Case BriefsHigh Courts

In 2013, Gujarat High Court addressed a case wherein a son audaciously suggested that his parents should move to and stay in an old-age home instead of claiming an order of “care, protection and maintenance”.

The petitioner who was the father along with his wife used to live in the village and were not keeping well, health-wise, hence they claimed in the Court that their son shall be directed to provide proper maintenance, care and protection.

Father alleged that his younger son does not help him and his wife in any manner and he also does not provide for their maintenance.

From the opposing application, it emerged that the expenditure towards medicines of the applicant and his wife were being reimbursed, however, the applicant had emphatically denied and asserted that the said expenses are not being reimbursed and he has to meet with all expenses including the expenditure towards medicines for himself and his wife out of his pension-amount and he does not have any other income/source of income except pension.

It was not in dispute that the respondent does not stay with his parents and from the material on record it does not come out that he is extending any care or help to his parents and/or he does not provide for, or does not even contribute anything for, their maintenance.

High Court noted that the father does not receive any monetary help from his children and he does not have any other income to maintain himself and his wife to meet with their regular domestic expenses as well as the expenditure towards their medicines.

Additionally, the Court expressed that the applicant and his wife do not get any physical or emotional care, protection and support or any monetary help from their two children and their families.

Section 4 of the Act prescribes that the obligation of the children or the relative to maintain parent or senior citizen extends to the “needs” or parent’s or senior citizens so that he/they may lad a “normal life” and the conferment of the right to claim maintenance under the Act is not restricted qua only biological or adopted children but it is also extended, in specified cases, qua relative/s as well.

The above-said obligation was not restricted only to provide bare minimum maintenance, but the Act imposes obligation to also provide “all needs” of such citizen so that he may lead a “normal life” and to also provide food, clothing, residence, medical attendance and treatment.

The above-said expression ‘lead normal life’ would include all requirements of parents, i.e., physical needs as well as emotional needs.

It is pertinent that the pecuniary limit as regards the amount which can be awarded as maintenance allowance does not regulate the provision under section 4 of the Act and the provision under section 4 of the Act is not dependent on section 9 or pecuniary limit prescribed by the Rule 5 of the said Rules. It is neither the scope nor effect nor object of section 9 to regulate and/or restrict the scope or operation of Section 4 of the Act.

Parents’ right to Maintenance

High Court expressed that,

The right of the parent or senior citizen to make an application for maintenance, if such parent or senior citizen is not able to maintain himself from his own earning cannot be denied/taken away or curtailed by applying and superimposing the pecuniary limit prescribed for the purpose of Section 9 of the Act.

Further, with regard to awarding more amount, Court held that the applicant has to satisfy the competent authority that having regard to his requirements to lead a normal life as contemplated under Section 4 of the Act, his income is insufficient and he needs more amount/assistance from his children so that he can maintain himself and lead a normal life.

“…merely because, income of the applicant appears to be more than the pecuniary limit prescribed for the purpose of section 9 of the Act, the authority cannot refuse to entertain and decide an application and pass appropriate order.”

The petition was accepted and allowed.[Parmar Dahyabhai Hemabhai v. Parmar Prakashbhai Dahyabhai, 2013 SCC OnLine Guj 749, decided on 4-3-2013]


Advocates before the Court:

MR YH MOTIRAMANI, ADVOCATE for the Petitioner(s) No. 1
MS E.SHAILAJA, ADVOCATE for the Respondent(s) No. 1

Case BriefsHigh Courts

Kerala High Court: In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,

“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.”

Background

The inter-faith couple, (husband being a Hindu and wife a Muslim) entered into wedlock in 1987 and a girl child-respondent 1 was born to them who was brought up as a Muslim.

The root of the instant case was originated at the Family Court, Nedumangad, where a petition was filed by the respondent 1 against the couple claiming past and future maintenance, educational and marriage expenses invoking the provisions of Hindu Adoptions and Maintenance Act, 1956. Evidently, the appellant-husband had alone contested the matter at the Family Court on the ground that the petition invoking provisions of Hindu Adoptions and Maintenance Act, 1956 was not maintainable.

Findings of the Family Court

The family court, after the analyzing the evidences on record, found that the first respondent had an upbringing of that of a Hindu as her father; the appellant herein was a Hindu. Accordingly, holding that the respondent 1 was entitled to all the reliefs as claimed by her from her parents, the Family Court awarded a decree for Rs. 1,08,000 towards past maintenance, Rs. 14,66,860 towards marriage expenses and Rs. 96,000 towards educational expenses with interest.

Observations and Findings

Does father of a child born out of an inter–faith marriage have legal obligation to maintain it in the absence of a statutory stipulation?

Evidently, after 3 years of age the first respondent was brought up as Muslim by her maternal grandparents as the appellant had left their company and later on, the respondent 2 married another person. Moreover, the respondent 1 was married to a Muslim man as per Muslim rites.  Therefore, the Bench opined that the findings of the Family Court that the respondent 1 was brought up as a Hindu and, hence, the provisions of the Hindu Adoptions and Maintenance Act, 1956 would apply could not be sustained. Similarly, the Muslim Personal Law also could not be applied since both parties were not Muslims. Further, the Bench expressed,

“There is no substantive law mandating a father of a child born out of an inter–religion marriage to maintain it. The Special Marriage Act, 1984 is silent on this.”

