Determination of quantum of maintenance payable to the child has to be determiged no doubt on reasonable basis. Reasonable basis must draw a balance between the need of the child on the one hand and the status, income and facilities available to the father on the other. It cannot be said to be reasonable that the father lives in style, has a big house. Government facilities and good income, while on the other hand, the child has to suffer even in the day to day life. The father cannot live like a Lord and make his daughter live like a Maid. There has to be an equal balance between the two and the need of the child has to be satisfied from the income of the father. To provide better living to a child the parents sacrifice but never object to payment of meager sums or even reasonable sums for the welfare of the child.
1. Petitioner Dr. R.K. Sood has assailed the order of the learned District Judge, Chandigarh dated 3.11.1995 in this revision petition on various grounds.
2. But the main and in fact the only argument advanced on behalf of the petitioner is that an application for grant of interim maintenance to a minor child is not maintainable under the provisions of Hindu Marriage Act. Further more it is argued in any case an application for maintenance only on behalf of a minor child cannot be maintained by the mother in whose custody the child is under Section 24 of the Hindu Marriage Act, hereinafter referred to as 'the Act'.
3.This legal controversy has arisen out of the admitted facts that Mrs. Usha Rani Sood was married to the petitioner Dr. Sood in accordance with Hindu rites and their marriage was solemnised at Morinda on 2.3.1986. From this marriage a female child was born on 1.12.1988 and the said child was named as Sheiry Sood and presently 61/i years old. She is staying with the mother and studying in a school at Ropar. A petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce was filed by Usha Rani against the husband on the grounds of cruelty and desertion and the said petition is stated to be pending in the Court of competent jurisdiction.
4. Reconciliation efforts by the Courts even failed at all stages.
5. Besides the allegations of cruelty and desertion in the application filed for grant of maintenance and education expenses of the minor it was specifically averred in the application that the child is studying in Bright Public School, S.A.S. Nagar, Mohali. The mother was spending Rs.340/- per month as tuition fee and further expenses for her clothing, eatables, transport, books etc. The husband is stated to be a senior doctor serving in Punjab Government Health Services Department and is alleged to have an income of more than Rs. 10,000/-. On these facts a claim of maintenance of Rs. 2,500/- per month was preferred by the wife and she claimed no litigation expenses.
6. In the reply the facts were disputed and it was stated that the net salary which the husband receives is Rs. 9,300/- per month and it was also averred that the wife was earning a sum ofRs.5,000/- and she was serving in the Financial Commissioner's Office, Punjab. Consequently the husband had prayed for dismissal of the application.
7. The husband in the present petition has raised an objection with regard to the maintainability of such an application on the ground that minor alone cannot be granted maintenance under the provisions of Hindu Marriage Act. This objection was not taken by the petitioner when he filed reply to the application for maintenance filed by the wife before the Trial Court. In view of this fact that an objection to the maintainability of an application was not even raised before the Trial Court the petitioner would be deemed to have waived even if such objection is taken to be sustainable in law. However, I would still proceed to discuss merits of this objection raised in this revision for the first time on behalf of the respondent.
8. In order to appreciate this contention it would be necessary to reproduce the relevant portion of the application filed by the wife before the Trial Court:
"Application for the grant of maintenance & education expenses etc. in respect of Sheiry Sood minor d/o Dr. R.K. Sood, respondent."
5. That keeping in view the status and income of the family and earnings of the respondent, the applicant is entitled to Rs. 2,500/- per month (Rupees two thousand five hundred) for school expenses and upkeep of their female child namely Sheiry Sood upto the standard and status of the family. The respondent is not paying anything for the maintenance of the said child.
In the circumstances it is respectfully prayed that the Hon'ble Court be pleagd to grant maintenance of Rs. 2,500/- P.M. (Rupees two thousand five hundred only) per month for and by way of maintenance of Sheiry Sood, minor d/o. Dr. R.K. Sood and respondent may be directed to make payment of the aforesaid amount to the applicant each month."
