Back
1965 Supreme(Ker) 106
Judges : P.T.RAMAN NAYAR
Baby Sarojini Alias Obi - Appellant
Versus
Achuthan - Respondent
Case No : S. A. No. 1207 of 1962
Decided On : 06/02/1965
Advocates Appeared :
P. Sreedhara Menon; K. Sridharan Kutty Menon; M. Viswanatha Menon; For Appellant P. V. Jacob; For Respondent
The obligation of both parents to maintain their minor children under S.20 of the Hindu Adoptions & Maintenance Act overrides the provision of the Cochin Thiyya Act, and the child can claim deficiency from the other parent if the maintenance provided by one parent is inadequate.
Headnote:
S.20 of the Hindu Adoptions & Maintenance Act - Maintenance of Minor Children - The court held that both parents are bound to maintain their minor children, overriding the provision of the Cochin Thiyya Act which cast the obligation only on the father. The child cannot claim double maintenance, but can claim deficiency from the other parent if the maintenance provided by one parent is inadequate.
Fact of the Case:
The minor plaintiff, in the custody of the mother, claimed maintenance from the defendant father as her next friend. The lower appellate court disallowed the claim based on the assumption that the plaintiff was being maintained by her mother.
Finding of the Court:
The court found that there was no evidence to show that the plaintiff was being adequately maintained or maintained at all by the mother. The lower appellate court was wrong in disallowing the plaintiff's claim for the period after Act 78 of 1956 came into force on the sole ground that the plaintiff was being maintained by her mother.
Issues: The main issue was whether the plaintiff could claim maintenance from the defendant father despite being in the custody of the mother and whether the maintenance provided by the mother was adequate.
Ratio Decidendi: The court held that the obligation of both parents to maintain their minor children under S.20 of the Hindu Adoptions & Maintenance Act overrides the provision of the Cochin Thiyya Act. The child cannot claim double maintenance, but can claim deficiency from the other parent if the maintenance provided by one parent is inadequate.
Final Decision: The appeal was allowed, the decree of the lower appellate court was set aside, and that of the trial court was restored.
1. Under S.20 of the Hindu Adoptions & Maintenance Act, 78 of 1956 both parents (if they are Hindus) are bound to maintain their minor children and by reason of S.4 of that Act this provision must override S.13 of the Cochin Thiyya Act, 7 of 1107 under which the obligation is cast only on the father. I agree with the lower appellate court in so far as it has held that this does not mean that a child can claim double maintenance; in other words, I think that if the child is being adequately maintained by one parent it cannot claim maintenance from the other as well, although I think that, if the maintenance provided by one parent is inadequate, the use of the word "or" in sub-section (2) of S.20 of Act 78 of 1956 which says that "a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor" would not preclude the child from claiming the deficiency from the other parent. But, in this case, although it would appear that the minor plaintiff is in the custody of the mother who brought the suit on her behalf as her next friend, there is nothing in the pleadings to show that the plaintiff was being adequately maintained or maintained at all by the mother. No such defence was taken; nor was issue joined on the question whether the plaintiff could make no claim against the defendant father because she was being maintained by the co-obligant mother. All that the written statement said was that the plaintiff and her mother had sufficient property to provide for the plaintiff's maintenance - that is an entirely different matter. That being so, I think the lower appellate court was wrong in disallowing the plaintiff appellant's claim for the period after Act 78 of 1956 came into force on the sole ground that the plaintiff was being maintained by her mother.
2. In the result I allow this appeal with costs, set aside the decree of the lower appellate court, and restore that of the trial court.
Allowed.
