Disposed

Fathima Nazneen v. S Azeemulla Khan

Karnataka HC1 Oct 2024WP/3251/2024

Case brief

AI extract

What is this about?

Cross writ petitions by divorced parents against a Family Court order directing father to pay school fees and marriage expenses of two major daughters. High Court set aside school fee and marriage expense directions as children were estranged from father and fees exceeded his capacity; upheld arrears maintenance of Rs.1,89,000/-.

What did the court decide?

Maintenance arrears of Rs.1,89,000 left intact; school fees and marriage expense portions of trial court order set aside; mother's WP dismissed, father's WP allowed in part; I.A.No.1/2024 dismissed.

Fathima Nazneen Vs S Azeemulla Khan — Child Custody and Guardianship | Karnataka HC (2024)

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NC: 2024:KHC:48210 WP No. 3251 of 2024 C/W WP No. 7838 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 3251 OF 2024 (GM-FC)

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C/W

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WRIT PETITION NO. 7838 OF 2024 (GM-FC)

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IN WP NO. 3251/2024:

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BETWEEN:

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FATHIMA NAZNEEN,

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AGED ABOUT 49 YEARS, MUSLIM,

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D/O SRI. MOHAMMED ANWAR,

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NOTE: SPL. P.A. HOLDER OF HER

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TWO APPLICANT/CLAIMANTS DAUGHTERS

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1A. MOINA IFRA,

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D/O RESPONDENT S. AZEEMULLA KHAN, AGED 23 YEARS, MUSLIM.

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HAJIRA KAUNAIN

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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D/O RESPONDENT S. AZEEMULLA KHAN, AGED 21 YEARS, MUSLIM.

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ALL ARE R/AT: NO.1480, “NAJM-US-SAHAR”, 2^ND CROSS, 8^TH MAIN, JUDICIAL LAYOUT, G.K.V.K. POST, YELAHANKA, BENGALURU-65.

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…PETITIONERS

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(BY SRI. DHYAN CHINNAPPA, SENIOR COUNSEL A/W SRI. RAGHAVENDRA S., ADVOCATE)

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AND:

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S. AZEEMULLA KHAN S/O S. KHAISERULLA KHAN, AGED ABOUT 53 YEARS, MUSLIM, SENIOR CONSULTANT,

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VIRTUSA PVT. LTD., RESIDENT AT: FLAT NO.204, NO.23, SAKAMMA LAYOUT, LINGARAJPURAM, BENGALURU-560 084.

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OFFICIAL ADDRESS: S. AZEEMULLA KHAN, SENIOR CONSULTANT, VIRTUSA CONSULTING SERVICES PVT. LTD., SARJAPUR MARATHAHALLI OUTER RING ROAD, RMZ ECO WORLD, DEVERABEESANAHALLI, BENGALURU-560 103.

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…RESPONDENT (BY SRI. BASAVARAJU BELAVANGALA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO ALLOW THE AMENDED IA NO.10 VIDE ANNEXURE-N AS PRAYED FOR BY THE PETITIONER BY SETTING ASIDE THE PARTLY ALLOWED IA 10 VIDE ORDER DATED 11.12.2023 AS PER ANNEXURE-A PASSED BY V ADDL. PRL. FAMILY COURT, BENGALURU.

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IN WP NO. 7838/2024:

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BETWEEN:

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S. AZEEMULLA KHAN, AGED ABOUT 52 YEARS, S/O LATE KHAISERULLA KHAN, R/AT: FLAT NO.204, NO.23, SAKAMMA LAYOUT, LINGARAJAPURAM, BENGALURU-560 084.

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…PETITIONER (BY SRI. BASAVARAJU BELAVANGALA, ADVOCATE)

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AND:

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MOINA IFRA,

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AGED ABOUT 23 YEARS, D/O R S. AZEEMULLA KHAN,

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HAJIRA KAUNAIN

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AGED ABOUT 21 YEARS, D/O S. AZEEMULLA KHAN,

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BOTH ARE R/AT: NO.1480, NAJM-US-SAHAR, 2^ND CROSS, 8^TH MAIN, JUDICIAL LAYOUT, G.K.V.K. POST, YELAHANKA, BENGALURU-560 065.