9. Under Section 24 of the Act the right of either spouse to claim maintenance has been protected under the provisions of this Act. However, grant of such maintenance to the spouse claiming the relief is dependent upon the applicant's satisfying the conditions as postulated in Section 24 of the Act and as well as other parameters in accordance with settled principles of law. Section 24 of the Act comes into play where any proceeding under the Act are pending, while Section 26 of the Act grants children right to claim maintenance in any proceedings under the Act, Section 26 of the Act reads as under :
"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 the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, where ever possible, and may, alter the decree, upon application by petitioner 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 proceeding for obtaining such decree were still pending and the Court may, also from time to time revoke, suspend or vary any such orders, any provisions previously made."
10. The scope of this section is not restricted. In fact it is in aid to the provisions of Section 24 of the Act. The right to claim maintenance is not only granted to either of spouse to the marriage but also to the children born from the marriage. The Court while exercising jurisdiction under Section 26 of the Act can pass interim orders with respect not only to the custody, education etc. of the minor children but also with regard to their maintenance. The Legislature imposes an obligation upon the Court to pass such orders at the time of passing of a decree or even thereafter on the application of the children, ...which will be consistent with the wishes of the children as far as possible. The intention of the Legislature to grant definite protection to the minor children is clearly indicated in the scheme of the Act and more particularly relating to grant of maintenance.
11. Hindu Marriage Act is primarily a social legislation intended to provide protection to the spouses to a marriage and their children. While looking into the provisions of a social legislation the object sought to be achieved by such legislation becomes a paramount consideration before the Courts. It is also an equally settled principle of law that if there is a power provided under a statute for claiming a relief, then mere mentioning of a wrong provision or incorrect section would not disentitle the party to such a relief from the Court if otherwise permissible and can be granted within the four comers of the Statute. It will hardly be just fair for a father to avoid his liability to pay maintenance to his child on such a technical objection which in any case is not even sustainable. The present application is not stated to have been filed under Section 24 of the Act, as it does not say so. So the objection itself is ill founded. The application is and in any case can easily be treated as an application under Section 26 of the Act where filing of such an application is specifically permissible. A Division Bench of this Court in the case of Usha v. Sudhir Kumar, (1974) 76 P.L.R. 195, held as under :
"There is no doubt that under Section 24 of the Act the child cannot claim maintenance and it is only either of the two spouses who can make a claim. At the same time, it is clear that a claim can be made for maintenance of a child during a proceeding under the Act and the Court can in exercise of powers vested in it by Section 26 of the Act pass such interim orders in any proceeding under the Act, from time to time, as it may deem just and proper with respect to the maintenance and education of minor children, consistently with their wishes, wherever possible. But even if no application under Section 26 is made and a wife makes an application under Section 24 and claim that the amount which she necessarily requires to maintain herself includes the provision for necessities for her infant child, the same can no doubt be taken into account in fixing the quantum of allowance under that provision."
12. The learned Counsel for the petitioner has strongly relied upon another judgment of a Division Bench of this Court in the case of Ram Lal v. Smt. Surinder Kaur, (1995-1) 109 P.L.R. 527, to substantiate his above arguments. In this case the Division Bench has primarily dismissed the appeal on the ground that there was concurrent finding of fact and the Court would not interfere. However, certain observations were made by Division Bench on different facts that under Section 25 of the Act application for grant of maintenance to a minor child alone by the wife was not maintainable.
13. As already discussed certain observations of the Division Bench in Ram Lal's case (supra) are on different facts and are of not much help to the husband. Secondly the judgment of the Division Bench in the case of Mrs. Usha (supra) was not brought to the notice of the Division Bench. The earlier co-ordinate Bench had laid down after detailed discussion certain principles of law and the observations of the subsequent Division Bench would no way alter such principles of law. The observations of the subsequent co-ordinate Bench in my humble view will have to be read as per incuriam on the basis of the settled principles of stare decisis. It appears that the earlier Division Bench's view of this Court was not brought to me notice of the Division Bench dealing with the case of Ram Lal (supra). In this regard it will be appropriate to make a reference to the judgment of the Supreme Court in the case of Assistant Collector of Estate Duty, Madras v. Smt. V. Devaki Ammal, Madras J.T. 1994(7) S..C. 543, and Bhagwan Dass Arora v. First Additional District fudge, Rampur and Ors., A.I.R. 1983 Supreme Court 954. In this regard reference can also be made to the cases ofFitrat Raza Khan v. State of Uttar Pradesh and Ors., 1982(2) S.C.C. 449; Bachan Singh v. The State of Punjab etc. etc., 1982(3) S.C.C. 24; and A.R. Antulay v. R.S. Nayak and Anr., 1988(2) S.CC. 602.
