Ashish Ray vs Km Sonali Ray on 13 July, 2017

Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 485 of 2012

Ashish Ray ……..Appellant/Defendant
Versus

Km. Sonali Ray ………. Respondent/Plaintiff

Present: Mr. A.K. Joshi, Advocate for the appellant

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on 07.07.2017
Decided on : 13.07.2017

Per – Hon’ble Sharad Kumar Sharma, J.

The Hindu Adoptions and Maintenance Act, 1956 is a
codify law for the purposes of adoptions and maintenance of the
dependants as defined under Section 21 of the Act. The basic
purpose of the said Act is to provide equality in the States and its
recognition in the matter of adoptions and maintenance. The
applicability of the Act is to bring about the uniformity and for
codifying the law of maintenance and adoption.

2. In the present Appeal from Order, the issue with which
we are concerned relates to the maintenance which is contained in
Chapter III of the said Act. The maintenance under Section 20 of the
said Act it is the responsibility which is being vested for maintenance
to be borne by the parents of the children or by the children of the
aged persons.

3. Mr. Anil Kumar Joshi, learned counsel for the appellant
has tried to bring his case within the ambit of sub Section (2) of
Section 20 of the said Act which reads as under:-

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“20. Maintenance of children and aged parents.

(1)……

(2) A legitimate or illegitimate child may claim maintenance from
his or her father or mother so long as the child is a minor”.

4. The factual backdrop in this case was that admittedly, the
claimant (respondent herein) who has filed the application for
maintenance is an unmarried daughter of Ashish Ray (appellant
herein the father of the respondent). She brought her case on the
ground that she was born on 15.04.1989 the appellant was working
as Head Clerk in the Railways and the appellant has deserted
respondent’s mother without giving the divorce, hence she for the
purposes of her higher qualification, needs financial assistance by
way of maintenance to pursue her future studies.

5. This application of respondent was on the ground that
she will be falling as to the “dependent” as defined under Section
21(v) of the said Act which casts a responsibility for maintaining of
the dependant(s) which includes the unmarried daughter. As per
Section 21(v) reads as under:-

21. Dependants defined.–For the purposes of this Chapter
“dependants” mean the following relatives of the deceased:–

(i) ……………

(ii) …………..

(iii) ………..

(iv) …………

(v) his or her unmarried daughter, or the unmarried daughter of his
predeceased son or the unmarried daughter of a predeceased son of his
predeceased son, so long as she remains unmarried: provided and to
the extent that she is unable to obtain maintenance, in the case of a
grand-daughter from her father’s or mother’s estate and in the case of a
great-grand-daughter from the estate of her father or mother or father’s
father or father’s mother;

6. In the proceedings before the court below initiated by the
respondent, the appellant filed an application under Order 7 Rule 11
praying that the application for maintenance under Section 20 of the
Hindu Adoptions and Maintenance Act, 1956 as filed by the
respondent is not maintainable in view of the fact that the application
for maintenance as filed lacked the pleadings pertaining to the
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inability to maintain and there is no plea that respondent cannot
maintain herself. It was also pleaded that since the respondent has
attained majority, this application would not be maintainable.
Learned counsel for the appellant submitted that in the absence of
there being a pleading to the effect of inability to maintain, the
application it would be barred by the Order 7 Rule 11 of the Code of
Civil Procedure.

7. The said application under Order 7 Rule 11 came up for
consideration before the court below i.e. Family Court, Nainital and
the same was rejected by the impugned order dated 28.08.2012.

8. Learned court below while dealing with the grounds
taken in the application under Order 7 Rule 11 recorded a finding
that, the plea was raised in para 12, 13 and 14 of the application
under Section 21 of the Hindu Adoptions and Maintenance Act,
1956. The appeal was admitted granting the interim order and the
proceedings before the court below was kept in abeyance. The matter
has come up for final hearing before the Court.

9. Dealing with the first arguments as raised by Mr. A.K.
Joshi, learned counsel for the appellant that the Act would only be
maintainable for maintenance as against the minor children for which
he has placed reliance sub Section (2) of Section 20 of the Hindu
Adoptions and Maintenance Act, 1956 which is not acceptable by
this Court, for the reason that he does not deny the fact that the
respondent is an unmarried daughter of the appellant. If two aspects
that she is a daughter and she is unmarried, in that event, the
controversy pertaining to the consideration of application under
Order 7 Rule 11 will fall to be under sub Section (3) of Section 20
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and not under sub Section 2 of Section 20. For the purpose of
brevity, sub Section 3 of Section 20 is quoted hereunder:-

“20. Maintenance of children and aged parents. –

(1)……..

