Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 1284 (HP)

MASTER MOHAN SINGH ALIAS SHEERKHAR v. PREM NATH

2009-12-15

DEV DARSHAN SUD

body2009
JUDGMENT Dev Darshan Sud, J.- This appeal has been preferred by Master Mohan Singh against the judgment of the learned District Judge, Kinnaur Civil Division at Rampur Bushahr passed in Civil Suit No.10 of 2003. 2. The suit out of which this appeal arises was preferred under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the `Act’) on the allegations that the respondent is the father of the appellant-plaintiff herein. It was pleaded that the respondent was working as a School Teacher in Government High School, Deothi in 1988-89. He developed illicit relations with Smt. Sewa Dassi who gave birth to the plaintiff on 30.3.1989. The respondent-defendant wanted to settle the matter with Smt. Sewa Dassi by paying her Rs.5000/-, but this offer was rejected. 3. Proceedings under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the `Code’) were instituted by the plaintiff in which she was granted Rs.500/- per month as maintenance. On the pleadings of the parties, four issues were settled by the learned trial Court. The first issue deals with the entitlement of the plaintiff-appellant for the maintenance on the allegations as made in the plaint. This was the crux of the entire case and the findings on the other issues were dependent upon it. On a conspectus of the entire evidence, the Court concluded that the plaintiff was the illegitimate son of the defendant-respondent and granted him maintenance of Rs.1000/- per month which would be in addition to the amount allowed to the plaintiff by way of maintenance under Section 125 of the Code. The plaintiff is now in appeal only on the limited issue that the amount granted to him was less and the same has been granted with effect from 14.5.2004. 4. I have heard learned counsel for the parties and have gone through the record of the case. 5. Section 20 of the Act deals with the entitlement of a child for maintenance. It provides:- “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. (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 parent or a daughter who is unmarried extends in so far 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.” 6. The Section is clear and unequivocal that maintenance can be claimed by a child so long he is a minor. Section 3(c) of the Act defines a minor as:- “3(c)“minor” means a person who has not completed his or her age of eighteen years.” 7. The plaintiff-appellant having been born on 30.3.1989 would cease to be a minor on 18.3.2001. Learned counsel appearing for the appellant submits that the appeal does not survive and deserves to be dismissed. This submission cannot be accepted. It is the quantum of maintenance to which the plaintiff-appellant is entitled to till he has attained majority which is to be determined and is the subject matter of this appeal. Maintenance has been defined in Section 3(b) to mean:- “3(b) “maintenance” includes-(i) in all cases, provision 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.” 8. It is, thus, clear that provision for decent food, clothing, residence, education and medical attendance and treatment etc. is the statutory requirement. 9. The learned District Judge has lost sight of the fact that Rs.1,500/- is too meager an amount in which all these needs of the plaintiff-appellant could have been taken care of. It is urged by learned counsel appearing for the respondent that the case no longer requires adjudication since the appeal has become infructuous. This submission cannot be accepted. For fixing of the quantum of maintenance, Section 23 of the Act mandates:- “23. It is urged by learned counsel appearing for the respondent that the case no longer requires adjudication since the appeal has become infructuous. This submission cannot be accepted. For fixing of the quantum of maintenance, Section 23 of the Act mandates:- “23. Amount of maintenance.-(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable. (2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to- (a) the position and status of the parties; (b) the reasonable wants of the claimant; (c) if the claimant is living separately, whether the claimant is justified in doing so; (d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earnings or from any other source; (e) the number of persons entitled to maintenance under this Act. (3). In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to- (a) the net value of the estate of the deceased after providing for the payment of his debts; (b) the provision, if any, made under a will of the deceased in respect of the dependant; (c) the degree of relationship between the two; (d) the reasonable wants of the dependant; (e) the past relations between the dependant and the deceased; (f) the value of the propertyof the dependant and any income derived from such property, or from his or her earnings or from any other source; (g) the number of dependants entitled to maintenance under this Act.” 10. I do not find that the learned Court has taken these factors into consideration. Simply saying that the take home salary of the respondent is 10,000/-rupees per month from gross emoluments of Rs.12,805/-is not a consideration of the statutory requirements as provided by the Act. In these circumstances all that I need say is that the Court has abandoned its judicial role as mandated by law and has taken recourse to rough guess work for awarding maintenance which is impermissible. In these circumstances all that I need say is that the Court has abandoned its judicial role as mandated by law and has taken recourse to rough guess work for awarding maintenance which is impermissible. The Court had to take into consideration that the salary of the respondent was likely to be revised from time to time and that the needs of the plaintiff-appellant were to be determined in terms of Section 3(b) of the Act. The factor of inflation and increase in the salary of the respondent required to be considered. In these circumstances, what the plaintiff and his mother were entitled to, would be at least Rs.2,500/- per month, out of which Rs.1,500/- were being paid to him i.e. Rs.1,000/- as granted by the District Judge from the date of decision of the case and Rs.500/- per month being paid to him by the defendant-respondent under Section 125 of the Code of Criminal Procedure. The Court should have been alive to this situation that it was two persons who were granted maintenance and not one. Rs.750/- per month to an individual can hardly be considered as money sufficient to keep his/her body and soul together. 11. This appeal is accordingly allowed. The judgment of the learned District Judge is modified to the extent that the quantum of maintenance is determined at Rs.2,000/- per month from the date of institution of the suit till the appellant attains majority i.e. to say from 23.5.2001 to 30.3.2007. There shall be no order as to costs.