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Judgment
S. Abdul Nazeer, J.—In this case, the Respondent filed an application in M.C. No. 504/2008 on the file of the II Addl. Principal Judge, Family Court, Bangalore, u/s 13(1)(ia) and (ib) of the Hindu Marriage Act (for short ''the Act'') for the dissolution of his marriage with the first Petitioner. In the said petition, the first Petitioner filed an application u/s 24 of the Act seeking interim maintenance of Rs. 8,000/- per month. In support of the application, the first Petitioner has filed an affidavit contending that her husband is drawing monthly salary of Rs. 29,103.63. She does not have any income of her own. Her daughter is also not employed. The said application was opposed by the Respondent. The court below has allowed the application granting interim maintenance of Rs. 5,000/- per month to the first Petitioner from the date of the application. The claim of the first Petitioner for grant of maintenance for her daughter (second Petitioner) has been rejected. Feeling aggrieved by the said order, Petitioners have filed this writ petition.
Learned Counsel for the Petitioners would contend that the Respondent is earning more than Rs. 29,000/- per month. He is working at BHEL, Bangalore. The court below ought to have granted maintenance to the second Petitioner, as she is unemployed. The maintenance awarded to the first Petitioner in a sum of Rs. 5,000/- per month is also on a lower side.
On the other hand, learned Counsel appearing for the Respondent has sought to justify the impugned order. It is argued that the second Petitioner is a major. She is gainfully employed. She is not entitled for maintenance either u/s 24 or u/s 26 of the Act. After the compulsory deductions, the take home salary of the Respondent is Rs. 17,591/- per month. Therefore, the court below was right in granting maintenance of Rs. 5,000/- per month to the first Petitioner.
The first contention of the learned Counsel for the Respondent is that the second Petitioner being a major is not entitled for any maintenance. Section 24 of the Act has no application for considering grant of maintenance to the children. Since the first Petitioner has also sought for grant of maintenance for her daughter, the application is referable not only to Section 24 but also Section 26 of the Act. u/s 26, the Court is authorized to pass 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, consistency with their wishes, wherever possible. A proviso has been added to the said provision by Act No. 49/2001, which has come into effect from 24.9.2001, which stales that the application with respect to the maintenance and education of the minor children, pending the proceedings for obtaining such decree. shall, as far as possible, be disposed of within 60 days from the date of service of notice on the Respondent. A conjoint reading of Section 26 with its proviso would clearly indicate that the Court is authorized to grant maintenance to the children pending disposal of the petition filed under any of the provisions of the Act.
But the question is whether the Court has power to grant maintenance to major children under this Section? In Mayne''s Hindu Law and Usage, 14th Edition at page 355, the author has observed as under:
This Section provides for the Court passing orders with respect to the custody, maintenance and education of minor children in proceedings under this Act. Such orders may be passed as interim orders in the proceedings and also at the time of passing of the decree and even subsequent thereto. The Court is also empowered to revoke, suspend or vary its order from time to time. The Court has no power to grant maintenance to major children under this Section.
In Smt. Alka Bhaskar Bakre Vs. Bhaskar Satchidanand Bakre, , the Bombay High Court has held that order for maintenance can be passed only during the minority of the children. Once they attain majority, provisions of Section would cease to apply. It has been held thus:
The relevant provisions for awarding maintenance in a matrimonial petition can be found in Section 26 of the Hindu Marriage Act. The said provision in so far as is relevant provides as follows:
In any proceeding under this Act, the Court...may make such provisions...with respect to the custody, maintenance and education of minor children...and may...all such orders and provisions with respect to the custody, maintenance and education of such children....
The above provisions make it clear that the jurisdiction of the Court to pass orders for maintenance is restricted to minor children alone. Once the children attain majority, the provisions of Section 26 would cease to apply. Hence, the order of maintenance under the Hindu Marriage Act can be passed only during the minority of the children. In this view of the matter, the order of maintenance for the son Abhijeet will be only for the period from the date of the filing of the petition till 11th January, 1990 and for the daughter from the date of the filing of the petition till 1st September. 1993 when they attain majority.
Thus, it is clear that major children are not entitled for maintenance u/s 26 of the Act. Therefore, the court below was right in rejecting the claim of the first Petitioner seeking grant of maintenance to the second Petitioner.
This brings me to the second question as to whether the maintenance awarded by the court below to the first Petitioner is adequate. it is not in dispute that the Respondent is drawing a gross salary of Rs. 29,103.63. He is admittedly working with the BHEL. It is no doubt true that after deductions, the take home salary of the Respondent is Rs. 17,591/-. Majority of the deductions are towards provident fund voluntary PF, festival advance, death relief, etc. A sum of Rs. 1,009/- has been deducted towards income tax. Having regard to the facts and circumstances of the case, I am of the view that it is just and proper to award maintenance in a sum of Rs. 6,000/-per month to the first Petitioner from the date of the application.
In the result, the writ petition succeeds and it is accordingly allowed in part. The Respondent is directed to pay maintenance in a sum of Rs. 6,000/.- per month to the first Petitioner from the date of the application. However, this will not preclude the first Petitioner from making a fresh application seeking enhancement of maintenance. If such an application is made, the court below has to dispose of the same in accordance with law. The arrears of maintenance shall be paid within a period of eight weeks from the dale of receipt of a copy of this order. No costs,