An illegitimate child is entitled to claim maintenance from his or her father or mother till she or he attains majority – Madras High Court

S.A.No.719IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 14.09.2021 Pronounced on : 17.12.2021CORAM:THE HONOURABLE MRS. JUSTICE S. KANNAMMALS.A.No.7191.Indirani W o.Rajasekaran2.R.Megala D o.A.Rajasekaran...Plaintiffs AppellantsVersus1.A.Rajasekaran S o.Allaswamy Co operative Sub Registrar Ponneri.2.The Deputy Registrar of Co operative Societies No.6 Taluk Office Road Ponneri. ...Defendants RespondentsPrayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 02.02.2015 passed in A.S.No.13 on the file of the Additional Sub Judge Thiruvallur in confirming the judgment and decree dated 21.06.2011 in O.S.No.2107 on the file of District Munsiff cum Judicial Magistrate Uthukottai. 1 14 https: www.mhc.tn.gov.in judis S.A.No.719For Appellants:Mr. A. P. SrinivasFor R1 :Mr. S. KamadevanFor R2:Mr. Dr.S.SuriyaGovernment Advocate JUDGMENTThe Second Appeal is filed challenging the judgment passed in A.S.No.13 by the Additional Sub Judge Thiruvallur confirming the judgment and decree in O.S.No.2107. The facts necessary for the disposing of the above Second Appeal are narrated herein below:The parties are herein referred to as per their litigating status in the suit.2.The suit has been filed by the plaintiffs praying to direct the first defendant to pay Rs.2 000 per month towards maintenance and to pay Rs.24 000 towards past maintenance for creating first charge over the suit schedule mentioned property for mandatory injunction directing the second defendant to deduct the maintenance amount from the salary of the first defendant and pay to the plaintiffs and for a permanent injunction restraining the first defendant from their men in any manner making 2 14 https: www.mhc.tn.gov.in judis S.A.No.719alienation or encumbrance over the suit schedule mentioned property.3.The case of the plaintiffs is that the first defendant is the husband of the first plaintiff and father of the second plaintiff. The marriage between the first plaintiff and the first defendant was solemnized in the year 1984 according to the Hindu rites and customs at Arulmigu Subramaniya Swamy Thirukoil Thiruttani. The marital house was set up at Palavakkam and due to the wedlock the second plaintiff was born on 01.07.1986. After the marriage the first defendant got employment in Co operative Societies Government of Tamil Nadu and now working as Co operative Sub Registrar at Deputy Registrar Office at Ponneri. The suit scheduled property belonging to the first defendant. The first defendant is earning more than Rs.30 000 as salary. By doing cultivation he is also earning more than Rs.10 000 per month. The marital house was shifted to various places due to the defendant s employment. The first defendant started to have illegal connection with one Shanthi and married her on 11.07.1994. After some months the first defendant left that Shanthi and lived with the first plaintiff. Then the first defendant purchased property by taking loan in Land Development Bank Uthukottai by mentioning the first plaintiff as wife and 3 14 https: www.mhc.tn.gov.in judis S.A.No.719second plaintiff as daughter. Day by day the first defendant changed his character and colluded with their parents and deserted the first plaintiff voluntarily and made arrangement for another marriage in the year 2003. Even despite several mediations and hue and cry of the plaintiff the first defendant married one Mohanasundari. Due to the bigamous attitude of the first defendant the plaintiffs are in the street without any income or support from the relatives. The plaintiffs are unable to earn money even make out their basic expenses and by doing coolie work the plaintiffs are earning meagre amount. Due to the desertion the second plaintiff discontinued her education. The first defendant is earning more than Rs.23 000 and he is also making all arrangements to sell away the schedule mentioned property. To safeguard the welfare of the plaintiffs it is just and necessary to create a charge over the properties and to direct the second defendant to deduct the maintenance amount from his salary and pay the same to the plaintiffs. It is the duty of the first defendant to make arrangement of the marriage of the first plaintiff. The plaintiffs have also filed a suit in O.S.No.2904 for partition and after getting permission of this Court the same is withdrawn and the present suit is filed.4 14 https: www.mhc.tn.gov.in judis