reserved.cam.25.2017 (Colabawalla).april.18.doc
dik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 25 OF 2017
IN
FAMILY COURT APPEAL NO. 194 OF 2016
Rajendra Mahadeo Deokule … Applicant(Orig.Appellant)
vs
Suvarna Rajendra Deokule Anr…. Respondents
………………………………………………………….
Mr G.R.Hegde for the Applicant/Appellant
Mrs Seema Sarnaik with Vikram Walawalakar i/b G.D.Shinde for the
Respondents.
…………………………………………………………….
CORAM : K.K. TATED
B.P.COLABAWALLA, JJ.
DATE:- 3 APRIL, 2018
JUDGMENT : [ PER B. P. COLABAWALLA J. ]
1. This Civil Application has been filed by the Applicant
(original Appellant) for stay of the impugned order dated 16th July,
2016, insofar as it relates to payment of maintenance of Rs.10,000/-
Pg 1 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
per month to the unmarried daughter of the Applicant, namely, Ms
Mansi Rajendra Deokule (Respondent No.2 to the Application). It is
not in dispute that the unmarried daughter – Mansi is a major. The
further direction that is sought is for refund of Rs.50,000/- wrongly
paid by the Applicant towards the monthly maintenance of his
unmarried daughter – Mansi. The basic and only ground of challenge
and for seeking a stay of the impugned order in this Application is
that on the date of passing of the impugned order (namely 16th July,
2016), Ms Mansi was a major (that is above the age of 18 years), and
therefore, no maintenance could have been awarded for her under
Section 26 of the Hindu Marriage Act, 1955. According to the
learned advocate appearing on behalf of the Applicant (original
Appellant), maintenance under Section 26 of the Hindu Marriage
Act, 1955 can only be granted for the minor children.
2. The brief facts in a nutshell are that Respondent No.1
herein, namely, Suvarna Rajendra Deokule (wife of the
Applicant/Appellant) filed a petition for divorce under Section
13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty,
being Petition No.A-75/12. In this Petition she also prayed for
permanent alimony for herself and for her children. The Applicant
herein (original Appellant) also filed a petition for custody of the
Pg 2 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
children being Petition No.D-22/12. After evidence was led by both
parties, both these Petitions were disposed of by a common Judgment
and Order dated 16th July, 2016 by the Family Court, Mumbai at
Bandra. By the impugned order the Petition filed by the wife –
Suvarna for divorce was allowed and the marriage solemnized
between the Applicant herein and Respondent No.1 was dissolved by
a decree of divorce under Section 13(1)(ia) of the Hindu Marriage
Act, 1955. The prayer of the wife for permanent alimony /
maintenance for herself was rejected by the Family Court. The
Family Court further ordered that the Applicant herein was to pay
maintenance @ Rs.10,000/- per month each to both the children from
the date of the impugned order. It was clarified that the amount
awarded was inclusive of and not in addition to the amount awarded
in favour of the children in any other proceedings.
3. As far as the Petition for custody of the children filed by
the Applicant herein is concerned, the same was rejected by the
Family Court. However, access was granted to the Applicant herein
for the minor son on the first and third Saturday of every month
between 2.00 p.m. to 5.00 p.m. at the Children Complex, Family
Court, Bandra, under the supervision of a Marriage Counsellor. It is
aggrieved by this common order dated 16th July, 2016 that the above
Pg 3 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
Family Court Appeal No.194 of 2016 was filed by the Applicant
herein (the husband) inter alia questioning the decree of divorce in
favour of the wife and further granting maintenance @ Rs.10,000/-
per month each to both the children. As far as the rejection of the
Applicant’s Petition for custody is concerned, the same has not been
challenged by the Applicant – husband.
4. In this factual backdrop, the only contention that has
been canvassed before us in this Civil Application by Mr Hegde, the
learned advocate appearing on behalf of the Applicant, is that since
the daughter-Mansi was a major on the date of passing of the
impugned order, the Trial Court could not have awarded
maintenance for her. In this regard he placed reliance on Section 26
of the Hindu Marriage Act, 1955 and contended that in any
proceedings under the said Act, the Court may from time to time
make such provisions in the decree as it may deem just and proper
with respect to the custody, maintenance and education of minor
children. He submitted that the Section was ex-facie clear that
maintenance could be granted only in favour of minor children and
the daughter-Mansi being a major on the date of the impugned order,
could not have been awarded any maintenance. In this regard, Mr
Hegde heavily relied upon a decision of this Court in the case of
Pg 4 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
B(husband) Vs A(wife)1. Placing reliance on this decision, Mr
Hegde submitted that no maintenance could have been awarded for
the major daughter, and therefore, at least to this extent the
impugned order is required to be stayed.
