Kerala High court
Citation : Mat.Appeal.No. 193 of 2004 OP. 328/1997 of Family Court,
Thrissur Viswambharam : Appellant Vs. Dhanya & anr : Respondents
Judgment : R.Basant, J:_
1. Is an unmarried daughter, who has attained majority, entitled to claim maintenance under Sec.20 of the Hindu Adoptions and Maintenance Act from her father? This is the short question that arises for consideration in this appeal.
2. The relationship between the parties is admitted. Both claimants are daughters of the appellant. The 1st claimant had crossed the age of majority even when she filed the application. She was about 19 years old. The 2nd claimant was aged about 15 years on the date when she filed the claim petition. She has crossed the age of majority during the pendency of the proceedings.
3. The claimants contended that the appellant- their father, was not maintaining them. He was residing separately. In the circumstances, the claimants who were unable to maintain themselves claimed that the appellant may be directed to make payment of an amount of Rs. 1,000/- per mensem to each of them as maintenance. The appellant had sufficient means it was contended. He was formerly employed in the Gulf. He was getting military pension. He has a goods auto-rikshaw. He is employed as a Security Guard in the Guruvayoor Temple. His monthly earnings far exceed Rs. 4,500/-, it was contended.
4. The appellant resisted the claim. He disputed the assertion that he was not maintaining the claimants. He disputed his liability to pay an amount of Rs. 1,000/- per mensem as maintenance to the claimants. His income did not justify the same, it was contended. He disputed the liability to make payment as also the quantum of maintenance claimed.
5. The claim for maintenance was disposed of along with two other petitions by the Family Court, Trichur. The court had before it the evidence of P.Ws. 1 to 6 and Exts.A1 and A2 on the side of the claimants and the oral evidence of C.P.Ws. 1 and 2 and Exts.B1 and B2 on the side of the appellant. The report of the Commissioner Ext.C1 was also available before it.
6. The Family court came to the conclusion that the appellant has the liability to pay maintenance to the claimants. He was, accordingly, directed to pay maintenance at the rate of Rs. 500/ per mensem to each of the claimants from December, 1996 till they got married. It is the said direction that is assailed before us in this appeal.
7. When the appeal came up for admission the learned counsel for the appellant assailed the impugned direction on the following tow grounds only:
(1) Both claimants having attained majority are not entitled to claim maintenance from the appellant in view of Sec. 20(2) of the Hindu Adoptions and Maintenance Act, 1956. (2) The quantum awarded is excessive.
8. The law relating to maintenance payable by a Hindu parent to his children is codified in the Hindu Adoptions and Maintenance Act, 1956 (for short ‘the Act’). “Maintenance” under Sec. 3(b) of the Act is defined as follows:
(b) ‘maintenance’ includesâ€”
(i) in all cases, provision for food, clothing, residence education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage”.
The provision relating to the liability/right to pay/claim maintenance is contained in Sec. 20 of the Act. The said section is extracted below:
“20. Maintenance of children and aged parents.â€”(1) 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.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(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 him self or herself out of his or her own earnings or other property.
Explanation.â€”In this section “parent” includes a childless step-mother”.
The expression ‘minor’ is define din Sec.3(c) of the Act in the following words:
“minor’, means a person who has not completed his or her age of eighteen years”.
9. The learned counsel contends that only a minor child is entitled to claim maintenance from its father under Sec. 20 of the Act- whether the child be male or female or whether it be matted or unmarried. An unmarried minor daughter even during her minority can claim maintenance only if she is unable to maintain herself out of her own earnings or other property. Therefore, the claim by the daughters who have attained majority, though unmarried, is not legally sustainable. This, in short, is the contention raised in law.
10. The Supreme Court in the decision in Jagdish Jugtawat v. Manju Lata and others ((2002) 5 SCC 422) had occasion to incidentally refer to this aspect. In para-4 of the said judgment, the Supreme Court has stated so:
“4â€¦â€¦â€¦â€¦â€¦â€¦â€¦â€¦, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act”.
11. A Division Bench of this Court earlier in Commissioner of Gift Tax v. Indira Devi (1998(2) KLT 501) after adverting to Secs. 20(1) and 20(3) had summarized the law as follows:
“S.20(1) enjoins upon a Hindu to maintain his or her legitimate or illegitimate children, inter alia, Sub-s. (3) of S.20 narrows down the legal obligation to maintain an unmarried daughter in so far as she is unable to maintain herself from her own earnings or property. In short, under S.20, a Hindu is under legal obligation to maintain, amongst others, his unmarried daughter(s), in so far as such unmarried daughter(s), in so far as such unmarried daughter is unable to maintain herself from her own source of income. This obligation to maintain is personal and legal in character and arises from the existence of the relationship between the parties”.
The two precedents referred above, according to us, suggest clearly that a Hindu unmarried daughter, on attaining majority, is entitled to continue to claim maintenance from her father until marriage, if she is unable to maintain herself out of her own earnings or property. But the learned counsel for the appellant contends that the courts in those decisions have not considered the play of Sec. 20(2) of the Act and therefore that question deserves specific consideration. According to the learned counsel, Sec. 20(1), inter alia, declares the liability of a Hindu to maintain his legitimate or illegitimate children. ‘Child’ is defined virtually in Sec. 20(2) of the Act and that would take in only a minor child. In other words the liability subsists only so long as the child is a minor. Even in respect of such a minor child, if female, law obliges the parent to pay maintenance only if such female minor child is unable to maintain herself out of her own earnings or other property. This, according to the learned counsel for the appellant, must be the proper construction. The language of the provision can lead only to that conclusion, it is contended.