(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
himself or herself out of his or her own earnings or other property.”

10. On harmonious construction of sub Section (2) of
Section 20 and sub Section (3) of Section 20, another vital factor
which is to be scrutinized judiciously is that the appellant has made
an endeavor to bring the application of the respondent within the
ambit of sub Section (2) of Section 20 which used the word “child
may claim maintenance” whereas under sub Section (3) of Section
20, the legislature has used the word “obligation of a person to
maintain”. Thus two sub Sections have altogether got a different
impact. Under sub Section (2) of Section 20 a child has a right to
enforce for maintenance against his or her father. Whereas under sub
Section (3) of Section 20, it is a responsibility/obligation which has
been casted upon the father, which he has to discharge automatically
even without an obligation, to maintain his unmarried daughter. Thus
as a matter of fact for enforcing an obligation under sub Section (3)
of Section 20 which is involved in the instant case is, about even an
application from the dependant as provided under Section 21 is not
necessary.

11. The Hon’ble Kerala High Court, in its judgment reported
in AIR (2005) 91 in the case of Viswambharan Vs. Respondent:
Dhanya Another has held that in the cases under Section 20 a
right of a male child to claim maintenance would cease when he
attains the age of majority but in the cases of female child, such right
will continue even after she attains majority unless she gets married.

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12. The Hon’ble Apex Court in a judgment reported in 2002
SCC 422 in the case of Jagdish Jugtawat Vs. Manju Lata and Ors.
has held that it is a right of the girl to claim maintenance from her
parents. No doubt at the stage she is minor or she attains majority or
till she is married, but if she continues to be unmarried, her
entitlement for maintenance from her father and an obligation of the
father to maintain an unmarried daughter has been maintained under
the law. Hence the father is liable to pay the amount of maintenance.
Para 2 of the said judgment is reproduced herein below for
convenience:-

“2. The Petitioner is the father of Kumari Rakhi, Respondent 3 herein,
who is a minor unmarried girl. Considering the application filed under
Section 125 of the Code of Criminal Procedure by Respondent I, wife
of the Petitioner and mother of Respondent 3, claiming maintenance for
herself and her two children, the Family Court by order dated
22.7.2000 granted maintenance @, Rs.500 per month to each of the
Applicants. The Petitioner herein filed a revision petition before the
High Court assailing the order of the Family Court on the ground, inter
alia, that Respondent 3 was entitled to maintenance only till she attains
majority and not thereafter. Considering the point the learned Single
Judge of the High Court accepted, the legal position that under Section-
125, Code of Criminal Procedure ‘ a minor daughter is entitled to
maintenance from her parents only till she attains majority; but
declined to interfere with the order passed by the Family Court-taking
the cue from Section 20(3) of the Hindu Adoptions and Maintenance
Act under which the right of maintenance is given to a minor daughter
till her marriage. The learned Single Judge was persuaded to maintain
the order of the Family Court with a view to avoid multiplicity of
proceedings. The relevant portion of the judgment of the High Court is
quoted here:

“Thus, in view of the above, though it cannot be said
that the order impugned runs counter to the law laid down by
the Hon’ble Supreme Court, the provisions of Section 125 Code
of Criminal Procedure are applicable irrespective of the
personal law and it does not make any distinction whether the
daughter claiming maintenance is a Hindu or a Muslim.

However, taking an overall view of the matter, I, with all
respect to the Hon’ble Court, am of the candid view that the
provisions require literal interpretation and a daughter would
cease to have the benefit of the provisions under Section 125
Code of Criminal Procedure on attaining majority, though she
would be entitled to claim the benefits further under the
statute/personal law. But the Court is not inclined to interfere,
as the order does not result in miscarriage of justice, rather
interfering with the order would create great inconvenience to
Respondent 3 as she would be forced to file another petition
under sub-section (3) of Section 20 of the Act of 1956 for
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further maintenance etc. Thus, in order to avoid multiplicity of
litigations, the order impugned does not warrant interference.”