S.A.No.7194.Resisting the suit the first defendant filed written statement wherein the first defendant specifically denied that the first plaintiff was his wife. The first plaintiff is the wife of one Rose Khan having two sons and one daughter through him apart from the second plaintiff. No marriage had taken place between the first defendant and the first plaintiff. The first defendant was studying B.L. at Madras Law College during the year 1984. The first plaintiff filed an affidavit before the High Court of Judicature in C.M.P.No.352303 with a story regarding her marriage with 1st defendant. On 28.10.2003 the first plaintiff gave a statement before SIF police All Women Police Station Uthukottai with a different story about the marriage. The first defendant is working under the second defendant. But he had no connection with the suit properties. The first defendant had no agricultural lands or income as stated by plaintiffs. The first plaintiff is an immoral lady grabbed the income of the first defendant in many ways and got registered a plot in her name in Uthukottai. Out of the first defendant s income the first defendant constructed a terraced house in the said plot. The first plaintiff was able to get the signature of the first defendant for the mortgage. It is true that the first defendant married one Shanthi and thereafter by mutual consent got divorced. The first defendant is now living 5 14 https: www.mhc.tn.gov.in judis S.A.No.719with his wife namely Mohanasundari peacefully. But only to harass the first defendant the plaintiffs have filed this vexatious suit. The first plaintiff had already made many police complaints against the first defendant and criminal cases are pending on the file of Judicial Magistrate No.I Thiruvallur. The plaintiffs have no legal right to claim maintenance from the first defendant. The suit is not maintainable in law and the same is to be dismissed.5.The Trial Court based on the plaint in the written statement had framed the following issues:i)Whether the first plaintiff is the legally wedded wife of the first defendant ii)Whether the suit properties belong to the first defendant or not iii)Whether the plaintiffs are entitled to get Rs.2 000 per month towards maintenance from the first defendant from the date of the plaint iv)Whether the plaintiffs are entitled to get Rs.24 000 towards past maintenance from the first defendant v)Whether the plaintiffs are entitled to get mandatory injunction as prayed for 6 14 https: www.mhc.tn.gov.in judis S.A.No.719vi)Whether the plaintiffs are entitled to get permanent injunction as prayed for vii)To what other relief plaintiffs are entitled to 6.Before the trial Court the first plaintiff had examined herself as P.W.1 and one Mr.Rajendiran Mr. Subramani and Mr.Samu were examined as Exs.P2 to P4 Exs.A1 to A19 were marked. The first defendant had himself examined as D.W.1 and Ex.B1 was marked.7.By judgment and decree dated 21.06.2011 the trial Court dismissed the suit.8.Challenging the said judgment and decree the plaintiff had filed A.S.No.13 on the file of the Additional Sub Court Thiruvallur. The first appellate Court also dismissed the appeal and confirmed the judgment and decree of the trial Court and hence the plaintiffs are before this Court.9.At the time of Admitting the present Second Appeal the following substantial question has been framed for consideration.“(i) Whether the Courts below are correct in depriving the 7 14 https: www.mhc.tn.gov.in judis S.A.No.719second plaintiff for claims and maintenance when the father of the defendant has admitted the second plaintiff as his daughter on the sole ground that she has not got into the box”10.The plaintiffs have filed the suit claiming maintenance of Rs.2 000 per month towards maintenance of plaintiff and Rs.24 000 towards past maintenance for creating charge over the suit scheduled property for a mandatory injunction directing the 2nd defendant to deduct the maintenance amount from the salary of the 1st defendant and to pay to the plaintiffs permanent injunction restricting the defendants or his men or agents from making any alienation or encumbrance over the suit schedule property and for the cost.11.The Trial Court after considering the oral and documentary evidence dismissed the suit with finding i)that the 1st plaintiff is not the legally wedded wife since the marriage of 1st plaintiff with her earlier husband Rose Khan was subsisting and hit by Section 5(1) of Hindu Marriage Act.ii)That the 2nd plaintiff has not proved that she is unable