14. In view of the above discussion and the facts and circumstances of this case the objection raised by the Counsel for the petitioner is not maintainable and merits rejection. A specific right has been granted to the children to claim maintenance in their own right under the provisions of Section 26 of the Act during pendency of any proceedings under the Act. Further more, even a mother can claim maintenance on behalf of the minor child alongwith her under the provisions of Section 24 of the Act, as such a right is fully recognised in law.
15. During the course of arguments both the Counsel for the parties have conceded before me that the husband is getting a gross salary of Rs. 10,300/- and receive net salary of Rs. 9.300/- in hand, while the wife is getting salary of Rs. 4,700/- and received Rs. 4,300/- net salary in her hand. The child is studying in the above school where she has been shifted by the mother because the school provides facilities for keeping the child from 8.00 a.m. to 5.30 p.m. and the mother on her return from the office picks up the child from the school. The child was produced in Court. There appears to be some problem with her eyes and it was also conceded before me and even hospital records of P.G.I. Chandigarh were shown that she was operated upon in the concerned department of the P.G.I., and was undergoing treatment. The mother is stated to have spent amount for this purpose. It was submitted by both the Counsel for the parties that the wife is living all alone.
16. Hindu marriage is not yet looked at or recognised in our society and law, as a pure and simple contract like other contracts. This bond is considered more as a religious, moral and social bond of mutual duties and obligations giving marriage a religious and meaningful basis keeping in view the rituals performed at the marriage and consequent solemnization of marriage between the parties.
17. Under the Hindu Law father not only has a moral but even a statutory obligation to maintain his infant children. The scope of his duty is to be regulated directly in relation to the money, status, that the father enjoys. The right of maintenance of a child from his father cannot be restricted to two meals a day but must be determined on the basis of the benefit, status and money that the child would have enjoyed as if he was living with the family, including his mother and father. Irrespective of the differences and grievances which each spouse may have against the other, the endeavour of the Court has to be to provide the best to the child in the facts and circumstances of each case and more so keeping the welfare of the child in mind for all such determinations. Liability to maintain one's children is clear from the text of this status as well as the various decided cases in this regard. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds.
18. It is settled principle of law that the mother has a right to file separate petition for maintenance of a child if she is not entitled to a maintenance or such maintenance has not been taken into account while fixing her maintenance on an earlier occasion. Reference can be made to the case of Patel Dharamshi Premji v. Bal Sakarkaj, AIR 1968 Gujarat 150, wherein it has been held that it is equally true that non-mentioning of Section 26 does not affect the substance of the prayer for maintenance under Section 25 or under such analogous provisions of law under the Hindu Marriage Act. Reference can also be made to A.R. Munuswamy Rajoo v. Hamsa Rani, AIR 1975 Madras 15. This would indicate that in the facts of the present case the application is maintainable.
19. Determination of quantum of maintenance payable to the child has to be determiged no doubt on reasonable basis. Reasonable basis must draw a balance between the need of the child on the one hand and the status, income and facilities available to the father on the other. It cannot be said to be reasonable that the father lives in style, has a big house. Government facilities and good income, while on the other hand, the child has to suffer even in the day to day life. The father cannot live like a Lord and make his daughter live like a Maid. There has to be an equal balance between the two and the need of the child has to be satisfied from the income of the father. To provide better living to a child the parents sacrifice but never object to payment of meager sums or even reasonable sums for the welfare of the child.
