Lakshmi Bai (Minor) represented by her mother Padmini v. Mohandas

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018/7TH AGRAHAYANA, 1940** **RSA.No.349 of 2004 G** **AGAINST THE DECREE AND JUDGMENT DATED 13.1.2004 IN AS NO.98/1999 OF THE II ADDL.DISTRICT COURT, PALAKKAD.** **AGAINST THE DECREE AND JUDGMENT DATED 30.1.1999 IN OS NO.558/1997 OF THE ADDITIONAL MUNSIFF'S COURT, PALAKKAD.** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **LAKSHMI BAI (MINOR), AGED 11 YEARS, REPRESENTED BY HER NEXT FRIEND- MOTHER PADMINI, THAMARAKUNNATH VEEDU, THENUR, PALAKKAD.** **BY ADVS. SRI.D.KRISHNA PRASAD SMT.MINI V.MENON SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.P.VISHNU PRASAD SRI.T.P.ELDHOSE** ## **RESPONDENT/APPELLANT/DEFENDANT:** **MOHANDAS, S/O.BALAKRISHNAN, REKKATH VEEDU, KINASSERY AMSOM, PALAKKAD TALUK.** **BY ADVS.SRI.N.SUKUMARAN (SR.) SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN SRI.S.SHYAM** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH RSA.NO.353/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.Nos.349 and 353 of 2004 :: 2 :: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018/7TH AGRAHAYANA, 1940** **RSA.No.353 of 2004 A** **AGAINST THE DECREE AND JUDGMENT DATED 13.1.2004 IN AS NO.96/1999 OF THE II ADDL.DISTRICT COURT, PALAKKAD.** **AGAINST THE DECREE AND JUDGMENT DATED 30.1.1999 IN OS NO.558/1997 OF THE ADDITIONAL MUNSIFF'S COURT, PALAKKAD.** ## **APPELLANT/APPELLANT/PLAINTIFF:** **LAKSHMI BAI (MINOR), AGED 11 YEARS, REPRESENTED BY HER NEXT FRIEND-MOTHER PADMINI, THAMARAKUNNATH VEEDU, THENUR, PALAKKAD.** **BY ADVS. SRI.D.KRISHNA PRASAD SMT.MINI V.MENON SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.P.VISHNU PRASAD SRI.T.P.ELDHOSE** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **MOHANDAS, S/O.BALAKRISHNAN, REKKATH VEEDU, KINASSERY AMSOM, PALAKKAD TALUK.** **BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.G.BENO SRI.LATHEESH SEBASTIAN SRI.S.SHYAM** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2018, ALONG WITH RSA.NO.349/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.Nos.349 and 353 of 2004 **“C.R.”** :: 3 :: ## **JUDGMENT** A suit for maintenance was filed by a minor girl through her next friend, the mother, claiming both past and future maintenance upto the age of attainment of majority against her father in O.S.No.558 of 1997 of the Munsiff's Court, Palakkad. The suit was decreed in part by granting maintenance to the minor at the rate of `600/- from May, 1994 for fifteen months and thereafter past maintenance at the rate of `1,000/till the date of suit in the month of July, 1997. Future maintenance was also allowed at the rate of `1,000/- till the date of attainment of majority of the minor girl. One-third of the said amount was deducted on account of liability on her mother and the father, the defendant, was directed to pay 2/3 of the amount under the decree. The decree was challenged before the first appellate court (District Court, Palakkad) by both the parties in A.S.Nos.96 and 98 of 1999. The minor plaintiff R.S.A.Nos.349 and 353 of 2004 :: 4 :: challenged the decree reducing the liability to 2/3[rd] of the maintenance amount against the father and casting 1/3[rd] liability on her mother. The defendant father came up with the first appeal challenging the liability mainly on the reason that the minor girl was well maintained by her mother who is an employed person and that the mother is not competent to represent the minor as her next friend as she is a person having adverse interest against the minor child. The first appellate court dismissed the appeal filed by the minor child in A.S.No.96 of 1999 and allowed the appeal filed by the defendant father in A.S.No.98 of 1999 by setting aside the decree passed by the trial court and the suit was dismissed. Aggrieved by the abovesaid verdict of the first appellate court, the minor plaintiff came up with these two second appeals. During the pendency of the appeals, she attained majority, which was recorded. 2. The dispute is pertaining to the interpretation of Section 20(3) of the Hindu R.S.A.Nos.349 and 353 of 2004 :: 5 :: Adoptions and Maintenance Act, 1956 and the obligation of father to maintain the minor child, when the child is capable to maintain himself/ herself out of his/her estate or earning. 3. The contention raised by the defendant regarding the liability to maintain the minor child based on sub-section (3) of Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act') was accepted by the learned District Court, the first appellate court. Discussions were made regarding sub-section (3) of Section 20 of the Act and entered into a finding that the minor when found to be maintained herself no liability can be fastened against the father. 4. So, the question arises for consideration is: “Can the father or the mother be exonerated from the liability to maintain a minor child when the child is capable of maintaining himself/ herself out of his/her estate or earnings/income?” R.S.A.Nos.349 and 353 of 2004 :: 6 :: 5. Section 20 of the Act is extracted below for reference: ## _“_ _**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 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. A mere perusal of sub-sections (1) to (3) of Section 20 of the Act would show that subsection (1) deals with the liability to maintain any legitimate or illegitimate child as well as R.S.A.Nos.349 and 353 of 2004 :: 7 :: infirm parents and sub-section (2) deals with the person who is responsible to maintain either legitimate or illegitimate child. It shows that so long as the child is a minor, either legitimate or illegitimate, he or she can claim maintenance from his or her father or mother. Sub-section (3) to Section 20 of the Act deals only with the right of maintenance of an unmarried daughter or aged or infirm parent. A minor is not included anywhere in sub-section (3) to Section 20 of the Act. The word “minor” is conspicuously absent in subsection (3) which would show that sub-section (3) deals with only the right of an unmarried daughter and aged or infirm parent to get maintenance. Needless to say that the right of maintenance includes the necessary expenditure in connection with the marriage as per the definition given to the word “maintenance” under the Act. The ability/capacity of minor to maintain himself/ herself out of his/her estate, income or earnings will not exonerate either the father or the mother from the liability to maintain the minor child and Section 20(3) of the Act has no application in the R.S.A.Nos.349 and 353 of 2004 :: 8 :: matter of maintenance of minor child and the liability upon his/her parents. 