Judgment:
ORDER
N.K. Patil, J.
1. Petitioner in this petition has sought for calling the records of G & WC No. 152/2000, on the file of I Add!. Principal Family Court Judge, at Bangalore, peruse them and to quash Annexure C order passed on I.A. No. VIII in G & WC No. 152/2000, on the file of the I Additional Principal Family Court Judge, at Bangalore dated 4th April 2007.
2. The undisputed facts of the case are that, petitioner had married the daughter of respondents 1 and 2, late Smt. Pushpalatha as per Hindu Customs and Rites during 1998 and out of the said wedlock, a daughter named Suneha was born on 20th January 1999 who is now growing under the supervision, guidance and care of the grandparents namely respondents 1 and 2. Now, Kum. Suneha is aged about ten years studying in IV standard in English medium School, The respondents 1 and 2 being guardian of the minor daughter of petitioner have filed the application, I.A. VIII in G & WC No. 152/2000 on the file of the I Additional Principal Judge, Family Court, Bangalore seeking interim maintenance at the rate of Rs. 10,000/- per month from the date of filing the suit. The said application had come up for consideration before the Family Court on 4th April 2007 and the learned Judge after hearing both sides and after considering the relevant material available on file, on the basis of the pleadings and the written statement of the parties and after framing necessary points for consideration has allowed the said application and directed the petitioner to pay the interim maintenance at the rate of Rs. 2,500/- per month to the respondents for maintenance of the minor child Suneha from the date of filing the application, i.e. 5th August 2006. Apart from the said maintenance amount, the Family Court has further directed the petitioner to pay the educational expenses of the minor child on production of the receipts for spending such educational expenses, having regard to the status of the parties, source of income of the petitioner and the relationship and also keeping in view the paramount consideration and welfare of the minor child. Being highly aggrieved by the said directions issued by the Family Court on the ground that, the interim maintenance awarded is excessive and the direction for payment of educational expenses is uncalled for, petitioner has presented this writ petition seeking appropriate reliefs as stated supra.
3. The principal submission canvassed by learned Counsel appearing for petitioner is that, the application filed by the respondents 1 and 2, for interim maintenance of the minor child Suneha is not maintainable under the provisions of the Hindu Marriage Act. It is the case of petitioner that, once the application itself is not maintainable, turning down the preliminary objection raised by the petitioner, considering the said application and awarding interim maintenance is not justifiable. He further submitted that, petitioner is not shirking from his responsibility of taking care of the minor child, but his only grievance is that, the interim maintenance awarded is excessive and unreasonable. Further, he has taken me through the operative portion of the impugned order and pointed out that, in addition to the interim maintenance of Rs. 2,500/- per month awarded, the Family Court has further directed the petitioner to pay the educational expenses of the minor child on production of the receipts by respondents 1 and 2. The Family Court ought not to have issued such direction in addition to awarding interim maintenance. Therefore, he submitted that the order impugned is liable to be modified, by awarding just and reasonable interim maintenance and the operative portion of the order, directing payment of educational expenses on produced of receipts by respondents 1 and 2 is liable to be set aside.
4. Per contra, learned Counsel appearing for respondents 1 and 2, inter alia, contended and substantiated that, the order impugned passed is just and reasonable and that mere wrong mentioning of the relevant provision at the time of filing the application for interim maintenance Will not take away the right and the relief sought in the application. The interim maintenance of Rs. 2,500/- awarded by the Family Court is just and reasonable and the same would take care of the basic requirements of the minor child she being the student of IV Standard studying in the Convent School in English medium. Further, having regard to the travelling expenses, medical expenses, nutrition, extra curricular activities and other ancillary expenses, the amount awarded as interim maintenance is just and reasonable. Therefore, he submitted that the petitioner being well off and doing fair in his business, is getting income from rent of more than Rs. 30,000/- per month and is also doing real estate business and earning Rs. 01.00 lakh per month. This assertion made by the respondents is not denied nor controverted by petitioner by producing any documents. Therefore, the determination of interim maintenance at the rate of Rs. 2,500/- per month is just and reasonable. Further, so far as the payment of educational expenses of the minor child upon production of receipts is concerned, he submitted that, the said direction is also just and proper and the same is in the best interest of the minor child. Hence, interference by this Court in the impugned well considered order passed by Family Court is not justifiable nor petitioner has made out any good ground to entertain the relief sought in the petition.
5. I have heard learned Counsel appearing for petitioner and respondents 1 and 2.
6. After considering the submission made by learned Counsel appearing for both parties, as stated supra and having regard to the facts and circumstances of the case, the only question that arise for consideration in this petition is as to:
WHETHER the order impugned passed on I.A. VIII in G & WC No. 152/2000 by the learned I Additional Civil Judge, Family Court, Bangalore Is sustainable in law?
