Gulab Chand vs Sampati Devi on 19 November, 1986

    Gulab Chand vs Sampati Devi on 19/11/1986

ORDER

   R.P. Sethi, J.

   1. Are the minor children of the parties entitled to maintenance under the
provisions of the Hindu Marriage Act ?, is the question which requires
determination in this revision petition.

   2. I have heard the learned counsel for the parties and have perused the
record.

   3. Relying upon two judgments of this court reported in 1980 J & K LR 176 :
(AIR 1981 J & K 5) and 1983 Kash LJ 49 : (AIR 1982 J & K 95), the learned
counsel appearing for the petitioner has submitted that the order impugned
passed by the trial court in so far as it grants maintenance to the children is
liable to be set aside. It is argued that the children if aggrieved can have
recourse to other remedies for the grant of maintenance, such as, initiating
proceedings under Section 488, Cr. P.C. or filing suit under the Hindu Adoptions
and Maintenance Act, but cannot be granted maintenance under the Hindu Marriage
Act which governs the rights and obligations mainly of the parties to the
marriage and not for their children.

   4. Sections 24, 25 and 26 of the Central Act corresponding to Sections 30, 21
and 32 of the Jammu and Kashmir Hindu Marriage Act, hereinafter called the Act,
governs the provisions regarding the grant of maintenance pendente lite,
expenses of the proceedings, permanent alimony and provisions for the custody of
children by passing appropriate orders for their maintenance and education. A
combined reading of the aforesaid provisions would make it clear that the
legislature had intended to grant maintenance to the deserving-spouse or their
children. The reason for enacting the provisions for maintenance is obviously
that a wife or husband or their minor children who have no independent income
sufficient for his, her or their support or enough to meet the necessary
expenses of the proceedings may not be handicapped. The grant of maintenance was
considered necessary on social and moral grounds. The object behind being to
provide financial assistance to the indigent spouse to maintain herself or
himself during the pendency of the proceedings and also to have sufficient funds
to carry on the litigation so that the spouse does not unduly suffer in the
conduct of the case for want of funds. The provisions of Section 26 of the
Central Act corresponding to Section 32 of the State Act have been enacted to
safeguard the rights and interests of the children of the parties to the
proceedings under the Act. The intention to incorporate the aforesaid provision
is that the children of the parties should not suffer because of the follies
committed by their parents in their matrimonial ties. The Court has been
empowered to pass such orders and make such provisions which are deemed by it to
be just and proper regarding their maintenance. Orders under this section can be
passed at any time of the proceedings. The provisions are based upon the
principles of welfare of the society in general and to invest the powers of the
guardian upon the Court in order to look into and safeguard the interests of the
minors in particular. Similar provisions are made in Section 8 of the Special
Marriage Act, 1954, Section 41 of Divorce Act, 1869, 1949 of the Parsee Act
1936, Section 26 of the Matrimonial Cases (Causes?) Act, 1950 and Sections 17-19
of U. K. Matrimonial Proceedings and Property Act 1970. The amount which can be
allowed to the children is meant for their maintenance and education. The
meaning of the word "maintenance" is not restricted to include boarding and
lodging and some sort of education, But its scope can be enlarged under special
circumstances to include within its ambit any other contingency keeping in view
the social status of the parties and the children. The term maintenance even
though not defined under the Act would have the same meaning as is given to it
under Section 3(b) of Hindu Adoptions and Maintenance Act, by which it has been
provided that maintenance would include in all cases, provisions for food,
clothing, residence, education and material attendance and treatment and in the
case of an unmarried daughter also the reasonable expenses of and incident to
her marriage. While granting maintenance pendente lite to the wife or the
husband, as the case may be, the Courts are under an obligation to have regard
to the provisions of Section 26 and pass appropriate orders envisaged by the
aforesaid provisions. The provision for the grant of maintenance contemplated by
the aforesaid sections of the Hindu Marriage Act is in fact a revolutionary step
adopted in India for the first time, inasmuch as there is no corresponding
provision in any enactment relating to matrimonial lawsof the Western
civilisations by which a husband could file a petition for maintenance against
the wife or the child claim such a relief from his father or his mother. The
provisions of maintenance are however available to minor children alone are
distinguishable from the provisions of Section 488, Cr. P. C. where any child
can claim maintenance from his father notwithstanding his age but on proof of
neglect to refuse and maintain such a child. Similarly under the Hindu Marriage
Act, maintenance could be claimed from the mother as well for which no provision
is made under the ordinary criminal law. Giving any other interpretation would
amount to defeating the purpose for which the provisions were incorporated in
the Hindu Marriage Act. The authorities of this Court reported in 1980 J & K LR
176 : (AIR 1981 J & K 5) and 1983 Kash LJ 49 : (AIR 1982 J & K 95) are
distinguishable because they have not dealt with the provisions of Section 26 of
the Central Act and Section 32 of the State Act while passing the orders holding
that wife alone was entitled to get the maintenance and the children could not
be granted such a relief. It appears that the attention of the Court was never
drawn towards the aforesaid provisions specifically made for the grant of
maintenance to the children.

