Judgment - Maintenance - Legitimate or Illegitimate Child

Court: Kerala High Court

Bench: JUSTICE S. Sankarasubban & A. Lekshmikuty

Prabhakaran Nair Vs. Preethy P. Nair On 10 January 2001

Law Point:
Any Child, Legitimate or Illegitimate, One of Whose Parents is Hindu by Religion and Who is Brought up as a Hindu is Hindu and Entitled to Claim Maintenance under Act. The Child can Claim Maintenance Either Against Father or Mother.

JUDGEMENT

1. The appeal is filed by the father of respondent against the decree granted by the Family Court, Ernakulam directing the appellant to give maintenance at the rate of Rs. 750/- to the respondent daughter and to deposit Rs. 1,50,000/- for the purpose of her marriage. The history of this case depicts a sad state of affairs in a family.

2. The appellant S. Prabhakaran Nair, while he was employed in Pune, married the respondent’s mother, who was Christian by religion at the time of marriage. After the marriage, two children were born in the wedlock; one daughter and son. His daughter is Preethy P. Nair, making his intention clear that his daughter should follow Hindu Path of life. There is evidence in this case to show that the appellant underwent the marriage ceremony with the respondent’s mother in the Guruvayoor Temple respecting the wishes of his mother. It is also come in evidence that the respondent was taken to a Temple for the purpose of initiation in ‘Choroonu’. These facts are stated to show that the respondent, even though born of her Hindu father and Christian mother, was following the Hindu religion. This fact becomes necessary in order to entitle the respondent to claim maintenance against his father, under Section 20(1) of the Hindu Adoptions and Maintenance Act.

3. The respondent contended that she was not being maintained by his father and that she, her mother and her brother were living in absolute poverty in a dilapidated building situated in the property belonging to the appellant. She had stated that even though she was educated (according to the appellant, she has passed Typewriting Higher), she has no job and her mother has no means to maintain her. Hence she has come forward with a petition against her father. The contention of the respondent is that the appellant is now living with another woman and hence, it is not possible to go and stay with the appellant. She has also prayed for marriage expenses.

4. In the counter affidavit filed by the appellant, it is submitted that it is true that he and Marykutty, mother of the respondent, were staying together and the respondent was born of Marykutty through him. He denied that there was a marriage. He further submitted that the respondent’s mother left him and that he had paid an amount of Rs. 1,40,000/- to her and this amount is with the mother. He further stated that he never neglected to maintain the children. He submitted that he is prepared to give her the marriage expenses. According to him, the respondent can come and stay with him and cannot claim maintenance. It is further contended by him that the respondent is not a Hindu and hence she cannot file the petition under the Hindu Adoptions and Maintenance Act.

5. As already stated, the Court below considered this aspect and found that the petition for maintenance is at the instance of the respondent. The respondent claimed Rs. 1,000/- per mensem as maintenance whereas the Court below has awarded Rs. 750/- and also directed the appellant to deposit Rs. 1.5 lakhs towards the marriage expenses of the respondent.

6. We heard learned Counsel for the appellant and learned Counsel for the respondent.

7. Learned Counsel for the appellant reiterated the same contention as was advanced in the Court below. The first submission was that the respondent was not entitled to seek the aid of the Hindu Maintenance Act for maintenance. According to him, there is no dispute that the mother is Christian. Admittedly, the father is Hindu. Hence, the respondent is not Hindu and hence is not entitled to claim the relief under the above Act. He contended that the respondent was staying with her mother and was practising Christianity.

