@ Author go by Tajobs above post and here is a judgement below wherein the childs expenses are co-extensive
Supreme Court of India
Padmja Sharma vs Ratan Lal Sharma on 28/3/2000
JUDGMENT
D.P. Wadhwa, J.
1. 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 26^1
of the Hindu Marriage Act, 1955 (for short the ‘Act’) in the Family
Court, Jaipur Appellant is also aggrieved by the order of the Courts
below not granting her full claim of streedhan, litigation expenses,
etc.
2. 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 filed petition for dissolution of marriage on May
21, 1990. She also prayed therein for return of her ‘streedhan,’
custody and guardianship of the children and also for their
maintenance. At the same time she also filed an application under
Section 125 of CrPC (Code).
3. 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.
4. Family Court by 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.’
5. 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, 1996 yet
another application was filed by wife under Section 26 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
month.
6. 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 dissolving
the marriage between her and the respondent. Against claim of Rs.
1,80,000/- towards ‘streedhan’ Family Court granted a decree of Rs.
l,00,000/- as cost of the Articles which prayer was granted in the
alternative if the respondent did not return the article 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:
7. 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 expenses for the two
children….” High Court also observed that the respondent was
“admittedly employed in a responsible position in the Reserve 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. l,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.
8. 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 do 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 riot 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.
9. Respondent before us has not appeared instead of notice to him. We
have heard the arguments 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 application appears to be to further enhance the amount
of maintenance taking into account the charged 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 modification.
10. 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 Guardanship 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 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 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 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
20^2 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.
11. 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
mentioned 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.
12. 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 parent 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 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 (c) Rs. 1.500/- per month
from 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 make adjustment of the
amounts which he has already paid under orders of the Family Court.
High Court or the interim order of this Court.
13. The appeal is thus partly allowed. There shall be no order as to
costs as respondent has chosen not to appear.
1. 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 right 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 order and provisions previously made.
2. 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
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.
From your post if i am not mistaken it seems that your wife is working so please note that child maintanence is co- extensive and both would have to bear the expenses of the child .
