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2018 Supreme(Ker) 1563
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.SOMARAJAN, J.
Lakshmi Bai (Minor), Represented By Her Next Friend- Mother Padmini – Appellant
Versus
Mohandas, S/o.Balakrishnan – Respondent
R.S.A.Nos. 349 and 353 of 2004
Decided on : 28-11-2018
Advocate Appeared:
For the Appellant : SRI.D.KRISHNA PRASAD, SMT.MINI V.MENON, SRI.D.NARENDRANATH, SRI.M.HARISHARMA, SRI.P.VISHNU PRASAD, SRI.T.P.ELDHOSE,
For the Respondent: SRI.N.SUKUMARAN (SR.), SRI.BOBBYMATHEW KOOTHATTUKULAM, SRI.LATHEESH SEBASTIAN, SRI.S.SHYAM
Point of Law: Right of maintenance of the child can be fastened against both the father and mother of the minor when it is proved that both are earning members and capable for maintaining the child.
Headnote:
Hindu Adoptions and Maintenance Act, 1956 - Section 20(3) - Cochin Thiyya Act - Section 13 and 4 - Code of Criminal Procedure,1973 - Section 125 - Suit for getting maintenance for the minor - Maintain any legitimate or illegitimate child as well as infirm parents - Suit for maintenance was filed by a minor girl through her next friend, the mother, claiming both past and future maintenance upto the age of attainment of majority against her father - Suit was decreed in part by granting maintenance to minor at rate for fifteen months and thereafter past maintenance at rate - Maintenance was also allowed at rate till the date of attainment of majority of minor girl - One-third of said amount was deducted on account of liability on her mother and father - Maintenance amount against father and casting 1/3rd liability on her mother - Defendant father came up with first appeal challenging liability mainly on reason that minor girl was well maintained by her mother who is an employed person and that mother is not competent to represent the minor as her next friend as she is a person having adverse interest against minor child.
Finding of the Court:
Father by virtue of Section 13 of Cochin Thiyya Act, 1107 cannot be sustained in view of Section 4 of Act - Legal proposition was settled by Apex Court case and as such, it is not at all necessary to go into decision rendered by this Court regarding liability which can be fastened against both father and mother - Contention was also raised by the respondent/defendant that though claim was for maintenance there is a pleading in plaint to effect that on getting maintenance amount it would be used for meeting marriage expenses of the child in future - Actual claim made by plaintiff is not for claiming maintenance amount or getting maintenance but for meeting the marriage expenses. On getting the maintenance amount party can make use of same for any purpose in accordance with their whims and fancies - Claim was raised for past maintenance as well as future maintenance amount can be utilized for their personal purposes or otherwise - Petition regarding marriage expenses and maintenance till date of getting married by unmarried girl issue was not addressed either by trial court or by first appellate court presumably on the reason that no relief was sought for in that behalf and hence that question need not be addressed at this stage.
Result: Appeals are allowed in part
JUDGMENT :
A suit for maintenance was filed by a minor girl through her next friend, the mother, claiming both past and future maintenance upto the age of attainment of majority against her father in O.S.No.558 of 1997 of the Munsiff's Court, Palakkad. The suit was decreed in part by granting maintenance to the minor at the rate of Rs.600/- from May, 1994 for fifteen months and thereafter past maintenance at the rate of Rs.1,000/- till the date of suit in the month of July, 1997. Future maintenance was also allowed at the rate of Rs.1,000/- till the date of attainment of majority of the minor girl. One-third of the said amount was deducted on account of liability on her mother and the father, the defendant, was directed to pay 2/3 of the amount under the decree. The decree was challenged before the first appellate court (District Court, Palakkad) by both the parties in A.S.Nos.96 and 98 of 1999. The minor plaintiff challenged the decree reducing the liability to 2/3rd of the maintenance amount against the father and casting 1/3rd liability on her mother. The defendant father came up with the first appeal challenging the liability mainly on the reason that the minor girl was well maintained by her mother who is an employed person and that the mother is not competent to represent the minor as her next friend as she is a person having adverse interest against the minor child. The first appellate court dismissed the appeal filed by the minor child in A.S.No.96 of 1999 and allowed the appeal filed by the defendant father in A.S.No.98 of 1999 by setting aside the decree passed by the trial court and the suit was dismissed. Aggrieved by the abovesaid verdict of the first appellate court, the minor plaintiff came up with these two second appeals. During the pendency of the appeals, she attained majority, which was recorded.
2. The dispute is pertaining to the interpretation of Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 and the obligation of father to maintain the minor child, when the child is capable to maintain himself/ herself out of his/her estate or earning.
3. The contention raised by the defendant regarding the liability to maintain the minor child based on sub-section (3) of Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act') was accepted by the learned District Court, the first appellate court. Discussions were made regarding sub-section (3) of Section 20 of the Act and entered into a finding that the minor when found to be maintained herself no liability can be fastened against the father.
4. So, the question arises for consideration is:
“Can the father or the mother be exonerated from the liability to maintain a minor child when the child is capable of maintaining himself/ herself out of his/her estate or earnings/income?”
5. Section 20 of the Act is extracted below for reference:
“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 stepmother.”
6. A mere perusal of sub-sections (1) to (3) of Section 20 of the Act would show that subsection (1) deals with the liability to maintain any legitimate or illegitimate child as well as infirm parents and sub-section (2) deals with the person who is responsible to maintain either legitimate or illegitimate child. It shows that so long as the child is a minor, either legitimate or illegitimate, he or she ca