8. In the light of the definition given in the Hindu Adoptions and Maintenance Act, it is not necessary for us to go back to the history of Hindu Law and find out whether person born out of the union of a Hindu and non-Hindu can be a Hindu. The Hindu Succession Act and the Hindu Adoptions and Maintenance Act give a very wide definition. According to Explanation (b) to Section 2(1) of the Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Marriage Act, 1955 and also according to Explanation (ii) to Section 3(1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu. Thus, what should be looked into is to find out how the child is brought up, if one of the spouses is Hindu. The question arose before the Supreme Court in the decision reported in Commissioner of Wealth Tax, Madras & Ors. v. Late R. Sridharan by L.Rs., 1976 (4) SCC 489. In that case one Sridharan, who was following Hindu religion, along with his father and brothers constituted a Hindu undivided family governed by Mitakshara Law. He married a Christian woman of Austrian descent, udner the Special Marriage Act. A son by name Nicolas Sundaram was born to them. Sridharan was assessed to income tax and wealth tax in the status of an individual. He claimed to be assessed in the status of a member of Hindu undivided family consisting of himself and his son, Nicolas Sundaram, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu. During the pendency of the proceedings before the Income Tax Authorities, Sridharan died. The Supreme Court was discussing the Hindu Law relying on the definitions of Hindu given in the above Acts. It then held that Sridharan was a Hindu by birth and was lawfully married to Rosa Maria Steinbchler. Even after his marriage, he did not renounce Hinduism but continued to profess that religion. Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas Sundaram is a legitimate child and lineal descendant of Sridharan. There is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith. Sridharan has also unequivocally acknowledged and expressedly declared that he and his son, Nicholas Sundaram formed a Hindu undivided family. The above declaration in the circumstances is sufficient, as also found by the Hindu Court, to establish that Nicolas Sundaram was brought up as a Hindu member of the family to which his father belonged. At page 290 of his Treatise on Hindu Law and Usage (Eleventh Edition), Mayne says that a child in India, under ordinary circumstances, must be presumed to have his father’s religion, and his corresponding civil and social status. It was thereafter held thus : “We, therefore, have no hesitation in holding that Nicolas Sundaram is a Hindu and he could validly be a member of the Hindu undivided family headed by his father and be governed by Hindu Law”. Hence, the position that emerges as a result of the qualifications of the Hindu Law is that a person is a Hindu, even though one of his parents may not be a Hindu.

9. Before the Court below, the appellant tried to contend that the marriage between him and P.W. 3 was not a valid marriage. Evidence was adduced to show that the marriage between the appellant and P.W. 3 was solemnised in a Temple at Pune and her name was given as Rajani. In Ext. A2 birth certificate issued by the Ordinance Factory Hospital also, the name of the mother is shown as Rajani. This could have been done only if P.W. 3 was converted to Hinduism. According to us, even if there is no acceptable evidence to show that there has been valid marriage, the appellant has admitted that P.W. 1 was born to both of them. Hence, the appellant cannot deny that the respondent is not his daughter.

10. The next question is whether the respondent was brought up as Hindu. Ext. A-1 is the third party of the SSLC Book, wherein the name of the respondent is described as Preethy P. Nair and the religion was shown as Hindu. It has come in evidence that the respondent attended Poojas in the Temple and she was able to give evidence in the cross-examination about the various Poojas conducted in the Temple. From the evidence of R.W. 3 it is clear that even the appellant wanted to conduct the marriage of the respondent with a Hindu. The lower Court has discussed this matter at length. We agree with the findings of the lower Court that the respondent was brought up as a Hindu. The argument of the Counsel for the appellant was that some of the documents which have been relied on by the Court below were created by the mother. Section only says that the child should have been brought up as a Hindu. It is not necessary that a person, who is a Hindu, should have brought up the child as a Hindu. In addition to this, we rely on the observations of the Supreme Court in the judgment referred to earlier, wherein it is stated that a child in India, under ordinary circumstances, must be presumed to have his father’s religion. Hence, the respondent is entitled to claim the benefit under the Hindu Adoptions and Maintenance Act.

11. The next question is with regard to the maintenance and whether the appellant is bound to pay maintenance. Section 20 of the Hindu Adoptions and Maintenance Act says that a Hindu is bound to maintain his or her legitimate or illegitimate child and his or her aged or infirm parents. Sub-section (2) of Section 20 says that a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. Section 20(3) says that 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. Section 23 states that it shall be in the discretion of the Court to determine whether any, and if so what maintenance shall be awarded under the provisions of the Act.

12. Even though the respondent claimed Rs. 1,000/- towards maintenance, the lower Court has granted only Rs. 750/-. There is a cross-objection filed by the respondent to enhance Rs. 1,000/-. After going through the evidence, we agree with the lower Court that the amount of Rs. 750/- awarded is correct. So also we agree with the Court below regarding the award of Rs. 1,50,000/- as marriage expenses. Learned Counsel for the appellant tried to argue that if the respondent comes and stays with him, there will be no difficulty in maintaining her. The respondent has given reasons for not staying with the father. P.W. 4 has been examined and Exts. X-1 and X-2 have been proved. Further, the respondent is a major and she wants to live with the mother. She cannot be compelled to stay with the father. Even though in the evidence, the appellant tried to show that the mother of the respondent was having relationship with another person, that was not proved. Hence, we are of the view that there is nothing wrong in the respondent stating that she wants to live with her mother. The next argument made was that the mother is also in possession of property and she is also bound to maintain the daughter. It is not necessary for the respondent to claim maintenance against both. The section itself is clear that the child can claim maintenance either against the father or the mother.

In the above view of the matter, we don’t find any infirmity in the judgment of the Court below. Appeal is dismissed. The cross-objection is also dismissed.

Appeal dismissed.

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