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Judgment
This appeal is filed by the appellants aggrieved by the order dated 04.07.2011 passed in O.P.No.367 of 2007 by the Judge, Additional Family Court at Hyderabad. O.P.No.367 of 2007 is filed by the respondent herein against the father-in-law and mother-in-law claiming maintenance of Rs.3000/- per month and also to return the dowry, marriage expenses, cost of gold, motor cycle etc., totaling to an amount of Rs.3,41,900/- including principal amount of Rs.2,95,000/- and interest of Rs.46,900/- @ 24% p.a., and to pay maintenance of arrears of Rs.10,300/-.
For the sake of convenience, the parties herein are referred to as arrayed in O.P.No.367 of 2007.
The averments in the O.P., are that the marriage of the petitioner in O.P.No.367 of 2007 was performed with the son of respondents 1 and 2 on 13.08.2006 at Jagu Village, Bandlaguda, Ranga Reddy District and it is an arranged marriage. The contention of the petitioner is that at the time of engagement, the respondents demanded Rs.1,30,000/- cash, including the cost of motor cycle worth Rs.50,000/-, 1½ tulas of gold in the form of chain and a marriage ring to the bridegroom worth Rs.15,000/-and house hold furniture totaling to an amount of Rs.1,95,000/-as dowry and the same was given to the respondents at the time of marriage. After marriage, petitioner lived happily with her husband for one month and thereafter her husband demanded Rs.50,000/- towards additional dowry. As petitioner’s father died long back, the additional dowry demanded was not paid. As such, petitioner was dropped at her maternal home by her husband and after the intervention of elders, petitioner has joined the matrimonial home. However, the respondents continued to demand additional dowry. Later, on 02.12.2006 at 6.00 p.m., the husband of petitioner accidentally caught fire from Kerosene stove and suffered burn injuries, he was admitted in Osmania Hospital, on 03.12.2006. Complaint was lodged and FIR was registered on 03.12.2006 and the husband of petitioner succumbed to injuries. On 15.12.2006 after the 10th day ceremony of her husband, the petitioner and her mother were assaulted and took away Pusthelathadu, ear rings and wedding ring that were given to the petitioner by the respondents at the time of her marriage, obtained her signatures on blank white papers and necked her out from the matrimonial home. Since then, the respondents are not staying at their usual place and kept the said house under lock and key and absconded. On enquiry, she came to know that the respondents are staying at the house of T.Mallesh and with the help of elders, she approached the respondents and also approached the police station. As a widow of the only son of respondents, she has right to stay at her matrimonial home and respondents are liable to maintain her. Both the respondents are working and has immovable properties. The 1st respondent is a construction worker and 2nd respondent is employed at NIMS Hospital, Hyderabad. Therefore, she approached Legal Services Authority and notices were issued to the respondents, but they have not responded to the same. As such prayed the Court to return the dowry amount and also to grant maintenance of Rs.3000/- per month.
Respondents 1 and 2 filed counter denying the averments of the petition. The contention of the respondents is that they have not taken any amount as dowry. They also denied that they are having immovable properties, but admitted that the 1st respondent is working as a construction worker on daily wage basis and since he is very old aged, now he is not doing any work and further admitted that the 2nd respondent is working at NIMS hospital, but she is not a permanent employee and working as IV class employee on contract basis. It is further submitted that both are old aged persons and they are not permanently employed any where and do not have permanent source of income. As such, the respondents are not in a position to maintain the petitioner. It is also submitted that as they have not taken amount towards dowry, the question of returning Rs.2,95,000/- to the petitioner does not arise and hence prayed the Court to dismiss the petition.
To prove the case, on behalf of petitioner, Pws.1 to 3 are examined and Exs.P.1 to P.12 are marked. On behalf of the respondents, the 1st respondent examined himself as Rw.1 and no documents are marked on their behalf.
The trial Court after considering the evidence on record, decreed the O.P., as stated supra.
Heard Ms.R.Sandhya, learned counsel representing Sri H. Sudhakar Rao, learned counsel for the appellants/respondents. There is no representation on behalf of the respondent/petitioner inspite of granting sufficient time.
