Mrs. L. Hilt vs V. Hilt on 4 September, 1942

    Mrs. L. Hilt vs V. Hilt on 4/9/1942

ORDER

   Collister, J.

   1. In 1934 the applicant was directed by this Court to pay maintenance at the
rate of Rs. 35 per mensem for his minor daughter Charlotte Hilt. He has
apparently been paying this sum regularly upto date ; but he now applies for an
order permitting him to stop such payment for the reason that his daughter is no
longer a "minor child" within the meaning of Section 44, Divorce Act. There is
also a prayer in the application that such money as has been deposited by him in
Court and is still unpaid be refunded to the applicant; but his learned Counsel,
does not press this prayer. The opposite party, Charlotte Hilt, has put in an
affidavit in which she admits that she reached the age of majority--by which she
means the age of 18--on 22nd February of this year and she also admits that
"strictly speaking" she is not legally entitled to any further maintenance after
13th August 1942, on which date this application was preferred by her father.
But she says that she is undergoing a course of commercial training in the
Girls' High School at Allahabad, which will ordinarily continue until the end of
the year, and she prays that in the exercise of its discretion under Section 44
of the Act this Court may direct the applicant to continue paying her
maintenance upto 31st December of this year ; otherwise she will be unable to
finish her course of training. Her learned Counsel contends that this Court has
a wide discretion; and in support of this contention he has referred to
Thomasset v. Thomasset (1894) L.R. 1894 P. 295. That decision is authority for
holding that in England a Court can direct the payment of maintenance to a minor
boy who is over 16 years of age and to a minor girl who is over 14 years of age
when they have not reached the age of

   21. But in Section 3(5), Indian Divorce Act, the expression "minor children"
--which occurs in Section 44--is defined as sons of Indian fathers who have not
completed the age of 16 and daughters of Indian fathers who have not completed
the age of 13, while in all other cases it means unmarried children who have not
completed the age of 18 years.

   2. As I have said, learned Counsel for the opposite party invokes the
exercise of my discretion. But the only discretion allowed under Section 44 is
in the matter of granting maintenance for minor children there is no discretion
as regards maintenance for children who have ceased to be minor children under
the definition contained in Section 3(5) of the Act. The English law cannot be
invoked to widen the discretion of the Courts in India. It was held in Iswarayya
v. Iswarayya ('30) 17 A.I.R 1930 Mad. 154, that there is no power under the Act
to make any provision for children who are no longer minor under the Act; and if
I may respectfully say so, this view is clearly right. If it were in my power to
do so, I should willingly allow the respondent to receive maintenance upto the
end of the year, but for reasons which I have given I am of opinion that this
Court is not competent to pass any such order. I accordingly allow this
application with costs and direct that this Court's order for payment of
maintenance shall cease to have effect from the date of this application. The
money which is lying in deposit in this Court will be paid to the opposite
party.