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