20. The entitlement of a minor to a reasonable amount and the liability of the parents and in this case of father to maintain the child has been repeatedly upheld by various Courts including judgments of this Court. In this regard reference can be made to the case of Smt. Arti Chopra v. Sh. Sudhir Chopra, (1993-1) 103 P.L.R. 458=I (1993) DMC 58, wherein it was held as under:
"I find merit in the contention of the learned Counsel for the petitioner to the extent that the petitioner is entitled to maintenance pendente life for maintenance of her two minor children, who are admittedly living with her. The respondent is bound in law to maintain his minor children."
21. It is equally settled principle of law that the property of the parties, their income and the status of the parties has to be considered including the family property for the purposes of determining the actual benefit of maintenance which should be awarded specially to the children keeping in view their welfare. In the case of Gurveen Kaur v. Ranjit Singh Sandhu, (1990-2) 98P.L.R. 148=I (1992) DMC 49, after detailed discussion a Bench of this Court upheld the right of the wife to claim maintenance for a minor child living with her and even awarded Rs. l,500/-per month as maintenance charges. In the case of Pradeep Kumar Kapoor v. Shailja Kapoor, 1988(2) All India Hindu Law Reporter 397=II (1988) DMC 110, the Court affirmed such principle and in the case of Smt. Renu Jain v. Mahavir Prashad Jain, A.I.R. 1987 Delhi 43, even held that joint properties can be considered while granting relief of maintenance to wife.
22. In view of the above settled principles of law the husband is certainly receiving much large net salary in hand than the wife. The wife living alone and is bringing up the minor daughter with great difficulties. The wife has to maintain an independent house as even admitted before me and has to provide for all the facilities to the minor child including her education and other ancillary expenses. She has to also provide the medical facilities to see to it that the child gets proper treatment for her eyes and even for her day to day life. The wife has claimed that she has spent more than Rs. 12,000/- during the eye operation of the minor child. This fact, of course, was not admitted by the husband. In the facts and circumstances of the case. I find that the payment of Rs. 2/000/- per month on account of maintenance, to the minor child out of the total salary of Rs. 9,300/- can in no way be said to be unreasonable. In fact I find the awarding of said amount of maintenance fully justifiable and fair in all respects. Consequently this petition is dismissed with costs assessed at Rs. 2,500/-.
Print Page
Punjab-Haryana High Court
Dr. R.K. Sood vs Usha Rani Sood on 29 August, 1996
Equivalent citations: I (1997) DMC 588
Swatanter Kumar, J.1. Petitioner Dr. R.K. Sood has assailed the order of the learned District Judge, Chandigarh dated 3.11.1995 in this revision petition on various grounds.
2. But the main and in fact the only argument advanced on behalf of the petitioner is that an application for grant of interim maintenance to a minor child is not maintainable under the provisions of Hindu Marriage Act. Further more it is argued in any case an application for maintenance only on behalf of a minor child cannot be maintained by the mother in whose custody the child is under Section 24 of the Hindu Marriage Act, hereinafter referred to as 'the Act'.
3.This legal controversy has arisen out of the admitted facts that Mrs. Usha Rani Sood was married to the petitioner Dr. Sood in accordance with Hindu rites and their marriage was solemnised at Morinda on 2.3.1986. From this marriage a female child was born on 1.12.1988 and the said child was named as Sheiry Sood and presently 61/i years old. She is staying with the mother and studying in a school at Ropar. A petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce was filed by Usha Rani against the husband on the grounds of cruelty and desertion and the said petition is stated to be pending in the Court of competent jurisdiction.
4. Reconciliation efforts by the Courts even failed at all stages.
5. Besides the allegations of cruelty and desertion in the application filed for grant of maintenance and education expenses of the minor it was specifically averred in the application that the child is studying in Bright Public School, S.A.S. Nagar, Mohali. The mother was spending Rs.340/- per month as tuition fee and further expenses for her clothing, eatables, transport, books etc. The husband is stated to be a senior doctor serving in Punjab Government Health Services Department and is alleged to have an income of more than Rs. 10,000/-. On these facts a claim of maintenance of Rs. 2,500/- per month was preferred by the wife and she claimed no litigation expenses.
