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Umesh Singh Thakur vs Ku.Divya Thakur on 2 May, 2018

M.P. No.619/2018 1917/2018 1

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
M.P. No.619/2018
Umesh Singh Thakur v/s Kumari Divya Thakur

M.P. No.1917/2018
Kumari Divya Thakur v/s Umesh Singh Thakur
Indore, dated 02.05.2018
Ms. Rekha Shrivastava, learned counsel for the
petitioner.
Shri S.K. Meena, learned counsel for the respondent.
Regard being had to the similitude in the controversy
involved in the present cases, these petitions were
analogously heard and by a common order, they are being
disposed of by this Court. Facts

of the M.P. No.619/2018 are
narrated hereunder.

The present petition has been filed against the order
passed by II Additional Principal Judge, Family Court, Indore
in a case filed by respondent, who is daughter of the
petitioner.

The facts of the case reveal that undisputedly the
respondent is the daughter of the petitioner and earlier an
application was preferred for grant of maintenance under
Section 125 of the Code of Criminal Procedure and
maintenance was granted to the daughter, who was minor at
the relevant point of time. The trial Court by an order dated
13.03.2014 passed in Case No.58/2010 when the salary of the
petitioner was Rs.9,060/- and take home salary was Rs.8,000/-
has granted maintenance to the respondent to the tune of
Rs.3,000/- per month.

The maintenance awarded by the trial continued,
however, as the daughter has attained the majority on
22.06.2013, keeping in view the provisions as contained
under Section 125 of the Code of Criminal Procedure, the
M.P. No.619/2018 1917/2018 2

grant of maintenance has come to an end. Thereafter, the
daughter who is studying in a college and who is doing
M.B.A. preferred a petition before the Family Court, Indore
under Section 20 of the Hindu Adoption and Maintenance
Act, 1956.

As the maintenance all of a sudden was stopped by the
present petitioner and the proceedings under Section 20 were
pending, the respondent, who was not having any source of
income, has preferred an application under Section 151 of the
Code of Civil Procedure for grant of interim maintenance.
The trial Court has granted interim maintenance to the tune of
Rs.5,000/- per month.

Learned counsel appearing for the petitioner has argued
before this Court that such an application under Section 151
of the Code of Civil Procedure is not maintainable, as there is
no provision of grant of interim maintenance under the Act of
1956. The other ground raised by her is that the petitioner is
having a family to support. He is having two children and
Ration Card has also been brought on record. It has been
argued that the total monthly salary of the petitioner is
Rs.23,980/- and the taking home salary is Rs.20,682/-, and
therefore, the maintenance awarded is on higher side.

On the other hand, learned counsel for the respondent
has argued before this Court that the respondent, who is
daughter of the petitioner is residing with her mother. She
doesn’t have any source of income, she is studying M.B.A.
and as she has to pay college fee, the maintenance awarded is
just and proper. It has also been stated that as the case filed by
the respondent is taking time and she has to pay the fee, the
trial Court was justified in allowing the application preferred
M.P. No.619/2018 1917/2018 3

under Section 151 of the Code of Civil Procedure. A prayer
has been made for dismissal of the writ petition.

This Court has carefully gone through the statutory
provisions governing the field. Sections 20, 21 (V), 22 and 23
of Hindu Adoption and Maintenance Act, 1956 reads as
under:-

20. Maintenance 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 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. Explanation.–In this section
“parent” includes a childless step-mother.

21 (v)

(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;

22. Maintenance of dependants.–

(1) Subject to the provisions of sub-section (2)
the heirs of a deceased Hindu are bound to maintain the
dependants of the deceased out of the estate inherited by
them from the deceased.

(2) Where a dependant has not obtained, by
testamentary or intestate-succession, any share in the
estate of a Hindu dying after the commencement of this
Act, the dependant shall be entitled, subject to the
provisions of this Act, to maintenance from those who
take the estate.

(3) The liability of each of the persons who takes
the estate shall be in proportion to the value of the share
or part of the estate taken by him or her.

M.P. No.619/2018 1917/2018 4

(4) Notwithstanding anything contained in sub-
section (2) or sub-section (3), no person who is himself
or herself a dependant shall be liable to contribute to the
maintenance of others, if he or she has obtained a share
or part, the value of which is, or would, if the liability to
contribute were enforced, become less than what would
be awarded to him or her by way of maintenance under
this Act.

23. Amount of maintenance.–

(1) It shall be in the discretion of the Court to
determine whether any, and if so what, maintenance
shall be awarded under the provisions of this Act, and in
doing so, the Court shall have due regard to the
considerations set out in sub-section (2), or sub-section
(3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if
any, to be awarded to a wife, children or aged or infirm
parents under this Act, regard shall be had to–

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether
the claimant is justified in doing so;

(d) the value of the claimant’s property and any
income derived from such property, or from the
claimant’s own earnings or from any other source;

(e) the number of persons entitled to maintenance
under this Act.

(3) In determining the amount of maintenance, if
any, to be awarded to a dependant under this Act, regard
shall be had to–

(a) the net value of the estate of the deceased
after providing for the payment of his debts;

(b) the provision, if any, made under a will of the
deceased in respect of the dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependant;

(e) the past relations between the dependant and
the deceased;

(f) the value of the property of the dependant and
any income derived from such property, or from his or
her earnings or from any other source;

(g) the number of dependants entitled to
maintenance under this Act.

The sole respondent, who is daughter of the petitioner,
was receiving maintenance on account of an order dated
13.03.2014 and at the relevant point of time, the petitioner
M.P. No.619/2018 1917/2018 5

was receiving salary to the tune of Rs.9,060/-. As the income
was assessed by the trial Court as Rs.12,000/- per month,
Rs.3,000/- was awarded by the trial Court. Now there is an
increase in the income and he is receiving more than
Rs.20,000/-, Rs.5,000/- has been awarded to the daughter.

In the considered opinion of this Court, there is no bar
under the statute of 1956 in the matter of grant of interim
maintenance. An unmarried girl, who is undisputedly the
petitioner’s daughter cannot be left on street without income.
She is studying M.B.A. and she doesn’t have any source of
livelihood, and therefore, keeping in view the statutory
provisions as contained under the Act of 1956, as it does not
debar the Court below to grant interim maintenance pending
finalization of the proceedings, this Court is of the opinion
that order has rightly been passed by the learned Judge
granting interim maintenance.

So far as the quantum of interim maintenance is
concerned, in the year 2014 when the petitioner was receiving
Rs.9,060/- as gross salary, Rs.3,000/- was awarded. Now he is
receiving more than Rs.20,000/- and as per the pay slip, the
amount is Rs.20,682/-, a sum of Rs.5,000/- has been awarded
to the daughter.

In the considered opinion of this Court, the father
cannot escape from the liability of providing interim
maintenance to her daughter, and therefore, this Court does
not find any reason to interfere with the order passed by the
Family Court.

Resultantly, the admission is declined.
The connected matter i.e. M.P. No.1917/2018 is a
petition filed by the daughter against her father for
M.P. No.619/2018 1917/2018 6

enhancement of maintenance, which has been awarded by the
trial Court vide order dated 15.12.2017.

The order dated 15.12.2017 relates to grant of interim
maintenance only, and therefore, the parties shall be free to
produce all the evidence before the trial Court enabling the
trial Court to pass appropriate final order on merits while
granting maintenance and deciding the matter.

With the aforesaid, the present petition (M.P.
No.1917/2018) stands disposed of.

Certified copy as per rules.

(S.C. Sharma)
Judge
Ravi

Digitally signed by Ravi Prakash
Date: 2018.05.05 16:10:34 +05’30’

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