13. The Courts, while interpreting the scope of sub Section
(2) of Section 20 and sub Section (3) of Section 20 have laid that the
scope of sub Section (3) of Section 20 is wide enough which lays
down the limitation as the age to which the unmarried girl is to be
maintained by a Hindu father or mother as the case may be. This case
is fortified by the judgment passed by the Punjab and Haryana
High Court reported in AIR 1969 PH 285 in the case of Wali Ram
Waryam Singh Vs. Mukhtiar Kaur. Para 4 of the said judgment is
reproduced herein below for convenience:-

“4. After hearing the learned counsel for the parties, we are of the view that
there is no merit in this appeal. Section 20(3) of the Act leaves no manner of
doubt regarding the obligation of a Hindu to maintain his unmarried daughter
when she is unable to maintain herself out of her earnings or other property.
The relevant extract of Section 20 is in the following terms –

“20. (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.

*******

(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.” The girl is undoubtedly above 20
years of age and there is nothing to show that she is not in a good condition of
health. Mr. Achhra Singh, learned counsel for the appellant, contends that a
girl above 20 years of age, who is educated and healthy, must be presumed to
be capable of maintaining herself unless the contrary is proved and that the
plaintiff has not been able to establish that she cannot earn her livelihood. The
submission is that the burden of proof that she is incapable of maintaining
herself, in these circumstances, lies on the plaintiff. He has invited our
attention in this respect to the cases reported as Saraswati v. Madhavan
MANU/KE/0101/1961 : AIR 1961 Ker 297; Muhammad Yar v. Ali
Muhammad AIR 1941 Lah 92; and U Ba Thaung v. Ma Aye AIR 1932 Rang

94. They are cases Criminal Procedure and the facts in those cases are clearly
distinguishable. Reference may first be made to Muhammad Yar’s case AIR
1941 Lah 92. A maintenance allowance was granted by a criminal Court
under Section 488 of Criminal Procedure Code and the father afterwards
made an application for cancellation of the order of maintenance on the
ground that the child had become major. The sole question to be determined
in that case was as to be determined in that case was as to whether the word
‘child’ as used in Section 488 of Criminal Procedure Code could apply to a
person who had attained the age of majority. The learned Judges deciding the
case did not give any decision as to the definition of the word ‘child’ but found
in the circumstances of that case that the person whom maintenance
allowance was sought to be cancelled was about 20 years of age and capable
of earning his livelihood and a presumption, therefore, was raised that he was
capable of maintaining himself. In Saraswathi’s case MANU/KE/0101/1961 :
AIR 1961 Ker 297, the word ‘child’ as used in Section 488 of Criminal
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Procedure Code was held to refer only to a minor. It was a case where
maintenance was claimed by a lady of 22 years of age, well-educated and
healthy, and a presumption was raised, in such circumstances, that she was
capable of maintaining herself. The facts in ;U Ba Thaung’s case, Air 1932
Rang 94 are that an application had been made by the father to have the order
of maintenance set aside on the ground that the child had become major and
was able to maintain herself. No final decision was given and the Magistrate,
who had refused to entertain such was satisfied that the daughter of the
petitioner was of age and able to maintain herself the order for the payment of
arrears could be cancelled. In the instant case there is a finding of fact by the
District Judge that the plaintiff was unable to maintain herself and a small
amount of Rs. 20/- per mensem has been allowed as a maintenance. The
language used in Section 20(3) is wide enough laying down no limitations as
to the age up to which an unmarried girl has to be maintained by a Hindu
father or mother, as the case may be. The Act indeed gives a statutory
recognition to the well established normal obligation of a Hindu male or
female to maintain his or her unmarried daughter and aged or infirm parents
so long as they are not able to maintain themselves. The language of this sub-
section is different from that of Section 488 of the Code of Criminal
Procedure and the presumption which some Courts raised when a child
attained the age of 18 years or more in cases arising under that provision of
law, cannot be held to arise in cases under the Act. The obligation to maintain
an unmarried daughter is absolute and extends so long as she is not able to
maintain herself out of her own earnings or property.

