Maintenance

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Maintenance of Daughter under HAMA

A Supreme Court bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah recently held, an unmarried Hindu daughter is entitle to claim maintenance from her father till the time she is married, given that she has to plead and prove that she is not able to maintain herself. However, for claiming the same, application/suit has to filed under Section 20 (3) of the Hindu Adoptions and Maintenance Act (HAMA), 1956, instead of Section 125 of the Code of Criminal Procedure (CrPC), the bench said.

In the recent case of Abhilasha v Parkash & Others[1]

• A daughter who is unmarried challenge the order of the judicial magistrate that grant her maintenance of Rs 3,000 per month to paid by her father from the date of the petition under Section 125 CrPC till the time she becomes a major.
• The mother and 2 minor sons also file a petition for maintenance with the daughter, but the same not granted, as they couldn’t prove that they were unable to maintain themselves.
• The daughter found to entitle to maintenance from October 17, 2002, when she file the application till February 7, 2005, when she became a major.
• Their appeals were dismiss by additional sessions judge, Rewari. The ASJ noted that the daughter was entitle to get maintenance till the time she becomes a major and not thereafter as she was not suffering from any physical or mental abnormality or injury, which are the exceptions that can make a child eligible for maintenance even after becoming a major but is unable to maintain herself.
• The ASJ corrected and extended the date of attaining of majority of the daughter to April 26, 2005, and extended her eligibility for maintenance till then.
• By strictly construing Section 125(1)(c) of the CrPC, the ASJ denied to consider her plea for maintenance from her father until her marriage.
• Their appeals were dismissed by Punjab and Haryana high court August 2018, on the ground that there is no illegality or infirmity in the ASJ’s judgment.

Section 20 of the HAMA

In the Supreme Court, on behalf of the unmarried daughter argue that as per section 20 of the HAMA, 1956. The obligation of the father to maintain his daughter extends till the time she is married. As the appellant claim to unemployed, she was entitle to claim maintenance from her father.

Comparing Section 125 of the CrPC with Section 20(3) of HAMA. The bench observed  that the former contemplates that claim of maintenance by a daughter. Who has attained majority is admissible only when by reason of any physical or mental abnormality or injury and she is unable to maintain herself.

Relying on Supreme Court’s previous decision in Nanak Chand v Chandra Kishore Aggarwal and others[2], the bench pronounced that there is no inconsistency between Section 488 of the CrPC. and HAMA and both can stand together. Section 488 of the CrPC talks about a summary remedy and is applicable to all the people. Irrespective of their religion and has no relationship with the personal law of the parties, the bench held.

In Hindu law prior to codification, a Hindu male is always consider as morally and legally liable. To maintain his aged parents, a virtuous wife and infant child, the bench reasoned. While Hindu law always acknowledge the liability of the father to maintain an unmarried daughter. Muslim law also acknowledges the obligation of the father to maintain his daughters until they get married..

Obligation can enforce

“The obligation of a Hindu father to maintain his unmarried daughter can. Therefore, be enforce by her against her father, if she is unable to maintain herself”. The bench held.

The Supreme Court further held that the right of an unmarried daughter under Section 20 of HAMA. To claim maintenance from her father when she is unable to maintain herself is absolute.

However, the bench added that the magistrate, in exercise of powers under Section 125 of the CrPC. Cannot pass an order under Section 20 of HAMA. The maintenance as talked under HAMA is a larger concept as compared to the concept of maintenance. Under Section 125 of the CrPC, the bench held. The bench noted that the definition of maintenance Section 3(b) of under HAMA is inclusive of marriage expenses. The broader right under HAMA requires a determination by a civil court. And, parliament never thought of burdening the magistrate while exercising jurisdiction under Section 125 of the CrPC for this purpose. The bench held.