# Upendra Singh @ Omji v. Abbyan Singh @ Kanhaiya & Ors

- **Citation:** (2021) 6 ILRA 116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** First Appeal (D) No. 200 of 2017
- **Bench:** Dilip Gupta, Amar Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-singh-omji-v-abbyan-singh-kanhaiya-ors-44321
- **Pages:** 3

## Headnote

A. Civil Law - Hindu Adoptions and
Maintenance Act, 1956 - Section 20 -
Father's
liability
to
maintain
son
-
Expenses
of
treatment,
claimed
-
Maintenance - Scope and definition - Son
is suffering from heart disease - Held,
'Maintenance' includes provision for food,
clothing, residence, education of the
children
and
medical
attendance
or
treatment - Appellant-father is able to
provide
medical
expenses
and
maintenance - He cannot escape liability
by raising plea that son is living with his
mother. (Para 7 and 8)

First Appeal dismissed. (E-1)
Cases relied on :-

## Text

116 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court, therefore, the order
impugned is set aside. The application 17/C
is allowed. The present first appeal allowed
accordingly. Learned Principal Judge, Family
Court is directed to decide the Original Suit
No. 592 of 2020 expeditiously or preferably
within
7
days
after
producing
the
computerized copy of this judgment.

34. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad,
self
attested
by
the
appellant/respondent along with a self
attested identity proof of the said person
(preferably Aadhar Card) mentioning the
mobile number to which the said Aadhar
Card is linked.

35. The concerned Court /Authority
/Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad and
shall make a declaration of such verification
in writing.
----------
(2021)06ILR A116
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2017

BEFORE

THE HON'BLE DILIP GUPTA, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.

First Appeal (D) No. 200 of 2017

Upendra Singh @ Omji ...Appellant
Versus
Abbyan Singh @ Kanhaiya & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Mridul Kumar

Counsel for the Respondents:
--

A. Civil Law - Hindu Adoptions and
Maintenance Act, 1956 - Section 20 -
Father's
liability
to
maintain
son
-
Expenses
of
treatment,
claimed
-
Maintenance - Scope and definition - Son
is suffering from heart disease - Held,
'Maintenance' includes provision for food,
clothing, residence, education of the
children
and
medical
attendance
or
treatment - Appellant-father is able to
provide
medical
expenses
and
maintenance - He cannot escape liability
by raising plea that son is living with his
mother. (Para 7 and 8)

First Appeal dismissed. (E-1)
Cases relied on :-
1. State of Haryana Vs Smt. Santra, AIR 2000
SC 1888
(Delivered by Hon'ble Amar Singh Chauhan, J.)

1. The appellant Upendra Singh @
Omji, has preferred this First Appeal under
Section 19 of the Family Courts Act against
the judgment and order dated 26 September
2016 passed by the Principle Judge, Family
Court, Jalaun at Orai in Original Suit No.
26 of 2014 (Abbyan Singh and another vs.
Upendra Singh and another) whereby the
court below has awarded Rs. 3,000/- per
month for medical expenses and Rs.
1,000/- per month for maintenance to
Abbyan Singh (respondent no. 1).

2. The brief facts which are requisite
to be stated for the adjudication of the
present appeal are that a regular suit was
filed under Section 20 of the Hindu
Adoptions and Maintenance Act for getting
maintenance of their minor son (respondent
no. 1) claiming Rs. 7,000/- per month, who
is residing with respondent no. 2,Smt.
Poonam Raje. It is averred that marriage of
respondent no. 2, Smt. Poonam Raje was
6 All. Upendra Singh @ Omji Vs. Abbyan Singh @ Kanhaiya & Ors.
117
solemnized with appellant Upendra Singh
@ Omji on 17 November 2010 according
to Hindu rites and rituals, and out of the
said wedlock, one male issue namely
Abbyan Singh @ Kanhaiya was born, who
is 18 months old at present. Unfortunately,
he is suffering from heart disease and there
is shrinkage and hole in the valve of his
heart. The appellant did not provide him
the medical treatment. Respondent no. 2,
who is teacher in a school, however
managed to give treatment but the expenses
are very high and cannot be afforded by
her. The appellant is doing business and he
possesses Tractor, Scorpio, used taxi,
J.C.B. Machine and also agricultural land
from which his annual income is more than
Rs. 13 lakhs and, therefore, the respondents
seek relief for grant of maintenance and
lastly prayed that defendant be directed to
give Rs. 7,000/- per month in lieu of
maintenance, treatment and education of
their minor son.

3. The defendant filed a written
statement and pleaded inter alia that he has
paid Rs. 2,50,000/- for the medical
treatment of respondent no. 1; that
respondent no. 2 left his house without any
reason and also used to under estimate him;
that respondent no. 2 is teacher and earning
Rs. 35,000/- per month and her father is a
rich
person
and
business-man
who
possesses agricultural land also.

