Judgment:
B.S.A. Swamy, J .
1. This petition was filed seeking interim maintenance to the petitioner and her daughter pending disposal of GMA filed by her against her husband (respondent) under Section 19 of the Family Court Act read with Section 151 CPC against the order of the Family Court, Hyderabad in OP No. 156 of 1997 dated 29-4-2000 wherein divorce was granted to the respondent dissolving the marriage.
2. When the matter was listed before this Court on 18-6-2002 we directed the petitioner and the respondent and their daughter to appear before this Court to try for reconciliation. The efforts made by the Court became in vain. In those circumstances, we passed an order on this petition directing the respondent to pay maintenance at the rate of Rs.3,000/- per month to her minor daughter who is studying 1st year Intermediate and to explain as to why the maintenance should not be granted from the date of petition. On 15-7-2002 the learned Counsel for the respondent sought permission of this Court to address arguments with regard to the quantum of maintenance to be granted and the date from which the maintenance is to be granted.
3. Heard arguments on both sides.
4. The admitted facts of the case are as follows:
5. The petitioner was given in marriage to the respondent. The marriage took place in the year 1986. During the period of their wedlock a female child was born on 7-3-1987. From the factual narration given by both parties, it is clear that their marriage was never a happy one and always facing rough weather. Ultimately the respondent drove the petitioner from his house on 12-9-1996 and filed OP No.156 of 1997 on the file of the Family Court, Hyderabad seeking divorce on the ground of cruelty. During the pendency of that O.P., the respondent seems to have made an oral request seeking custody of the daughter. But the Court below did not choose to grant the same. Subsequently the said OP was allowed and the divorce was granted by dissolving the marriage by order dated 29-4-2000. Aggrieved by the said order and decree, the petitioner filed the said CMA and also a petition (CMA No. 10293 of 2000) for suspension of the order under the said appeal including the contract of second marriage by the respondent and this petition for grant of interim maintenance at the rate of Rs. 10,000/- per month for her as well as her daughter during the pendency of the appeal.
6. On 24-7-2000 this Court initially passed an order of interim injunction restraining the respondent from contracting the second marriage. On 23-11-2000 the interim order of injunction was made absolute. Of course, this Court gave direction to the office to post this matter for final hearing in the third week of June, 2000. As stated supra, the efforts made by this Court did not yield fruitful results. The respondent refused to take the petitioner to his house though she expressed her willingness to join him. At this stage, the learned Counsel for the petitioner brought to our notice about the pendency of this petition. After hearing both parties we felt it reasonable to direct the respondent to pay a sum of Rs. 3,000/- per month to the child towards maintenance from June, 2002. We also directed the respondent to show-cause to why the maintenance should not be granted from the date of this petition.
7. Now the learned Counsel for the respondent, while admitting the liability of the father being natural guardian to maintain the minor child (daughter), refused to pay maintenance on various grounds. The first objection he took is that no petition was filed seeking maintenance. When we showed the petition to him, he relied upon a decision of the Orissa High Court in Purusottam Das v. Puspa Devi, : AIR1982Ori270 , wherein the Court took a view that no maintenance can be granted to a child under Section 24 of the Hindu Marriage Act, 1955. Absolutely we have no quarrel with that proposition. Admittedly there is a specific provision under Section 26 of the Hindu Marriage Act, 1955 (for short 'the Act') for grant of maintenance to the minor child. Unfortunately, the Counsel for the petitioner, though a senior lawyer, filed this petitioner under Section 151 CPC seeking maintenance forgetting the fact that there is a specific provision in the Act itself. This being a curable defect and as the Court should always be guided for rendering justice between the parties and as the judgments to be delivered by the Court should be in furtherance of cause of justice, we treated this petition as petition under Section 26 of the Act and proceeded to examine the other contentions raised by the learned Counsel for the respondent. Accordingly this contention is answered against the respondent.