The burden, in our opinion, is rather on the father or mother to show that he or
she stands discharged from his or her liability to pay maintenance to the
unmarried daughter as the latter is able to maintain herself out of her own
earnings or property. The expression ‘is unable to maintain himself or herself
out of his or her own earnings or other property’ is more in the nature of a
proviso to the first part of sub-section (3) which imposes in most unequivocal
terms an obligation on the father or the mother regarding their unmarried
daughter or infirm or aged parents. It is, therefore, for the father or the mother
to establish that his or her case falls under the proviso. It does not seem to be
the intention of the Act that a presumption of ability to earn and maintain
herself should, in the case of a Hindu girl, be raised from her bodily health or
age alone. In the instant case, however, the matter of the plaintiff being able to
maintain herself or not was present to the minds of both the parties and any
rule as to burden of proof could not affect the findings of the lower appellate
Court. There is no merit in this appeal which stands dismissed with costs.”

14. Looking to the provisions contained under Section 21
which defines the dependents which would be covered for the
purposes of claim of petition or maintenance under the Act. It
includes in its sub Section (v) of Section 21, it obviously goes
without saying that unmarried daughters would be entitled for
maintenance under the said Act.

15. This Court posed a question to the learned counsel for
the appellant as to how the appeal is maintainable against the order
of rejecting the Order 7 Rule 11 application. That too when the
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principal proceeding happens to be under the Hindu Adoptions and
Maintenance Act, 1956. Because under Chapter III of the Hindu
Adoptions and Maintenance Act do not deal or provide with any
appellate forum. In reply to it, the learned counsel for the appellant
submitted that since the learned Family Court stands established in
District Nainital and the proceedings under Hindu Adoptions and
Maintenance Act is cognizable by the said court, then in the light of
the provisions contained under Section 19 of the Act, it would be
appealable, since Section 19 of the said Act provides an appeal
against the final decree as well as against the order passed by the
Family Courts.

16. This argument is not appealing to the court. It is not in
controversy that the principal proceedings happens to be under a
special welfare legislation i.e. Hindu Adoptions and Maintenance
Act which has to be construed strictly in terms of the provisions
contained under the said Act. Once the said Act does not provide for
any appellate forum under the law and the appellate forum is created
by a statute then merely because of the fact that the proceedings were
drawn before the family court, which was administratively having
the jurisdiction to deal under Hindu Adoptions and Maintenance Act
will not make the order appealable. Because exercising of a
jurisdiction by the Family Court is in relation to the proceedings
which are vested to be decided by the Family Courts. Its cognizance
only will not make the order appealable once the appeal is not
provided under the statute.

17. This has to be seen from another aspect. Under Article 5
of the Constitution of India, there is a concept of single citizenship.
The creation of Family Courts is an administrative prerogative of the
State after consultation of the High Courts by virtue of notification as
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provided under Section 3 of the Family Courts Act. Merely because
in a particular District, the State has decided to create a family court
which takes cognizance of the proceedings under Hindu Adoptions
and Maintenance Act, 1955 will not make the order appealable,
being the Order under Section 19 when there is no appeal provided
under the Hindu Adoptions and Maintenance Act, 1955 against
orders provided under Chapter III.

18. Providing of an appellate forum in relation to those
districts where a family court is established and non-providing of the
appellate forum in those districts where the family courts are not
existence, created cognizance to the proceedings under Section 20 is
taken by the normal civil courts. Thus providing of an appellate
forum merely because a case has been taken cognizance by the
family court would be arbitrary and the State cannot create a
distinction in providing the recourse to the judicial proceedings
amongst the citizenship of the different States.

19. Under law, a right of appeal, it does not accede and
cannot be assumed unless given by the statute or by the rules having
the affairs under a statute. The aforesaid proposition is an old age
proposition as laid down by the Hon’ble Apex Court in a judgment
reported in AIR 1974 SC 1126 in the case of Smt. Ganga Bai Vs.
Vijay Kumar and Ors. Para 15 of the said judgment is reproduced
herein below for convenience:-

“15. It is thus clear that the appeal filed by defendants 2 and 3 in the
High Court was directed originally not against any part of the
preliminary decree but against mere finding recorded by the trial court
that the partition was not genuine. The main controversy before us
centers round the question whether that appeal was maintainable on this
question the position seems to us well-established. There is a basic
distinction between the right of suit and the right of appeal. There is an
inherent right in every person to bring suit of a civil nature and unless
the suit is barred by statute one may, at ones peril, bring a suit of one’s
choice. It is no answer to a suit, howsoever frivolous the claim, that the
law confers no such right to sue. A suit for its maintainability requires
no authority of law and it is enough that no statute bars the suit. But the
10

position in regard to appeals is quite the opposite. The right of appeal
inheres in no one and therefore an appeal for its maintainability must
have the clear authority of law. That explains why the right of appeal is
described as a creature of statute.”