6. In the reply the facts were disputed and it was stated that the net salary which the husband receives is Rs. 9,300/- per month and it was also averred that the wife was earning a sum ofRs.5,000/- and she was serving in the Financial Commissioner's Office, Punjab. Consequently the husband had prayed for dismissal of the application.
7. The husband in the present petition has raised an objection with regard to the maintainability of such an application on the ground that minor alone cannot be granted maintenance under the provisions of Hindu Marriage Act. This objection was not taken by the petitioner when he filed reply to the application for maintenance filed by the wife before the Trial Court. In view of this fact that an objection to the maintainability of an application was not even raised before the Trial Court the petitioner would be deemed to have waived even if such objection is taken to be sustainable in law. However, I would still proceed to discuss merits of this objection raised in this revision for the first time on behalf of the respondent.
8. In order to appreciate this contention it would be necessary to reproduce the relevant portion of the application filed by the wife before the Trial Court:
"Application for the grant of maintenance & education expenses etc. in respect of Sheiry Sood minor d/o Dr. R.K. Sood, respondent."
5. That keeping in view the status and income of the family and earnings of the respondent, the applicant is entitled to Rs. 2,500/- per month (Rupees two thousand five hundred) for school expenses and upkeep of their female child namely Sheiry Sood upto the standard and status of the family. The respondent is not paying anything for the maintenance of the said child.
In the circumstances it is respectfully prayed that the Hon'ble Court be pleagd to grant maintenance of Rs. 2,500/- P.M. (Rupees two thousand five hundred only) per month for and by way of maintenance of Sheiry Sood, minor d/o. Dr. R.K. Sood and respondent may be directed to make payment of the aforesaid amount to the applicant each month."
9. Under Section 24 of the Act the right of either spouse to claim maintenance has been protected under the provisions of this Act. However, grant of such maintenance to the spouse claiming the relief is dependent upon the applicant's satisfying the conditions as postulated in Section 24 of the Act and as well as other parameters in accordance with settled principles of law. Section 24 of the Act comes into play where any proceeding under the Act are pending, while Section 26 of the Act grants children right to claim maintenance in any proceedings under the Act, Section 26 of the Act reads as under :
"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 the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, where ever possible, and may, alter the decree, upon application by petitioner 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 proceeding for obtaining such decree were still pending and the Court may, also from time to time revoke, suspend or vary any such orders, any provisions previously made."
10. The scope of this section is not restricted. In fact it is in aid to the provisions of Section 24 of the Act. The right to claim maintenance is not only granted to either of spouse to the marriage but also to the children born from the marriage. The Court while exercising jurisdiction under Section 26 of the Act can pass interim orders with respect not only to the custody, education etc. of the minor children but also with regard to their maintenance. The Legislature imposes an obligation upon the Court to pass such orders at the time of passing of a decree or even thereafter on the application of the children, ...which will be consistent with the wishes of the children as far as possible. The intention of the Legislature to grant definite protection to the minor children is clearly indicated in the scheme of the Act and more particularly relating to grant of maintenance.
11. Hindu Marriage Act is primarily a social legislation intended to provide protection to the spouses to a marriage and their children. While looking into the provisions of a social legislation the object sought to be achieved by such legislation becomes a paramount consideration before the Courts. It is also an equally settled principle of law that if there is a power provided under a statute for claiming a relief, then mere mentioning of a wrong provision or incorrect section would not disentitle the party to such a relief from the Court if otherwise permissible and can be granted within the four comers of the Statute. It will hardly be just fair for a father to avoid his liability to pay maintenance to his child on such a technical objection which in any case is not even sustainable. The present application is not stated to have been filed under Section 24 of the Act, as it does not say so. So the objection itself is ill founded. The application is and in any case can easily be treated as an application under Section 26 of the Act where filing of such an application is specifically permissible. A Division Bench of this Court in the case of Usha v. Sudhir Kumar, (1974) 76 P.L.R. 195, held as under :
"There is no doubt that under Section 24 of the Act the child cannot claim maintenance and it is only either of the two spouses who can make a claim. At the same time, it is clear that a claim can be made for maintenance of a child during a proceeding under the Act and the Court can in exercise of powers vested in it by Section 26 of the Act pass such interim orders in any proceeding under the Act, from time to time, as it may deem just and proper with respect to the maintenance and education of minor children, consistently with their wishes, wherever possible. But even if no application under Section 26 is made and a wife makes an application under Section 24 and claim that the amount which she necessarily requires to maintain herself includes the provision for necessities for her infant child, the same can no doubt be taken into account in fixing the quantum of allowance under that provision."
