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Judgements favoring men


Bench: JUSTICE P.S. Narayana

N. SREE RAMUDU Vs. N. LAHARI On 24 June 2004

Law Point:
Maintenance of minor female child : Both mother and father of minor child gainfully employed and having equal financial capacity, responsibility to be equally shared.





The present appeal is filed by the father of the minor child Kum. N. Lahari, aggrieved by the judgment and decree made in O.S. No. 12 of 2000 dated 16th day of March, 2001 on the file of Family Court, Kurnool.

2. Kum. N. Lahari, the minor daughter represented by her natural guardian mother Smt. N. Saraswathi filed this suit O.S. No. 12 of 2000 on the file of Family Court, Kurnool for enhancement of maintenance payable to the plaintiff by the defendant from Rs. 250/- per month as directed in M.C. No. 19/96 on the file of the said Court to Rs. 1,500/- p.m. and for the costs of the suit under Section 25 of the Hindu Adoptions and Maintenance Act, 1956 read with Section 7(l)(f) of Family Courts Act, 1984. The next friend and the guardian of the respondent-plaintiff minor daughter is the wife of the appellant-defendant. The marriage between the mother of the plaintiff and the appellant-defendant had taken place on
2.7.1988 at Kurnool as per Hindu rites and custom and thereafter misunderstandings developed between them after the birth of the present minor child and thereupon both the appellant-defendant and the mother of the plaintiff instituted O.P. No. 388 of 1993 on the file of Principal Subordinate Judge, Kurnool for divorce by mutual consent but however the said O.P. was dismissed since the mother of the plaintiff was not agreeable for mutual divorce at a subsequent stage. It is stated that appellant-defendant offered to take custody of minor child to maintain her as per the agreement in the said O.P., but however no steps had been taken to obtain the custody of the minor child in this regard. Appellant-defendant filed O.P. No. 19 of 1995 on the file of the said Court praying for divorce and the same was dismissed on 19.7.1996 on merits. Subsequent thereto the mother of the plaintiff on her behalf and on behalf of the minor child issued a notice dated 31.7.1996 calling upon the appellant-defendant either to take them back to have marital life or to provide suitable maintenance to them. The appellant defendant had not responded to the said notice and in such circumstances they filed M.C. No. 19 of 1996 on the file of the said Court and the same was allowed granting monthly maintenance of Rs. 500/- to the mother of the plaintiff and Rs. 250/- to the minor plaintiff. The said order is marked as Ex. Al dated 9.1.1997. It is also not in dispute that just before filing of the suit, the mother of the plaintiff also got employment as health assistant and in view of the changed circumstances appellant-defendant moved the Court for cancellation of maintenance but however as far as the minor child is concerned appellant-defendant is continuing to pay the amount awarded in the aforesaid M.C. In such circumstances taking into consideration the growth of the minor child and the needs and necessities of the minor child the present suit was instituted for enhancement of maintenance. The appellant-defendant opposed the claim taking the stand that the mother of the plaintiff also is having equal responsibility and she is getting sufficient salary from her employment and he had also taken a specific stand that he has been always ready and willing to take custody of the child and to maintain the child and to provide education and also celebrate her marriage at the appropriate stage and in the said circumstances this claim is totally unjustified and prayed for dismissal of the suit.

3. The Trial Court framed only one issue:
Whether the plaintiff is entitled for enhancement of monthly maintenance from Rs. 250/- to Rs. 1,500/- from the defendant?

4. The next friend-guardian mother of the plaintiff was examined as P.W. 1 and Ex. A1 xerox copy of the order in M.C. No. 19 of 1996 dated 9.1.1997 was marked. The appellant-defendant had examined himself as D.W. 1 and Ex. Bl salary certificate of the defendant dated 17.7.2000 was marked. On appreciation of the oral and documentary evidence, the learned Judge after recording reasons decreed the suit with costs directing appellant-defendant to pay enhanced monthly maintenance of Rs. 1,500/- from the date of suit. Aggrieved by the same, the present appeal is preferred.

5. Mr. K. Suresh Reddy, the learned Counsel representing the appellant in all fairness submitted that though the agreement between the husband and wife during the divorce proceedings had been referred to, the same was not marked. The learned Counsel would contend that as father of the child, the appellant-defendant is not running away from the responsibilities, but however when both wife and husband are equally gainfully employed as far as child’s welfare is concerned, there is equal responsibility on the part of both wife and husband. The learned Counsel had placed strong reliance on the decision of the Apex Court in Padma Sarma v. Ratanlal Sarma, I (2000) DMC 629 (SC)=III (2000) SLT 174=AIR 2000 SCW 1147. The learned Counsel also had taken this Court through the evidence of P.W. 1 and also D.W. 1 and the findings recorded by the learned Judge in this regard. The Counsel would submit that no doubt the mother of the appellant-defendant is no more, but ailing old father is dependant on him. At any rate, in view of the facts and circumstances fixing Rs. 1,500/- is definitely on the higher side and it cannot be said to be reasonable.

6. Mr. Prasad, the learned Counsel representing the respondent-minor child would contend that though appellant father is making an offer to take the custody of the minor child at no point of time any such attempt was made in this direction and this would go to show that the said offer is not a bona fide offer. The learned Counsel also had pointed out to the findings recorded by the Trial Court in this regard. The learned Counsel also submitted that no doubt the mother of the child also had secured employment but father is not only employed but he is also having several other properties and taking into consideration the needs of the growing minor child, the Trial Court is well justified in enhancing the maintenance and fixing the amount at Rs. 1,500/-.

7. Heard both the Counsel and also perused the oral and documentary evidence available on record and the findings recorded by the Trial Court.