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…RESPONDENTS

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(BY SRI. DHYAN CHINNAPPA, SENIOR COUNSEL A/W SRI. RAGHAVENDRA S., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER OR WRIT OF CERTIORARI OR ANY OTHER ORDER/DIRECTION AND QUASH AND/OR SET ASIDE THE ORDER OF PAYMENT OF RS. 1,98,397/- TO THE RESPONDENTS TOWARDS SCHOOL-FEES OF THE CHILDREN WITHIN TWO MONTHS FROM THE DATE OF ORDER AND ETC.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 03/07/2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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CAV ORDER

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Aggrieved by the order passed in I.A.No.10 & 11 in G&WC.No.108/2011 dated 11.12.2023 by the V^th Additional Principal Judge, Family Court, Bengaluru, both the mother and the father are before this Court.

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The parties are referred to as father and mother for the sake of convenience.

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The mother along with the daughters has filed WP.No.3251/2024 and the father has filed WP.No.7838/2024. G&WC.No.108/2011 was filed by the father under Section 7 of the Guardian and Wards Act. It is the case of the father that the marriage between the parties was solemnized on 17.10.1999 as per Shariat law and in the marriage, they are blessed with two children who were aged about 11 and 9 years at the time of filing of the petition and as on the date of order, both of them have attained majority. The mother had filed I.A.No.10 under Section 7(1) Explanation (f) and Section 7(2)(a) of the Family Courts Act, 1984 r/w Section 125 of Cr.P.C and r/w Sub Sections (1)(d)(2) and (3) of Section 20 of the Protection of Women from Domestic Violence Act, 2005 and

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she had also filed I.A.No.11 under Section 151 r/w Section 10(3) of Family Courts Act for grant of maintenance. Initially, I.A.No.10 filed by the mother was dismissed by the Court on 09.06.2013 and the same was challenged by the mother by filing WP.No.16824/2014 (GM-FC) before this Court, wherein the order is set aside and the matter was remanded to the Court to consider I.A.Nos.10 and 11 together on its merits.

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In I.A.No.10, the mother had stated that the children

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are born on 10.08.2000 and 30.12.2002 respectively and they are in her custody since their birth. The father has divorced her on 23.08.2009. After divorce, the father has married one earning women in the month of November 2010, who is B.E. graduate and employed as Software Engineer in the same company. In the month of March 2011, the mother also remarried a Government official and she has been leading her marital life with him along with daughters in his house. It is the case of the mother that till her divorce, she had been leading her life along with children in highly miserable and pathetic conditions. She has suffered mentally and physically. When she divorced on 23.08.2009, both the daughters were prosecuting their school studies in Gulabi School at Benson town,

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Bangalore. After her re-marriage in March 2011, she shifted to the house of her second husband along with the children and admitted the children in school at No.2, 5^th Main, 4^th cross, RPC layout, Hampinagar, Bangalore. It is stated that the property which was gifted by the father by Hiba i.e., oral gift dated 22.05.2007 was sold without retaining any portion of the property for the children. It is the case that the father has totally neglected the children and miserably failed to provide any maintenance to them. Since November 2007, they are living under the mercy of her father, brother, thereafter her second husband. The educational, medical and other expenses are increasing and cost of living is also high. All the expenses were being met by her father, brother, and children’s stepfather.

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It is the case of the mother that the husband is working as a Software Engineer in IBM India Pvt. Ltd., Bangalore and presently working as a Team Leader and he is frequently moving from place to place in and outside India for company project work. His monthly income is not less than Rs.1,00,000/- and it is now above Rs.3,00,000/-. He is financially sound and capable to bear all the expenses of the

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daughter. The education expenses may come around more than an amount of Rs.1,00,000/- and the daughter requires lump sum of Rs.30,00,000/- from the father towards the maintenance till their marriage as per Section 2(3) of the D.V. Act and hence, the mother sought for maintenance of an amount of Rs.30,00,000/- per child and thereafter, she amended the prayer and claimed an amount of Rs.1,06,00,000/- per child as per order dated 28.06.2018. She also sought direction to the father to pay school admission fees of the children as well as other fees and charges as well as interim maintenance of an amount of Rs.25,000/- per month to each child. Then, the mother had filed I.A.No.11 seeking direction to the father to pay annual school fees and get them admitted into their respective promoted school of 8^th and 5^th standard and the father has refused to pay the fees. She admitted the children in a better and reputed educational institute Royal Concorde International School with CBSE syllabus at Yelahanka by paying total amount of Rs.1,98,397/-. The said amount is contributed by her father and brother in cash and through Bank Cheques and it is the liability of the father to pay the said amount.