   5. It was argued by the learned counsel for the petitioner that as no
specific application was filed under Section 26 of the Act, the Court below
could not have granted the relief of maintenance in favour of the children.
However where it is proved that any one of the spouses has made an application
under Section 24 of the Central Act or Section 30 of the State Act for interim
maintenance, the Court is entitled to grant maintenance not only to such a
spouse but also for children when maintenance is claimed on their behalf by the
party filing such an application. If maintenance is allowed to any of the
spouses only, the same would be meaningless if it does not provide for the
maintenance of the children living with such a spouse unable to maintain himself
or herself. While dealing with such a situation it was held in (1974) 2 Andh WR
359 "that while granting maintenance pendente lite to the wife or to the
husband, as the case may be, regard should also be had to Section 26. While
Section 24 of the Act provides for granting maintenance to the wife or the
husband as the case may be, Section 26 speaks of passing interim orders and also
making provisions in the decree by the Court with regard to custody, maintenance
and education of the minor children consistently with their wishes. When the
wife makes an application under Section 24 of the Act, to the Court for the
grant of interim maintenance to the children also, the Court can grant relief to
the children under Section 26 wherever it considers just and proper." Similarly
Karnataka High Court in AIR 1976 Kant 215 held : "Be that as it may, it seems to
me that when a wife claims maintenance and she has some children of her own to
support and maintain, any interim maintenance that may be awarded to the wife
would be meaningless if the same was not intended to provide for the maintenance
of the children also. In my view, the enunciation of the High Court of Andhra
Pradesh with which I am in respectful agreement, is clearly applicable to the
facts of the present case." Again the Division Bench of Karnataka High Court in
Smt. Subhasini v. B. Rule Umakanth, AIR 1981 Kant 115 held that, "where an
application for maintenance was filed under Section 24 with an averments of the
existence of minor child the Court could make an order awarding maintenance
pendente lite in respect of minor child as well as the applicant having regard
to the provisions of Section 26 of the Hindu Marriage Act. No separate
application is required to be made under Section 26 of the Central Act. It is
sufficient if the material averments are made in the application under Section
24 of the Hindu Marriage Act and evidence produced in support thereof." Under
similar circumstances it was held in AIR 1974 Raj 93, ''that where no separate
application under Section 26 was made nor separate maintenance was demanded for
children, but it was clear from the wife's application under Section 24 and
affidavit that in making demand for maintenance for herself, she had included
the expenditure she was incurring over maintenance of her children it was held
that Court would be justified in fixing amount of maintenance taking note of the
fact that she was maintaining her minor children out of her income." It was also
held by the Calcutta High Court in case Manoj Kumar Jaiswal v. Smt. Lila Jaiswal
reported in (1986) 2 Cur CC 991 (992): (AIR 1987 Cal 230 at p. 231) :-- "It is
also true that Section 24, in terms, provides pendente lite maintenance for the
spouse only and not for the children of marriage. But Section 26 invests the
Court with full jurisdiction to pass, from time to time, such interim orders for
maintenance of minor children as the Court may deem just and proper. It should
also be noted that while Section 24 requires for its operation an application
from the spouse concerned, the provision of Section 26, so far it relates to
interim maintenance, may be invoked even without any application in writing and
a formal application in writing is necessary under Section 26 only for awarding
maintenance and other reliefs after the decree. The learned Judge, therefore,
had perfect jurisdiction to grant pendente lite maintenance to the minor child
even without a formal application and, therefore, his granting such interim
maintenance even when moved by an application labelled as one under Section 24
only cannot be branded as without jurisdiction or to involve any jurisdictional
question even though Section 24 does not provide for maintenance for children."

   6. In view of this the judgments of this Court reported in 1980 J & K LR 176
: (AIR 1981 J & K 5) and 1983 Kash LJ 49 : (AIR 1982 J & K 95) are clearly
distinguishable and it cannot be said that the children as general rule are not
entitled to the grant of maintenance under the provisions of Hindu Marriage Act.
The Court exercising powers under the Hindu Marriage Act has the powers to grant
appropriate relief in the form of maintenance for the children of the parties as
welt.

   7. In the instant case the petitioner wife had demanded litigation expenses,
maintenance for herself and for her two minor children. On appreciation of the
evidence led in the case the trial Court came to the conclusion that she was
entitled to the payment of Rs. 150/- as litigation expenses and Rs. 200/- as
maintenance pendente lite for herself and her two children living with and
dependent upon her. In exercise of my revisional powers I cannot disturb the
finding of fact arrived at by the trial Court regarding the liability of the
petitioner for paying the maintenance to his wife and children.

   8. For the reasons stated hereinabove I do not find any force in this
revision petition which is hereby dismissed but under the circumstances no order
as to costs. Stay granted by this Court on 31-7-1985 shall stand vacated and
C.M.R No. 192 of 1985 disposed of.