However, opining that every child born to this world is entitled to be maintained and since, father is recognized as the guardian, he is under a duty to maintain and protect the child, the Bench applied the United Nations Convention on the Rights of the Child (UNCRC), to hold that every child has the right to survival, protection and education. In Mathew Varghese v. Rosamma Varghese, (2003 KHC 362), it was held that every father whatever be his religious denomination and faith has the indisputable liability to maintain his child.

Further, every child irrespective of his race, caste or religion has a remedy by way of a suit or petition under S. 9 and O. XXXII A of the CPC and Section 7(1)(e) of the Family Courts Act, 1984 to claim maintenance. A criminal liability is imposed by Section 125 of CrPC to a father irrespective of the faith or religion professed by him to maintain his children.

Therefore, opining that the caste, faith or religion cannot have any rational basis for determining the parental duty of a father and all the children have to be treated alike irrespective of the faith or religion professed by the parents, the Bench held that the children of an inter-faith couple are entitled to be maintained by their father where son’s entitlement is until he attains the age of the majority and that of daughter’s is until she gets married.

Whether Right to maintenance includes marriage expenses as well?

In Mathew Varghese’s case, while deciding the question whether a Muslim father is liable under Personal Law to meet the marriage expenses of his unmarried daughter, the Supreme Court had held that maintenance is the right of the child and such maintenance does and must include all expenses for the mental and physical well being of the child and so far as unmarried daughter is concerned, her marriage is also something essential for the mental and physical well being.

In so far as the Hindu father is concerned, Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 which obliges the father to maintain his unmarried daughter specifically includes the right of the claimant for marriage expenses. Therefore, the Bench concluded that an unmarried daughter born to an inter religious couple is entitled to marriage expenses from her father.

Conclusion

Emphasising that an unmarried daughter cannot ask or compel her father to conduct marriage in a lavish or luxurious manner and a father cannot be fastened with the liability to bear the amount spent by the daughter lavishly according to her whims and fancies, the Bench ruled that the Court can only award bare minimum reasonable expenses, that too only if the father has requisite means and the daughter is dependent on him.

Regarding the facts, the respondent 1 had claimed Rs. 25,00,000 towards marriage expenses and the Family Court had granted Rs. 14,66,860 for the same, the Bench observed that all the bills except three of marriage expenses were for the purchase of gold ornaments and the total of actual expense incurred for marriage would come to Rs. 1,73,150. Therefore, the Bench concluded that a sum of Rs. 3,00,000 would be just and reasonable towards the marriage expenses since there is no concept of dowry in a Muslim Marriage and no obligation for the father to pay any money, gold or sthreedhanam to his daughter.

Accordingly, the amount granted by the Family Court towards the marriage expenses was modified and the impugned judgment was partly upheld to the extent it provided maintenance of Rs. 5,000 and education expenses of Rs. 96,000 (the amount actually spent on the education of respondent 1). [J.W Aragadhan v. Hashmi N.S, Mat. Appeal No. 65 of 2015, Decided on 03-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Advocate Nirmal S.

For the Respondents: Advocate G.  Ranju Mohan, Advocate K.V Samudra and Advocate M. Samthi

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Madhya Pradesh promulgates the Madhya Pradesh Freedom of Religion Ordinance, 2020.

Purpose of this Ordinance

To provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith.

Prohibition of unlawful conversion from one religion to other religions [Section 3]

The said ordinance states that no person shall:

  • Convert or attempt to convert, either directly or otherwise, any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;
  • Abet or conspire such conversion

Complaint against conversion of religion [Section 4]

No police officer shall inquire or investigate except upon written complaint of a person converted in contravention of Section 3 above or his parents or siblings or with leave of the Court by any other person who is related by blood, marriage or adoption, guardianship or custodianship as may be applicable.

Punishment for contravention of provisions of Section 3 [Section 5]

Imprisonment for a term not less than one year but which may extend to 5 years and the person shall also be liable to not less than Rs 25,000 fine.

There are certain proviso clauses mentioned under the said Section.

Marriages performed with the intent to convert a person shall be null and void [Section 6]

Marriages performed in contravention of Section 3 shall be deemed to be null and void.

Jurisdiction of Court [Section 7]

To declare the marriage null and void, the petition shall be presented by any person mentioned in Section 4 before the family court or where a family court is not established, the Court having jurisdiction of a family court within the local limits wherein, —

  • The marriage was solemnized or
  • Respondent at the time of the presentation resides or
  • Either parties to the marriage last resided together or
  • Where the petitioner is residing on the date of presentation of the petition.

Inheritance Right [Section 8]

Child born out of a marriage performed in contravention of Section 3 will be legitimate and succession to the property by such child shall be regulated according to the law governing inheritance of the father.

Right to Maintenance [Section 9]

Woman whose marriage is declared null and void under Section 7, children born out of that marriage shall be entitled to maintenance.

Declaration before conversion of religion [Section 10]

Any person who desires to convert shall submit a declaration to that effect 60 days prior to such conversion to the District Magistrate stating his desire to convert without any force, coercion, undue influence or allurement.

Section 11 states the punishment for violation of provisions of Ordinance by an institution or organization.

Burden of Proof [Section 12]

Burden of Proof as to whether a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means done for the purpose of carrying out conversion lies on the accused.

Investigation [Section 14]

No police officer below the rank of sub-inspector of police shall investigate any offence registered under the ordinance.


Also Read:

Prohibition of Unlawful Religious Conversion | Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 [Brief Explainer]