PADMJA SHARMA

RATAN LAL SHARMA

MARCH 28, 2000

[D.P.WADHWA AND M.B. SHAH, JJ.]

Hindu Marriage Act, 1955/Hindu Adoptions and Maintenance Act, 1956/Code of Criminal Procedure, 1973 :

S.13/S.20 read with s.3(b) and s.26/s.125-Petition by wife for dissolution of marriage-Applications under s.125 Cr.P.C. and s.26 of Hindu Adoptions and Maintenance Act filed by wife claiming maintenance for children- Decree of dissolution of marriage passed-Applications u/s.26 filed by wife for enhanced maintenance-Held, a minor child can claim maintenance from his/her.father or mother-It is obligation of.father and mother both to maintain the child-Since both parents are employed and husband's salary being twice that of wife, they will bear maintenance in that proportion-Besides, the husband will also pay the amount as per the order o.f.family court passed u/ s. 125 Cr.P.C.

The appellant wife, a lecturer in a Government College filed a petition under s.13 of the Hindu Marriage Act, 1955, against her husband, a clerk in Reserve Bank of India, for dissolution of marriage and also prayed for return of her 'streedhan' amounting to Rs. 1,80,000, custody and guardianship of their two minor sons as also for their maintenance. Besides, she filed an application under s.125 of the Code of Criminal Procedure, 1973 and another application under s.26 of the Hindu Marriage Act claiming maintenance at the rate of Rs. 2500 per month for both the children. The court granted maintenance under s.125

Cr.P.C. at the rate of Rs. 250 per month for each child and further sum of Rs. 250 per month for each child as interim maintenance under s.26 of the Act. Later the wife filed further applications under s.26 of the Act claiming higher maintenance for the children and in her last application she claimed Rs. 3500 per month for elder son and Rs. 3000 per month for younger son. The Family Court granted the decree of divorce and Rs. 1,00,000 as cost of 'streedhan' articles in case the respondent did not return the said articles. The children were given in the custody of the mother; and maintenance for each of the child was allowed at the rate of 621

A Rs. 500 per month. The wife filed an appeal before the High Court seeking enhanced amount of maintenance for children and full amount of Rs. 1,80,000 as streedhan. The High Court enhanced the maintenance from Rs. 500 to Rs. 1,000 for each child from the date of the order of the family court and Rs. 500 per month for each child from the date of B application under s.26 holding that it was an incumbent liability on the part of the father to bear cost of education and the maintenance expenses for the children. The High Court, however, rejected the prayer for enhancement of Streed.ban. Still aggrieved, the wife filed the present appeal.

C Allowing the appeal in part, the Court

HELD : 1.1. In view of s.20 of the Hindu Adoptions and Maintenance Act, 1956, a minor child can claim maintenance from his or her father or mother. Under this section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent the mother may be it is the obligation only of the father to maintain the minor. [627-B-C)

1.2. Maintenance has not been defined in the Hindu Marriage Act, 1955; nor has it been provided that between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context, definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. Maintenance, as provided in clause (b) of Section 3 of Hindu Adoption and Maintenance Act, 1956 includes provisions for food, clothing, residence, education and medical attendance and treatment and in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.

Section 20(2) provides for maintenance of children and aged parents.

Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. [626-F-H; 627-A-B]

2. In the present case both the parents are employed. The appellantmother is, therefore, also obliged to contribute in the maintenance of the

children. In view of the evidence on record, if salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Considering the overall picture, a sum of Rs. 3,000 per month for each of the child would be sufficient to maintain him, which shall be borne by both the parents in the proportion of 2 : 1. The respondentfather shall pay a sum of Rs. 2,000 per month for each of the two children from October 4, 1997, the date of the order of the Family Court. For the earlier period respondent shall pay Rs. 500 per month for each of the child from the date of the first application, i.e., August 2, 1991 and @ Rs. 1,000 per month from the date of the second application, which is October 27, 1995; and@ Rs. 1,500 per month from the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the respondent has already been paying to the children @ Rs. 250 per month under Section 125 of the Code. [627-C-F; 628-A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2462 of 1999.

From the Judgment and Order dated 3.12.97 of the Rajasthan High Court in D.B.M.A. No. 1005 of 1997.

R.N. Surolia, Ms. Rashmi Jain, R.P. Gupta and Lamikant Pandey for the Appellant.

The Judgment of the Court was delivered by

D.P. WADHWA, J. Appellant, the wife, whose marriage with the respondent has since been dissolved by decree of divorce on the. ground of cruelty on the petition filed by her, has filed this appeal not only seeking enhanced maintenance for two minor children of the marriage but also for claiming the same from the date of application filed under Section 26* of the Hindu Marriage Act, 1955 (for short the 'Act) in the Family Court,

26. Custody of children - In any proceeding under this Act, the court may, from time to G time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may, also from time to time revoke suspend or vruy any such orders and provisions previously made .

A Jaipur. Appellant is also aggrieved by the order of the courts below not granting her-fullclaim of 'streedhan', litigation expenses, etc.

Both the parties are Hindu. Their marriage was solemnized in accorctance with Hindu rites on May 2, 1983. First child, a son, was born on January 27, 1984 and the. second child, also a son, was born on June 28, 1985. Wife field petition for dissolution of marriage on May 21, 1990.

She also prayed therein for return of her 'streedhan', custody and guardianship of the children and also for their maintenance. At the same time she also filed an application under Section 125 of Code of Criminal Procedure (Code).

On August 2, 1991, wife filed a petition under Section 26 of the Act in the Family Court claiming maintenance @ Rs. 2575 per month for both the children, In the affidavit supporting the application, however, maintenance was claimed @ Rs. 2,500 per month for both the children. It was pointed out that husband was getting a salary of Rs. 6233.40 per month. Wife also claimed a sum of Rs. 1,585 as admission fee in schools for the children and Rs. 5,000 as litigation expenses.

