SAURABH SHYAM SHAMSHERY,J. - (1.) Prayer in the instant petition is to set aside the order dated 7.12.2018 regarding paper no 28 Ga passed by Family Judge/Family Court/Addl Sessions Judge/FTC-3 Moradabad and the order/judgment dated 1.1.2019 in case No 619 of 2017 (Old No 18 of 2017) Smt. Sapna Rani and others vs. Sri Janki Prasad) passed by Family Judge/Family Court/Addl Sessions Judge/FTC-3 Moradabad.
(2.) *** (i) The facts emerging from the petition are that the respondent no 1, is daughter-in law of the petitioner and respondent nos 2 and 3 are minor son of respondent no 1. (ii) The respondent no 1 was tied in nuptial knots with Suraj Prasad, son of the petitioner in accordance with Hindu rites on 14.10.2007 and out of the wedlock, two children were born (respondent Nos 2 and 3). (iii) Unfortunately, Suraj Prasad died on 10.10.2016. After his death, petitioner and his family members intentionally refused to look after the respondents and even took steps not to give them their due share in the ancestral property. (iv) The respondent no 1 being unable to maintain herself and her two minor sons filed application under section 19/22 of the Hindu Adoption and Maintenance Act 1956, (hereafter referred to as 'Act of 1956') and sought maintenance as widowed daughter-in-law, from the petitioner, (her father-in-law) as well as sought maintenance as dependents of her deceased husband out of the estate inherited from the deceased by her father-in-law (Petitioner herein) and prayed for Rs 40,000/- per month as maintenance. (iv) The said application was partially allowed vide order dated 1.1.2019 by the learned Judge, Family Court, Moradabad ex-parte and fixed Rs 1500/- to each of the respondents to be paid on 10th day of each month by the petitioner (father-in law). (v) The learned Court below took note of the fact that the petitioner had opted not to appear before the Family Court after filing reply and the learned Court left with no other option except to proceed ex-parte against the petitioner by order dated 12.10.2018. (vi) The petitioner has filed Recall application on 29.10.2018. However, the same came to be rejected by order dated 13.12.2018 on the premises that after hearing the arguments, judgment was already reserved on 22.10.2018 and therefore, procedure prescribed under Order IX Rule 12 CPC would not be followed and exercised. (vii) The learned Court below after considering the materials on record, came to the conclusion that the petitioner here-in has property on which deceased husband had right and further respondent no 1 has no source of income to maintain herself and her two minor sons. Accordingly, the application filed by respondent came to be partially allowed by judgment and order dated 1.1.2019. (viii) Both the orders dated 7.12.2018 and 1.1.2019 are impugned in the present petition.
(3.) The learned counsel for the petitioner submits that marriage between her deceased son and respondent no 1 was voidable on the ground of being solemnized between Sapinda relationship. There is no ancestral property and entire the property is the self acquired property of the petitioner. The learned court below has not appreciated that due to illness of his wife, the petitioner could not attend the court and the learned court has wrongly proceeded exparte. The learned counsel also submits that according to section 19 of the 'Act of 1956', the father-in-law is not liable to maintain her daughter-in-law if her father has means to maintain and support her and in the present case, father of the respondent (daughter-in-law) has sufficient means to maintain her. Lastly it was submitted that the petitioner is an ex-serviceman and retired from Indian Railway and he is an old person and has no other source of income.;