5. On the other hand, Ms Sarnaik, learned advocate
appearing on behalf of the Respondents to the Civil Application,
submitted that the contention raised by the Applicant herein was
wholly misconceived. She submitted that the Family Court was very
much aware that the daughter was a major when the impugned order
was passed and this fact is reflected in the order itself. She further
submitted that under Section 20 and 21 of the Hindu Adoptions and
Maintenance Act, 1956, it was ex-facie clear that it was the obligation
of a person to maintain his or her aged or infirm parents or a
daughter who is unmarried and unable to maintain herself out of her
own earnings or other property. She submitted that Section 21
defines the word “dependants” which includes an unmarried
daughter. This being the case, she submitted that there was
absolutely nothing wrong in the impugned order whilst granting
maintenance to the unmarried daughter-Mansi who admittedly was
not in a position to support herself and was still taking an education.
1 1992 Mh.L.J. 748.
Pg 5 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
In support of her submissions, Ms Sarnaik placed reliance on a
decision of the Supreme Court in the case of Jasbir Kaur Sehgal Vs
District Judge, Dehradun2 as well as a decision of Division Bench of
this Court in the case of Vijaykumar Jagdishrai Chawla v. Reeta
Vijaykumar Chawla.3 In these circumstances, Ms Sarnaik
submitted that there was no merit in this Civil Application and the
same ought to be dismissed.
6. We have heard the learned advocates for parties at length
and have perused the papers and proceedings in the Civil Application
as well as the memo of appeal. We find considerable force in the
arguments canvassed by Ms Sarnaik. Firstly, we must mention that it
is undisputed before us that the argument that the daughter being a
major, was not entitled to any maintenance, was never raised or
canvassed before the Family Court. Even in the present appeal,
namely, Family Court Appeal No.194 of 2016, no ground is raised
seeking to challenge the maintenance granted in favour of the major
daughter on this issue. The only grounds raised challenging
maintenance granted to the children, can be found in grounds (z),
(aa) and (bb) which read as under-
2 (1997) 7 SCC 7
3 2011(5) Mh.L.J. 724
Pg 6 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
“(z) That the Ld. Trial Judge has erred in granting monthly maintenance
of Rs.10,000/- each to both the children who are not even willing
to meet the Appellant and one of them i.e. Daughter even went to
the extent of deposing against her own father with serious and
baseless allegations of “sexual abuse” by the Appellant of his own
minor son (Devang) which allegation was admittedly not
substantiated by any cogent, reliable and probable evidence on
record;
(aa) That the Ld. Trial Judge being fully aware of the fact that the
Respondent is under suspension from his job at the instance of the
Respondent and is getting subsistence allowance which is not
sufficient to maintain himself owing to his failing health (i.e.
intestine and kidney failure) and his old aged mother dependent on
him and still Appellant has been ordered to pay Rs.10,000/- per
month to each children;
(bb) That the Ld. Trial Judge ought to have ordered the Respondent
alone to look after and maintain two children when the
Respondent admittedly is earning nett Rs.40,000/- p.m. as Teacher
by way of salary, Rs.27,000/- per month as and by way of Rent
from the Shop jointly owned by the parties an addition the
Respondent gets additional income of Rs.4 to 5 Lakhs from her
imitation jewellery business.”
7. As can be seen from the memo of appeal, no point has
been raised in the appeal challenging the maintenance granted to the
major daughter on the ground that she is not entitled to maintenance
by virtue of Section 26 of the Hindu Marriage Act, 1955. In these
circumstances, it would be highly unfair to the Trial Court, if we are
to stay its order on a ground that was neither raised nor canvassed
before it. Even otherwise, on reading the impugned order, we find
that the Trial Court has duly taken note of the fact that the daughter
Pg 7 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
– Mansi was a major and was unmarried and was taking education at
the time of passing the impugned order, and therefore, entitled to
maintenance. The discussion of the Trial Court on this issue can be
found in paragraph 41 thereof which reads thus-
“So far as children are concerned, it is settled law that when both
parents are earning, they are liable to contribute equally as
proportionate to their income. As stated above, petitioner’s
income is on higher side than the respondent. Petitioner has
prayed for awarding Rs.15,000/- per month each for the children.
