Full Judgment
A.K. Shrivastava, J.
1. An order passed by the Court below upon an application filed under Section 25(2) of Hindu Marriage Act, 1955 (in short 'the Act'), has been challenged in this appeal by the appellant under Section 28 of the Act.
2. The undisputed facts are that a divorce decree was passed on 22-12-1995. The parties are having two daughters namely Shweta and Deepshikha. In the judgment of divorce it was directed to the appellant that he would pay Rs. 1000/- per month to respondent and two daughters. Out of this amount Rs. 500/- was fixed for the wife and Rs. 500/- were equally distributed i.e. Rs. 250/- each for maintenance of the daughters namely Shweta and Deepshika. An application was submitted in the Court below for enhancement of maintenance amount on account of escalation in the price index as well as the daughters are growing up and for their studies, as the amount of maintenance which was passed earlier has now become quite inadequate. According to the respondent, appellant is having his own property like house, ancestral property, Maruti Car etc. and as such he is quite competent to pay a sum of Rs. 4,000/- per month for maintenance to her and the two daughters. It has been prayed that on account of changed circumstances the amount of maintenance be enhanced from Rs. 1000/- to Rs. 4000/-. Further it has been prayed that a sum of Rs. two lakhs in lump sum be also paid.
3. In replay to the application, the averments made in the application were denied and it has been specifically pleaded that the appellant is a private doctor, having qualification of B.A.M.S. and at present he is residing in one room in the township of Chhapara, district Seoni. His sole source of earning is his private medical practice only, by which he is earning only Rs. 2,000/- per month. It has also been pleaded that the applicant/respondent has been employed on the post of clerk in Municipal Council, Seoni and is earning Rs. 7,000/- per month as such she is quite competent to maintain herself and the daughters.
4. The learned Court below, after recording the evidence, came to hold that in place of Rs. 1000/- which was allowed earlier, the appellant should pay Rs. 2100/- per month to the respondent and the enhanced amount Rs. 1100/- was directed to be paid to the daughters. The Court below further came to hold that since respondent is in employment and is earning, hence she is not entitled for any enhancement of maintenance amount. The Court below also held that respondent is not entitled to obtain a lump sum amount Rs. two lakhs because the appellant is required to pay handsome amount for the marriage of her daughters and, therefore, in absence of any evidence in respect to the better financial status of the appellant, it was ordered that respondent is not entitled for the said lump sum amount The enhancement of the maintenance amount has been directed to be implemented from the date of the order i.e. 15-7-2002 and it was further directed that first instalment be paid w.e.f. 15-8-2002.
5. Feeling aggrieved by the impugned order, appellant/husband has filed this appeal. The respondent was served on 29-11-2002 and on opening day after winter vacation she filed cross-objection on 2-1-2003.
6. I have heard Shri Arvind Shrivastava, learned Counsel for the appellant and Shri Dinesh Koshal, learned Counsel for the respondent.
7. On going through the record of the Court below, it is gathered that respondent is earning Rs. 1883.87 per month as she is a daily wager employee in the Municipal Council, Seoni. This fact has been totally concealed by her in her application, thought by filing cross-objection, a prayer to enhance her maintenance amount has been sought but looking to the peculiar facts and circumstances of the case that she is in employment, according to me presently, she is not entitled for any enhancement. She may file suitable application on changed circumstance, if any, in future.
8. It has been contended by Shri Arvind Shrivastava, learned Counsel for the appellant, that during the pendency of the litigation both the daughters have become major and, according to him, the amount of maintenance as enhanced by the Court below has been paid by the appellant till the date they became major. It has further been contended by him that since the daughters have become major they are not entitled for any maintenance amount in view of Section 26 of the Act,
9. True, on going through the record, it is gathered that the daughters have become major but it is equally true that they are now college going girls and require some more amount for their maintenance. On going through Section 26 of the Act, it is quite clear that the amount of maintenance can be awarded for minor children, but merely because the application has been moved under Section 25(2) of the Act and because during the pendency of the proceedings, the daughters have become major would not disentitle them from obtaining the maintenance amount from their father. Under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound, during his lifetime, to maintain his legitimate or illegitimate children. Under Section 20(3) of the said Act, it is obligatory on the part of a person to maintain his unmarried daughter who is unable to maintain herself out of her own earning. In the case of Rishikesh Darshanlal Sharma v. Saroj Rishikesh Sharma, 1997 (2) MPLJ 530, a similar type of situation arose and this Court held that though under Section 26 of the Act major daughter would not be entitled for maintenance but under Section 20 of the Hindu Adoptions and Maintenance Act she would be entitled for the same. I am in respectful agreement of the said authority. Indeed, it had served the real justice ignoring the technicalities. Though technically the major daughters are not entitled for maintenance under Section 26 of the Act, but, they are certainly entitled for maintenance under Section 20 of the Hindu Adoptions and Maintenance Act.
10. Learned Counsel for the appellant has placed reliance on the case of Kartarchand Dalliram Jain v. Smt. Taravti Kartarchand Jain, AIR 1982 Bombay 15, and has submitted that under Section 26 of the Hindu Marriage Act the daughters, since they have become major, are not entitled for maintenance amount and the proper recourse for them is to seek maintenance under Section 20 of the Hindu Adoptions and Maintenance Act. However, according to me, just to serve the real justice and to avoid the technicalities, I am following the decision of this Court in the case of Rishikesh Darshanlal Sharma (supra).
11. There is overwhelming evidence that the daughters are unable to maintain themselves, indeed the daughters themselves entered into the witness box and have expressed their grievance. To me, it would be only a futile exercise directing them to file a fresh application under the Hindu Adoptions and Maintenance Act. To obtain the relief these two daughters should not be made as shuttlecock.
12. In this view of the matter, according to me, the enhanced amount of Rs. 1100/- for the daughters awarded by the Court below cannot be said to be unsustainable in the eyes of law. Indeed looking to the present facts and circumstance of the case, the Court below rightly passed the impugned order enhancing the maintenance amount for two daughters.
13. In the result, the appeal and the cross objections, both, are dismissed. The parties are directed to bear their own costs.