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2006 DIGILAW 697 (BOM)

P. Shiva Kumar v. Panchanagula Venkata Nagalaxmi

2006-04-26

B.SESHASAYANA REDDY, D.S.R.VARMA

body2006
D.S.R. VARMA, J: - Heard both side. 2. For the reasons stated in the affidavit, filed in support of the application, the delay of 60 days in filing the Family Court Appeal is condoned. 3. Accordingly, the application F.C.A.M.P.No.27 of 2006 is ordered. 4. This Family Court Appeal is directed against the order and decree, dated 166 - 2005, passed by the Judge, Family Court, Warangal, allowing the application IA.No.24 of 2002 in I.A.No.104 of 1996 in O.P. No.83 of 1996, filed under Section 25(2) of the Hindu Marriage Act, 1955 (for brevity "the Act") seeking to enhance the maintenance amount granted to the petitioners therein from Rs.1,000/ - each to Rs.2,0001 - each from the date of petition. 5. The appellant is the husband, respondent No.1 is the wife and respondent Nos.2 and 3 are the daughter and son of the appellant and respondent No.1. 6. For the sake of convenience, in this judgment, the appellant, respondent No.1 and Respondent Nos.2 and 3 will be referred to as "the husband", "the wife" and "the children", respectively. 7. O.P. No.83 of 1996 was filed by the wife under Section 9 of the Act seeking to grant a decree of restitution of conjugal rights, which was allowed by the Court below by judgment and decree, dated 18 - 11 - 1996. Later on, the wife and children filed an application I.A. No.104 of 1996, under Section 25 of the Act seeking to issue a direction to the husband to pay a sum of Rs.1,000/ - per month each to the wife and children towards interim maintenance. 8. The Court below, having considered the matter, granted maintenance at the rate of Rs.1,000/ - per month each to the wife and children, who were minors, as on the date of filing of the O.P., as well as filing of the said application (I.A. No. 104 of 1996). 9. Subsequently, the wife and children filed the present application I.A. No.24 of 2002, under Sections 25(2) and 26 of the Act seeking to enhance the amount of maintenance granted in their favour from Rs.1,000/ - per month each to Rs.2,000/ - per month each from the date of petition. The said application had been allowed by the Court below by enhancing the interim maintenance earlier granted to the wife and children from Rs.1,000/ - per month each to Rs.2,000/ - per month each. The said application had been allowed by the Court below by enhancing the interim maintenance earlier granted to the wife and children from Rs.1,000/ - per month each to Rs.2,000/ - per month each. Challenging the said order of enhancement, the present Family Court Appeal is filed by the husband. 10. The contention of the learned Counsel appearing for the husband is three - fold - firstly, the husband is the natural guardian and therefore he need not pay any maintenance to the children, secondly, the wife is already employed earning substantially and thirdly, under the provisions of the Hindu Marriage Act, particularly under Section 25(2) of the Act, children are not entitled to any maintenance. To substantiate his contentions, the learned Counsel appearing for the husband relies on the judgment of a learned Single Judge of this Court in Akella Rama Murthy Vs. Akella Sitalaxmi, 2005(6) ALD 108 : 2006(3) ALL MR(JOURNAL) 31. 11. In this context, it is apposite to notice the provisions of Section - 24 of the Act, dealing with interim maintenance, pendent lite, which read thus: "Section 24 - Maintenance pen dents lite and expenses of proceedings: - Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, It may seem to the Court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be." 12. Section - 25 of the Act, which deals with granting of maintenance to the parties to the proceedings, reads thus: "Section 25 - Permanent alimony and maintenance: - (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub - section (1) it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the Court is satisfied that party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just." 13. A bare reading of the provisions of Sub - section (1) of Section 25 of the Act makes it abundantly clear that maintenance can be granted by the Court, exercising jurisdiction under Section 25 of the Act, either at 'the time of passing the decree or at any time subsequent thereto on an application made in that regard by the concerned party to the proceeding. 14. 14. Sub - section (2) of Section 25 of the Act postulates that subject to the satisfaction of the Court, the amount of maintenance granted earlier, either under Section 24 or under Section 25 of the Act, can be modified, rescinded, or varied, basing on the facts and circumstances of the case and as deemed it fit. 15. The provisions of Section 26 of the Act, which deal with 'custody of children' and also granting of maintenance to the children, run thus: "Section 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 after 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: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service on the respondent." (emphasis supplied by us) 16. The language employed by the legislature in Section 26 of the Act is similar to that of the language employed in Sub - section (2) of Section 25 of the Act insofar as the authority of the Court in modifying, rescinding or varying the order passed by it earlier in granting maintenance, is concerned. This is all the more explicit from the particular unambiguous language, employed in Section 26 of the Act, which has been emphasized by us supra. 17. But, Section 26 of the Act specifically ordains that interim maintenance can be granted to the minor children only. This is all the more explicit from the particular unambiguous language, employed in Section 26 of the Act, which has been emphasized by us supra. 17. But, Section 26 of the Act specifically ordains that interim maintenance can be granted to the minor children only. The object of the legislation is obvious to the effect that during the pendency of the litigation, either under Section - 13 or under Section 9 of the Act between the spouses, the minor children shall not be subjected to destitution and neglect. In other words, there shall not be any hardship to the minor children, in any manner whatsoever, during the pendency of disputes between the parents. 