It seems points of law can get clarified only when an unusual case arises and someone takes it all the way to high court or supreme court.
MUMBAI: Can a child choose from which of her two separated parent she wants maintenance or funding for higher education? In a recent but unusual case, a Bombay High Court order may have ensured that the girl, no longer a minor, who had sued her father for child support may now get her mother, in whose custody she is, to chip in as well.
The HC allowed the plea of a 56-year-old man to make his ex-wife a party to case for maintenance filed by his daughter against him. Justice Roshan Dalvi set aside an order passed by judge V J Lohiya of the Bandra family court last December and directed that incomes of both the father and mother must be considered while deciding the application of their 22-year-old daughter who is pursuing medical studies.
In this case, the family of four had begun its less-than-ordinary descent into disintegration when the husband, a former excise employee, filed for divorce in 2005 on grounds of cruelty citing his wife's penchant for contesting elections. She had joined the civic polls fray twice—once as an Independent and once on a party ticket—but lost.
She had opposed but he eventually won a divorce in 2008. At that time, the family court also rejected his wife's claim under the Hindu Marriage Act for maintenance since she had an independent income from a `wine shop' she ran in Andheri.
Last year, the daughter, staying with her mother since the divorce proceedings began and now studying BDS in a state college, claimed maintenance from her father before the family court. She said he was not paying her a farthing as child maintenance and that her mother has been supporting her by taking private loans for payment of the donation, admission and college fees for her education. She sought the maintenance under the Hindu Adoption and Maintenance Act which calls for a daughter being maintained by a father till she gets married or starts earning. Her brother lives with her father.
The news reporting is itself against the facts as explained below. The Hindu Adoption and Maintenance Act does not say that unmarried daughter has to be maintained by only father.
The father, who has a hotel in the Konkan area, argued that he alone must not be made to pay. The mother should also be made a party in the maintenance case. His lawyers, Ramesh and Sadhana Lalwani, said the Supreme Court has held that both parents are liable to look after a child if the mother is earning too.
The man also said his ex-wife was earning an income from a restaurant she runs and from a house given by him that she has let out at Vile Parle. His daughter opposed the plea, calling his application "a dishonest attempt to wriggle out of his duty to maintain her''. The family court seemed to agree and said it was "the sweet choice and privilege of the child to demand maintenance from either parent. She cannot be compelled to seek maintenance from her mother as well''.
Family court was dead wrong! The section 20 of Hindu Adoptions and Maintenance Act clearly says that the responsibility of maintenance of unmarried daughter lies on both parents. Note the “his or her” being used consistently in all clauses below:
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 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.
The man appealed in the HC and two weeks ago, Justice Dalvi, who was initially shocked that a father, who his daughter claimed was a "builder and earned in crores'' was not paying a penny to his child, finally agreed with the Lalwanis that the amount of maintenance payable by each parent since both are earning may have to worked out by the court first. The lawyers then conceded that the daughter may then be entitled not to claim that rightful share from her mother.
Justice Dalvi said: "I am sure the mother would not grudge maintaining her daughter until she starts earning herself...'' But to determine the maintenance amount, the "truthful picture'' of what both parents—the father denied he was a builder but did not disclose his income either—earn must first be determined. She directed the family court to consider the income of both parents and decide the maintenance payable by either to their daughter.