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CASE NO.:

Appeal (civil) 2462 of 1999

PETITIONER:

PADMJA SHARMA

RESPONDENT:

RATAN LAL SHARMA

DATE OF JUDGMENT: 28/03/2000

BENCH:

D.P. WADHWA & M.B. SHAH

JUDGMENT:

JUDGMENT

2000 (2) SCR 621

The Judgment of the Court was delivered by

D.P. WADHWA, J. Appellant, the wife, whose marriage with the respondent has

since been dissolved by decree of divorce on the ground of cruelty on the

petition filed by her, has filed this appeal not only seeking enhanced

maintenance for two minor children of the marriage but also for claiming

the same from the date of application filed under Section 26* of the Hindu

Marriage Act, 1955 (for short the 'Act) in the Family Court,

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* 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, alter 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 .

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Jaipur. Appellant is also aggrieved by the order of the courts below not

granting her full claim of 'streedhan', litigation expenses, etc.

Both the parties are Hindu. Their marriage was solemnized in accordance

with Hindu rites on May 2, 1983. First child, a son, was born on January

27, 1984 and the second child, also a son, was born on June 28, 1985. Wife

field petition for dissolution of marriage on May 21, 1990. She also prayed

therein for return of her 'streedhan', custody and guardi-anship of the

children and also for their maintenance. At the same time she also filed an

application under Section 125 of Code of Criminal Procedure (Code).

On August 2, 1991, wife filed a petition under Section 26 of the Act in the

Family Court claiming maintenance @ Rs. 2575 per month for both the

children. In the affidavit supporting the application, however, maintenance

was claimed @ Rs. 2,500 per month for both the children. It was pointed out

that husband was getting a salary of Rs. 6233.40 per month. Wife also

claimed a sum of Rs. 1,585 as admission fee in schools for the children and

Rs. 5,000 as litigation expenses.

Family Court by the order dated April 7, 1992 granted maintenance under

Section 125 of the Code @ Rs. 250 per month for each child. On April 30,

1992 Family Court awarded a further sum of Rs. 250 per month for each child

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as interim maintenance under Section 26 of the Act. Family Court also

framed issues relating to the custody, guardianship and maintenance of the

minor children and also regarding 'streedhan'.

On October 27, 1995 wife filed another application under Section 26 of the

Act wherein she drew the attention of the court to her earlier application

filed on August 2, 1991. Now she claimed Rs. 2000 per month for each child.

She said salary of the husband had since been increased to Rs. 12,225 in

August, 1995. On August 26, 1997 yet another application was filed by wife

under Section of the Act. Now she wanted maintenance for the elder child @

Rs. 3,500 per month and for the younger child @ Rs. 3,000 per month, it was

pointed out that the salary of the husband was Rs. 13,683 per month and

thereafter from August, 1997 it was going to be increased to Rs. 14,550 per

month.

Family Court by order dated September 13, 1997 consolidated both the

proceedings - one under Section 13 of the Act for dissolution of the

marriage and the other under Section 26 of the Act. On October 4, 1997

Family Court granted decree of divorce in favour of the wife dissblving the

marriage between her and the respondent. Against claim of Rs, 1,80,000

towards 'streedhan' Family Court granted a decree of Rs. 1,00,000 as cost

of the articles which prayer was granted in the alternative if the

respondent did not return the articles mentioned by wife in her petition.

It was also ordered that both the children, till they attain majority,

should be in the custody of the mother, the appellant, and maintenance for

each of the child was awarded @ Rs. 500 per month from October 4, 1997. A

sum of Rs. 1,000 was awarded as cost of the litigation to the wife.

Wife took the matter to the High Court seeking enhanced amount of

maintenance of the children and decree for the full amount of Rs. 1,80,000.

High Court, by its impugned judgment, enhanced maintenance of the children

from Rs. 500 per month to Rs. 1,000 per month effective from the date of

the order of the Family Court dated October 4, 1997 and awarded Rs. 500 per

month for each child from the date of the application. High Court observed,

though in our view not correctly, that "it is an incumbent liability on the

part of the father to bear the cost of education and the maintenance

express for the two children..........." High Court also observed that the

respondent was "admittedly employed in a responsible position in the

Reserved Bank of India where his gross pay packet amounts to Rs. 13,000 per

month". During the course of hearing we have been told that the husband is

employed as a clerk in the Reserve Bank of India while the appellant-wife

is a lecturer in a Government college in Rajasthan. High Court rejected the

prayer of the wife for enhancement of any amount from Rs. 1,00,000. High

Court made certain directions for the husband to meet the children and with

that we are not concerned. High Court disposed of the appeal without any

order as to costs. Still the wife felt aggrieved and sought leave to appeal

to this Court under Article 136 of the Constitution, which we granted. By

an interim order passed on February 22, 1999 it was directed by this Court

that by way of interim relief maintenance for each of the child be paid @

Rs. 1,500 per month by the respondent-husband.

