Mansi D/O Aniruddha Pusalkar vs Aniruddha Ramchandra Pusalkar
2002 Latest Caselaw 259 Bom

JUDGMENT

H.L. Gokhale, J.

1. The appellants in these two Appeals are daughters of the sole respondent. As of now they are aged 22 and 20 years respectively. The respondent herein has filed a petition for divorce against the mother of the appellants i.e. one Smt. Smita Pusalkar. That proceeding is pending. During the pendency of that proceeding, both these daughters filed two separate petitions under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (for short, the said Act) before the Family Court at Pune bearing Nos. P.C. 24 of 2001 and P.C. 25 of 2001 respectively. Both these petitions came to be rejected by order dated 29th May 2001 passed by a learned Judge of the Family Court, Pune. The learned Judge took the view that the petitions did not disclose any cause of action. He took the view that since the daughters were no longer minors they could not claim maintenance under Section 20(2) of the said Act. He, therefore, rejected their petitions under Order 7, Rule 11 of the Code of Civil Procedure.

2. Being aggrieved by this order, these two Appeals have been filed. After the Appeals were admitted, their hearing was expedited. Mr. Anturkar has appeared for the appellant in both these matters and Mr. Pradeep Patil has appeared for respondent.

3. The questions which arise for our consideration are mainly two-fold. Firstly, as to whether such a petition by an adult unmarried daughter could be filed under Section 20 of the said Act and secondly, as to whether the same could be filed in the Family Court.

4. Now, as far as the first question is concerned, it would be desirable to refer to Section 20 of the Hindu Adoptions and Maintenance Act, 1956, which reads as follows:--

"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.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the parent of 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."

In this connection, it is also desirable to note the definition of "maintenance" under Section 3(b) of the said Act which reads as under :--

"(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."

5. Mr. Anturkar, learned Counsel appearing for the appellants, submitted that the learned Judge had failed in noting the true import of Sub-section (2) of Section 20 of the said Act. He drew our attention firstly to Sub-section (1) of that section and thereafter to Sub-section (3) thereof. He further submitted that although Section 20(1) begins by saying that what was provided was subject to the provisions of the particular section, it made very clear that a Hindu was bound during his or her life time to maintain his or her legitimate or illegitimate children. Thereafter he submitted that while Sub-section (2) conferred a right on the child to claim maintenance so long as the child was minor, Sub-section (3) again extended this obligation as far as the daughter is concerned. The said Sub-section provides that as far as the daughter is concerned the obligation of a person to maintain her is extended if she is unmarried so long as she is unable to maintain herself out of her own earnings or other property. Mr. Anturkar, therefore, submits that as a result of Sub-section (2) of Section 20 perhaps the son's right to claim maintenance would be restricted on attaining majority, but as far as a daughter is concerned, her entitlement continues even after attaining majority if she is not married so long as she is not in a position to maintain herself out of her own earnings and property.

6. In support of this submission, Mr. Anturkar relied upon a judgment of the Punjab and Haryana High Court in the case of Wali Ram Waryam Singh v. Smt. Mukhtiar Kaur . That was also a case of an unmarried daughter claiming maintenance from her father when the relations between both the parents were strained. A Suit was filed in the Civil Court invoking the rights under this section and although the trial Court has dismissed it, the District Court had entertained the Appeal and granted decree for maintenance in favour of the daughter until she got married. A Division bench of the Punjab High Court, maintained that decree and what is observed in paragraph-4 on the interpretation of Section 20 is relevant for our purpose. The Division Bench observed as follows :--

"..... The Act indeed gives a statutory recognition to the well established normal obligation of a Hindu male or female to maintain his or her unmarried daughter and aged or infirm parents so long as they are not able to maintain themselves. The language of this sub-section is different from that of Section 488 of the Code of Criminal Procedure and the presumption which some Courts raised when a child attained the age of 18 years or more in cases arising under that provision of law, cannot be held to arise in cases under the Act. The obligation to maintain an unmarried daughter is absolute and extends so long as she is not able to maintain herself out of her own earnings or property."

7. The further observations of the Court on the aspect of burden are also relevant wherein the Court holds that it would be for the parents concerned to point out that the child is in a position to maintain herself. The observation is as follows :--

"The burden, in our opinion, is rather on the father or mother to show that he or she stands discharged from his or her liability to pay maintenance to the unmarried daughter as the latter is able to maintain herself out of her own earnings or property. The expression 'is unable to maintain himself or herself out of his or her own earnings or other property' is more in the nature of a proviso to the first part of Sub-section (3) which imposes in most unequivocal terms an obligation on the father or the mother regarding their unmarried daughter or infirm or aged parents. It is, therefore, for the father or the mother to establish that his or her case falls under the proviso. It does not seem to be the intention of the Act that a presumption of ability to earn and maintain herself should, in the case of a Hindu girl, be raised from her bodily health or age alone."