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The father had filed his objections to I.A.Nos.10 and 11 separately. It is stated that the children lived with their parents till 23.08.2009, thereafter the mother started living separately with her father at Judicial Layout. He admits the second marriage and he denies the fact that his second wife is working. It is his case that the mother is staying with her second husband and the children are staying with grandparents who are aged and he sought for custody of the children. Time and again changing the school and the places the children were suffering and he wanted their custody. Now, the mother cannot demand an amount of Rs.30,00,000/- from him for each child and an amount of Rs.25,000 per month to each child as well as claiming annual admission fee paid by them. It is stated that he is most willing to take the children to his custody and also ready to perform his duty. He will take care of the children and their education of their choice. It is also stated that as per Mohammedan Law mother is not natural guardian, while the father is alive and by the virtue of second marriage she has forfeited her right to be the guardian, the minor children and their custody. Her custody is only till the age of 7 years of the

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children, thereafter legal guardian is only father and the mother cannot continue to have custody of the child.

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The trial Court by order impugned had partly allowed I.A.Nos.10 and 11 filed by mother and the father was directed to pay an amount of Rs.1,98,397/- to the mother which is the school fee of the children and he was also directed to pay an amount of Rs.3,21,000/- towards arrears of maintenance as admitted by him to the children and he is also liable to pay an amount of Rs.8,00,000/- each to the children for their marriage expenses which has to be paid within six months from the date of the order. If the father fails to comply the order for payment, he is liable to pay interest at the rate of 24% per annum from the date of order.

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While passing the order, the trial Court had observed that the father had studied B.E. Electronic Engineering and having his own business of Manufacture of UPS and Stabilizer and also used to sell the computers. He is income tax payee from 2004 and turnover is an amount of Rs.5 to 10 lakhs per year. He was employee at HCL Company in the year 2003 and worked till 2005 as Software Engineer and his yearly income

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was an amount of Rs.3,50,000/-. He joined IBM Company in the year 2005 and income was an amount of Rs.4,50,000/- per year. When he left the job as Project Manager, his income was an amount of Rs.12,00,000/- per year. He admits that from the year 2014 to 2019 he had owned company i.e., Hardwin Solution Pvt. Ltd., Fedeloi Solutions Pvt. Ltd., Service Tech India Pvt. Ltd., and he joined Ndvor Company in the year 2020. He was earning an amount of Rs.11,00,000/- as salary per year and he is Senior Consultant at Virthusa Company and salary was an amount of Rs.12,50,000/- per year. The father admitted that he had a 2 BHK house and cost of the flat is an amount of Rs.30,00,000/-. After selling the joint family property, he had received his share of an amount of Rs.25,00,000/- and he purchased the property. He has gifted SK Garden property in favour of his mother and brother. During the pendency of the D.V. Act case he sold the property.

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The trial Court had observed that both the children have attained majority. First daughter has completed her B.E., at the time of the order aged about 22 years and second daughter is aged about 21 years. According to the father, major daughters are not entitled for educational expenses from

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the father. In that regard, he had relied on the judgment of Ajay Kumar Rathee Vs. Seema Rathee arising out of Civil Appeal No.5141/2022 dated 10.03.2022 , wherein it is observed that daughters are not in talking terms with the father, daughters are not conversant with the father and they refused to meet their father to exercise his visitation rights and also refused to take the gifts like chocolates, birthday gifts, cakes, clothes, etc and he has not seen the children for the past five years. The trial Court had observed that the father had paid interim maintenance of an amount of Rs.3,000/- each to the children as per the order of this Court. After deducting that amount, it comes to an amount of Rs.1,89,000/-, the arrears comes to an amount of Rs.4,65,000/- and he has already paid an amount of Rs.1,44,000/- before this Court and the arrears are only an amount of Rs.3,21,000/- and he is ready to pay the said amount. The trial Court also observed that it is the liability of the father to pay the school fees of an amount of Rs.1,98,397/-. The trial Court has discussed that the mother claimed an amount of Rs.1 crore per child towards maintenance as well as marriage of the children. It is observed that it is the duty of the father to perform the marriage of the