She has produced school receipt/educational expenses, extra
curricular expenses receipt of the children vide document Exh. 73
collectively. Moreover, today I have enquired from her and she
has disclosed that daughter’s annual College fees is Rs.56,000/-
and son’s annual fees is approximately Rs.30,000/- per annum.
Presently, her daughter is residing in hostel at Pune for UPSC
course and her fees are Rs.64,000/- apart from hostel charges of
Rs.36,000/- and Mess charges of Rs.40,000/- per annum. She has
also disclosed that her son is also going for extra curricular
activities like Chess Karate and she is paying Rs.12,000/- per
annum and school transportation fees of Rs.8,000/-. Even if the
expenses shown for Manasi is considered then it comes to
approximately Rs.1,80,000/- per annum i.e. Rs.15,000/- per month.
So far as son’s education and extra curricular expenses are
concerned, it comes to Rs.75,000/- per annum. In addition to that,
the child’s other requirement like food, clothes, medicine etc. are
also required to be considered. Thus, considering all these
expenses, the petitioner’s claim of Rs.15,000/- per month each for
children appears to be just and reasonable. On the contrary, there
cannot be two view that because of hike in the prices of daily
needs and essential commodities and cost of living, the amount of
Rs.15,000/- per month for each child looking to the income of
parents, can be said to be a bit lower side.
It is informed by the petitioner-wife that in a proceeding under
PWDV Act, Court has awarded Rs.6,000/- per month each for both
the children and as the daughter became major, her maintenance
came to be closed and son’s maintenance is enhanced to the
extent of Rs.10,000/- per month. Thus, having regard to the entire
circumstances, income and liabilities of both parties, day to day
needs of the children and more specifically educational and extra
Pg 8 of 20::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doccurricular activities, I find that an amount of Rs.20,000/- per month
for each child would be just and reasonable. Since both parties are
working and petitioner’s income is a bit higher than the
respondent therefore, I find that it would be just and proper to
direct both the parties to contribute equally for the children’s
maintenance. As such, the respondent’s liability comes to the
extent of 50 % i.e. Rs.10,000/- for each child. Since daughter is
still taking education, she is also entitled for maintenance. Thus,
having regard to the entire circumstances, I am of the opinion that
petitioner is entitled for the maintenance for the children only @
Rs.10,000/- per month each from the respondent and as she is also
earning, she is liable to contribute for the remaining part of
maintenance for the children. Accordingly, issue No.4 is
answered.”
8. From seeing the observations of the Trial Court, what is
clear is that the Trial Court was very well aware that the daughter
was a major at the time of passing of the impugned order. We find
that the Trial Court, and in our view, correctly granted maintenance
in favour of the major daughter who was unmarried and was taking
an education.
9. To come to this conclusion, we have perused Section 26 of
the Hindu Marriage Act, 1955 as well as Sections 20 and 21 of the
Hindu Adoptions and Maintenance Act, 1956. It is true that Section
26 of the Hindu Marriage Act,1955 deals with reference to the
custody, maintenance and education of minor children. However, in
our view, at least prima facie, the said Section cannot be read in
isolation. Section 20 of the Hindu Adoptions and Maintenance Act,
Pg 9 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
1956 clearly stipulates that, 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. It is further stipulated in the said section that the obligation
of a person to maintain his unmarried daughter extends so far as she
is unable to maintain herself out of her own earnings or other
properties. Section 20 of the Hindu Adoptions and Maintenance Act,
1956 reads thus-
“20. M aintenance of children and aged parents.–(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 daughter who is unmarried extends insofar 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.
Explanation.–In this section “parent” includes a childless
stepmother.”
10. Section 21 of the Hindu Adoptions and Maintenance Act,
1956 defines “dependents” and includes an unmarried daughter.
Section 21 reads thus-
“21. Dependants defined.–For the purposes of this Chapter
“dependants” mean the following relatives of the deceased–
(i) his or her father;
(ii) his or her mother;
Pg 10 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
(iii) his widow, so long as she does not remarry;
(iv) 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 great-
grandson, from the estate of his father or mother or
father’s father or father’s mother;
(v) his or her unmarried daughter for 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
granddaughter from her father’s or mother’s estate and in
the case of a great-granddaughter from the estate of her
father or mother or father’s father or father’s mother;
(vi) his widowed daughter; provided and to the extent that
she is unable to obtain maintenance–
(a) from the estate of her husband; or
(b) from her son or daughter, if any, or his or her estate;
or
(c) from her father-in-law or his father or the estate of
either of them;
(vii) any widow of his son or of a son of his predeceased son,
so long as she does not remarry; provided and to the
extent that she is unable to obtain maintenance from her
husband’s estate, or from her son or daughter, if any, or
his or her estate; or in the case of a grandson’s widow,
also from her father-in-law’s estate;
(viii) his or her minor illegitimate son, so long as he remains a
minor;
(ix) his or her illegitimate daughter, so long as she remains
unmarried.”
