Whether son can seek maintenance who is a Major?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL  APPELLATE  JURISDICTION
CIVIL WRIT PETITION  NO. 2117   OF 2012

Jayvardhan Sinh Chapotkat
vs.
Ajayveer Chapotkat,

Civil Writ Petition No. 2117 of 2012, decided on April 8, 2014] ­­­

CORAM : SMT. SADHANA S. JADHAV, J
DATE     : 8th April, 2014

Heard   the   learned   Counsel   for   the   Petitioner   and   the   learned Counsel for the respondent.

Rule.   Rule made returnable forthwith with the consent of the parties.

The petitioner herein is the son of the respondent No. 1. The Petition herein takes exception to the order dated 30 th  August, 2011 passed by the Family Court.  The Petitioner has instituted the Petition to direct respondent father to pay maintenance even after he has attained age of majority. During the pendency of the main Petition, the Constituted Attorney of the respondent father had made an application for framing preliminary issue regarding maintainability of Petition, thereby seeking rejection of the Petition under Order 7 Rule 11(d) of  Civil Procedure  Code. The  named Petition  is filed  under Section 20 of the Hindu Adoption and Maintenance Act.   The Petitioner herein had attained majority on 26 th October, 2008 and the Petition was filed on 19th  November 2008.   The Petitioner had challenged the application seeking framing of preliminary issue. The Petitioner had contended that it is the obligation of the father   to maintain his son as he is studying and fully dependent upon his mother.   Learned Family Court had observed that the Petitioner has attained majority and is not entitled to claim maintenance under Section 20 of the Hindu Adoption and Maintenance Act.   It was observed by the learned Family Court that the advocate representing the Petitioner as well as respondent had admitted that the Petition has been filed by the Petitioner after attaining age of majority and as per sub­clause 2 of the Section 20 of the Act,  the Child is not entitled to claim maintenance from either of the parents.

The Petitioner submits that in fact, his mother had filed an application  before the Family Court bearing Petition No. A­438/1993 praying therein that the marriage between the applicant and the present respondent be dissolved by a decree of divorce under Section 13(1)(ia) and (b) of the Hindu Marriage Act, 1955 and that the applicant therein shall be awarded the custody and guardianship of the minor child Jayvardhan Sinh and that the custody of the minor son shall vest in her permanently.  The prayer was granted by the Family Court and the decree was drawn on 24th March, 2000.  At that stage, the respondent herein was directed to pay Rs. 10,000/­ p.m. to the mother of the Petitioner towards her maintenance and the respondent was further directed to pay Rs. 5,000/­ p.m. to the present Petitioner towards maintenance.  Thereafter, the  mother  of  the  Petitioner  had sought modification of the order by filing Miscellanea Application No. 118 of 2003. She had demonstrated before the Court the contingent expenditures towards maintenance of her son and had prayed that the respondent herein be ordered and directed to pay a sum of Rs. 15,000/­ p. m. towards maintenance of the minor son and further that the respondent be ordered and directed to pay a sum of Rs. 7 Lakhs for the membership of C.C.I. It appears from record that the respondent On 14th  November, 2008 the respondent herein filed Interim herein was looking after the needs of the son.

Application No. 346 of 2008 in M.A. No. 118 of 2003 seeking modification of the order of maintenance.   The applicant i.e. the present respondent had specifically stated that the respondent has paid Rs. 17,91,000/­ and was in arrears of Rs. 1,66,000/­ as on 16/10/2008. The applicant had filed an undertaking that he would pay the arrears amount.   It was specifically contended that on 26/10/2008 the child Jay i.e. present Petitioner has completed 18 years of age and has become a major and hence, would not be entitled for any  maintenance. He  had  prayed  for modification  of  the order dated 24th  June, 2004 and had further prayed that the order of maintenance at the rate of Rs. 5,000/­ to the child Jay be set aside. The mother of the Petitioner had filed a reply to the said application contending therein that although the child has attained majority, he is studying in first year junior college at Jai Hind College, Mumbai.  He had attained majority on 26th October, 2008.  That he is still a student and is not independent and capable of looking after   himself and therefore, the order should not be modified.  The Marriage Counsellor had called upon to file a report.   She had reported that the total amount paid by the present respondent was Rs. 16,71,000/­.  Amount of Rs. 14,87,000/­ was withdrawn from the court.  That the respondent had paid Rs. 1,84,000/­ and Rs. 40,000/­ by cheque and total amount paid was  Rs. 17,11,000/­.  The  present  Petitioner  filed Petition  No. 176/2008 before the Family Court which is an application under Section 20 of the Hindu Adoptions and Maintenance Act, 1955 praying therein that the Petitioner be awarded maintenance even after his attaining of majority on 26/10/2008.