After careful evaluation of the entire material available on record and the submission made by learned Counsel appearing for petitioner that, the application filed by respondents under Section 24 of the Hindu Marriage Act, 1965 is not maintainable and that the same cannot be considered under the Guardians and Wards Act, 1890, it is significant to note as rightly held by the Family Court that, mere non mentioning of the correct provision will not take away the right of the parties nor the relief sought for in the application. it is worthwhile to note that Section 12 of the Guardians and Wards Act, 1890 stipulates that, the Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. Here, it is crystal clear that, temporary custody and protection includes interim maintenance and well being of the minor. This aspect of the matter has been rightly considered and referred by the learned Judge of the Family Court in the order stating that, respondents, in fact, in spite of mentioning the wrong provision, can maintain the application under Section 12 of the Guardians and Wards Act. After deciding the maintainability issue, the learned Judge of the Family Court, after appreciating the relevant material available on record observed that, if the respondents establish the source of income of the petitioner and if he is capable to pay the interim maintenance, then, the same can be granted. The said reasoning and finding recorded by the Family Court is well founded and the same comes within the parameter of Section 12 of the Guardians and Wards Act regarding permitting the interim protection of the person, which includes the interim maintenance of the minor child. Therefore, the submission made by learned Counsel for petitioner that, the application I. A. VIII filed by respondents is not maintainable holds no water and deserves to be brushed aside. It is not disputed that, petitioner is the father of the minor female child Suneha and respondents 1 and 2 are her grandparents and guardians and the child is in their custody. Therefore, I am of the view that, the said submission of learned Counsel for petitioner has no substance in the light of the facts and circumstances.
7. Regarding the submission of the learned Counsel for petitioner that, the interim maintenance of Rs. 2,500/- per month awarded by the Family Court for maintaining the minor child is too excessive and unreasonable, ! am of the view that, the same is just and reasonable and I do not find any error or arbitrariness or unreasonableness in awarding the said sum. It is the case of respondents 1 and 2 that, they have claimed maintenance at the rate of Rs. 10,000/- per month specifically contending that, the petitioner is getting Rs. 30,000/- per month as rent apart from his real estate business and other work whom which he is earning around Rs. 01.00 lakh per month. It is significant to note that, the petitioner except denying that the said source of income is incorrect, has not uttered a word in the objections to the application, I.A. VIII nor has whispered regarding the correct source of his monthly income. Therefore, it should be presumed that, petitioner is getting substantial income by way of rent as well as by way of his profession as estate agent. Having regard to the paramount consideration and welfare of the minor female child and also taking into consideration the fact that she is studying IV Standard in the Convent School, I am of the view that the interim maintenance amount awarded at Rs. 2,500/- per month by the Family Court is just, fair and reasonable. The said sum is also appropriate having regard to the necessities of the child and to enable her to live along with other children with honour and dignity. Therefore, I do not find any unreasonableness or arbitrariness in the order impugned, awarding the interim maintenance at Rs. 2,500/- per month.
8. So far as the other contention of the learned Counsel for petitioner that, the direction issued by the Family Court for payment of educational expenses upon production of receipts by respondents 1 and 2 is concerned, I am of the considered view that, the said direction is also well founded and thoughtfully made for the reason that, apart from maintenance of the minor child, the educational expenses will be an additional burden on the respondents. The respondents 1 and 2 being the grandparents of minor Child, who are also fairly aged, are supposed to take care of themselves along with other grand children also. More over, the petitioner is directed to pay the educational expenses of the minor child only to the extent of the amount spent and upon production of such receipts. Therefore, petitioner should not have any grievance for paying the educational expenses of his own daughter. The Family Court has aptly directed the petitioner to pay towards the educational expenses to the extent of the receipts produced by respondents. Hence, I do not find any error or arbitrariness in issuing such direction, which is issued keeping in view the paramount welfare of the minor child, to give good education to meet the future challenges of life and to stand on her own legs and having lost the love and affection of her mother permanently. Therefore, the said direction cannot be said to be unreasonable one. Therefore, I decline to entertain this petition and interfere in the impugned order.
9. Having regard to the facts and circumstances of the case, as stated above, the writ petition filed by petitioner is liable to be dismissed as devoid of merits. Accordingly, it is dismissed with the following directions:
I] Petitioner herein is directed to deposit the entire balance interim maintenance amount calculated at the rate of Rs. 2,500/- per month from the date of filing the application, I.A. VIII i.e. 5th August 2006 till 31st March 2009 in the Fixed Deposit for a period of five years and thereafter renewable by another five years in the name of the minor child Suneha in any Nationalized Bank, nearby the house of the respondents 1 and 2, as expeditiously as possible, at any rate, within three weeks from the date of receipt of copy of this order, and to that effect, appropriate communication may be sent to respondents in writing. The aforesaid Fixed Deposit and its renewal for another five years is made keeping in mind the tender age of the child in respect of whom the interim maintenance is awarded.
II] The respondents 1 and 2 are entitled to draw the quarterly interest from the Fixed Deposit so made in the name of the petitioner's daughter Kum Suneha;
III] The respondents 1 and 2 are directed to submit the receipts for having paid the school fee, tuition fee, including the transportation fee etc. to the petitioner and petitioner in turn, shall receive the same and pay the amounts referred in the receipts produced by respondents 1 and 2, as expeditiously as possible within ten days from the date of receipt of such receipts, Further, petitioner is directed to continue to pay the said educational expenses every succeeding academic years namely 2007-08, 2008-09, 2009-10 etc. regularly.
IV] The respondents 1 and 2 are directed to open a Savings Bank Account in any Nationalized Bank nearby the house of respondents in the name of the minor child and furnish the Account number to the petitioner forthwith.
V] Petitioner, upon receipt of the Savings Bank Account Number, in turn, is directed to deposit the interim maintenance as awarded by the Family Court at Rs. 2,500/- per month on or before 10th of every month in the Savings Bank Account to be opened in the name of minor child by respondents 1 and 2.
VI] Respondents 1 and 2 are permitted to draw the amount from the Savings Bank Account of the minor child to the extent of the expenses of the minor child, regularly.
10. With these observations, the writ petition stands disposed of.