Father Has Moral Obligation To Ensure Maintenance; Not Entitled To Recover Amount Paid In Excess To Children: Himachal Pradesh High Court
The petitioners (children) approached the Himachal Pradesh High Court against the dismissal of their application for the enhancement of maintenance.
Justice Vivek Singh Thakur, Himachal Pradesh High Court
While observing that a father has a moral obligation & duty to ensure that maintenance is paid to his children, the Himachal Pradesh High Court has held that he shall not be entitled to recover the same, particularly when they are on the verge of completing their education, as any order to refund the amount paid in excess to the children would hamper their prospects.
The petitioners (children) approached the High Court against the dismissal of their application for the enhancement of maintenance.
The Single Bench of Justice Vivek Singh Thakur held, “In case respondent No.1 has paid maintenance to petitioners No.1 and 2 even after attaining the age of majority by them, even then, he shall not be entitled to recover the same or adjust it against maintenance payable to either of child or proforma respondent No.2 because being a father, even if, he has no legal duty, but has a moral obligation and duty as a father to ensure maintenance to his children, particularly, when they are at the verge of completing their education as any order to refund the amount paid in excess to the children would hamper the future prospects of the petitioners.
Advocate Ramakant Sharma represented the Petitioner, while Senior Advocate Ashwani Pathak represented the Respondent.
Factual Background
The Petitioners are the major children of the two respondents (parents). It was the case of the Petitioners that due to financial constraints, their studies were bound to be adversely affected and disrupted. In an application preferred by the proforma respondent (mother) and the petitioners (children), under Section 125 CrPC against the respondent father for grant of maintenance allowance, the Judicial Magistrate First Class awarded Rs 2000 per month maintenance to each of the applicants.
In the revision petition preferred against the order, the Additional Sessions Judge had enhanced maintenance from Rs 2,000 to Rs 3,000 per month. Subsequently, the aforesaid maintenance allowance was enhanced to Rs 4,000 per month in the Lok Adalat. Thereafter, the mother and the children preferred a petition under Section 127 Cr.P.C. for further enhancement of the maintenance allowance. The Additional Principal Judge allowed the enhancement from Rs 4,000 to Rs 8,000 per month with respect to the mother, but dismissed the claim of enhancement of maintenance qua the children on the ground that they had attained the age of majority.
Reasoning
The Bench, at the outset, explained that Section 125 of Cr.P.C. and corresponding Section 144 of Bharatiya Nagarik Suraksha Sanhita, provides pari materia provisions with respect to the entitlement of the wife and children for maintenance, if any person having sufficient means, neglects or refuses to maintain (a) his wife, unable to maintain herself; (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; and (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself.
“From the aforesaid provisions, it is apparent that a child (legitimate or illegitimate) is entitled for maintenance from father before attaining the age of majority and after attaining such majority, only that child (legitimate or illegitimate) shall be entitled for maintenance, who because of physical or mental abnormality or injury is unable to maintain itself”, it noted.
Considering that the petitioners were legitimate children and were not suffering any physical or mental abnormality or injury to render them incapable of maintaining themselves, the Bench stated, “In view of provisions of Section 125 Cr.P.C., petitioners were legally entitled for maintenance till attaining the age of majority. Therefore, petitioner No.1(daughter) was entitled for maintenance from her father under Section 125 Cr.P.C. till 01.08.2016, whereas, petitioner No.2 (son) was entitled for maintenance under Section 125 Cr.P.C. till 17.03.2020.”
It further noted, “Being a minor till 17.03.2020, petitioner No.2 was entitled for enhancement till 17.03.2020. Therefore, Family Court has committed a mistake by rejecting the claim of enhancement on behalf of petitioner No.2 in toto, instead from the date of attaining the age of majority. Petitioner No.2 is entitled for enhanced amount of maintenance at the rate of Rs.8,000/- from 02.07.2018 till 17.03.2020.”
The Bench did not find any infirmity, illegality or perversity in the order denying maintenance to the daughter. However, it held that there was a mistake committed by the Family Court in denying maintenance to the son at the enhanced rate from July 2, 2018 to March 17, 2020. As per the Bench, apart from the mother, the son was also entitled to maintenance at the enhanced rate of Rs 8,000 per month from July 2, 2018, to March 17, 2020.
The Bench partly allowed the Petition, upholding the right of the son for enhanced maintenance. “Rest prayer is rejected with rider that respondent No.1 shall not be entitled for refund of any amount paid in excess for maintenance to his children”, it concluded.
Cause Title: Rishita Kapur v. Vijay Kapur (Neutral Citation: 2025:HHC:31444)
Appearance
Petitioner: Advocates Ramakant Sharma, Parav Sharma
Respondent: Senior Advocate Ashwani Pathak, Advocates Dev Raj, Rupesh Kumar