Two minor daughters were kept forcefully by the petitioner although respondent no. 1 has tried her level best to get the custody of her two daughters but she has failed in the said efforts ultimately she has lodged a Guardianship case bearing no. 2 of 2017, which is pending before the competent Court.

It has been deposed that 2 and ½ acres of land was in the name of husband of respondent no. 1 but the opp. party (petitioner herein) has transferred the said land in his name as also the petitioner has 50 bighas of landed property and brick kiln and a tractor.

In the cross examination, she has stated that after birth of three daughters the petitioner has started torturing her.

Saraswati Bhagat, who is mother of respondent no. 1 has been examined as P.W. 2, who in her examination-in-chief has stated about the solemnization of marriage of respondent no. 1 with Late Arjun Kumbhkar, son of petitioner herein and deposed about the cruelty meted out upon the respondent no. 1 after death of her husband, for which, she has also been hospitalized for the injury sustained due to brutal assault on respondent no. 1. She has corroborated about the means of the petitioner.

One Uday Nath Kumbhakar, has been examined on behalf of petitioner as O.P.W. 1, defending the averments made by the opp. party/petitioner, has deposed that the case has been filed only to make this a means of earning income. The fact about the availability of 50 bighas of land has been disputed.

Babru Bahan Kumbhkar, who is petitioner herein, has been examined as O.P.W. 2, who in his cross-examination, more particularly at paragraph 19 thereof, has admitted that land of an area 2 acres 59 decimals, which stood in the name of his son Arjun Kumbhkar was transferred in his name. In paragraph 22 of his cross-examination, he has stated that he possessed a deed of gift and the said land is in his possession but without any sources of income from the said land.

The trial Court has proceeded by scrutinizing the deposition of the aforesaid witnesses and after considering the provisions of Section 19 and 21 of the Act, 1956 hold the respondents as dependents for getting the maintenance under the provisions of Act, 1956.

The question, which has been agitated by the petitioner about the quantum of maintenance, which the trial Court has assessed to the tune of Rs. 4000/- to be segregated in the ratio of Rs. 3000/- and Rs. 1000/- to be paid in favour of respondent no. 1 and 2 respectively, is stated to be excessive by the petitioner.

To answer this question, which has been made as point no. (iv) by the trial Court for its determination and which pertains to quantum of maintenance, it would be necessary to refer the provision of Section 23 of the Hindu Adoptions and Maintenance Act, 1956, which reads as under:

"23.Amount of maintenance. - (1).It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable.

(2). In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-

(a) the position and status of the parties;

(b) the reasonable wants to the claimant;

(c) If the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to-

(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the dependant;

(c) the degree of relationship between the two; (d)the reasonable wants of the depandant;

(e) the past relations between the dependant and the deceased;

(f) the value of the property of the dependent and any income derived from such property, or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act."

It is evident from the aforesaid provision that the discretion lies with the Court to determine about quantum of maintenance and while doing so, the Court shall have due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be that is the position and status of the parties, the reasonable wants to the claimant, if the claimant is living separately, whether the claimant is justified in doing so and the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source.

In the instant case, as would appear from the depositions made on behalf of parties that even the petitioner who has been examined as O.P.W. 2 has admitted the fact at paragraph 19 of his cross-examination that the land of 2 acres and 59 decimals, which was in the name of Arjun Kumbhkar, the deceased son of the petitioner, was transferred in his name on the basis of deed of gift. Further the fact about the brick kiln and tractor has not been disputed by the petitioner or the witnesses produced on his behalf. Furthermore, the fact about having two-room pucca house has also not been disputed.

Learned counsel for the petitioner in course of argument has relied upon the stand taken by the respondents about availability of 50 bighas of land, which however has seriously been disputed but the fact remains that an area of land, 2 acres and 59 decimals, which was in the name of Arjun Kumbhkar has not been disputed, which has been transferred in the name of petitioner, as would appear from paragraph 19 of the cross-examination of O.P.W. 2- Babru Bahan Kumbhakar, the petitioner herein, against whom the direction has been passed by the trial Court for making payment of amount of maintenance and therefore, it cannot be said that the petitioner is not a man of means.

Further, the trial Court has taken conscious view by making reference of the provision of Section 23 of the Act, 1956 which provides for determination of amount of the maintenance depending upon the status of parties, reasonable one of the claimants and if living separately the claim of the claimants is justified or not and after taking into consideration these aspects of the matter, the trial Court has passed the order of maintenance of Rs. 3000/- to be paid in favour of respondent no. 1 and Rs. 1000/- to be paid in favour of respondent no. 2.

This Court is of the view that the finding recorded by the trial Court cannot be said to be not passed upon any material evidence rather this Court, after going across the evidence recorded, is of the view that the determination of quantum of maintenance, as has been made by the trial Court, is based upon cogent evidence, as reflected herein above.

The question would be that whether if the finding is based upon the cogent evidence can the High Court exercise its supervisory jurisdiction conferred under Article 227 of the Constitution of India.

For this, this Court intends to go through the scope of Article 227 of the Constitution of India.

Dealing with the scope of Article 227 of the Constitution of India, Hon'ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to hold therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.

The power of superintendence is not to be exercised unless there has been;

(a).An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or

(b).gross abuse of jurisdiction; or

(c).an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.

Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.

The Hon'ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts.

Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.

It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.

It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

It is thus evident that the legal position is settled that the supervisory power conferred under Article 227 of the Constitution of India is to be exercised by High Court, if the finding recorded by the trial Court is erroneous that is suffers from perversity and error is apparent on the face of record.

But, according to conscious view of this Court, the finding recorded by the trial Court is based upon the evidence and suffers from no perversity and, therefore, there is no error on the face of record warranting interference by this Court under Article 227 of the Constitution of India.

It is further settled position of law that in case of finding of facts, the High Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution, in the guise of exercising its jurisdiction under Article 227 and converting itself into a Court of appeal, accordingly, this Court refrains itself from exercising the jurisdiction under Article 227 of the Constitution of India.

In consequence thereof, this writ petition lacks merit, fails and is dismissed.