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children because the mother is a housewife and she has no source of income. Considering the occupation of the father and as he is having property which was worth an amount of Rs.30,00,000/- and as he had also received share of an amount of Rs.25,00,000/-, the father was directed to pay an amount of Rs.8,00,000/- each to the children for their marriage expenses. Aggrieved by the quantum of maintenance that is granted, the mother is before this Court, aggrieved by the order whereby he is directed to pay the marriage expenses of an amount of Rs.8,00,000/- each to the children and the school fees, the father is before this Court.

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Learned Senior counsel Mr.Dyan Chinnappa, appearing for the mother submits that it is the duty of the father to take care of the children. In this case, the entire responsibility of the children was taken care off by the mother and the father has not shouldered the responsibility. It is submitted that as per the guidelines laid down in the judgment of the Hon’ble Apex Court in the case of Rajnesh Vs. Neha and Another¹ , the provision for grant of reasonable expenses

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1 (2021) 2 SCC 324

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for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expense would be determined by taking into account

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the financial position of the husband and the customs of the family. It is submitted that keeping in view the sky rocketing inflation in the cost of living, the minimum expenditure on essential items of marriage ceremony would not be less than the submitted amount. It is further submitted by the Senior counsel that the order that is passed by the trial Court is contrary to the law laid down by the Hon’ble Apex court in the case of Rajnesh referred supra and it is also contrary to the order passed in WP.No.16824/2014 dated 18.10.2016, wherein the specific direction was given to consider the applications in I.A.Nos.10 and 11 together on its merits by taking note of the rival contentions. The father had stated that he has to maintain two sons of his deceased brother and it is submitted that by suppression and misrepresentation of facts the father has approached the Court. Learned Senior counsel had relied on the following paragraph in Rajnesh's case referred supra:

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“90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend

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that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani53. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.

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90.5. This Court in Shamima Farooqui v. Shahid Khan 54 cited the judgment in Chander Parkash53 with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.

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(d) Maintenance of minor children

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91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed.

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92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

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Learned Senior counsel further submits before this

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Court I.A.No.1/2024 is filed by the elder daughter stating that

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she has completed her B.E. degree in Electrical and Electronics Engineering with distinction in the month of March 2022 from the National Institute of Engineering, Mysore. During the campus selection, she was selected for M/s. Texas Instruments, Company in Bangalore as its intern and thereafter, she was appointed as Layout Designing Engineer from 01.08.2022 in that Company. She intend to pursue the Master’s degree in Anlog and Mixed Signal Integrated Circuits focusing on Data Converters and Power Management from University of Florida and she has also appeared for GRE and IELTS by paying the required amount of Rs.22,550/- and Rs.16,250/-. The estimated tuition fees and living expenses for 24 months of the said course is $1,14,646/- U.S. Dollars.

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Besides, the one way flight charges from Bangalore to Florida, USA is Rs.1,04,733/- and her expenses is approximately Rs.4,06,038/- per month. Hence, she sought for the said expenses from the father. Learned Senior counsel submit that the father is duty bound to maintain the children and he has to pay the expenses. He had relied on para Nos.9 and 10 of the judgment of the Hon’ble Apex Court in the case of Noor Saba

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Khatoon Vs. Mohd Quasim² in Criminal Appeal No.1197 of

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1995 dated 29.07.1997 which reads as follows:

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"Prof. Tahir Mahmood, in his book "Statute-Law relating to Muslims in India" (1995 Edn.) while dealing with the effect of the provisions of Section 125 Cr. P. C. on the 1986 Act and the Muslim personal law observes at page 198:

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"These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Has Bano case and the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim law..............................

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As regards children, the Code adopts the age of minority from the Majority Act, 1875 by saying: "Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority" - [Explanation to section 125 (1), clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the CrPC law to obtain maintenance from its parents if they "neglect or refuse" to maintain it despite "giving sufficient means".............................

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2 (1997) 6 SCC 233

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By Muslim law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thaviba (divorce/widow). Sons are entitled to till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. providing maintenance to daughters is a great religious virtue. The Prophet had said:

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"Whoever has daughters and spends all that the has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand.