to maintain herself and that she has a right to maintenance from 1st defendant with 8 14 https: www.mhc.tn.gov.in judis S.A.No.719an observation of the non examination of 2nd plaintiff who was 19 years old at the time of filing of the suit iii) No charge can be created over the suit scheduled properties since the properties are not in the name of the 1st defendant as admitted by the 1st plaintiff and based on the findings in other issues denied giving mandatory injunctions and permanent injunction.12.The 1st appellate Court after re apprising the oral and documentary evidence of both appellants and respondents held that appellants are not entitled to the reliefs sought for and dismissed the appeal.13.Though the learned counsel for the appellants quoted the ruling reported in 2015CTC 114 and submitted that when it is proved that the 1st plaintiff and defendant lived together for many years the 1st plaintiff ought to have been considered as the wife of 1st defendant. The 1st plaintiff was living with the defendant during the life time of her husband Rose Khan and admittedly no legal divorce was effected between the 1st plaintiff and her husband Rose Khan.9 14 https: www.mhc.tn.gov.in judis S.A.No.71914.The Courts below had rightly observed that the plaintiffs have suppressed the marriage of the 1st plaintiff with one Rose Khan and about two sons born to them. Further the 1st appellate Court has rightly disbelieved the contention of plaintiffs that there was a customary divorce by name “Nadu Veetil Thali Aruthu Kodupathu” for the first time in the appeal without any pleadings or any other evidence in support of the same.15.On careful perusal of the judgment of the 1st appellate Court this Court does not find any illegality or irregularity in the findings of the Courts below.16.Coming to the substantial questions of law with regard to the 2nd plaintiff admittedly the 2nd plaintiff was 19 years old at the time of filing of the suit and 24 years during trial and she has filed the suit on her individual capacity since she is a major at the time of filing the suit. Except the averments in the plaint that the plaintiffs are unable to maintain themselves nothing was pleaded with regard to 2nd plaintiff s educational status or marital status. Admittedly the 2nd appellant is born through the respondent. 10 14 https: www.mhc.tn.gov.in judis S.A.No.71917.No doubt that an illegitimate child is entitled to claim maintenance from his or her father or mother till she or he attains majority.18.It is the bounden duty of a father to maintain his unmarried daughter who is unable to maintain herself out of her own earnings or other property. No doubt that the 2nd plaintiff is the daughter of the 1st respondent and the respondent herein has deposed in his cross examination that the 2nd plaintiff was born to 1st plaintiff through him. Section 20 of Hindu adoption and maintenance deals with the maintenance of children and aged parents.19.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 parents or a 11 14 https: www.mhc.tn.gov.in judis S.A.No.719daughter who is unmarried extends in so far as the parents 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.”The illegitimate child is also entitled for maintenance under Section 125 of the Criminal Procedure Code and the same is held in a judgment reported in 2020 SCC Online Madras 2677 in Pachaimuthu Vs. Vishanthini and Section 125 of the Cr.P.C 1973 reads as follows:125. Order for maintenance of wives children and parents.(1) If any person having sufficient means neglects or refuses to maintainhis wife unable to maintain herself or(b) his legitimate or illegitimate minor child whether married or not unable to maintain itself orhis legitimate or illegitimate childwho has attained majority where such child is by reason of any physical or mental abnormality or injury unable to maintain itself or12 14 https: www.mhc.tn.gov.in judis S.A.No.719But the daughter who claimed maintenance shall prove that she is unable to maintain herself and she has no means. In the present case the 2nd plaintiff who was aged 19 years old at the time of filing of the suit and 24 years old during trial has neither come forward to depose about her inability to maintain herself nor subjected herself to cross examination. When it was not even proved that she is unable to maintain herself by let in any evidence the 1st appellate Court has rightly dismissed the appeal. Hence this Court does not find any infirmity in the judgment and decree passed by the 1st appellate Court.20.In the result this Second Appeal is dismissed. No Costs. gbi17.12.2021 Index: Yes NoInternet: Yes No To1.A.Rajasekaran S o.Allaswamy Co operative Sub Registrar Ponneri.2.The Deputy Registrar of Co operative Societies No.6 Taluk Office Road Ponneri.13 14 https: www.mhc.tn.gov.in judis S.A.No.719S. KANNAMMAL J gbiPre delivery judgment inS.A.No.71917.12.202114 14 