12. We are unable to agree with the said contention of the learned counsel for the appellant. Such contention rebels against logic and commonsense. It runs counter to the salutary legislative object, intent and purpose. It would be irrational to come to such a conclusion.
13. We agree with the learned counsel for the appellant that Sec. 20(1) declares the liability of a Hindu to maintain, inter alia, his or her legitimate or illegitimate children. ‘Child’ is not defined under the Act and Sec. 20(2) conveys to the court the ambit of the expression ‘children’ in Sec.20(1) of the Act. Only minors are entitled to maintenance as per Sec. 20(2). So far there can be no controversy.
14. The counsel contends that Sec. 20(3) of the Act, inter alia, makes a special provision so far as the female minor child is concerned. Such child can claim maintenance only if it is unable to maintain herself out of her own earnings or other property.
15. Such a contention is founded on the premise that Sec. 20(3) is only a proviso to Secs. 20(1) and 20(2) and cannot enlarge the scope of Secs. 20(1) and 20(2). There is nothing in Sec. 20(2) to show that a female child would be entitled to claim maintenance even after it attains majority. Therefore, it is contended that Sec.20(3) of the Act restricts the application of Secs.20(1) and (2) in so far as a minor female child is concerned. It does not enlarge the right of a female child to claim maintenance even after she attains majority.
16. The contention may appear to be impressive at the first blush looking at the language of Sec.20(2) alone. But certainly such interpretation is impressible. The section has to be read as a whole. Secs. 20 in its entirety reflects a scheme by which the legislative intent is expressed. Sec. 20(1) of the Act declares the liability. Sec. 20(2) refers to the ordinary meaning of the word ‘child/children’ employed in Sec.20(2) of the Act and enables the minor child whether legitimate or illegitimate to claim maintenance from its parent. Sec. 20(3) of the Act is certainly to be read as a rider to secs. 20(1) and 20(2). But the purpose of the stipulation is not to take away anything that is granted to the female minor child under Secs. 20(1) and 20(2) of the Act; but only to enlarge her rights so that she can continue to claim maintenance even after her majority if she remains unmarried provided she is unable to maintain herself out of her own earnings or other property. The obligation of her father or mother as the case may be in terms of sub sections (1) and (2) is extended to an unmarried daughter who is not a minor. This extended liability is subject to the condition that the unmarried daughters is unable to maintain herself out of her own earnings or other property. This, to us, is the plaint intended meaning of Secs. 20(1) to (3) of the Act. Sec.20(3) of the Act which thus operates as a rider only enlarges the right of a female unmarried child and does not at all restrict her rights.
17. Any contra interpretation would run against reason and logic. Under the Child Marriage Restraint Act 1929, the permitted age of marriage for a female child is 18 years. So, normally any marriage performed in accordance with law will have to be performed only after the female child attains the age of 18 years. If that be so, the stipulation in Sec. 39(b)(ii) of the Act that in the case of an unmarried daughter, maintenance will include reasonable expenses of and incident to her marriage will lose all its meaning and content. The advantage of that expanded definition of maintenance will the be available only to those female children who violate the provisions of the Child Marriage Restraint Act.
18. Another fallacy of the said argument is that a female child will then be subjected to greater fetter and restriction than a male child. An unmarried minor male child will, if the said contention were accepted, be entitled to maintenance even when he is able to maintain himself out of his own earnings or other property, whereas an unmarried minor female child will disentitle herself for maintenance if she is able to maintain herself out of her own earnings or other property. This cannot obviously be the law. Such a law would certainly offend the constitutional mandate relating to equality and prohibition of discrimination on the ground of sex under Arts.14 and 15 of the Constitution of India. What Art. 15(3) of the Constitution of India permits is only protective discrimination in favour of female and not hostile and unreasonable discrimination against her. The interpretation canvassed by the learned counsel for the appellant would render the statutory stipulations unconstitutional. Such an interpretation has certainly got to be avoided. In this view of the matter also we are of opinion that the interpretation canvassed by the learned counsel for the appellant cannot be accepted.
19. It therefore follows that what Sec 20 of the Act stipulates is that Hindu parent is liable to maintain his legitimate or illegitimate male or female children. Normally such liability to maintain would continue until the child attains the age of majority. Such liability to maintain the child, whatever be the sex, would continue until the child attains majority whether the child is or is not able to maintain itself out of its earnings or other property. So far as the male child is concerned, his right to claim maintenance would cease when he attains the age of majority. But so far as the female child is concerned, such right will continue even after she attains majority until she gets married, provided she is unable to maintain herself out of her own earnings or other property.
20. In this view of the matter, the conclusion of the Family Court that the claimants/respondents herein are entitled to claim maintenance from the appellant until they are married notwithstanding the fact that they have attained majority is absolutely correct and does not call for interference at all. The challenge on this aspect fails.
21. Regarding the quantum, we find that the evidence on record indicates satisfactorily that the appellant was formerly employed abroad, is getting military pension of Rs,. 1,500/ per mensem and that he earns an income of Rs. 3,000/- from his employment as a security Guard in the Guruvayoor Temple. Specific evidence about the quantum of income was not made available before court by the appellant. That he is in receipt of pension and that he is employed as security Guard are not seen disputed at all. In these circumstances, the conclusion of the Family Court that the appellant is liable to pay maintenance at Rs.500/- per mensem to each claimant does also appear to be absolutely fair and just.
22. In the result, this appeal is dismissed in limine.