11/17/21, 4:39 PM Earning Mother to bear maintenance of children Proportionately

Earning Mother to bear maintenance

of children Proportionately
SUPREME COURT OF INDIA

D.P. Wadhwa &M.B. Shah

Padmja Sharma vs Ratan Lal Sharma

Law Point:

Mother to share maintenance of children in the ratio of her earnings to the

father/husband

JUDGEMENT

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,
__________________________________________________________________
______ * 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 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.

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11/17/21, 4:39 PM Earning Mother to bear maintenance of children Proportionately

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.

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
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11/17/21, 4:39 PM Earning Mother to bear maintenance of children Proportionately

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
__________________________________________________________________
_________ * 20. Maintenance of children and aged parents. – (I) 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 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.

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

respondent has chosen not to appear.

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