7. Yet another question was also raised regarding the maintainability of the suit mainly on the reason that the mother who represented the minor as her next friend is having adverse interest against the minor and hence incompetent to represent her in the status of a next friend. It was also submitted that the very factum of institution of a suit for getting maintenance for the minor itself shows her refusal to maintain the minor and as such she can only be a person having adverse interest against the minor. Going by subsection (2) to Section 20 of the Act, it is clear that the expression used is “father or mother” and not as “father and mother”. The Apex Court had the occasion to consider whether it is permissible to extent the liability solely on the father excluding the mother when it was found that the mother is also able to maintain the child in _**Padmja Sharma v. Ratan Lal Sharma ((2000) 4 SCC 266)**_ and it was held that a minor child so long as R.S.A.Nos.349 and 353 of 2004 :: 9 :: he is a minor can claim maintenance from his or her father or mother. It was further held that Section 20 is, therefore, to be contrasted with Section 18. Under this section it is as much the obligation of father to maintain a minor child as that of the mother. It is not the law that how ( _sic_ howsoever) affluent the mother may be it is the obligation only of the father to maintain the minor. So, the liability to maintain the child really extends to both the father and mother if they are alive and capable for maintaining the minor child. It was also held that there can be an apportionment of liability based on the income derived by the parents - father and mother. In such circumstances, it cannot be said that the claim made by the minor through her mother, the next friend, amounts to an adverse interest against the minor. Further, a natural guardian would be the most competent person to be appointed as next friend of the minor especially when she is under the care and custody of her mother. **==> picture [362 x 12] intentionally omitted <==** ## R.S.A.Nos.349 and 353 of 2004 :: 10 :: proposition laid down in _**Padmja Sharma's**_ case (supra), the liability to maintain the child extends to both the father and mother and the liability can be apportioned in proportion to their income, salary etc. No evidence comes forth to show the respective salary of the father and mother of the minor child, though both are employed. The mother is employed as a clerk in a school and father is a Teacher by profession. It is fairly conceded by both the counsel that father was getting more amount than the mother during the relevant time and as such the apportionment made by the trial court casting liability upon the mother to the extent of 1/3[rd] of the maintenance amount and 2/3[rd] on the defendant cannot be interfered. Reversal of the decree by the first appellate court hence, cannot be sustained. 9. Inter alia it was submitted that this Court in _**Baby Sarojani alias OBI v. Achuthan (1965 KLT 736)**_ held that Section 4 of the Act would override Section 13 of the Cochin Thiyya Act, 1107. It was further held that the ## R.S.A.Nos.349 and 353 of 2004 :: 11 :: exclusive liability casts upon the father by virtue of Section 13 of the Cochin Thiyya Act, 1107 cannot be sustained in view of Section 4 of the Act. As discussed earlier, the legal proposition was settled by the Apex Court in _**Padmja Sharma's case**_ (supra) and as such, it is not at all necessary to go into the decision rendered by this Court regarding the liability which can be fastened against both the father and mother. It is relevant at this juncture to notice another decision rendered by a Three Judge Bench of the Apex Court in _**Jagdish Jugtawat v. Manju Lata and others ((2002) 5 SCC 422),**_ wherein also the impact of Section 20(3) of the Act was discussed in relation to right under Section 125 of the Code of Criminal Procedure. From the above discussions, it can be safely concluded that the right of maintenance of the child can be fastened against both the father and mother of the minor when it is proved that both are earning members and capable for maintaining the child. The fact that the mother alone was looking after the child or maintaining the child itself will not in any R.S.A.Nos.349 and 353 of 2004 :: 12 :: way negative the statutory liability on the father to maintain the child and the mother can recover the same when she had maintained the child by expending her own funds. 10. Yet another contention was also raised by the respondent/defendant that though the claim was for maintenance there is a pleading in the plaint to the effect that on getting the maintenance amount it would be used for meeting the marriage expenses of the child in future. Based on which, it was argued that the actual claim made by the plaintiff is not for claiming maintenance amount or getting maintenance but for meeting the marriage expenses. On getting the maintenance amount, the party can make use of the same for any purpose in accordance with their whims and fancies. What has to be looked into is the statutory liability of the father and mother and nothing else and when the claim was raised for past maintenance as well as future maintenance the amount can be utilized for their personal purposes or otherwise. Further, there is a pleading in the ## R.S.A.Nos.349 and 353 of 2004 :: 13 :: petition regarding marriage expenses and the maintenance till the date of getting married by the unmarried girl. But the said issue was not addressed either by the trial court or by the first appellate court presumably on the reason that no relief was sought for in that behalf and hence that question need not be addressed at this stage. In the result, these two appeals are allowed in part by setting aside the decree and judgment of the first appellate court in A.S.Nos.96 and 98 of 1999. The decree and judgment passed by the trial court in O.S.No.558 of 1997 is hereby restored. Considering the nature of dispute, the parties are directed to suffer their respective cost of appeals. ## **Sd/** ## **P.SOMARAJAN** ## **JUDGE** ahz/