Summary: It is the bounden duty of a father to maintain his unmarried daughter who is unable to maintain herself out of her own earnings or other property.  This were stated by the single bench of Honourable Mrs. Justice S. Kannammal in the case of Indirani &amp; Anr. v. A.Rajasekaran &amp; Anr. (S.A.No.78 of 2019) Rajasekaran (first defendant) is Indirani’s (first plaintiff) husband and the father of R. Megala (second plaintiff). The first plaintiff and first defendant were married in 1984 at Arulmigu Subramaniya Swamy Thirukoil in Thiruttani, according to Hindu rituals and customs. The first defendant began an illicit relationship with one Shanthi and married her in 1994. After a few months, the first defendant moved out of that Shanthi and began living with the first plaintiff. Despite multiple mediations and the plaintiff’s outrage, the first defendant married one Mohanasundari. Because of the first defendant’s bigamous attitude, the plaintiffs are on the street with no money or help from relatives. The second plaintiff dropped out of school as a result of the desertion. Meanwhile, the first defendant made it absolutely clear that the first plaintiff was not his wife. Apart from the second plaintiff, the first plaintiff is the wife of one Rose Khan, who has two sons and one daughter via him. The first defendant reports to the second defendant. But he had nothing to do with the suit’s qualities. According to the plaintiffs, the first defendant had neither agricultural lands or income. It is true that the first defendant married Shanthi and then divorced by mutual accord. The first defendant is presently living quietly with his wife, Mohanasundari. However, the plaintiffs have filed this frivolous claim just to harass the first defendant. The trial Court dismissed the complaint in a decision and decree dated 21.06.2011. The plaintiff had filed a complaint in the Additional Sub-Court of Thiruvallur, challenging the said decision and decree. The first appellate Court also dismissed the appeal and upheld the trial Court’s decision and decree; therefore the plaintiffs are now before this Court. The single bench of Honourable Mrs. Justice S. Kannammal observed following in the case. The Courts below had rightly observed that the plaintiffs have suppressed the marriage of the 1 st plaintiff with one Rose Khan and about two sons born to them. Further, the 1 st appellate Court has rightly disbelieved the contention of plaintiffs that there was a customary divorce by name “Nadu Veetil Thali Aruthu Kodupathu” for the first time in the appeal without any pleadings or any other evidence in support of the same. Thus after observing the substantial questions of law with regard to the 2nd plaintiff, admittedly the 2nd plaintiff who was 19 years old at the time of filing of the suit and is 24 years during trial and she has filed the suit on her individual capacity since she is a major at the time of filing the suit. The Court concluded that, it is the bounden duty of a father to maintain his unmarried daughter who is unable to maintain herself out of her own earnings or other property. No doubt that the 2nd plaintiff is the daughter of the 1st respondent, and the respondent herein has deposed in his cross-examination that the 2nd plaintiff was born to 1 st plaintiff through him. Section 20 of Hindu adoption and maintenance deals with the maintenance of children and aged parents. Referring to the judgment of Pachaimuthu v. Vishanthini (2020 SCC Online Madras 2677), But the daughter who claimed maintenance shall prove that she is unable to maintain herself and she has no means. In the present case, the 2nd plaintiff who was aged 19 years old at the time of filing of the suit and 24 years old during trial has neither come forward to depose about her inability to maintain herself nor subjected herself to cross-examination. When it was not even proved that she is unable to maintain herself by let in any evidence the 1 st appellate Court has rightly dismissed the appeal. Hence, this Court does not find any infirmity in the judgment and decree passed by the 1st appellate Court. In the result, this Second Appeal is dismissed.