11. On a harmonious reading of Section 26 of the Hindu
Marriage Act, 1955 with Sections 20 and 21 of the Hindu Adoptions
Pg 11 of 20::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.docand Maintenance Act, 1956, at least prima facie we are unimpressed
with the arguments canvassed by Mr Hegde. By reading these
Sections together and harmoniously, at least prima facie we are
satisfied that the Family Court, was well within its powers to grant
maintenance to the unmarried major daughter – Mansi, who
admittedly was unable to sustain herself out of her own earnings and
property and was still taking an education. We, therefore, find that
the argument of Mr Hegde cannot be accepted, at least at this stage.
12. In the view that we take, we are supported by a decision
of a Division Bench of this Court in the case of Madhavi Ramesh
Dudani v. Ramesh K. Dudani.4 The facts of this case would show
that the Appellant – wife filed a Petition in the Family Court seeking
judicial separation under Section 10 of the Hindu Marriage Act, 1955
on the ground of cruelty and ill-treatment. The Respondent – husband
had filed Matrimonial Suit No.B-96/92 seeking a declaration that the
purported marriage between the Appellant and the Respondent be
declared null and void since she was not a Hindu prior to her
marriage and neither had she converted to Hinduism at any time
prior to her marriage. This contention was accepted by the Family
Court and it held that the marriage between a Hindu and a non-Hindu
4 2006 (2) Mh.L.J. 307
Pg 12 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
could not be said to be a valid marriage under Section 5 of the Hindu
Marriage Act, 1955. This order was challenged before a Division
Bench of this Court. What is important to note is that in the Petition
filed before the Family Court by the Appellant-wife, apart from
praying for judicial separation, she also sought permanent
maintenance for herself and for her daughters who at that time were
minors. By the time the appeal was decided, the daughters had
become major but were still unmarried at that time. It is in these
facts that the Division Bench of this Court took note of the fact that
even though nothing additional ought to be provided for the
Appellant-wife because cruelty was also alleged against her and she
also was responsible for breaking up the marriage, she was still
looking after two daughters. Relying upon Section 21 of the Hindu
Adoptions and Maintenance Act, 1956, the Division Bench opined
that the daughters were dependents until they got married and hence
entitled to get maintenance from the father. Considering the fact
that the Appellant-wife had been looking after these two daughters
and would continue to do so until they got married, they were entitled
to maintenance. The Court further opined that considering that the
daughters did not have any income of their own and intended to
prosecute their further studies, it would not be proper to drive the
daughters to file a separate application under the Hindu Adoptions
Pg 13 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
and Maintenance Act, 1956 for the purpose of seeking maintenance.
It is in these circumstances that the Division Bench held that though
no separate provision was made for the Appellant – Wife, considering
the circumstances, a separate provision should be made for the two
daughters along with the Appellant so that the same would take care
of their future education and marriage. Relevant portion of this
decision can be found at paragraphs 29 and 30 thereof, which read
thus-
“29. In the circumstances, there is good substance in the submission
of Mr. Thakkar that nothing additionally be provided to the appellant
wife when acts of cruelty are alleged against her also and when she
is also responsible for the breaking of the marriage. In any case, she
has been sufficiently provided and has good income therefrom. We
have however to note that she is looking after her two daughters. The
daughters are treated as “dependants” until they get married under
section 21(v) of the Hindu Adoption and Maintenance Act, 1956.
They are entitled to get their maintenance from their father.
Considering the fact that the appellant has been looking after these
two daughters and she will be continuing to look after them hereafter
until they get married. In our view, that is a “circumstance” which
has got to be considered when one decides the permanent alimony to
be paid to the appellant wife. Section 25 of the Hindu Marriage Act
provides that a Court exercising jurisdiction under the Act at the
time of passing of the decree may direct the respondent to pay the
Applicant for her maintenance and support such gross sum or such
monthly or periodical sum, having regard to the respondent’s own
income and other property, if any, the income and other property of
the applicant, the conduct of the parties and other circumstances of
the case, it may seem to the Court to be just. The Court is
empowered that such payment may be secured by a charge on the
immovable property of the respondent. In the circumstances of the
case, we have to note that the appellant is looking after the two
daughters. They have completed their education. They have become
graduates in engineering and management respectively. They intend
to further prosecute their studies and then get married. They do not
have any income of their own. The appellant is undoubtedly spending
for their education and will spend on their marriage. It will not be
Pg 14 of 20::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.docproper to drive the daughters to file an application under the
Hindu Adoption and Maintenance Act, 1956. In our view, the
phrase “other circumstances of the case” appearing in section 25 of
the Hindu Marriage Act is quite elastic and while passing an order
under that section, the necessary provision can be appropriately
made if the circumstances so justify.