Family Court by the order dated April 7, 1992 granted maintenance urider Section 125 of the Code @ Rs. 250 per month for each child. On April E 30, 1992 Family Court awarded a further sum of Rs. 250 per month for each child as interim maintenance under Section 26 of the Act. Family Court also framed issues relating to the custody, guardianship and maintenance of the minor children and also regarding 'streedhan'.

On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew the attention of the court to her earlier application filed on August 2, 1991. Now she claimed Rs. 2000 per month for each child.

She said salary of the husband had since been increased to Rs. 12,225 in . August, 1995. On August 26, 1997 yet another application was filed by wife under Section of the Act. Now she wanted maintenance for the elder child @ Rs. 3,500 per month and for the younger child @ Rs. 3,000 per month. it was pointed out that the salary of the husband was Rs. 13,683 per month and thereafter from August, 1997 it was going to be increased to Rs. 14,550 per month.

Family Court by order dated September 13, 1997 consolidated both the proceedings one 'under Section 13 of the Act for dissolution of the marriage J

and the other under Section 26 of the Act. On October 4, 1997 Family Court A granted decree of divorce in favour of the wife dissolving the marriage between her and the respondent. Against claim of Rs, 1,80,000 towards 'streedhan' Family Court granted a decree of Rs. 1,00,000 as cost of the articles which prayer was granted in the alternative if the respondent did not return the articles mentioned by wife in her petition. It was also ordered that B both the children, till they attain majority, should be in the custody of the mother, the appellant, and maintenance for each of the child was awarded

@ Rs. 500 per month from October 4, 1997. A sum of Rs. 1,000 was awarded as cost of the litigation to the wife.

Wife took the matter to the High Court seeking enhanced amount of maintenance of the children and decree for the full amount of Rs. 1,80,000.

High Court, by its impugned judgment, enhanced maintenance of the children from Rs1 500 per month to Rs. 1,000 per month effective from the date of the order of the Family Court dated October 4, 1997 and awarded

Rs. 500 per month for each child from the date of the application. High D Court observed, though in our view not correctly, that "it is an incumbent liability on the part of the father to bear the cost of education and the maintenance express for the two children ........... " High Court also observed that the respondent was "admittedly employed in a responsible position in the Reserved Bank of India where his gross pay packet amounts to Rs.

13,000 per month". During the course of hearing we have been told that the husband is employed as a clerk in the Reserve Bank of India while the appellant-wife is a lecturer in a Government college in Rajasthan. High Court rejected the prayer of the wife for enhancement of any amount from Rs. 1,00,000. High Court made certrun directions for the husband to meet the children and with that we are not concerned. High Court disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim order passed on February 22, 1999 it was directed by this Court that by way of interim relief maintenance for each of the child be paid @ Rs. 1,500 per month by the respondent-husband.

This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the evidence led before the Family Court. There is

a concurrent finding of award of Rs. 1,00,000 to the wife though in the alternative being the cost of the articles presented at the time of the H

A marriage which we are not going to disturb. As far as costs and spdcial costs are concerned that again is within the discretion of the court and unless some weighty reason is s.hown to us we again to not think that we should unsettle the payment of award of costs by the Family Court and nor payment of costs by the High Court. Appellant says she has been harassed B persistently by the husband in delaying the trial before the Family Court.

. c

But then husband also has a grievance that in the Family Court he could not get the services of a lawyer though the wife was represented by her father, who himself is a lawyer and while her father would argue in the court she would remain mute .

Respondent before us has not appeared instead of notice to him. We have heard the agreements of the wife ex-parte. On February 28, 2000 an application was filed by the appellant for placing on record additional documents which are all of the period after filing of this appeal. No notice has been given to the respondent of this application. The purpose of the application appears to be to further enhance the amount of maintenance taking into account the changed circumstances as the salary of the respondent-husband is stated to have increased by passage of time. Various documents like

~ receipts for payment of school fees, buying of books, school bags, etc. have been filed. We are not inclined to permit this applicatioq, 1 at this stage. If circumstances have changed for enhancement of maintenante appellant can approach the Family Court again as an order under Section 26 of the Act is never final and decree passed thereunder is always subject to modification.

Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Act are to be read in conjunction with one another and interpreted accordingly. We can, therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'. In clause (b) of Section 3of this Act "maintenance includes (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage" and under clause (c) "minor means a person who has not

completed his or her age of eighteen years". Under Section 18 of the Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to' certain conditions with which we are not concerned. Section 20* provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore to be contrasted with Section 18. Under this Section it is as much the obligation of the father to. maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

In the present case both the parents 3!e employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3, iOO per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs .. 250 per month for each of the child under Section 125 of the Code. That amount we need not touch.

Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000 per month for each of the child would be sufficl<!nt to maintain him, which shall be borne by both the parents in the proportion of 2: 1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000 per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court. For the earlier period

* 20. Maintenance of children and aged parents.· (I) 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 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 .

A respondent shall pay Rs. 500 per month for each of the child from the date of the application, i.e., August 2, 1991 and @ Rs. 1,000 per month from the date of the second application, which is October 27, 1995 and @ Rs.

1,500 per month form the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the B respondent has already been paying to the children @ Rs. 250 per month under Section 125 of the Code. Respondent shall be entitled to makes

adjustmnt of the amounts which he has already paid under orders of the Family Court, High Court or the interim order of this. Court'.

The appeal is thus partly allowed. There shall be no order as to costs C as respondent has chosen not to appear.

R.P.

Appeal partly allowed.