Learned counsel for the respondents would submit that the impugned order is against the settled principles of law and as the petition is filed under Section 19 of the Hindu Adoption and Maintenance Act (for short ‘the Act’) and it is only for granting maintenance, whereas the trial Court ordered to return the dowry amount for which there is no proof and this provision itself is not correct to return the amount and under Section 19 of the Act a widow daughter-in-law is entitled to maintenance from her father-in-law if he is having any co-parcenary property and to that extent only it is maintainable. As such she prayed the court to allow the appeal by setting aside the order of trial Court.
Now, the point for consideration is whether the impugned order needs any interference ?
POINT :
Going through the submissions and material on record, to prove the case, the petitioner was examined as Pw.1 and also examined her sister as Pw.2, one caste elder as Pw.3 and also filed Exs.P.1 to P.12. Ex.P.1 is the wedding card which is not disputed, Ex.P.2 is the marriage photo of the petitioner with the son of respondents 1 and 2, Ex.P.3 is the FIR No.430 of 2006 showing the section of law as Man burns, Ex.P.4 is the inquest, Ex.P.5 is the post mortem examination report, Ex.P.6 is the Legal notice issued by the petitioner to the respondents, Exs.P.7 to P.10 are the postal receipts, Ex.P.11 is the Electricity bill and Ex.P.12 is the list dated 28.05.2006 with a heading ABBAYIKI PETTE VASTHUVULU AND AMMAYIKI ITCHE VASTHUVULU”, which shows the signature of the 1st respondent. There is no reference to the marriage of the petitioner with the deceased Srinivas.
The 1st respondent denied the contents of Ex.P.12 receipts. According to him, no amount was received and the contention of respondents is that petitioner and her parents were responsible for the death of their son, even then, they did not complain to the police against her. The trial Court observed that Ex.P.12 is signed by the 1st respondent, therefore, he has to return an amount of Rs.2,95,000/- whereas the same is disputed by the 1st respondent. The scope of Section 19 of the Act is not to return the articles and not to seek partition of the properties of the respondents. Under Section 19 of the Act, petitioner has to prove to the extent that she 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 and clause 2 says that she is not entitled for maintenance if the father-in-law has no means to do so, from any co-parcenary 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.
Petitioner has to first prove that she is unable to maintain herself and there is no estate of her husband from where she is receiving any amount and also father or mother. In the present case, petitioner has no father and there is no evidence to show that the parents of the petitioner are having any properties. Admittedly, there is no estate of her husband which can fetch income to the petitioner. The third and more important thing is that petitioner has to prove that her father-in-law is enjoying co-parcenery property in his possession out of which she has not obtained any share. There is no evidence on record and petitioner has not filed any partition suit claiming share in the properties and accordingly, mentioning of two houses in the name of respondents, without any proof we cannot assume that the father-in-law is enjoying the co-parcenery properties. Admittedly, even according to the petitioner, her father-in-law is a construction worker and mother-in-law is working as Aaya in NIMS Hospital and according to the respondents, the 1st respondent is working as coolie and due to the old age, he is not attending to any work and the 2nd respondent is working in the hospital on contract basis. It is not the contention of the petitioner that they are enjoying co-parcenary properties without giving her share. Whether the two houses alleged by the petitioner are self acquired properties of the father-in-law or co-parcenery property of her husband is also not proved by the petitioner. Therefore, granting of maintenance under Section 19 of the Act is without any proof and the same is not maintainable. However, the trial Court ordered the respondents to return Rs.2,95,000/- to the petitioner basing on Ex.P.12, is not in accordance with Section 19 of the Act and the said document is disputed by the respondents. As such return of amount under Section 19 (1) of the Act is not maintainable, the order of the trial Court is not in accordance with law and the trial Court erroneously came to the conclusion that respondents received amount under Ex.P.12. As such, the order to return Rs.2,95,000/- with interest @ 6% p.a., is against law. Therefore, the order impugned is liable to be set aside.
Accordingly, the Family Court Appeal is allowed setting aside the order dated 04.07.2011 passed in O.P.No.367 of 2007 by the Judge, Additional Family Court at Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any, pending, shall stand closed.