The main legal point established in the judgment is the entitlement of unmarried daughters to maintenance under the Hindu Adoptions and Maintenance Act, 1956, and the non-maintainability of appeals against certain orders under the Act.

Sharad Kumar Sharma, J.

The Hindu Adoptions and Maintenance Act, 1956 is a codify law for the purposes of adoptions and maintenance of the dependants as defined under Section 21 of the Act. The basic purpose of the said Act is to provide equality in the States and its recognition in the matter of adoptions and maintenance. The applicability of the Act is to bring about the uniformity and for codifying the law of maintenance and adoption.

2. In the present Appeal from Order, the issue with which we are concerned relates to the maintenance which is contained in Chapter III of the said Act. The maintenance under Section 20 of the said Act it is the responsibility which is being vested for maintenance to be borne by the parents of the children or by the children of the aged persons.

3. Mr. Anil Kumar Joshi, learned counsel for the appellant has tried to bring his case within the ambit of sub Section (2) of Section 20 of the said Act which reads as under:-

“20. Maintenance of children and aged parents.

(1)……

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor”.

4. The factual backdrop in this case was that admittedly, the claimant (respondent herein) who has filed the application for maintenance is an unmarried daughter of Ashish Ray (appellant herein the father of the respondent). She brought her case on the ground that she was born on 15.04.1989 the appellant was working as Head Clerk in the Railways and the appellant has deserted respondent’s mother without giving the divorce, hence she for the purposes of her higher qualification, needs financial assistance by way of maintenance to pursue her future studies.

5. This application of respondent was on the ground that she will be falling as to the “dependent” as defined under Section 21(v) of the said Act which casts a responsibility for maintaining of the dependants which includes the unmarried daughter. As per Section 21(v) reads as under:-

21. Dependants defined.—For the purposes of this Chapter “dependants” mean the following relatives of the deceased:—

(i) ……………

(ii) …………..

(iii) ………..

(iv) …………

(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried: provided and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her father’s or mother’s estate and in the case of a great-grand-daughter from the estate of her father or mother or father’s father or father’s mother;

6. In the proceedings before the court below initiated by the respondent, the appellant filed an application under Order 7 Rule 11 praying that the application for maintenance under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 as filed by the respondent is not maintainable in view of the fact that the application for maintenance as filed lacked the pleadings pertaining to the inability to maintain and there is no plea that respondent cannot maintain herself. It was also pleaded that since the respondent has attained majority, this application would not be maintainable. Learned counsel for the appellant submitted that in the absence of there being a pleading to the effect of inability to maintain, the application it would be barred by the Order 7 Rule 11 of the Code of Civil Procedure.

7. The said application under Order 7 Rule 11 came up for consideration before the court below i.e. Family Court, Nainital and the same was rejected by the impugned order dated 28.08.2012.

8. Learned court below while dealing with the grounds taken in the application under Order 7 Rule 11 recorded a finding that, the plea was raised in para 12, 13 and 14 of the application under Section 21 of the Hindu Adoptions and Maintenance Act, 1956. The appeal was admitted granting the interim order and the proceedings before the court below was kept in abeyance. The matter has come up for final