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2022 DIGILAW 197 (TS)

J. Mizna Khatoon D/o Moin Ahmed Khan v. J. Moin Ahmed Khan S/o Late Sri Khan

2022-03-11

A.RAJASHEKER REDDY

body2022
ORDER : 1. This Civil Revision Petition is filed against the order dated 05.01.2022 in OS (SR) No. 9952 of 2021 wherein and whereby the trial Court returned the petition as not maintainable, filed under Section 26, Rule 1 CPC, read with Sec.7 of Family Court Act, with a direction to the respondent to pay a sum of Rs.15,00,000/- towards marriage expenses. 2. Heard learned counsel for the petitioner who submits that though he relied on the Judgments of Apex Court and the Judgment of High Court of Kerala in support of his case, the Court below without considering the said Judgments and without stating any reasons has returned the petition as not maintainable. The Judgments relied on by the petitioner are as follows: (1) Judgment of Supreme Court in Abhilasha vs. Parkash and Others, 2020 CJ (SC) 525 (2) Judgment of Kerala High Court in Ismayil vs. Fathima, 2011 LAWS (KER) 954 (3) Judgment of Kerala High Court in Mat. Appeal No. 69 of 2015, dated 03.12.2021 3. The Kerala High Court in an identical case in Mat. Appeal No. 69 of 2015 by order dated 03.12.2021 held that the petition is very much maintainable since petitioner is a Muslim claiming marriage expenses from the respondent/father. But the trial Court without considering the Judgments cited by the petitioner, without recording any reasons held that the petition is not maintainable which is erroneous. 4. In this case it is to be seen that in most of the matters the trial Courts are returning the petitions, suits, without proper reasons. Sometimes, it is not even legible making it difficult for the appellate/revisional Courts as to what is the ground on which the petitions are returned. This is being done mechanically without application of mind and with insensitive approach. When a citizen approaches the Court, the Court should act with a sense of responsibility before rejecting their prayers. But, this is one such case where petition is returned without giving any reasons though the petitioner cited decisions before the trial Court in support of her claim. 5. The law laid down by the Apex Court in Abhilasha vs. Parkash case (cited supra) at para 26 reads as follows: “26. Muslim Law also recognizes the obligation of father to maintain his daughters until they are married. 5. The law laid down by the Apex Court in Abhilasha vs. Parkash case (cited supra) at para 26 reads as follows: “26. Muslim Law also recognizes the obligation of father to maintain his daughters until they are married. Referring to Mulla’s principle of Mohammedan Law, this Court in State of Haryana and others vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla’s Principles of Mohammedan Law (19th Edn.) Page 300].....” The Kerala High Court in Ismayil vs. Fathima (cited supra) held as follows: “30. The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers-be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese’s case, such a right/duty can be spelt out from Article 21 of the Constitution Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the oblige to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian Society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpreter has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpreter need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpreter as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.” The Kerala High Court in MAT. Appeal No. 69 of 2015 at para 10 held as follows: “10. Every child irrespective of his race, caste or religion has a remedy by way of a suit or petition under S.9 and O.XXXII A of the Code of Civil Procedure and Section 7(1)(e) of the Family Courts Act, 1984, to claim maintenance. A criminal liability is imposed by Section 125 of Cr.P.C. to a father irrespective of the faith or religion professed by him to maintain his children. Section 20 of the Hindu Adoptions and Maintenance Act, 1956 imposes a statutory obligation on the parents to maintain their legitimate or illegitimate children. Under the Muslim Personal Law administered in our country, a Muslim father is bound to maintain his sons until they have attained the age of puberty and his daughters until they are married. In Mathew Varghese (supra), it was held that Christian father is under an obligation to maintain his minor child. All Personal Laws oblige all fathers to maintain their unmarried daughters. On principles of justice, equity and good conscience also, a father is bound to maintain his child. There are Judgments of the Apex Court that the parties to a live-in relationship or non formal relationship who have lived together for an extended period of time could be brought within the purview of laws relating to maintenance [See Chanmuniya vs. Virendra Kumar Singh Kushwaha and Another, (2011) 1 SCC 141 , Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, (1998) 7 SCC 675]. We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children. We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children. The caste, faith or religion cannot have any rational basis for determining the parental duty of a father. All the children have to be treated alike irrespective of the faith or religion professed by the parents. We, hence, hold that the children of an inter-faith couple are entitled to be maintained by their father. No doubt, son’s entitlement is until he attains the age of the majority and that of daughter’s is until she gets married.” 6. When the petitioner relied on these Judgments, the Court is obligated to consider the same and pass a speaking order. 7. But, the Court below without going through the said Judgments and without recording any reasons, simply, held that petition is not maintainable. This approach cannot be appreciated. 8. In view of the above, without expressing any opinion on merits, the CRP is allowed setting aside the order dated 05.01.2022 in OS (SR) No. 9952 of 2021. It is for the petitioner to resubmit the same and the trial Court is to consider the law laid down by the Apex Court and take action accordingly. There shall be no order as to costs. 9. As a sequel thereto, miscellaneous petitions, if any, pending in this Revision Petition, shall stands closed.