4. On the basis of the pleadings of the
parties, following issues were framed by
the Principal Judge, Family Court:-

a. Whether the respondent no. 1 is
entitled to get maintenance?

b. Whether the respondent no. 1 is
entitled to get some money for treatment
after creating charges of the property of the
appellant?

5. The Principle Judge, Family Court,
Jalaun at Orai, after hearing the parties and
perusing the records, partly decreed the
suit. The appellant was directed to give Rs.
3,000/-
per
month
towards
medical
expenses and Rs. 1,000/- per month in lieu
of maintenance and education of the minor
son i.e., respondent no. 1.

6. Before adverting to the claim of the
parties, it is necessary to reproduce Section
20
of
the
Hindu
Adoptions
and
Maintenance Act:-

"20. Maintenance of children and
aged parents- (i) Subject to the provisions
of this section a Hindu is bound, during his
or her lifetime, to maintain his or her
legitimate or illegitimate children and his
or her aged or infirm parents.

(ii) A legitimate or illegitimate child
may claim maintenance from his or her
father or mother so long as the child is a
minor.

(iii) The obligation of a person to
maintain his or her aged infirm parent or a
daughter who is unmarried extends in so
far as the parent or the unmarried
daughter, as the case may be, is unable to
maintain himself or herself out of his or her
own earnings or other property."

7. In this appeal, the main point of
determination is that whether the appellant
is under a legal obligation to maintain
respondent no. 1 who is the legitimate son
of appellant and suffering from heart
disease. It has come in the evidence that
appellant is a business-man who possesses
Tractor, Scorpio vehicle, J.C.B. Machine
and also agricultural land. Therefore, he is
able to provide medical expenses and
maintenance.
'Maintenance'
includes
provision for food, clothing, residence,
education of the children and medical
118 INDIAN LAW REPORTS ALLAHABAD SERIES
attendance or treatment. The Supreme
Court in the case of State of Haryana vs.
Smt. Santra, AIR 2000 SC 1888 held that
a Hindu is under a legal obligation to
maintain his wife, minor son, unmarried
daughter and old aged parents, whether he
possesses any property or not. The
obligation to maintain these relations is
personal, legal and absolute that arises from
the very existence of the relationship of the
parties.

8. Section 20 of the Hindu Adoptions
and Maintenance Act gives statutory form
to the legal obligation of a Hindu also to
maintain his minor son and his aged or
infirm parents. The appellant cannot escape
liability by raising plea that respondent no.
1 is living with respondent no. 2.

9. The impugned judgement, which
has considered the various aspects in detail,
does not call for any interference.

10. The appeal, therefore, liable to be
dismissed and is dismissed.
----------
(2021)06ILR A118
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 327 of 2017

Surendra Pratap Singh ...Appellant
Versus
Dr. Vishwaraj Singh ...Respondent

Counsel for the Appellant:
Sri Ganesh Shanker Srivastava

Counsel for the Respondent:
--

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13 (ia) - Family Courts Act, 1984
- Section 19(1) - Matrimonial dispute -
Divorce on the ground of cruelty - Cruelty,
scope and application thereof - Cruelty
may be mental or physical, intentional or
unintentional - If it is physical, it is a
question of fact about degree. If it is
mental, the enquiry must begin as to the
nature of cruel treatment - Mental cruelty
is the conduct of other spouse which
causes
mental
suffering
or
fear
to
matrimonial life of other. It postulates a
treatment of party to marriage with such
conduct
as
to
cause
a
reasonable
apprehension in his or her mind that it
would be harmful or injurious to live with
other party - Held, plaint do not satisfy
pleadings needed for a case of divorce
founded on cruelty and that being so,
evidence also has not been led to prove
cruelty - Trial Court's order holding that
plaintiff-appellant has failed to prove
cruelty, affirmed. (Para 26, 28 and 32)

B. Hindu Marriage Act, 1955 - Section 13
- Divorce - Ground of irretrievable break
down, application thereof - Parties are
living separately for the last one year -
Held, under Section 13 of Act, 1955,
divorce is not permitted on the ground
that marriage has become irretrievable -
Power of Supreme Court under Article 42
of the Constitution is not vested in High
Court. (Para 33 and 37)

First Appeal dismissed. (E-1)
Cases relied on :-
1. Samar Ghosh Vs Jaya Ghosh; (2007) 4 SCC
511
2. N.G. Dastane Vs S. Dastane; (1975) 2 SCC
326
3.
Sirajmohmedkhan
Janmohamadkhan
Vs
Haizunnisa Yasinkhan & anr.; (1981) 4 SCC 250
4. Shobha Rani Vs Madhukar Reddi; (1988) 1
SCC 105