12. The learned Counsel for the petitioner has strongly relied upon another judgment of a Division Bench of this Court in the case of Ram Lal v. Smt. Surinder Kaur, (1995-1) 109 P.L.R. 527, to substantiate his above arguments. In this case the Division Bench has primarily dismissed the appeal on the ground that there was concurrent finding of fact and the Court would not interfere. However, certain observations were made by Division Bench on different facts that under Section 25 of the Act application for grant of maintenance to a minor child alone by the wife was not maintainable.
13. As already discussed certain observations of the Division Bench in Ram Lal's case (supra) are on different facts and are of not much help to the husband. Secondly the judgment of the Division Bench in the case of Mrs. Usha (supra) was not brought to the notice of the Division Bench. The earlier co-ordinate Bench had laid down after detailed discussion certain principles of law and the observations of the subsequent Division Bench would no way alter such principles of law. The observations of the subsequent co-ordinate Bench in my humble view will have to be read as per incuriam on the basis of the settled principles of stare decisis. It appears that the earlier Division Bench's view of this Court was not brought to me notice of the Division Bench dealing with the case of Ram Lal (supra). In this regard it will be appropriate to make a reference to the judgment of the Supreme Court in the case of Assistant Collector of Estate Duty, Madras v. Smt. V. Devaki Ammal, Madras J.T. 1994(7) S..C. 543, and Bhagwan Dass Arora v. First Additional District fudge, Rampur and Ors., A.I.R. 1983 Supreme Court 954. In this regard reference can also be made to the cases ofFitrat Raza Khan v. State of Uttar Pradesh and Ors., 1982(2) S.C.C. 449; Bachan Singh v. The State of Punjab etc. etc., 1982(3) S.C.C. 24; and A.R. Antulay v. R.S. Nayak and Anr., 1988(2) S.CC. 602.
14. In view of the above discussion and the facts and circumstances of this case the objection raised by the Counsel for the petitioner is not maintainable and merits rejection. A specific right has been granted to the children to claim maintenance in their own right under the provisions of Section 26 of the Act during pendency of any proceedings under the Act. Further more, even a mother can claim maintenance on behalf of the minor child alongwith her under the provisions of Section 24 of the Act, as such a right is fully recognised in law.
15. During the course of arguments both the Counsel for the parties have conceded before me that the husband is getting a gross salary of Rs. 10,300/- and receive net salary of Rs. 9.300/- in hand, while the wife is getting salary of Rs. 4,700/- and received Rs. 4,300/- net salary in her hand. The child is studying in the above school where she has been shifted by the mother because the school provides facilities for keeping the child from 8.00 a.m. to 5.30 p.m. and the mother on her return from the office picks up the child from the school. The child was produced in Court. There appears to be some problem with her eyes and it was also conceded before me and even hospital records of P.G.I. Chandigarh were shown that she was operated upon in the concerned department of the P.G.I., and was undergoing treatment. The mother is stated to have spent amount for this purpose. It was submitted by both the Counsel for the parties that the wife is living all alone.
16. Hindu marriage is not yet looked at or recognised in our society and law, as a pure and simple contract like other contracts. This bond is considered more as a religious, moral and social bond of mutual duties and obligations giving marriage a religious and meaningful basis keeping in view the rituals performed at the marriage and consequent solemnization of marriage between the parties.