The respondent had raised a preliminary objection in respect of maintainability of the Petition under Order 7 Rule 11(d) of the Civil Procedure, Code and therefore had requested the Court to frame the issue of maintainability of the Petition, as per the provisions of order 14 of the Code of Civil Procedure.  The preliminary objection was filed by the Constituted Attorney of the respondent on behalf of the respondent. In the mean while, Civil Appeal No. 8689 of 2011 has been filed by the mother of the present Petitioner.  The Hon’ble Apex Court has stayed the operation of the impugned order passed by the High Court and had directed that the respondent shall pay to the Petitioner Rs. 10,000/­ p.m. by way of permanent alimony with effect from the date of the Family Court order and this would be in addition to the amount awarded for the child.  It is pertinent to note that before filing the application seeking leave to appeal the present Petitioner had attained majority. However, the same was not demonstrated before the Hon’ble Apex Court and in all probabilities therefore, the Hon’ble Apex Court had extended the relief in favour of the child i.e. the present Petitioner. The respondent herein had filed affidavit in reply before the Hon’ble Apex Court stating therein that in fact, there has been suppression of facts on behalf of the appellant.  It was specifically contended in paragraph­26 of the affidavit that the present Petitioner had attained majority on 26th  October, 2008 and that he has filed an application under Section 20 of the Hindu Adoptions and Maintenance Act before Family Court.  It was further demonstrated that the issue of maintenance payable to the son was not an issue either in the High Court or in the Apex Court and the Hon’ble Apex Court has granted interim relief for granting maintenance to the son. It was further contended that it has foreclosed defence available to the respondent in the application filed by the son before the Family Court under Section 20 of the Hindu Adoptions and Maintenance Act. On 12 th August, 2013 Civil Appeal No. 8689 of 2011 was called out for hearing before the Hon’ble Apex Court and the Apex Court had granted four weeks’ time In the  case of Smt.  Jasbir  Kaur  Sehgal v/s.  District  Judge, to both the parties to file their respective statement of the case. Dehradun and ors.  reported in AIR 1997 SC 3397, the Hon’ble Apex Court has observed that under the Hindu Adoption  and Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter, if she is unable to maintain herself.

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It is submitted by the respondent that the Hon’ble Apex Court was considering the case of an unmarried daughter and the same cannot be applied to the case of a son.  In fact, in the present case, the respondent has demonstrated before the Apex Court that the mother of the present Petitioner happens to be a practicing advocate  and she has suppressed the facts before the Court.

Section 20 of  the  said Act  contemplates  that a  legitimate and illegitimate child may claim maintenance  from his father or mother so long as the child is minor.   Section 21(iv) of the said Act defines “dependents” ­

“as his or her son or the son of his predeceased son or
the son of a predeceased son of his predeceased son, so long  as he is a
minor : provided and to the extent that he is unable to obtain
maintenance, in the case of a grandson from his father’s or mother’s
estate, and in the case of a great­grandson, from the estate of his father
or mother or father’s father or father’s mother.”

In view of this provision, it can be clearly said that the Statute
does not contemplate grant of maintenance to son who has attained
majority.

The learned Counsel for the Petitioner has placed reliance upon
the Judgment of the Hon’ble Apex Court in the case of Rita Dutta and
Anr. v.s. Subhendu Dutta reported in (2005) 6 SCC 619.   In the
said case, the Hon’ble Apex Court had directed the father to pay
maintenance to the elder son to the tune of Rs. 3,000/­ and Rs. 2,500/­
to the younger son.  The Counsel placing reliance upon the Judgment
of the Hon’ble Apex Court cited(supra) submits that although the
Statute  does  not  entitle  a major son for maintenance, in  fact  and
circumstances, a son who has attained majority can claim
maintenance.   That the Hon’ble Apex Court has also not disturbed
grant of maintenance awarded to the present petitioner.
The learned Counsel further submits that it is the obligation of
the father to maintain his son who is still prosecuting his studies and is
fully dependent and cannot maintain himself.  It is true that the ward
of an educated, well placed  parent is entitled to prosecute his studies
in order to have better prospects in life.  Divorce between the parents
should not disentitle the child from prosecuting his further studies and
making himself capable to earn a decent living for himself. In these
circumstances, the son would be entitled to maintenance so long as he
is prosecuting  his education or till he attains the age of 25 years.

