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KEY TAKEAWAYS

  • Father is liable to maintain the minor child till adulthood: Supreme Court
  • Section 125(b) provides, inter alia, that a father must maintain his minor child irrespective of the child's marital status. Furthermore, Section 125(c) provides that a father is also required to maintain the child beyond majority, if such child is unable to maintain himself or herself due to physical or mental abnormality.
  • The purpose of Section 125 is to save and protect the dependants from destitution and hence this provision serves a social purpose. The proceedings under Section 125 are civil proceedings and not strictly criminal or penal in nature
  • Where the mother had sufficient means, the father cannot be held solely and exclusively liable to pay the maintenance. In such instances where the mother is affluent and has a reasonable source of income, she is also liable to contribute to the child's maintenance.
  • The primary consideration while deciding the issues of custody of a child is the welfare of the child.

INTRODUCTION

A progressive State places utmost importance to the welfare of the children and makes relevant provisions to look after their well-being. There are several laws which govern the custody and maintainability of children when the parents separate or undertake a divorce. A child, under Indian law, is considered to be a person who is below 18 years of age. The basic underlying intent and purpose of all the provisions dealing with the maintainability of children is to safeguard the interests of the child. In today's modern era, where the society is witnessing an increasing rate of divorces, it has become even more important to ensure that divorces do not affect the future, nourishment and welfare of the child.

FATHER LIABLE TO MAINTAIN CHILD

Section 125 of the Code of Criminal Procedure provides that a father is liable to maintain his minor child. Section 125(b) provides, inter alia, that a father must maintain his minor child irrespective of the child's marital status. Furthermore, Section 125(c) provides that a father is also required to maintain the child beyond majority, if such child is unable to maintain himself or herself due to physical or mental abnormality. However,a married daughter is not covered within the domain of Section 125(c) of the Act. The purpose of Section 125, unlike adversarial litigation, is to promote social welfare. The proceedings under Section 125 are civil proceedings and not strictly criminal or penal in nature. The Section 125 does not define whether the term father and mother shall include adoptive mother and father as well or not. However, relying on Section 3(20) of the General Clauses Act, it may be assumed that Section 125 also covers adoptive mother and father within its domain.

Maintenance in the case of a child may be required for the child’s proper education, nutrition, safety, ethical upbringing, medical and healthcare expenses, etc. The law places the obligation of fulfilling these basic needs of the child on the parents.

The burden to prove that he has not neglected his duty to maintain the child or that he does not have sufficient means to maintain the child, is on the father. Thus, the father has to discharge the obligation of proving either the non-availability of sufficient means or that he has not refused to maintain the child and has not neglected his legal duty. However, proceedings under Section 125 do not determine the final rights and liabilities of the parties and they shall file a civil suit to determine their status.

Section 125 is in line with Article 15(3) of the Indian Constitution which empowers the State to make special provisions for the welfare of women and children. Furthermore, Article 39 of the Indian Constitution provides, inter alia, that the State shall ensure that the children are provided with a healthy and a dignified childhood. The Supreme Court, in the case of Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai and Anr, held that the purpose of Section 125 is to save and protect the dependants from destitution and hence this provision serves a social purpose.

The Hindu Marriage Act also contains certain provisions with regards to the maintenance of the children. Section 26 of the Hindu Marriage Act empowers the Court to pass any order, during the pendency of any proceedings under the Act, with regards to the minor child's maintenance, custody or education. The Court may pass appropriate order holding the father, mother or both the parents liable to maintain the child.

Similarly, Section 20 of the Hindu Adoption and Maintenance Act, 1956 also provides, inter alia, that the Hindu parents are liable to maintain their legitimate or illegitimate minor child. The Court will consider the needs of the child, the status of the parents, etc., while deciding the amount of compensation. The amount of compensation may be subjected to revision if there is any change of material circumstances.

In the recent case of Neha Tyagi vs Lt. Col Deepak Tyagi LL 2021 SC 700, the Supreme Court held that the child has the right to be maintained in accordance with his father's status. The Court held that the child must not suffer due to the separation of the parents. In this case, since the mother did not have any source of income, the Court held that the father was responsible to maintain the child and pay for his education and other basic needs. The Court while exercising its powers under Article 142 of the Indian Constitution, ordered the father to pay monthly maintenance of Rs 50000 to the child. The Court stated that while the marriage was dissolved under the theory of irretrievable breakdown of marriage, the father cannot be absolved of his duty to provide maintenance to the minor child.

In another significant recent judgment by the Rajasthan High Court - In Re A Ref. U/s 395 Cr.P.C. By District And Sessions Judge, Pali v. Unknown, the Court held that where a person does not comply with the maintenance order issued under Section 125 of the Code of Criminal Procedure, the Magistrate is empowered to pass separate orders sentencing the defaulter to a maximum of one month of imprisonment for each monthly default. However, a claim for maintenance can only be made with respect to the preceding 12 months and not prior to that. Every month's claim can be treated as a separate claim.

