Ravee Saharawat vs Ujjwal Saharawat

J.S. Narang, J.—This application has been filed u/s 151 C.P.C. for allowing educational expenses for the daughter to the extent of Rs. 92175/-. Plea is that the interim maintaince has been granted at the rate of Rs. 5000/-per month vide order dated September 21, 1999 by Swatanter Kumar, J. The maintenance pendente lite so granted is not sufficient so as to enable the applicant-respondent to incur expenditure for the purpose of education of her daughter. It is averred that the daughter bora out of this wedlock is a brilliant child and is, therefore, required to be sent abroad for her education. The details of the expenses which need to be incurred for such education have been spelt out in para 6 of the application.

On the other hand, the stand of the appellant is that this application is not maintainable as no application u/s 151 C.P.C. for seeking the grant of educational expenses for the daughter can be filed in the proceedings of divorce pending between the parties. It is also averred that the application for educational expenses may be permissible to be filed u/s 26 of the Hindu Marriage Act, 1955, but the condition precedent is that the child/daughter is a minor. If the child is major, the remedy is available under the Hindu Adoption and Maintenance Act and the specific provision has been provided u/s 20 of the aforesaid Act. The said provision reads as under:-

"20. Maintenance of children and aged parents: (1) Subject to the provision of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property."

Admittedly, no such application has been filed before the judicial forum as provided under the aforesaid statute.

Learned counsel for the applicant has argued that the educational expenses are included in the maintenance to which the wife is entitled in pursuant to Section 24 of the Hindu Marriage Act. The word "maintenance" shall include every kind of expenses which are required to be incurred by the spouse while looking after the child, the child be major or minor. In this regard, reliance has been made upon the judgment of the apex Court rendered Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others, , It is argued that the Court has the discretion in the matter and that the said discretion can be stretched to the extent so as to include the maintenance of unmarried daughters). It is also argued that Section 24 of the Hindu Marriage Act cannot be read in isolation and cannot be given restricted meaning to hold that it is only the wife who is entitled to the maintenance and no one else especially where the wife is maintaining the unmarried daughter(s). He has also placed reliance upon Rishikesh Darshanlal Sharma v. Saroj Rishikesh Sharma 1998 (1) All LR 33 and Monoj Kr. Jaiswal Vs. Smt. Lila Jaiswal, .

Learned counsel for the applicant has argued that there is no dispute with regard to the dicta laid down by the apex Court so far as the word "maintenance" as provided u/s 24 of the Hindu Marriage Act is concerned. But the maintenance is not being claimed in this application, it is the educational expenses which are being claimed. It is argued that educational expenses cannot be included in the maintenance as has been used in Section 24 of the Hindu Marriage Act. "Maintenance" has been defined under the Hindu Adoption and Maintenance Act but has not been defined under the Hindu Marriage Act and that the said definition in the aforesaid statute clearly provides that the educational expenses have to be provided by the spouse (s). The definition reads as under:-

Definition:- In this Act, unless the context otherwise requires, -

(a) xxx xxx xxx

(b) "Maintenance" includes-

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) in the case of an unmarried daughter also the reasonable expenses of an incident to her marriage:

(c) "minor" means a person who has not completed his or her age of eighteen years."

The remedy provided under the Act can be availed of by the applicant.

I have heard the learned counsel for the parties and have also considered the rival contentions.

The Apex Court has explained the words "maintenance pendente lite" as used in Section 24 of he Hindu Marriage Act. The plain reading of the provision shows that either of the spouse is entitled to move an application for seeking the indulgence of the Court for granting of such maintenance. However, it has been observed that the said provision cannot be read in isolation and in stricto senso to the effect that children are excluded while quantifying the maintenance to be granted to the spouse. The children are the responsibility of the parents and it is obligatory upon spouses to look after their children within the frame work of their income unless the circumstances fall beyond the control of the spouses and the children are required to fend for themselves. In such a situation, may be in a given case the children upon attaining the age of majority be not in a position to earn for themselves, and in that situation to maintain such children remains the responsibility of the parents. Keeping such a situation into consideration the Hon''ble Apex Court has widened the horizon of the word "maintenance" as used in Section 24 of the Act. However, for inuring specified expenses for the education of a child would not fall within the admit of the word "maintenance". So far as other judicial pronouncements relied upon by the learned counsel for the applicant are concerned, they are not applicable to the facts of the present case and that the maintenance and not educational expenses have been claimed, perhaps by the adult child, which matter now stands concluded by the aforesaid judgment rendered by the Apex Court. Both the cases, referred to above, do not deal with the claim of the educational expenses by the dependent child.

I am of the opinion that the right to claim educational expenses has been specifically provided u/s 20 read with the definition of word, "maintenance" under the Hindu Adoption and Maintenance Act but no such provision has been provided under the Hindu Marriage Act and that the word "maintenance" as has been used u/s 24 of the Hindu Marriage Act, cannot include the specified educational expenses for an adult child. It is the settled law that wherever there is a specific provision pro vided under the statute, the remedy must be availed of under the said statute. In the case at hand, the claim has been made for specified educational expenses by the adult child and the remedy has been provided under the Hindu Adoption and Maintenance Act which can be availed of by the child. The applicant is allowed to avail of the said remedy before the appropriate forum. Any observation made in this order shall not affect the right of the applicant in any manner while maintaining the application under the Hindu Adoption and Maintenance Act before the appropriate forum. The application stands dismissed with the aforesaid observations.