8. Mr. Anturkar drew our attention to a judgment of a learned Single Judge of this Court in the case of Kartarchand Dalliram Jain v. Smt. Taravati Kartarchand Jain . In that matter, the learned Single Judge held that in a matrimonial proceeding an adult daughter was not eligible to claim maintenance under Section 26 of the Hindu Marriage Act. While dealing with that provision, the learned Single Judge observed that "The adult daughters were entitled to have recourse for seeking maintenance from their father under Section 20 of the Hindu Adoptions and Maintenance Act, 1956". This observation of the learned Single Judge is quoted with approval by a Division Bench (Puranik and Vyas, JJ.) in its judgment dated 16th January 1992 in Letters Patent Appeal No. 11 of 1991 Bhaskar S. Bakre v. Smt. Alka B. Bakre (unreported). In that matter, in paragraph 12, the Division Bench has observed as under :--

"The learned Single Judge, in the said decision, has specifically answered this question by saying that under the provisions of Section 26 adult daughters were not entitled as they could have recourse for seeking maintenance from their father under Section 20 of the Hindu Adoptions and Maintenance Act, 1956. We are of the opinion that the view expressed by the learned single Judge in the said decision is a correct view."

As far as this submission of Mr. Anturkar is concerned, Mr. Pradeep Patil, learned Counsel appearing for the respondent, has not contradicted it. In any event, we are also in agreement with the submission canvassed by Mr. Anturkar on the interpretation of Section 20 and as stated above, it has already found favour with a Division Bench of Punjab and Haryana High Court as well as of this Court in the above-referred judgments.

9. In the circumstances, as far as the first question is concerned, we hold that the learned Judge was in error in coming to the conclusion that the two petitions filed by the daughters against their father were not maintainable under the Hindu Adoptions and Maintenance Act, 1956.

10. While dealing with the above question, a question was also raised as to whether a proceeding between a daughter and her father could be filed before the Family Court. As far as this aspect is concerned, we would like to note that the preamble of the Family Courts Act, 1984 is wide enough and it states that it is an Act to provide for the establishment of Family Courts with a view to promote, conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. (Underlining provided). Section 7 of the Act which deals with jurisdiction specifically provides as follows :--

"7. Jurisdiction. -- (1) Subject to the other provisions of this Act, a Family Court shall

"(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation -- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :

"(a) a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit of proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody-of, or access to, any minor."

11. Now, as can be seen, as far as the first four clauses of explanation i.e. (a) to (d) are concerned, they are by and large concerning matrimonial proceedings. However, Sub-clauses (e), (f) and (g) are concerning declaration of legitimacy of a person and concerning maintenance and guardianship. They are specifically included so that these kinds of controversies are also decided in the same Court rather than driving parties to file proceedings in the Civil Court for that purpose. As noted from the preamble, a Family Court is also a Court for resolving disputes relating to the family affairs and for matters connected therewith. A suit or proceeding for maintenance by the daughters against their father would certainly fall in Clause (f) of the Explanation to Section 7. On this question also, we are of the view that the controversy could be and was rightly taken to the Family Court.

12. In the circumstances, we are of the view that the learned Judge was in error in coming to the conclusion that the petitions did not disclose any causes of action. Mr. Anturkar has drawn our attention to paragraph 17 of the petitions which in clear terms states that both the daughters are not gainfully employed anywhere and, therefore, they were in need of assistance from their father. Mr. Patil, the learned Counsel for the respondent, submitted that both the husband and wife were financially well off and the daughters had a good fund at their disposal. Mr. Anturkar denied the submission as far as the daughters (i.e. the petitioners) are concerned and submitted that the maintenance amount required will have to be related to the status to which the parties are accustomed to and it is in that context that one will have to see as to whether the petitioners were able to maintain themselves out of their earnings or property. In our view, the submission of Mr. Anturkar requires acceptance. In view of the averments in the petitions, it could not be said that the petitions did not disclose any cause of action. The learned Judge has erred in holding to the contrary. Besides, the required maintenance will relate to the status of the parties. The Judge will have to decide the petitions in that context and the sufficiency of their earnings or property, if any, for that purpose. We, therefore, set aside this order passed by the learned Judge of the Family Court, Pune, dismissing both these petitions. We allow both these Appeals. Both these petitions bearing Nos. P.C. No. 24 of 2001 and P.C. No. 25 of 2001 will stand restored to the file of the Family Court. The learned Judge will now proceed to decide in the light of above discussion as to whether any maintenance should be awarded to the petitioners and if so, what amount. There will be no order as to costs. The learned Judge will endeavour to hear and decide both these petitions expeditiously.