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If a father is a poverty-stricken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves. (Emphasis supplied)

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10. Thus, both under the personal law and the statutory law (Sec. 125 Cr. P. C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife."

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It is submitted that both under the personal law and

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the statutory law the obligation of a Muslim father, has to maintain his minor children, unable to maintain themselves till

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they attain majority and in case of female till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced mother.

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Learned counsel appearing for the father submits that under Section 125 of Cr.P.C., the trial Court cannot grant marriage expenses for the children. It is submitted that right from the beginning of the marriage, the father had been put to lot of harassment and the mother had superiority complex as she is the daughter of a High Court Judge. At the time of marriage, the father and his brothers were running a computer shop and the mother made them close the shop as it is below her dignity to tell her relatives. Unable to bear with the harassment, the father divorced her on 23.08.2009. The father re-married on 12.11.2010 and the mother also re-married on 06.03.2011. The mother had filed a complaint in Crime No.84/2009 under Section 498-A, 380 and 506 of IPC r/w Section 3 and 4 of the Dowry Prohibition Act and she also filed another case under the provisions of the Protection of Women from Domestic Violence Act, 2005.

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It is submitted that as the father wanted to have the custody of the children, he filed a petition under Section 7 of the Guardian and Wards Act on 18.05.2011 and later he filed an application for visitation rights which came to be allowed on 07.03.2013. It was ordered that on 4^th Saturday of every month, the mother was directed to produce two minor daughters between 3 PM and 5 PM at the Mediation Centre, Family Court, Bengaluru. A few times she brought the children to the Mediation Centre, but never allowed them to talk to the father or accept his gifts like cakes, fruits etc. They were tightly held by her next to her body, surrounded by two other ladies. It was a great frustration for the father. The father had made a representation to the Director of the Mediation Centre to oversee the visitation rights. The director appointed a mediator to oversee the visitation rights. The mediator could not help the father to talk to his daughters, let alone taking them out to a Mall or Restaurant. This attempt of the father to talk to his daughters was also frustrated and the mother played a prominent role in seeing that he does not exercise his visitation rights. Frustrated with his failure to talk to his daughters, he filed a memo for withdrawing the G&WC case and prayed for

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dismissal of the case. When he filed the memo for withdrawal, the mother had filed a writ petition before the High Court and this Court had directed the Family Court to decide the maintenance after giving opportunity to both parties.

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Learned counsel appearing for the father further submits that the father is ready to pay the arrears of maintenance charges of an amount of Rs.3,21,000/- to his daughters and he is not liable to pay the school fees of the children i.e., an amount of Rs.1,98,397/-. He further submits that a major daughter is not entitled to education expenses from father as she does not want to maintain relationship with him and further, there is no provision under the law to give marriage expenses to major and earning daughters. Although the visitation right was granted by the trial Court by order dated 07.03.2013, the mother dodged to produce the children before the Mediation Centre for 5 years. Even when she produced them occasionally, she never used to allow the children near their father. It is submitted that the children and the mother are bent upon disconnecting the relationship with the father and not to have anything to do with the father as evidenced by their behavior, application, affidavit made on oath

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and the children are not entitled for the school fees or the marriage expenses. He submits that the general rule is that maintenance is a nominal amount given for sustenance of wife and children. But in this case, they are asking for five-star luxury expenses. The mother has harassed him by filing several cases. The father has to take care of his aged mother and he has two children in the second marriage, who are school going children and he has personal loan of an amount of Rs.15,00,000/- on the Flat he has brought and he is paying an amount of Rs.32,200/- towards monthly EMI. His deceased brother’s wife died of cancer and has left two sons who are looked after by him. Their education and marriage is his responsibility. In addition to all these, he has to meet litigation expenses on the litigation initiated by the mother. He submits that there is no provision under the Guardian and Wards Act to award maintenance or for payment of school fees for the minor children and the Act only deals with the custody of the children. It is also submitted that the moment children attain majority, the Court dealing with the G&WC for custody case becomes “FUNCTUS OFFICIO” and there is a separate provision under Section 125 Cr.P.C. for claiming maintenance.