8. Nextly, the Counsel for the respondent took us to the averments made by him in the counter to show that he is always ready and willing to take the petitioner and maintain here. It is also his case that the lower Court found the conduct of the petitioner to be bad and if the child is allowed to continue to live with her, she (child) may imbibe her bad qualities. But, during the reconciliation proceedings, when we asked the child who is studying in Intermediate and aged about 16 years, she categorically expressed that she would like to go to her mother and that she would not like to join the respondent without her mother.
9. The Counsel for the respondent relied upon Section 26 of the Act for denying the maintenance on the ground that the respondent is prepared to take custody of the child. In this connection, we would like to extract Section 26 of the Hindu Marriage Act hereunder:
'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 this 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 proceedings 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.'
10. From the above, it is seen that the Court is empowered to pass orders during the pendency of any petition with regard to the custody of the children, maintenance and education of minor children consistently giving effect to the wishes of the children. In other words, the Court should be guided by the wishes of the minor children in directing their custody apart from granting maintenance and providing education to them. Since the child refused to join the respondent the question of granting her custody to the respondent does not arise in this case. If the respondent is advised, he being natural guardian of the girl may initiate appropriate proceedings under the Guardians and Wards Act claiming custody of the child. Till then the question of directing the child to stay with the respondent against her wish does not arise.
11. When once the respondent cannot claim the custody of the child, the next question that falls for consideration is whether the respondent is bound to maintain and provide education to the child or not.
12. The learned Counsel for the respondent cited various decisions, which have no bearing, on the issue before us. All the decisions cited by him mostly arose under Section 488 Cr.PC or Section 125 Cr.PC wherein the wife claimed maintenance. Except two decisions, the other decisions do not deal with the grant of maintenance to the minor child.
13. The first decision cited by the learned Counsel for the respondent is the decision of the Bombay High Court in Dinsab Kasimsab v. Mahmad Hussen, AIR (32) 1945 Bom. 390. Admittedly this case also arose under Section 488 Cr.PC. Their Lordships of the Bombay High Court in that decision observed:
' ...........in a proceeding under Section 488, so far as the maintenance of a child is concerned, the criminal Court is concerned only with the fact of its custody and not the propriety of that custody. But when the matter comes before a civil Court, it has to consider whether the father is not the lawful guardian of the child and whether for any reason he is unfit to have its custody. It cannot be contended that this question is to be decided only in a proceeding under the Guardians and Wards Act, but the right to custody can be a good defence to a claim for the separate maintenance of the child in a civil suit, provided the father has expressed his bona fide willingness to keep and maintain the child. When the custody of a child is wrongfully withheld from its father when he is its legal guardian, it would be unfair to require him to pay for its maintenance and drive him to a separate action for recovering its custody when the question of his right and fitness to have its custody can be decided in the same suit.'
To the same effect is the decision of the Rajasthan High Court in Shahida v. Chhuttan Khan, I(1987) DMC 18.
14. Both the decisions arose under the old Cr.PC. On the other hand, we are dealing with a case under Section 26 of the Act wherein there is a specific provision for maintenance and education of minor child in conformity with her social status. Hence these decisions cannot be of any authority to deny the maintenance to the minor child. As we already observed, if the respondent wants to establish his legal right over the minor child to claim her custody it is always open to him to initiate appropriate proceedings. It is also interesting to note that though he made a oral request before the Family Court he did not choose to file any petition seeking custody of the minor child. We are of the opinion that these decisions cannot come to the aid of the respondent.
15. Nextly, the respondent strenuously contends that since the petitioner is also earning, the maintenance and educational expenses of the child have to be borne by both parties equally. Though this argument is attractive it has no legs to stand for the simple reason that the father being the natural guardian, he is alone bound to maintain the child. Merely because the petitioner is also earning, we cannot direct her to meet the expenses of the minor child in getting her educated. Hence we reject this contention also.