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The Hon’ble Apex Court had carved an exception   to the
provisions of Statute in the case of  Rita Dutta(supra).  In the present
case also it can be said that  the Petitioner has made out an exceptional
case.  It is  demonstrated in the Petition that he has bright career.  He
he is studying at Jai  Hind college.

is prosecuting his  education and sports  to the best of his capacity and
The learned Counsel for the respondent submits that in fact, the
mother is an advocate and she is also earning and therefore, she
should maintain her son.  It is further submitted that the Statute does
not contemplate maintenance to a son  who has attained majority.  It is
the joint responsibility of the parents to maintain their son as long as
he is studying and just because the parents are divorced and the son
continues to live with his mother, the whole responsibility  cannot be
thrown on the frail shoulders of mother.

The learned Counsel for the respondent further submits that the
mother of the present petitioner earns about 10,000/­ p.m. as an
advocate and she has suppressed the said fact and therefore, the son
would not be entitled to any maintenance from the father.   In the
present day circumstances, Rs. 10,000/­ is a meager  amount and the
tuition fees are exhorbitant  and therefore, it would not be possible for
the mother to pay the tuition fees of her son.  On the other hand, the
respondent herein is in fact, an American Citizen and a waste water
analyst working  for gain at RCSD­1, 4, Route 340, Orangeburg, New
York 10962 U.S.A.

A major son may not be entitled for maintenance under the
Hindu Marriage Act.  In the present case, the Petitioner has made out a
specific claim for educational expenses which can be availed by him
after attaining the age of 18 years. The son/claimant would attain
majority as far as age is concerned, however, it would not be the
proper age for becoming economically independent so as to earn his
living.  In the given facts of the case, a major son of the well­educated
and economically sound parents can claim educational expenses from
his father or mother irrespective of the fact that he has attained
majority. It is not maintenance in strict sense as contemplated under
Section 125 of the Code of Criminal Procedure or maintenance as
contemplated under Section under Hindu Marriage Act.

Respective Counsel submit that the respondent herein had
preferred an appeal (Family Court   Appeal No.147 of 2013)
challenging the judgment and order dated 1.8.2012 passed by
the Judge, Court Room No.3, Family Court, Mumbai, in Petition
No. Civil  M.A. 118 of 2003, wherein the maintenance awarded
to the present petitoner was enhanced to Rs.15,000/­ from
Rs.5,000/­. The appeal was heard by a Division Bench of this
Court (Coram : Smt. V.K.Tahilramani and A.R.Joshi, JJ.). The
said appeal was disposed of by an order dated 11.10.2013.  The

Hon’ble Division Bench of this Court had observed  in para 6 as
follows :­

In his affidavit­in­reply, the appellant – father has

“6.stated about the educational facilities available in U.S. And
particularly in New York where he is residing.  He has stated
that the mother should send the child to America to be with
him and he will look after the child and attend to the needs
of the child in America.  He has stated  in detail in his reply
as to how the child will be benefited if he lives in Manuet in
New York with the appellant.  The appellant has not disputed
that there is inflation in India.  He has not disputed that the
amounts were spent on medical / orthodontal treatment nor
that the amounts were spent to pay college fees, purchase of
books etc.  It is pertinent to note that the appellant – father
ha averred  in  his reply  that  he  will maintain  the  child  in
America, to give an exposure to   various cultures in U.S.
From this, it is seen that he has sufficient funds and sufficient
financial capacity to provide all those facilities in India which
he has promised to give the child in US.”

The Hon’ble Division Bench has further observed that the father of the present petitioner had been called upon to produce his income­tax assessment. He has not produced the income­tax assessment as according to him, this is “highly official and personal   information which can be construed and used for illegal and inappropriate purpose”. The respondent herein had filed salary certificate which showed that his salary was 47,557.74 USD.  The Court had observed that the net salary of the appellant (present respondent) was 47,557.74 USD after following mandatory taxes and contributions.   The Hon’ble Division Bench has specifically passed an order that the child is entitled to enhanced   maintenance of Rs.15,000/­ instead of Rs.5,000/­ per month till the date he attains majority.  The said order was challenged before the Apex Court and the Judgment of the Hon’ble Division Bench of this Court dated 11.10.2013 has been upheld.