This Court in an appeal under Article 136 of the Constitution is not going

to re-appreciate the evidence led before the Family Court. There is a

concurrent finding of award of Rs. 1,00,000 to the wife though in the

alternative being the cost of the articles presented at the time of the

marriage which we are not going to disturb. As far as costs and special

costs are concerned that again is within the discretion of the court and

unless some weighty reason is shown to us we again to not think that we

should unsettle the payment of award of costs by the Family Court and nor

payment of costs by the High Court. Appellant says she has been harassed

persistently by the husband in delaying the trial before the Family Court.

But then husband also has a grievance that in the Family Court he could not

get the services of a lawyer though the wife was represented by her father,

who himself is a lawyer and while her father would argue in the court she

would remain mute.

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Respondent before us has not appeared instead of notice to him. We have

heard the agreements of the wife ex-parte. On February 28, 2000 an

application was filed by the appellant for placing on record additional

documents which are all of the period after filing of this appeal. No

notice has been given to the respondent of this application. The purpose of

the applica-tion appears to be to further enhance the amount of maintenance

taking into account the changed circumstances as the salary of the

respondent-husband is stated to have increased by passage of time. Various

documents like receipts for payment of school fees, buying of books, school

bags, etc. have been filed. We are not inclined to permit this application

at this stage. If circumstances have changed for enhancement of maintenance

appellant can approach the Family Court again as an order under Section 26

of the Act is never final and decree passed thereunder is always subject to

modification.

Maintenance has not been defined in the Act or between the parents whose

duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu

Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act,

1956 and Hindu Succession Act, 1956 constitute a law in a coded form for

the Hindus. Unless there is anything repugnant to the context definition of

a particular word could be lifted from any of the four Acts constituting

the law to interpret a certain provision. All these Act are to be read in

conjunction with one another and interpreted accordingly. We can,

therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the

'Maintenance Act') to understand the meaning of the 'maintenance'. In

clause (b) of Section 3 of this Act "maintenance includes (i) in all cases,

provisions 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" and under clause (c)

"minor means a person who has not completed his or her age of eighteen

years". Under Section 18 of the Maintenance Act a Hindu wife shall be

entitled to be maintained by her husband during her life time. This is of

course subject to certain conditions with which we are not concerned.

Section 20* provides for maintenance of children and aged parents. Under

this Section a Hindu is bound, during his or her life time, to maintain his

or her children. A minor child so long as he is minor can claim maintenance

from his or her father or mother. Section 20 is, therefore to be contrasted

with Section 18. Under this Section it is as much the obligation of the

father to maintain a minor child as that of the mother. It is not the law

that how affluent mother may be it is the obligation only of the father to

maintain the minor.

In the present case both the parents are employed. If we refer to the first

application filed under Section 26 of the Act by the wife she mentions that

she is getting a salary of Rs. 3,100 per month and husband is getting a

salary of Rs. 5,850 per month. She is, therefore, also obliged to

contribute in the maintenance of the children. Salaries of both the parents

have since increased with the course of time. We believe that in the same

proportion, may be perhaps in the case of an employee of Reserve Bank of

India at somewhat higher rate. If we take approximate salary of husband is

twice as much as that of the wife, they are bound to contribute for

maintenance of their children in that proportion. Family Court has already

fixed a sum of Rs.. 250 per month for each of the child under Section 125

of the Code. That amount we need not touch.

Considering the overall picture in the present case we are of the view that

a sum of Rs. 3,000 per month for each of the child would be sufficient to

maintain him, which shall be borne by both the parents in the proportion of

2:1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000 per

month for each of the two children aforementioned from October 4, 1997, the

date of the order of the Family Court. For the earlier period

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* 20. Maintenance of children and aged parents. - (I) Subject to the

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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.

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(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

parents or daughter who is unmarried extends insofar 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

respondent shall pay Rs. 500 per month for each of the child from the date

of the application, i.e., August 2, 1991 and @ Rs. 1,000 per month from the

date of the second application, which is October 27, 1995 and @ Rs. 1,500

per month form the date of the third application, which is August 26, 1997.

These amounts shall be apart from the amount which the respondent has

already been paying to the children @ Rs. 250 per month under Section 125

of the Code. Respondent shall be entitled to makes adjustment of the

amounts which he has already paid under orders of the Family Court, High

Court or the interim order of this Court.

The appeal is thus partly allowed. There shall be no order as to costs as

respondent has chosen not to appear.