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Learned counsel further submits the mother is a B.Sc graduate, she is young and healthy. She can afford to work and support the two daughters. The mother had admitted the children in big schools without the knowledge, permission and consent of the father and demanding huge sums as donation and school fees from the father cannot be countenanced and must be deprecated. Even till today, father does not have any information about what children have studied, where they have been employed, what is the salary they are getting. The first daughter is already employed and getting a salary of an amount of Rs.1,39,000/- per month and he does not know about his second daughter.

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Learned counsel had relied on the judgment in case Ajay Kumar Rathee Vs. Seema Rathee referred supra, submits that the Hon’ble Apex Court in the judgment had observed that in so far as the daughters’ expenses for education and marriage are concerned, it appears from her approach that she does not want to any relationship with the father and is about 20 years of age. She is entitled to choose her own path but cannot demand from the father the amount towards

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Hence, the Court held that the daughter is not entitled to any amount. He had relied on the judgment of Bombay High Court in case of Vaijayantabai w/o Keru Gangarde and Another

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Vs. Keru Anant Gangarde³ dated 19.02.1991 on para Nos.

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28, 29 and 30 which reads as follows:

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"28. With regard to the claim of Rs.16,000/- by way of marriage expenses, the learned judge in answer and discussion of issue No. 5 has rightly held that Babai was a married daughter and that unmarried daughter, if adult, cannot claim maintenance under section 20(3) of the Hindu Adoptions and Maintenance Act. I see no reason to hold otherwise with regard to this item.

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29. The appellant No. 1 has claimed the amount of maintenance at the rate of Rs. 100/- per month and also for arrears for a period of 3 years prior to the suit. The learned judge of the trial Court has already granted arrears of maintenance to the minor daughter Tai for a period of 3 years prior to the suit. The appellant No. 1, therefore, is also entitled to a claim for arrears of maintenance for a period of 3 years prior to the suit amounting to Rs. 3,600/(three thousand six hundred only).

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30. As far as the appellant No. 2 who was minor on the date of the suit and also on the date of filing of this appeal, will obviously get the amount of

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3 1991 2 BomCR 336

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maintenance till the date of attainment of her majority in view of the provisions of section 20(3) of the Hindu Adoptions and Maintenance Act."

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He had also relied on para No.7 of the judgment of the Kerala High Court in case of Thulasikumar Anil Kumar and Another Vs. Raghavan Nair⁴ . Relying on these judgments, learned counsel submits that the father is not liable to pay the marriage expenses as observed by the Courts and also the other educational expenses.

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"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

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4 AIR 1985 KERALA 20

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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 :

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"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."

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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

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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

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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."

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Having heard the learned counsels on either side,

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perused the entire material on record. The mother, daughters and the father are aggrieved by the order passed by the trial Court. The mother and the children are aggrieved as far as granting less amount towards marriage expenses, school fees and further seeking college education expenses. According to the father, neither he is obligated to pay the marriage expenses nor the school fees. The facts of the case are both the father and the mother are divorced and thereafter they have contracted second marriage. In the second marriage, the father has two children. The conduct of the wife and the children plays a key factor in adjudicating the dispute involved in the two writ petitions. The father had filed G&WC for custody and also filed I.A. seeking visitation rights. It appears from the material on record that although the children have not shown any interest to meet the father and the mother also has not encouraged the children to meet the father. What has transpired at the visitation held in the mediation centre is mentioned in the preceding paragraphs as observed by

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the trial court and as submitted by the counsel for the father. Absolutely there is no contact between the children and the father from the day the parents are separated. The mother has taken her own decisions and she had joined the children to different schools. The fees in those schools is high compared to the income of the father. In those circumstances, the Family Court was not right in directing the father to pay the educational expenses.

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It is undisputed fact that the father has the responsibility to take care of the wife as well as the children. What is the quantum of maintenance depends on several factors. This court cannot direct a party to pay the maintenance as required by the other side. It is pained to see the manner in which the children are tutored/behaving in a strained marriage. The disputes are between the father and the mother. But, unfortunately, the children in whose custody they are, starts identifying themselves with the problems/feelings of the custodial parent and they will even refuse to see the face of the other parent. The parents are forgetting that they are doing great injustice to the children. The children are losing their innocent, beautiful and memorable childhood being a