8. The following points emerge for consideration to be decided by this Court in the present appeal:

A. Whether the judgment and decree of the Trial Court enhancing monthly maintenance from Rs. 250/- to Rs. 1,500/- to be confirmed or interfered with in the facts and circumstances?

B. If so, to what relief the parties are entitled to?
Point A: The factual matrix relating to the matter had already been referred to supra. Several of the facts are not in controversy. However, relating to an agreement alleged to have been entered into between the wife and husband in divorce proceedings there is controversy between the parties. The wife denying the same and the husband asserting that such agreement was there. Be that as it may, the said agreement was neither produced nor any independent evidence had been adduced by the appellant-defendant. Hence this question need not be decided at length though there is some controversy between the parties in relation thereto. P.W. 1 the mother of the plaintiff deposed that she is working as health assistant getting Rs. 5,000/- per month and she filed M.C. 19 of 1996 claiming maintenance for herself and her minor daughter at the rate of Rs. 500/- per month, since by that time, she was not employed. She also deposed that the defendant neglected both of them and refused to maintain them and hence they came away to their parents’ house and the said M.C. was allowed granting maintenance of Rs. 500/- to her and Rs. 250/- to her minor child. Subsequent thereto inasmuch as she had secured employment the order of maintenance so far as it relates to her had been cancelled. She further deposed that the defendant is a graduate and working as stenographer in District Industries Center and getting Rs. 5,300/- per month and he is having house besides land and is residing with his parents and his father is cultivating the land and he is not burdened with any obligations. She also deposed that the plaintiff was aged about 11 years at the alleged point of time and she was studying 6th class and she was going to attain marriageable age and in the said circumstances she prayed for enhancement. In cross-examination she admitted that her gross salary is Rs. 7,049/- month and after deductions she is getting Rs. 4,264/- including deductions towards G.P.F. loan at the rate of Rs. 2,600/- p.m. No doubt she had denied the other suggestions and also she had specifically denied the agreement to hand over the minor plaintiff to the custody of the husband. As against this evidence of P.W. 1 the evidence of D.W. 1 is available who had deposed about his salary and admitted about the filing of the maintenance case and other details. No doubt he had taken a specific stand that there was an agreement dated 23.12.1993 under which the mother of the plaintiff agreed to give custody of the child to him. As already referred to by me supra, the said agreement was not filed into Court. P.W. 1 in cross-examination had deposed about the details relating to O.P. No. 388 of 1993 and also M.C. 19 of 1996 and D.W. 1 also had explained his liability and responsibilities. But when a specific question was posed to him ‘how much amount you are going to expect to incur for plaintiff for her clothing, feeding and other expenses, he refused to answer the said question. This Court by an ordered 16th day of April, 2001, directed payment of an amount of Rs. 1,000/- towards maintenance till further orders, and it is represented that the said direction is being complied with and the appellant-defendant has been regularly depositing the same into the Court. In Padmaja Sharma v. Ratan Lai Sharma (supra), at page 1150, the Apex Court held:

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 Adoptians 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. We can, therefore, go to Hindu Adoptions and Maintenance Act, 1956 (for short the
‘Maintenance Act’) to understand the meaning of the ‘maintenance‘ .
In Clause (b) of Section 3 of 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 incidental 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 Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her lifetime. 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 lifetime, 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 tie 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.”

9. This is a case relating to the maintenance of a minor female child. On facts it is clear that relating to the custody of the child no specific order had been obtained from any Court by either of the parties. It may be that the father is a natural guardian but however as per the findings recorded by the Trial Court no serious attempt was made by the father to sec are the custody of the child at any point of time. The fact remains that the mother of the minor child also secured employment, equally a gainful employment when compared to the father of the minor child as can be seen from the evidence of P.W. 1 and D.W. 1. Section 20 of the Hindu Adoptions and Maintenance Act, 1956 dealing with maintenance of child and aged parents reads :

(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 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.

10. Reliance also was placed on Narain Singh v. Sapurna Kuer, AIR 1968 Pat. 318; Sobha Dei v. Bhima, AIR 1975 Ori. 180 and Thulasikumar Anil Kumar v. Raghavan Nair, AIR 1985 Ker. 20.

11. This aspect of the question of maintainability of the suit for recovery of enhanced maintenance amount on behalf of the minor child by the mother when the father can be said to be the natural guardian was neither raised nor canvassed before the Trial Court. Hence this question need not be seriously considered at the appellate stage. The next question would be whether the quantum of enhanced maintenance to be interfered with or to be confirmed. It is needless to say that when both the mother and father of the minor child are gainfully employed and are having equal financial capacity, the responsibility may have to be equally shared. Though this Court only made an interim order referred to supra, on appreciation of the evidence of both P.W. 1 and D.W. 1 especially in the light of the evidence of P.W. 1 and the admission made by P.W. 1 and also the evidence of D.W. 1 and his cross-examination, this Court is of the considered opinion that enhancing and fixing the amount of Rs. 1,500/- may be on higher side and hence the same is modified to Rs. 1,000/- p.m., and accordingly the appellant-defendant is directed to pay Rs. 1,000/- p.m. to the respondent-plaintiff minor child. On facts, it is also clear that the minor child is reaching the marriageable age and the marriage expenses of the said child may have to be borne by the appellant-defendant. Hence, it is made clear that liberty is given to the respondent to agitate the said question if she is so advised in this regard.
Point B : In the light of the foregoing discussion, the appeal is partly allowed modifying the judgment and decree of the Trial Court reducing Rs. 1,500/- p.m., fixed by the Trial Court to Rs. 1,000/- p.m. to be paid to the minor child. In view of the close relationship between the parties, this Court directs parties to bear their own costs.

Appeal partly allowed.

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