Child maintain expenses to bear by both the parents

Maintanence of child is co-extensive when both the parents are working 

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.

Child can claim maintenance u/s 125 from mother

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Madhya Pradesh High Court

Madhuri Bai vs Minor Surendra Kumar And Anr. on 24/4/1998

ORDER

V.K. Agarwal, J.

1. This petition under Section 482 of Cr.P.C., has been filed as the petitioner-mother feels aggrieved by the order dated 10-2-98 in Cr. Revision No.181/96, by 1st A.S.J. Raigarh, affirming the order dated 3-7-96 of Judicial Magistrate First Class, Saranggarh in Misc. Cr. Case No. 56/95, granting maintenance in favour of the minor sons of the petitioner under Section 125 of Cr.P.C.

2. The facts leading to the present petition are that the non-applicants-minor sons of the petitioner filed an application under Section 125 Cr.P.C.,through their grand-father as their guardian, claiming amount of maintenance against their mother- the present petitioner. The father of the non-applicants had died while in service as Helper in the M.P.E.B.. His wife- the present petitioner is admittedly receiving family pension after the death of her husband. The trial Court allowed the petition of minor sons-the non-applicants and granted maintenance of Rs. 200/- to each of them. The order was confirmed in revision by the 1st Addl. Sessions Judge.

3. The learned counsel for the petitioner has urged that under Section 125 of Cr.P.C. only the father can be directed to pay maintenance to the minor sons,and that under the said provision the mother was not under an obligation to pay maintenance to her minor sons. In this connection reliance has been placed on a decision of Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana (1989 Cri.L.J. 2032). It was, therefore, submitted that the order of the Magistrate granting maintenance and the order in revision directing the petitioner-mother to pay maintenance to her minor sons, is illegal. It has also been urged that though the petitioner is willing to keep her sons with her, but they are refusing to live with her, and therefore, she is not liable to pay any amount towards their maintenance.

4. It may be noticed that Section 125(1) of Cr.P.C. reads as below :–

“Order for maintenance of wives, children and parents :– (1) If any person having sufficient means neglects or refuses to maintain–

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.”

5. It would appear from Clause (b) of Section 125 (1) of Cr.P.C., that a person can be directed to pay monthly allowance of his minor child, if:–

(a) such person is having sufficient means; and

(b) neglects or refuses to maintain his minor child.

The liability as above for payment of monthly allowance towards maintenance arises irrespective of the considerations as to whether such minor child is legitimate or illegitimate or whether he is married or unmarried.

6. It is not in dispute that the non-applicants are the sons of the petitioner and are minors. Therefore, the question for consideration is whether the mother is liable to pay maintenance under Section 125(1)(b) of Cr.P.C. ?

7. It is true that in Clause (b) of Section 125 of Cr.P.C., the word used are ‘his’ legitimate or illegitimate minor child, and on that basis, it has been tried to be urged by the learned counsel for the petitioner that a mother would not be covered under this clause and cannot be held to be liable to pay maintenance. However, it may be noted that the opening words occurring in Section 125 (1) of Cr.P.C., indicate that any ‘person’ having sufficient means on refusal or neglect can be directed to pay the amount of maintenance. The word ‘person’ in the above clause would include a male or a female. Hence, though in Clause (b) Section 125 (1) Cr.P.C., the word ‘his’ is used, it cannot mean and relate to only a male. It may be noticed in this connection that Section 8 of Indian Penal Code, lays down that the pronoun ‘he’ and its derivates are used for any person, whether male or female. Further, Section 13 (1) of the General Clauses Act provides that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females.

8. Therefore, the pronoun ‘his’ occurring in Section 125(1) (b) Cr.P.C.,would mean and include ‘male’ and ‘female’ both. In other words, both parents whether he or she be mother or father, would be liable to pay maintenance to the minor child, if other conditions under Section 125 (1) of Cr.P.C., are fulfilled.

9. In the above connection reference may be made to Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai and Anr. (AIR 1987 SC 1100) wherein a similar contention with reference to Section 125 (1) (d) was raised. It was held therein that the pronoun ‘his’ occurring in the said provision denotes also a female in view of the provisions of Indian Penal Code, as well as the General Clauses Act.
Accordingly, it was ruled that a daughter would also be liable to pay maintenance to the parents, if the Court is satisfied that she has sufficient means and has her own income, and that the father or the mother as the case may be, is unable to maintain himself or herself.

10. In view of above, it is clear that the petitioner- mother would be liable to pay maintenance under Section 125(1) (b) of the Code of Criminal Procedure.
She cannot escape liability to pay maintenance simply because in Clause (b) of Section 125 (1) of Cr.P.C. word ‘his’ has been used. The case of T.P.S.H. Salva Saroja (supra) relied upon by the learned counsel for the petitioner would be of no assistance to her as the facts thereof and the matter of consideration has no bearing to the facts of the present case. In the said case the daughter had claimed maintenance against the mother on the ground that the movement of her mother with another person had caused damage to the reputation of her family,and had also caused injury in the mind of the daughter. It was held therein that the said injury to the mind of the daughter could not come within the scope of injury contemplated under Section 125 (1) (c) of Cr.P.C., and, therefore, it was held that the daughter would not be entitled to invoke the provisions of Section 125 of Cr.P.C., to claim maintenance from her mother. However, the question involved and decided in that case do not relate to and cannot be of any assistance to decide the present case.

11. The learned counsel for the petitioner has also contended that the petitioner is not liable to pay maintenance to her sons-the non-applicants as they are refusing to live with her on the instigation of the grandfather, who has filed petition for grant of maintenance on their behalf as their guardian.
However, it is noticed in this connection that the learned Judicial Magistrate has in his order dated 3-7-96 recorded that the non-applicants have expressed that they do not wish to live with their mother. It may be noticed that the non-applicants though are minors aged about 13 and 8 years respectively, but were in a position to express their willingness or unwillingness to live with the petitioner-mother. Their disinclination to live with their own mother speaks volumes about the conduct and mutual relations between the petitioner and her minor sons, as normally the minor sons would not have shown such a disinclination to live with their own mother without some vital and gross reasons. Therefore, the contention of the learned counsel for the petitioner that since the non-applicants are not willing to live with the petitioner-mother, she is not liable to pay any amount of maintenance to them, cannot be accepted.

12. Accordingly, no exceptional circumstances have been brought-forth so as to justify exercise of inherent powers under Section 482 of Cr.P.C..
Consequently, no interference in the order passed by the Courts below granting maintenance to the minor sons of the petitioner appears to be called for.
Therefore, this petition has no merit and is dismissed.