IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
CORAM : A.S.OKA, & A.P.BHANGALE, JJ.
DATE : MARCH 18, 2015
WRIT PETITION NO.10312 OF 2014
Ramesh Gajanan Rege …Petitioner
Gauri Ramesh Rege, Union of India …Respondents
Shri B.M.Patwardhan i/b Mr.Suresh Sabrad for the petitioner
None for the respondents
1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the constitutional validity of subsection 3 of section 20 of the Hindu Adoption and Maintenance Act,1956 (for short “the said Act”).
2. Few facts of the case are necessary to be considered with a view to appreciate the factual controversy. The first respondent is the daughter of the present petitioner. The first respondent filed a petition under section 20 of the said Act before the Family Court at Pune. When the petition was filed in the year 2005, the age of the first respondent was 16 years. A prayer was made in the petition filed by the first respondent for grant of maintenance at the rate of Rs.50,000/per month and for issuing a direction to provide a residence to her. The contention of the petitioner is that the first respondent is a British citizen and she is not domiciled in India. An application was made by the petitioner for rejection of the said petition filed by the first respondent. The said application along with interim application in the said petition were decided by the learned Judge of the Family Court by order dated 9th August 2005. Thereafter, an application was made by the first respondent for grant of educational expenses. An application was made by the petitioner for cancellation of order of interim maintenance granted under the order dated 9th August 2005. By the said order dated 9th August 2005, the prayer of the petitioner for rejection of the petition filed by the first respondent was rejected. Apart from granting injunction against the petitioner, the learned Judge of the Family Court directed the petitioner to pay interim alimony of Rs.10,000/to the first respondent.
3. The said application made by the petitioner for cancellation of the order of interim maintenance dated 9th August 2005 was rejected by the learned Judge of the Family Court by order dated 16th October 2012. We must note here that there is no substantive prayer made in this petition for challenging the orders passed by the Family Court. The substantive prayers are prayers (a) and (b).
4. The submission of the learned counsel for the petitioner is that subsection (3) of section 20 of the said Act is violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 15 of the Constitution of India. His submission is that as far as the subsection (2) of section 20 of the said Act is concerned, it makes no distinction between a male or a female child. His submission is that under subsection (3) of section 20, the law provides that it is the obligation of a person to maintain his daughter who is unmarried when she is unable to maintain herself. The learned counsel submitted that there is no reason to discriminate between a son and a daughter. He urged that if a father is under no obligation to maintain unmarried son after he attains majority, there is no reason to grant such a benefit to the unmarried daughter. His submission is that there is no justifiable reason to protect only a daughter. He, therefore, urged that the provision of subsection (3) is arbitrary and is violative of Article 14 of the Constitution of India. He urged that the said provision is also violative of Article 15 which prohibits discrimination on the ground of sex. He urged that it is unjust to put responsibility on the parents to maintain an unmarried daughter even after she attains majority as the daughter may choose to remain unmarried for ever.
5. He urged that the first respondent daughter is not a citizen of India and she is not domiciled in India. He, therefore, submitted that the said Act is not applicable to the first respondent. He urged that the first respondent is very affluent.
6. We deal with the first submission in support of plea that subsection (3) of section 20 is unconstitutional. Section 20 of the said Act reads thus:
“(3) The obligation of a person to maintain his or her aged or 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. Subsections (1) and (2) of section 20 apply to a child whether male or female. Obligations created by subsections (1) and (2) of section 20 to maintain are in relation to the sons or daughters so long as they do not attain majority. Subsection (3) of section 20 is applicable to an unmarried daughter who may have attained majority. Subsection (3) operates independently of subsection (2). It seeks to protect an unmarried daughter even after she attains majority. A person is under an obligation to maintain his or her daughter who is unmarried and who is unable to maintain herself. The class of unmarried sons who have attained majority is completely different from the class of unmarried daughters who have attained majority. The reason being the peculiar position of a daughter and especially an unmarried daughter in Hindu society. Therefore, the argument that two equals are being treated as unequals is not at all acceptable and therefore, Article 14 will have no application.
8. For the same reason, Article 15 will have no application. Moreover clause (3) of Article 15 specifically provides that nothing in the Article 15 shall prevent the State from making any special provision for women and children. Subsection (3) of section 20 is a special provision within the meaning of clause (3) of Article 15. As stated earlier, the class of unmarried major sons is different from the class of unmarried major daughter and, therefore, the discrimination which is prohibited under Article 15 is not at all attracted. Therefore, challenge to the constitutional validity must fail.
9. As far as applicability of the said Act is concerned, the same applies to all persons named in section 2. It applies to any child, legitimate or illegitimate, both of whose parents are Hindu, Budhist, Jaina or Sikh by religion. The applicability of the said Act does not depend upon the nationality of the child or domicile of the child. If both the parents of the child are either Hindu or Buddhist or Jaina or Sikh by religion, the said Act becomes applicable to such children. Moreover, as per subsection (1) of section 20 of the said Act, the obligation to maintain his other children is of a person who is Hindu by religion. Therefore, applicability of the Act does not depend on the nationality or domicile of the child. We are not dealing with a parent who is not domiciled in India. Whether section 20 will apply to a parent who is not domiciled in India or who is not a citizen of India is an altogether separate issue.
10. The question of applicability of the said Act is different from the territorial jurisdiction of the Court to entertain the proceedings under the said Act.
11. Therefore, we find no merit in both the contentions raised by the petitioner. The petition deserves to be rejected. However, We have made no adjudication on the merits of the pending proceedings.
12. Writ Petition is rejected.