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Thulasikumar Anil Kumar and anr. Vs. Raghavan Nair - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKerala High Court
Decided On
Case NumberS.A. No. 397 of 1979-B
Judge
Reported inAIR1985Ker20
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 3, 6, 20 and 20(1) ; Hindu Minority and Guardianship Act, 1956 - Sections 6; Code of Civil Procedure (CPC) , 1908 - Order 32, Rule 4
AppellantThulasikumar Anil Kumar and anr.
RespondentRaghavan Nair
Appellant Advocate T.K.M. Unnithan and; V. Jayakumar, Advs.
Respondent Advocate S. Sankara Subban, Adv.
DispositionAppeal allowed
Cases ReferredBaby Sarojani v. Achuthan
Excerpt:
.....a child adequately maintained by one parent cannot claim maintenance from the other as well under sub-section (2) of section 20 of the maintenance act. it may be open to the father to raise a defence that the child is being properly maintained by the mother, and if he is able to prove such maintenance by the mother, the minor child may not be entitled to claim maintenance from the father as well. but the law laid down in the section goes further than that and rules that not merely a male hindu -as was the law previously applicable -but a female hindu as well is now under a legal obligation to maintain legitimate or illegitimate children and aged or infirm parents......properly maintained by the mother, and if he is able to prove such maintenance by the mother, the minor child may not be entitled to claim maintenance from the father as well. in mulla's principles of hindu law, 15th edn.. it is stated at page 1123. commenting on section 20 of the maintenance act. as follows :'maintenance of children and aged pa rents. -- a hind u is under a legal obligation to maintain his wife, his minor sons, his unmarried daughtersand his aged parents whether he possesses any property or not. the obligation to maintain these relations is personal and legal in character and arises from the very existence of the relationship between the parties. section 18 of the present act reiterates the right of a wife to claim maintenance and support from her husband. the present.....
Judgment:

P.C. Balakrishna Menon, J.

1. The only question for decision in this second appeal is as to whether a suit for maintenance at the instance of a minor plaintiff represented by a next friend is maintainable against the father who is the natural guardian of the minor under the Hindu Minority and Guardianship Act 1956 (hereinafter referred to as the Guardianship Act).

2. The 1st plaintiff was a minor 9 months old on the date of the suit. He was represented by his maternal uncle as the next friend and the suit was for a declaration that the defendant the father of the minor 1st plaintiff is liable to maintain the 1st plaintiff and for future maintenance from the date of suit at the rate of Rs. 50/- per month. The plaint refers to the marriage of Krishnakumari Amma to the defendant in May 1972, the birth of the 1st plaintiff during the subsistence of the marriage, and the divorce between Krishnakumari Amma and the defendant as per a registered document Ext. B1, at a time when the 1st plaintiff was only forty days old. The 1st plaintiff is being looked after and maintained by the 2nd plaintiff his maternal uncle. The defendant in his written statement contended that as per the divorce deed Ext. B1, the mother had undertaken to maintain the child. She is possessed of 61 cents of double crop paddy land in absolute rights and 21 cents as per a note deed, from the income of which the minor is being maintained.

3. The trial Court found the defendant liable to maintain the child and granted a decree for maintenance at the rate of Rs. 30 - per month from the date of the suit. In appeal at the instance of the defendant, the lower appellate Court has reversed the decision of the trial Court and has dismissed the suit on the ground that the next friend is not competent to represent the minor and file a suit for maintenance against the father who is the legal and natural guardian of the minor under the Guardianship Act.

4. The Court below has relied on the decision of a learned single Judge of the Orissa High Court in Sobha Dai v. Bhima AIR 1975 Orissa 180 in support of its view that a minor represented by a next friend is precluded from claiming maintenance against his father who is the natural guardian entitled to represent the minor. The learned Judge of the Orissa High Court has relied on the decision in Narain Singh v. Sapurna Kuer AIR 1968 Pal 318 in support of the proposition that a Hindu minor represented by a next friend is precluded from claiming maintenance against its natural guardian. The decision of the Patna High Court does not support the proposition laid down by the learned Judge. The decision relates to the right of the mother of a Hindu minor to act as its guardian for the disposal of the minor's property when the father who is the legal and natural guardian under Section 6 of the Guardianship Act is alive. As per Section 6 the natural guardian of a Hindu minor in respect of its person as well as its properly is the father and after him the mother who is en titled to a preferential right to custody of a minor below the age of 5 years. It is quite clear from Section 6 itself that the right to represent the minor as guardian is of the father and the mother becomes the natural and legal guardian only in the absence of the father. The decision of the Patna High Court is not an authority for the proposition that a suit by a minor represented by a next friend for maintenance will not lie against the father, its natural guardian. With great respect I am unable to agree with the view expressed by the learned Judge of the Orissa High Court to the above effect and according to me a suit by a minor represented by a next friend for maintenance is maintainable against the father, if the father is in law liable to maintain the child.