17. Under the Hindu Law father not only has a moral but even a statutory obligation to maintain his infant children. The scope of his duty is to be regulated directly in relation to the money, status, that the father enjoys. The right of maintenance of a child from his father cannot be restricted to two meals a day but must be determined on the basis of the benefit, status and money that the child would have enjoyed as if he was living with the family, including his mother and father. Irrespective of the differences and grievances which each spouse may have against the other, the endeavour of the Court has to be to provide the best to the child in the facts and circumstances of each case and more so keeping the welfare of the child in mind for all such determinations. Liability to maintain one's children is clear from the text of this status as well as the various decided cases in this regard. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds.
18. It is settled principle of law that the mother has a right to file separate petition for maintenance of a child if she is not entitled to a maintenance or such maintenance has not been taken into account while fixing her maintenance on an earlier occasion. Reference can be made to the case of Patel Dharamshi Premji v. Bal Sakarkaj, AIR 1968 Gujarat 150, wherein it has been held that it is equally true that non-mentioning of Section 26 does not affect the substance of the prayer for maintenance under Section 25 or under such analogous provisions of law under the Hindu Marriage Act. Reference can also be made to A.R. Munuswamy Rajoo v. Hamsa Rani, AIR 1975 Madras 15. This would indicate that in the facts of the present case the application is maintainable.
19. Determination of quantum of maintenance payable to the child has to be determiged no doubt on reasonable basis. Reasonable basis must draw a balance between the need of the child on the one hand and the status, income and facilities available to the father on the other. It cannot be said to be reasonable that the father lives in style, has a big house. Government facilities and good income, while on the other hand, the child has to suffer even in the day to day life. The father cannot live like a Lord and make his daughter live like a Maid. There has to be an equal balance between the two and the need of the child has to be satisfied from the income of the father. To provide better living to a child the parents sacrifice but never object to payment of meager sums or even reasonable sums for the welfare of the child.
20. The entitlement of a minor to a reasonable amount and the liability of the parents and in this case of father to maintain the child has been repeatedly upheld by various Courts including judgments of this Court. In this regard reference can be made to the case of Smt. Arti Chopra v. Sh. Sudhir Chopra, (1993-1) 103 P.L.R. 458=I (1993) DMC 58, wherein it was held as under:
"I find merit in the contention of the learned Counsel for the petitioner to the extent that the petitioner is entitled to maintenance pendente life for maintenance of her two minor children, who are admittedly living with her. The respondent is bound in law to maintain his minor children."
21. It is equally settled principle of law that the property of the parties, their income and the status of the parties has to be considered including the family property for the purposes of determining the actual benefit of maintenance which should be awarded specially to the children keeping in view their welfare. In the case of Gurveen Kaur v. Ranjit Singh Sandhu, (1990-2) 98P.L.R. 148=I (1992) DMC 49, after detailed discussion a Bench of this Court upheld the right of the wife to claim maintenance for a minor child living with her and even awarded Rs. l,500/-per month as maintenance charges. In the case of Pradeep Kumar Kapoor v. Shailja Kapoor, 1988(2) All India Hindu Law Reporter 397=II (1988) DMC 110, the Court affirmed such principle and in the case of Smt. Renu Jain v. Mahavir Prashad Jain, A.I.R. 1987 Delhi 43, even held that joint properties can be considered while granting relief of maintenance to wife.
22. In view of the above settled principles of law the husband is certainly receiving much large net salary in hand than the wife. The wife living alone and is bringing up the minor daughter with great difficulties. The wife has to maintain an independent house as even admitted before me and has to provide for all the facilities to the minor child including her education and other ancillary expenses. She has to also provide the medical facilities to see to it that the child gets proper treatment for her eyes and even for her day to day life. The wife has claimed that she has spent more than Rs. 12,000/- during the eye operation of the minor child. This fact, of course, was not admitted by the husband. In the facts and circumstances of the case. I find that the payment of Rs. 2/000/- per month on account of maintenance, to the minor child out of the total salary of Rs. 9,300/- can in no way be said to be unreasonable. In fact I find the awarding of said amount of maintenance fully justifiable and fair in all respects. Consequently this petition is dismissed with costs assessed at Rs. 2,500/-.
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