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sandwich between the parents. It is high time parents start realizing that at the risk of child’s future they are fighting their egos. If two persons have taken a conscious decision to separate and live their life, when it comes to the children, they should realize that the children belong to both of them and they require the love and affection of both the parents. Single parenting and particularly alienating the child from one of the parents will have a long-lasting effect on the child’s future. This court in several cases observed that when the children are with the mother, the children for various reasons do not even want to see the father. The mother seeks maintenance from the father stating that it is his obligation to maintain the children. Then the father starts getting frustrated as he is not able to see the children and at the same time, made to pay the maintenance. He will start searching for the ways and means to avoid the maintenance. Unfortunately, the mother is forgetting that apart from the obligation to pay the maintenance, the father has every right to see his children and the children have the right to have a happy childhood. Unless and until this situation is neutralized it would have an adverse effect on the lives of several people. A person who is not happy on the family

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front, will reflect the frustration in all walks of life. India is facing the rise of matrimonial disputes. A great responsibility is cast on the judiciary in balancing the interest/rights of the parents as well as the welfare of the children which has a very thin line. When we fail to notice the thin line, the affected parties will lose their confidence in the system itself. When we are looking at a dispute, particularly in custody and matrimonial matters, whether it is a man or a woman shall never be the criteria. The issue has to be looked from a gender neutral point. The party who is suffering, who needs justice in the hands of the Court should be the only criteria. It is the duty of the court to ensure that the needy gets the relief from the court and frivolous litigants are out of the court. Justice for one gender should not result in injustice to another. No person shall be permitted to exploit the law for personal vendetta or financial gain. While applying the law and the Acts, we shall be conscious of the socio-economic changes and the present society we live in. Further, it requires all the more different outlook as we are dealing with the lives of the people and the decision will have a long-lasting effect not only on the parties but also on all the people who are connected to those parties.

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While the court exercising the parens patriae jurisdiction, being the guardian of the minor carries all the more responsibility. It is also observed that in the matrimonial and custody matters, as a formality, the matter are referred to mediation, this will not serve any useful purpose. Judicial officers/Judges shall make an endeavor to interact with the parties particularly in custody matters. The interaction/conciliation by the Judge makes lot of difference and compared to other avenues, this will have a positive result.

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No doubt, husband or the wife who is having the capacity to maintain shall take the responsibility. The whole purport of Section 24 of the Hindu Marriage Act is to support the party who genuinely lacks means of self -support and to see that they maintain the same standard of living which they would have enjoyed had there been a normal relationship.

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Coming to the facts of the case, the father and the mother are remarried. The father had made his best efforts to take care of the children and filed a case for custody. The children did not want to meet the father as the mother was not interested and having no other go, he wanted to withdraw the

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proceedings. The mother sought for the educational expenses of the daughters. In the preceding paragraph, this Court has already discussed about the income and financial status of the husband. The wife cannot seek maintenance basing on how much she required or she wants to spent, but basing on the income of the husband. She got her daughters joined in the school where the fees is on the higher side compared to the income of the husband. The court cannot compel the father to pay the money beyond his capacity. That apart, the children do not even want to see the father. The trial court went wrong in directing the father to pay the educational expenses already spent by the mother. In the peculiar facts of the case, particularly, at this stage, where the children have completed the education, this court does not see any merits in the petition filed by the mother. One of the daughters wants to pursue the education. I.A. No.1/2024 is filed by the elder daughter seeking the educational expenses from the father and it is stated she requires an amount of Rs.4,06,038/- per month. On the face of it, it is an unreasonable request from the daughter. If anyone wants to pursue their education in a particular place and institution, it would be depending on their

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resources and financial capacity. When the income of the father

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is Rs.1 lakh per month, he cannot be directed to pay an amount of Rs.4,06,038/- per month as expenses and the daughter in the first place cannot come up with such an unreasonable request. The evidence on record does not disclose that the father has capacity to pay that much of amount. While granting maintenance, court has to look at the financial capacity, but not alone the requirement of the daughter. I.A.No.1/2024 is liable to be rejected. The next aspect is about the marriage expenses. In the light of the above discussion, considering the financial position of the father, the relationship between the father and the daughters, they are not entitles for any amount. Hence, this Court is passing the following order:

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ORDER

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i. The order passed in I.A.No.10 & 11 in G&WC.No.108/2011 dated 11.12.2023 by the V^th Additional Principal Judge, Family Court, Bengaluru, is modified.

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