kids maintenance should be shared by both parents : Supreme Court

Appeal (civil) 2462 of 1999
DATE OF JUDGMENT: 28/03/2000
2000 (2) SCR 621
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 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 vary any such orders and
provisions previously made .
Jaipur. Appellant is also aggrieved by the order of the courts below not
granting her full claim of ’streedhan’, litigation expenses, etc.
Both the parties are Hindu. Their marriage was solemnized in accordance
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 guardi-anship 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 under
Section 125 of the Code @ Rs. 250 per month for each child. On April 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
Family Court by order dated September 13, 1997 consolidated both the
proceedings – one under Section 13 of the Act for dissolution of the
marriage and the other under Section 26 of the Act. On October 4, 1997
Family Court granted decree of divorce in favour of the wife dissblving 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 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 Rs. 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 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 certain 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
marriage which we are not going to disturb. As far as costs and special
costs are concerned that again is within the discretion of the court and
unless some weighty reason is shown 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
persistently by the husband in delaying the trial before the Family Court.
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 applica-tion 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 application
at this stage. If circumstances have changed for enhancement of maintenance
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
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 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 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 are 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. 3,100 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 sufficient 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
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 respondent has
already been paying to the children @ Rs. 250 per month under Section 125
of the Code. Respondent shall be entitled to makes adjustment 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 as
respondent has chosen not to appear.