30. The respondent has been made to make such payment from time
to time and Mr. Thakkar has stated that he has been making
additional payment for education of her daughters on his own. The
fact however remains that the burden has been on the appellant all
throughout. The burden for further education and thereafter
marriage is much more. They are daughters of an industrialist who
are being looked after by the mother. In the circumstances, though
we may not provide separately for the appellant, considering these
circumstances, we deem it just that separate provision should be
made for the two daughters along with the appellant. The provision
of such an amount will take care of their future education and
marriage. In our view, it will be just and appropriate that an amount
of Rs. 10,00,000/- is provided for each of the daughters. Such an
amount shall be kept in RBI Bonds and the interest would be payable
to the daughters concerned. At the present rate of 6% interest (tax
free), each of them will get annually an amount of about Rs. 60,000/-
which will be quite proper considering the cost of living and their
status as daughters of an industrialist. In the circumstances, we
direct the respondent to invest an amount of Rs. 10,00,000/- in the
name of each of the daughters. That will reduce the burden on the
appellant hereafter. That will be a contribution which is expected of
the respondent as a father. He is an industrialist and quite well of.
He had divorced his earlier wife. His daughter from the earlier
marriage is already married and his son is an adult and is in
business. He does not have any major liability. He should provide for
these two daughters for their future education and marriage. Thus,
though we are passing this order under section 25 of the Act,
essentially we are making provision for the two daughters whose
liability is otherwise on the appellant but is being shared by the
respondent. This is to reduce her liability for the daughters and to
make the respondent share his burden of the responsibility. That
takes care of the requirement for a separate accommodation and
alimony. The respondent is directed to make these deposits also
within 3 months hereafter. In view of the above provision, we are not
passing any order for marriage expenses though we expect the
respondent to act as a good father and share in the burden as and
when the occasion arises.”
(emphasis supplied)
Pg 15 of 20::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
13. To our mind, this is a complete answer to the argument
canvassed by Mr Hegde on behalf of the Applicant – husband. In the
facts before the Division Bench in the case of Madhavi Ramesh
Dudani (supra) also no separate petition was filed under Section 20
of the Hindu Adoptions and Maintenance Act,1956. This Court, to
avoid multiplicity of proceedings and relying upon the provisions of
Sections 20 and 21 of the Hindu Adoptions and Maintenance Act,
1956, opined that the daughters were entitled to maintenance as
they had no income of their own and were unmarried. The facts
before us are also almost identical. Even before us, the major
daughter is taking an education and is unmarried. It is also not in
dispute that she has no income of her own to sustain herself. In these
facts, at least prima facie, we are fully satisfied that the order passed
by the Family Court granting maintenance for the daughter does not
require any interference at this stage by granting a stay in favour of
the Applicant – husband.
14. We must also mention that the decision in the case of
Madhavi Ramesh Dudani (supra) was relied upon by the another
Division Bench of this Court in the case of Vijaykumar Jagdishrai
Chawla v. Reeta Vijaykumar Chawla.3 In this decision also it has
Pg 16 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
been held that the mother is competent to pursue the relief of
maintenance for the daughter even though she had attained majority
if she was staying with her and responsible for her maintenance and
education. In fact, the very paragraph that we have reproduced
earlier in the case of Madhavi Ramesh Dudani (supra) has been
relied upon by the Division Bench in the case of Vijaykumar
Jagdishrai Chawla (supra). Paragraphs 16, 17 and 18 of this
decision (Vijaykumar Chawla) read thus-
“16. Going by the above exposition, the mother is competent to
pursue relief of maintenance for the daughters even if they have
become major, if the said daughters were staying with her and she
was taking responsibility of their maintenance and education. In
addition, it will be useful to refer to the decision of the Apex Court in
the case of Jagdish Jugtawat v. Martju Lata, (2002) 5 SCC 422. In
that case the wife had filed application for maintenance for herself
as well as her minor daughter under section 125 of the Criminal
Procedure Code. The same was granted by the Family Court by
providing amount of Rs. 500/- per month each. The husband filed
revision before the High Court assailing the order of the Family
Court on the ground that the daughter was entitled to maintenance
only till she attained majority and not thereafter within the meaning
of section 125 of the Code. This argument was negatived by the High
Court. When the matter went before the Apex Court, the Apex Court
upheld the view taken by the High Court and held that the learned
Single Judge was right in taking the view that “with a view to avoid
multiplicity of proceedings”, no interference with the decision of the
Family Court was warranted. The High Court had observed that
even though section 125 limits the entitlement of the daughter for
maintenance till she attains majority, by virtue of section 20(3) of the
said Act of 1956, the daughter is entitled to receive maintenance
from her mother or father till her marriage.