16. Nextly, the learned Counsel for the respondent contended that the petitioner did not give any information as to the place where the child is studying and also as to the quantum of expenses which the petitioner is incurring in getting the child educated. The child hails from a respectable family. The child categorically stated that she is studying in Intermediate. Keeping the present day expenses of education the amount awarded for the maintenance and education of the child is quite reasonable. If the respondent feels in future that the money is not required by the child any more for her maintenance and education, he may come up with petition for reducing the maintenance. We should also keep in mind that immediately after completion of Intermediate, if the child intends to study either Engineering or some other professional course, we give liberty to the petitioner to move application seeking enhancement as and when she requires further funds for that purpose.
17. Lastly, the learned Counsel for the respondent contended that he is drawing a salary of Rs.14,000/- as per the salary certificate and that since he has to maintain his widowed sister and he is a heart patient he cannot pay Rs. 3,000/- per month towards maintenance. Admittedly we directed the respondent to pay one-fifth of the salary i.e., Rs.3,000/- per month for getting the child educated and for maintenance keeping in view her social status. The remaining salary of about Rs.12,000/- can meet the expenditure of the respondent and his widowed sister for whom he has no obligation to maintain. Coming to his heart ailment, he being a doctor knows how to get himself treated more so as a doctor in the Osmania General Hospital and the expenses incurred for medical expenses is reimbursable he being a Government Servant. Further he is post-graduate in Pathology. Though he is working as Tutor there is every chance of his getting promotion as Professor and thereby there is likelihood of increase in his emoluments. Hence we rejects the contention of the respondent that he has no means to pay Rs. 3,000/- per month to the child towards maintenance.
18. The next question to be decided is from which date the maintenance has to be awarded. It is admitted fact that this petition was filed along with appeal. No orders were passed on this application though the respondent filed counter to this petition. It is after the failure of reconciliation efforts that the learned Counsel for the respondent insisted this Court for passing orders on this petition. The consistent practice that is being followed by this Court is that maintenance is granted from the date of petition. But for various reasons this application has not been disposed of early. In fact, this issue is covered by the decision of a Division Bench of this Court in Narendra Kumar v. Suraj Mehta, AIR 1982 AP 100. In paragraph 18 of the judgment of that decision their Lordships held:
'We have therefore, no doubt that interim maintenance cannot be granted from a date on which one of the spouses deserted the other. The order made under Section 24 of the Act can only cover the period between the date of the presentation of the petition and the date of the termination of the petition by a final order.'
19. Though this decision was rendered under Section 24 of the Act, the same analogy can be extended to a petition filed under Section 26 of the Act. Hence we direct the respondent to pay the maintenance granted by this Court from 19-6-2000 on which date this petition was filed. By order dated 21-6-2002, though we directed the respondent to pay Rs.3,000/- per month to the child commencing from June, 2002 without paying any amount the came up with a lame excuse that the Court permitted him to submit argument both with regard to the claim of maintenance and the date from which the maintenance is to be paid, the amount was not paid. This shows that conduct of the respondent. After completion of the dictation of the judgment, the learned Counsel for the respondent submits that the respondent is getting salary only from the last six months and that too he is getting very less salary. Even then we are inclined to direct him to pay the said maintenance to the child from the date of the petition. Keeping in view the fact that the respondent had not paid even a single pie towards maintenance and education of the child from the date of desertion of the wife, since the respondent has to pay Rs. 75,000/- towards arrears we permit him to pay the arrears of maintenance in three instalments at the rate of Rs. 25,000/-. However he shall start payment of monthly maintenance from August, 2002, The monthly maintenance payable thereafter shall be paid on or before 10th of every succeeding month by way of demand draft. The petition shall open an account in the name of the child by acting herself as guardian and furnish the account number to the respondent by RPAD. Thereafter the respondent shall deposit the maintenance amount into that bank account on or before 10th of every succeeding month. As far as the arrears are concerned, the first instalment shall be paid by September, 2002, second instalment by November, 2002 and third instalment by January, 2003.
20. Post CMA in usual course for final hearing.