20. Hon’ble Rajasthan High Court (Full Bench) passed a
judgment reported in AIR 1954 Raj 138 in the case of Kishen Lal
L.R. of Mohanlal Vs. Sohanlal and Ors. and held in its para 8 as
under:-

“8. Learned counsel next urged that the interpretation favoured by us
would restrict the right of appeal to a very large degree in cases
involving disputes as to jagir lands which in spite of their value being
less than Rs. 5000/-, the ordinary appealable limit, were of considerable
importance in the times to which these Ijlas-i-Khas Rules relate. To
this, our short answer is and must be that a right of appeal is a creation
of statute, and it is to the statute alone that we must look to determine
whether such a right exists in a particular instance or not. Further, we
see nothing unreasonable or wrong that a right of appeal to the highest
tribunal in the State was circumscribed by certain well-defined
restrictions.”

21. Another Full Bench of Andhra Pradesh High Court in its
judgment reported in AIR 2005 AP 95 in the case of Mr. Gurram
Seetharam Reddy Vs. Gunti Yashoda and Anr. has taken a view that
once the statute does not specifically provide an appeal, then it
cannot be inferred on the ground that it is not prohibited. Para nos.
33 and 34 of the said judgment is reproduced herein below for
convenience:-

“34. Further, if for any reason, the expression “an appeal expressly
allowed by Rules” occurring in Clause (i) Section 104 can be taken as
including Rule 58 of Order 21 in its fold, the fact that Rule 58(4)
directs that the order passed under sub-rule (3) shall have the same
force of a decree, for the purpose of appeal cannot be ignored. On
account of it, the order passed under Rule 58 of Order 21 stands
physically lifted from the purview of Section 104 C.P.C. While right to
file a suit is a common law remedy, right of appeal is one, which has to
be specifically provided for by a statute. The procedure to be followed
in filing the appeal as well as the forum to which it shall be presented,
are to be specifically provided. This requirement becomes significant in
the context of different kinds of remedies provided in the form of
appeals and revisions, in the enactments like C.P.C. Each remedy has
its own significance as well as limitations. The Legislature is deemed to
have taken the relevant factor into account, when it provides for a
particular kind of remedy against the outcome of an adjudication. By
the process of interpretation, such remedies can neither be restricted nor
expanded.

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35. When Section 96 C.P.C. specifically provides for appeals against
decrees, and sub-rule (4) of Rule 58 of Order 21 directs that the order
passed under sub-rule (3) thereof shall have the force of a decree, there
hardly exists any basis to deny such characteristics to such an order. An
interpretation to the contrary would have the effect of setting at naught,
the intention of the Parliament in attributing characteristics of a decree
to an order. In view of a clear mandate under sub-rule (4) of Rule 58,
an order passed under sub-rule (3) thereof, partakes a character of a
decree for all practical purposes, more so, in the context of availing the
remedy of appeal. Same reasoning holds good for the orders passed
under Rules 98 and 100 of Order 21 C.P.C. Hence, there does not exist
any justification to treat the same as different, in any way from decrees,
at least in the context of deciding the forum and provision for appeal.
The question as to what nomenclature is to be given to the appeals,
needs to be dealt with by the High Court or the District Courts, on
administrative side. Hence, we are of the view that the judgment of this
Court in Nookaraju’s case (1supra) does not lay the correct proposition
of law. Once it is held that orders passed under Rule 58(3) and Rules 98
and 100 of Order 21 C.P.C., are appealable under Section 96 C.P.C., it
is axiomatic that a second appeal is maintainable against the order
passed in such appeals. Though this question is not referred to this Full
Bench, it is dealt with, to put an end to the controversy and
uncertainty.”

22. Since the court below has rightly decided the application
under Order 7 Rule 11 and coupled with the fact, this Court feels that
against the said order, the appeal would not be maintainable and the
present appeal is dismissed with a direction to the learned Family
Court, Nainital to decide the application filed by the respondent
under Section 21 which has been registered as Case No. 20 of 2010
“Kumari Sonali Ray Vs. Ashish Ray” as expeditiously as possible
but not later than six months from the date of production of certified
copy of this order.

23. The appeal is accordingly dismissed.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
13.07.2017
Mahinder

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