5. Sub-section (1) of Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Maintenance Act) enjoins that a Hindu is bound during his or her lifetime, to maintain his or her legitimate or illegitimate children, and under Sub-section (2), a legitimate or illegitimate child is entitled to claim maintenance from its father or mother so long as the child is a minor. Thus the father's obligation to maintain the child is a statutory liability under the Maintenance Act and the child has a right to claim maintenance from its father.

6. Counsel for the respondent submits that the child is not entitled to claim maintenance both against the father and the mother and in a case where the child's maintenance is provided for and undertaken by the mother, there cannot be a claim against the father for the same purpose. Counsel relies on the decision of this Court by Raman Nayar J. (as he then was) in Baby Sarojani v. Achuthan 1965 Ker LT 736, wherein it is held that a child adequately maintained by one parent cannot claim maintenance from the other as well under Sub-section (2) of Section 20 of the Maintenance Act. It is further held that if the child is not adequately maintained by the one or the other of the parents, it is open to the child to claim the deficiency from the parent, who does not provide for his maintenance.

7. The expression 'maintenance' is defined in Sub-clause (b) of Section 3 of the Maintenance Act to include provision for food, clothing, residence, education, medical attendance and treatment. The inclusive part of the definition relates to the basic requirements in life and neither of the parents is en titled to escape liability for maintenance of the child by raising a plea that the responsibility of maintenance has been taken over by the other. The mere fact that the child's mother had as per Ext. B1 agreement between herself and , the defendant undertaken the responsibility of maintaining the child, does not preclude the child from claiming maintenance against the father. It may be open to the father to raise a defence that the child is being properly maintained by the mother, and if he is able to prove such maintenance by the mother, the minor child may not be entitled to claim maintenance from the father as well. In Mulla's Principles of Hindu Law, 15th Edn.. it is stated at page 1123. commenting on Section 20 of the Maintenance Act. as follows :

'Maintenance of children and aged pa rents. -- A Hind u is under a legal obligation to maintain his wife, his minor sons, his unmarried daughtersand his aged parents whether he possesses any property or not. The obligation to maintain these relations is personal and legal in character and arises from the very existence of the relationship between the parties. Section 18 of the present Act reiterates the right of a wife to claim maintenance and support from her husband. The present section gives statutory form to the legal obligation of a Hindu, also to maintain his minor children and his aged or infirm parents. But the law laid down in the section goes further than that and rules that not merely a male Hindu -- as was the law previously applicable -- but a female Hindu as well is now under a legal obligation to maintain legitimate or illegitimate children and aged or infirm parents.'

The mere fact that the defendant is not possessed of sufficient means does not in any way obliterate his liability under Section 20 of the Act to provide maintenance for his minor child. The question relating to his means may be relevant only in considering the quantum of maintenance. His plea that the mother of the child has sufficient income from properties and she has undertaken to maintain the child cannot be accepted as a valid defence to the suit. It is his case that the only item of property that the mother has possession is 86 cents of double crop paddy land out of which an extent of 24 cents is held on otti-kuzhikanam. He has in his evidence admitted that he had cultivated the 24 cents of paddy land held on otti and he could get only 15 paras of paddy after spending Rs. 100/- as the expenses of cultivation. If this is the standard of yield from the paddy land, there will be no surplus yield from the property, after the expenses of cultivation are met for raising paddy in the 86 cents of land said to be in the possession of the 1st plaintiffs mother. The next friend in his deposition as P. W. 1 has stated that it is he who is providing for the basic requirements for the maintenance of the child and the mother has no means to provide for its maintenance. It was on the basis of this evidence that the trial Court granted a decree for future maintenance to the child at the rate of Rs. 30/- per month. The mother had by her conduct in executing Ext. B1 undertaking to maintain the child disabled herself from suing as the next friend of the minor child to claim maintenance against the defendant father. Under Rule 4 of Order XXXII, C.P.C., any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit, provided that the interest of such person is not adverse to that of the minor and that in the case of a next friend, he is not a defendant or in the case of a guardian a plaintiff in the suit. The suit is filed by the 2nd plaintiff as next friend of the minor 1st plaintiff. The 2nd plaintiff is in no way disqualified to act as the next friend of the minor 1st plaintiff to claim maintenance against his father. I do not see any defect in the claim in the suit. The 1st plaintiff is therefore entitled to a decree for maintenance against the defendant. The trial court after considering the evidence in the case has fixed the quantum of maintenance at the rate of Rs. 30/- per month. There is no appeal against the quantum fixed by the trial court. Even though the defendant is not shown to have sufficient income, his liability to maintain his minor child is statutory and the quantum at the rate of Rs. 30/- per month fixed by the trial court cannot be said to be in any way excessive.

8. The result is, I set aside the judgment and decree of the lower appellate Court and restore the decree of the trial Court. The second appeal is allowed. There will be no order as to costs.


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