17. Applying the principle underlying the above dictum, we have no
hesitation in negating the objection of the appellant. Instead, we hold
that the respondent is justified in criticizing the objection of the
appellant being a hyper-technical plea. Inasmuch as, even if the
Pg 17 of 20::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.docappellant were to succeed in the present appeal, that would not
extricate him from the liability to maintain his unmarried daughter
who is staying with his estranged wife. The appellant in law would
be bound to not only maintain his unmarried daughter but is also
responsible for her education including higher education until her
marriage.
18. We may also refer to the decision of the Calcutta High Court in
the case of Anwor Ali Haider v. Sakina Bibi, (2005) 3 CHN 649.
Even in that case, the wife had filed application for maintenance
under section 125 of the Court for awarding maintenance in her
favour as also her daughter. The Court allowed the said application.
After lapse of sometime, the wife filed application for enhancement
of maintenance amount under section 127 of the Code. By that time,
however, the daughter had attained majority. The husband resisted
the application under section 127 on the ground that daughter had
attained majority and would not be entitled to get maintenance. The
Court while adverting to the decision of the Apex Court in Noor
Saba Khatoon, (1997) 6 SCC 233 held that even if the daughter had
become major, she was entitled to get maintenance from her father
till she gets married. Even in that case the application for
maintenance was filed by the wife for herself and her daughter. In
another case, decided by the Calcutta High Court reported in the
case of Amit Roy v. Mira Roy, (1998) 4 ICC 348 (Cal) and in the
case of Shri Krishna Kanta Bhattacharya v. Smt. Shyamali
Bhattacharya, C.R.R. No. 4115/2008 decided on 21st April, 2009
similar view has been reiterated. Even in this unreported decision
when the application under section 127 of the Code for enhancement
of maintenance amount was filed by the wife alone for awarding
maintenance amount to her as well as her daughter, by that time
daughter had already become major. The Court awarded enhanced
maintenance amount in favour of the daughter who had become
major, to avoid multiplicity of proceedings as otherwise she would
be forced to file another petition under section 20(3) of the Act of
1956 for maintenance.”
(emphasis supplied)
15. Looking to the law laid down by this Court, we find that
the argument canvassed by Mr Hegde on behalf of the Applicant –
Pg 18 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.dochusband, at least prima facie, cannot be sustained.
16. That now only leaves us to deal with the decision relied
upon by Mr Hegde in the case of B(husband) Vs A (wife) (supra).
On going through this decision, we fail to see how it supports the
argument canvassed by Mr Hegde. This decision opines that on a
plain reading of Section 26 of the Hindu Marriage Act, 1955, it is
clear that it can be filed only in respect of minor children. The
decision however clearly opines that a major daughter always has
recourse for seeking maintenance from her father under Section 20
of the Hindu Adoptions and Maintenance Act, 1956. Far from
supporting the contention raised by Mr Hegde, we find that this
decision in fact supports the argument canvassed by Ms Sarnaik on
behalf of the Respondent – wife.
17. In view of the foregoing discussion, we find no merit in
this Civil Application. It is accordingly dismissed. However, there
shall be no order as to costs. We further direct that the arrears of
maintenance, if any, as ordered by the Trial Court in the impugned
order, shall be cleared within a period of three months from today.
Needless to clarify that the clearance of arrears shall be done by the
Applicant – husband without prejudice to his rights and contentions
Pg 19 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
reserved.cam.25.2017 (Colabawalla).april.18.doc
in the present appeal and shall be subject to further orders passed at
the final hearing of the appeal.
(B.P. COLABAWALLA, J.) ( K. K. TATED, J.)
Pg 20 of 20
::: Uploaded on – 09/04/2018 10/04/2018 00:52:59 :::