The learned Counsel for the petitioner has filed written submissions and submits that the petitioner is not earning  and, therefore, cannot  pay  for  his  educational expenses also.  It is submitted  that at present, the petitioner is pursuing  a one­year course a Masters Degree in Sports Management offered by the University of Loughborough, U.K. The annual fees to be incurred on the said course  is GBP 13,250/­.  The petitioner has obtained loan from his maternal grandfather for payment of the said fees  as he is born in USA and would not be able to obtain loan from a Nationalized Bank in India.  He desires to return the loan obtained from his grandfather.  Hence, this Court is of the opinion that the present petitioner would be entitled to a educational expenses of Rs.15,000/­ after having attained majority, but only till he completes his education in Sports Training.  The learned Counsel for the petitioner submits that he has taken admission for the masters degree in Sports Management in September, 2013.  The duration of the Course is of  one  year  i.e. till  September, 2014. The  petitioner shall not claim any maintenance beyond the period of completion of education. The educational expenses shall be paid to the petitioner at the rate of Rs.15,000/­ per moth till he completes the education.  The amounts paid pursuant to the order passed in Family Court Appeal No.147 of 2013 shall be inclusive of the amount  being granted in this petition and the petitioner shall be entitled to educational expenses of Rs.15,000/­ from the date of his application under Section 20 of the Hindu Adoption and Maintenance Act for a period of one year from the date of this order.

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The learned Counsel for the petitioner has placed reliance on the Judgment of the Apex Court in the case of  Kirti Malhotra (Smt) vs. M.K.Malhotra 1995 Supp (3) SCC 522 to demonstrate that the petitioner would be entitled to maintenance during the period he is seeking education.

In view of this, this Court is of the opinion that since the father i.e. the respondent is well placed financially, it would be

incumbent upon him to bear educational expenses of his son till he is able to earn his own living or till he completes his education.  This is in fact, a concession to a major son and therefore, the Petition filed by the Taking overall view of the  facts of the case, the Petitioner cannot Petitioner deserves to be allowed.

claim an amount of Rs. 7 Lakhs for the membership of club. In the opinion of this Court, taking into consideration the status of the parties, the Petitioner herein would be entitled to educational expenses at the rate of Rs. 15,000/­ from the date of his application under Section 20 of the Hindu Adoption and Maintenance Act for a limited period  from the date of this order  i.e. till October, 2014. The amount paid so far at the rate of Rs.15,000/­ pursuant to the judgment and order passed by the Division Bench shall be included in the present case and the amount of Rs.15,000/­ granted by this Court in the present Writ Petition is not in addition to the amount granted by the Hon’ble Division Bench of this Court vide judgment and order dated 11.10.2013 which has been  upheld by the Hon’ble Apex Court.

The Writ Petition is allowed in the above terms. The order passed by the Family  Court Mumbai at  Bandra dated 30/8/2011 is quashed and set aside.  The Rule is made absolute in the above terms. At this stage, learned Counsel for the respondent seeks stay of the implementation and execution of the order passed in the present Writ Petition.

In order to give an opportunity to the respondent, order is stayed for a limited period of four weeks only.

(SMT. SADHANA S. JADHAV, J)

THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL  APPELLATE  JURISDICTION
CIVIL WRIT PETITION  NO. 2117 OF 2012

Jayvardhan Sinh Chapotkat…. Petitioner.
Versus
Ajayveer Chapotkat… Respondent.

Ms. Manjari Shah i/b.  Mrs. Chitra S. Phadke, advocate for Petitioner.
Mr. Ramesh Ramamurthy, advocate for respondent No. 1.

CORAM : SMT. SADHANA S. JADHAV, J
DATE : 8th April, 2014

For the reasons stated in the Judgment separately, the following order is passed :­

The Petitioner herein would be entitled to educational expenses at the rate of Rs. 15,000/­ from the date of his application under Section 20 of the Hindu Adoption and Maintenance Act for a limited period  from the date of this order  i.e. till October, 2014. The amount paid so far at the rate of Rs.15,000/­ pursuant to the judgment and order passed by the Division Bench shall be included in the present case and the amount of Rs.15,000/­ granted by this Court in the present Writ Petition is not in addition to the amount granted by the Hon’ble Division Bench of this Court vide judgment and order dated 11.10.2013 which has been  upheld by the Hon’ble Apex Court. The Writ Petition is allowed in the above terms. The order passed by the Family  Court Mumbai at  Bandra dated 30/8/2011 is quashed and set aside.  The Rule is made absolute in the above terms. At this stage, learned Counsel for the respondent seeks stay of the implementation and execution of the order passed in the present Writ Petition.

4.In order to give an opportunity to the respondent, order is stayed for a limited period of four weeks only.

(SMT. SADHANA S. JADHAV, J)

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