18. Furthermore, it is to be seen that in the initial application I.A. No.104 of 1996, filed by the wife and children, wherein and whereby the Court below had granted interim maintenance to the wife and children, was filed under Sections 25 and 26 of the Act. Subsequently, as already noticed, the amount of Rs.1,000/ - per month each, granted towards maintenance to the wife and children, was sought to be enhanced to Rs.2,000/ - per month each in application I.A.No.24 of 2002, which was also allowed by the Court below. 19. In view of the very fact that the initial application I.A. No.104 of 1996, filed by the wife and children seeking to grant interim maintenance at the rate of Rs.1,000/ - per month each, was allowed by the Court below, now it is not open to the learned Counsel appearing for the husband to contend that the husband is not obliged to maintain the children under Section 25 of the Act. Therefore, the said contention of the learned Counsel appearing for the husband that the husband, who is the father and natural guardian of the children, need not maintain the children, since the same is not provided under Section 25 of the Act, cannot be accepted. 20. Therefore, the said contention of the learned Counsel appearing for the husband that the husband, who is the father and natural guardian of the children, need not maintain the children, since the same is not provided under Section 25 of the Act, cannot be accepted. 20. Insofar as the judgment relied upon by the learned Counsel appearing for the husband in Akella Rama Murthy's case [2006(3) ALL MR (JOURNAL) 31] (supra), is concerned, the learned Single Judge of this Court had elaborately dealt with the relative scope of Section 125 of the Code of Criminal Procedure and Section 24 of the Hindu Marriage Act and, eventually, held that since the right to claim maintenance is not conferred under the provisions of the Hindu Marriage Act, such a facility is made available under Section 125 of the Code of Criminal Procedure and the Hindu Adoptions and Maintenance Act, 1956. 21. No doubt, those two Acts viz., Code of Criminal Procedure and the Hindu Adoptions and Maintenance Act, do contain provisions for grant of maintenance to the children. In those provisions, "children" mean, not only the 'minor children' but also the 'unmarried major daughters'. In other words, the rights of the children, depending upon the age, particularly major children, are carved out in specific terms under Section 125 of the Code of Criminal Procedure and the provisions of Hindu Adoptions and Maintenance Act, 1956. 22. But, the date line between the Hindu Marriage Act and the other Acts is Section 26, incorporated under the Hindu Marriage Act. 23. As already pointed out, Section 26 of the Act takes care of the welfare of the minor children during the pendency of any of the proceedings under the Act. This is manifest from the language employed in the very opening words of Section 26 of the Act. 24. Therefore, the availability and the effect of Section 26 of the Act, unfortunately, was not brought to the notice of the learned Single Judge of this Court in Akella Rama Murthy's case [2006(3) ALL MR (JOURNAL) 31] (supra). Hence, it appears that the same had not fallen for consideration before the learned Single Judge in that case. Had it been brought to the notice of the learned Single Judge of this Court, in all probability, we are of the view that the judgment of the learned Single Judge in this regard would have been otherwise. 25. Hence, it appears that the same had not fallen for consideration before the learned Single Judge in that case. Had it been brought to the notice of the learned Single Judge of this Court, in all probability, we are of the view that the judgment of the learned Single Judge in this regard would have been otherwise. 25. The next question that falls for consideration in this appeal is - as to whether the children, who are daughter and son, are eligible for the maintenance as on today or not? 26. In this regard, it is to be seen that the date of birth of the daughter (Respondent No.2 in the appeal) was stated as 9 - 6 - 1983, which obviously means that as on today she is aged about 23 years, crossing the age of minority. Therefore, she has to be essentially taken as a 'major' as on today. Similarly, the date of birth of the son (Respondent No.3 in the appeal) was stated as 6 - 11 - 1986, which obviously means that as on today he is aged about 20 years, crossing the age of minority and hence he has to be essentially taken as 'a major' as on today. 27. In view of the ages, as stated in the cause - title of the appeal, both the daughter and the son cannot be categorized as 'minors'. 28. Therefore, both the daughter and son do not fall within the scope of Section 26 of the Act and the benefit, which had been extended to them initially in I.A. No.104 of 1996, as extended in I.A. No.24 of 2002, of granting interim maintenance at the rate of Rs.1,000/ - per month each initially and was enhanced later from Rs.1,000/ - per month each to Rs.2,000/ - per month each need not be continued and the same has to be dispensed with automatically by necessary implication in the light of the language employed in Section 26 of Act. 29. Therefore, to that extent, the Family Court Appeal, filed by the husband, has to be allowed. 30. However, we do not find any reason to interfere with the impugned order insofar as it relates to enhancement of maintenance from Rs.1,000/ - per month to Rs.2,000/ - per month to the wife (Respondent No.1 herein). 31. For the foregoing, the Family Court Appeal is allowed in part. 30. However, we do not find any reason to interfere with the impugned order insofar as it relates to enhancement of maintenance from Rs.1,000/ - per month to Rs.2,000/ - per month to the wife (Respondent No.1 herein). 31. For the foregoing, the Family Court Appeal is allowed in part. However, there shall be no order as to costs. 32. It is made clear that the children, who are daughter and son (Respondent Nos.2 and 3 herein), can work out their remedies in appropriate Court by initiating appropriate proceedings, as permissible under law. 33. However, the amounts already paid towards interim maintenance to the children, who are daughter and son (Respondent Nos.2 and 3 herein), after they attained the age of majority, shall not be subjected to recovery by the appellant in view of the admitted relationship between the appellant and Respondent Nos.2 and 3, being father and children, respectively. Appeal partly allowed.