The father is liable to maintain the child as long as the child is unable to maintain himself and this inability may also arise due to the educational course taken by the child. However, the education must not be undertaken with the mala fide intention of increasing the burden on the father. In the case of Urvashi Aggarwal v. Inderpaul Aggarwal, the Delhi High Court held that the liability of a father to maintain the child does not end when the child attains adulthood. The Court observed that the cost of living is increasing and if the liability of the father is considered to be over once the child attains adulthood, then the entire burden of the child's education would fall on the mother. In the contemporary realities, a child’s educational expenses are likely to extend beyond his adulthood and the entire burden to bear these expenses cannot be put on the mother. Thus, the father is liable to maintain the child even beyond his adulthood if the child is unable to maintain himself.

In the case of Bakulabai v. Gangaram, (1988) 1 SCC 537, the Court held that children born out of a void marriage are also entitled to maintenance under Section 125 of the Code of Criminal Procedure.

In the case of Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, the Court held that a father is liable to maintain his unmarried daughters who are incapable of maintaining themselves and the fact that the daughters were living separately with their mother will not discharge the father of his liability. Similarly, in the case of Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422, the Court held that an unmarried daughter is entitled to maintenance even after attaining adulthood. The daughter is entitled to maintenance until she is married.

In the case of Bakulabai s. Gangaram, (1988) SCC 537, the Court held that even in the case of a bigamous marriage where the husband and wife cohabit for a reasonable time and subsequently a child is born to them, such a child acquires a legitimate status under Section 16 of the Hindu Marriage Act, 1955. Hence, such a child is entitled to maintenance under Section 125 under the Code of Criminal Procedure.

In the case of Chand Patel Vs. Bismillah Begum, (2008) 4 SCC 774, the Supreme Court held that an irregular marriage under Muslim Law is not void and is terminated only when procedures are followed in accordance with the law and hence the children born out of such irregular marriages are entitled to maintenance under Section 125 of Code of Criminal Procedure.

In the case of Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court held that in the event of any conflict between Section 125 of Code of Criminal Procedure and any provision of a personal law, Section 125 would prevail over the personal law.

The argument that the child, upon attaining the age of majority, can take educational loans to complete his education does not seem to be accepted by the Courts as the Courts have held that loans are primarily expenses which will have to be borne by the child at a later date. Furthermore, since the child has no earnings at the time of taking the loan, the burden of the interest also accumulates and has to be borne by the child once he starts earning. The burden of providing a collateral, if required, falls on the mother.

AFFLUENT MOTHER ALSO LIABLE TO CONTRIBUTE TO THE CHILD'S MAINTENANCE

However, there have also been some instances where the Courts have held that the mother is also liable to maintain the minor child, provided she has sufficient means to do so. In the case of Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266., the Court held that where the mother had sufficient means, the father cannot be held solely and exclusively liable to pay the maintenance. In such instances where the mother is affluent and has a reasonable source of income, she is also liable to contribute to the child's maintenance.

LAWS RELATING TO CUSTODY OF THE CHILD

There are various statutes such as the Hindi Marriage Act, Hindu Minority and Guardianship Act, Guardian and Wards Act, Special Marriage Act, etc which deal with the matters of custody and maintainability of a child. The Guardian and Wards Act is the primary secular statute governing the matters of child custody. The primary consideration while deciding the issues of custody of a child is the welfare of the child.

Earlier the custodial rights of the mother and the father were not at par and father was considered to be the natural guardian of the child and the same status was not granted to the mother. However, following the 1989 Law Commission Report, an amendment was made to Section 19(b) of the Guardian and Wards Act and both the mother as well as the father are now considered to be the natural guardians of the child. While due consideration is still given to the father’s right to be the natural guardian of the child, where it is found that vesting the custody with the father may not be in the best interests of the child, the custody may be vested on the mother.

The various forms of custody that the Courts have provided in the past are physical custody, sole custody, third party custody and joint custody of the child. The Courts are expected to take a balanced view between the rights of the parents over their children and the interests and the welfare of the child.

In the case of Sheoli Hati v. Somnath Das, (2019) 7 SCC 490, the Court held that the primary consideration and primary importance must be given to the welfare of the child while deciding on custody matters. The Court must ensure that the interests of the child are protected. Similarly, in the case of Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77, the Court held that paramount importance has to be given to the interests of the child and the welfare of the father or mother is not of paramount consideration.

In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471, the Court held that some of the factors that must be given due consideration while deciding child custody matter shall be the desire to raise the child and love for the child, the presence of an appropriate and conducive environment to provide a proper growth to the child, the means and resources as well as the abilities of the concerned parent, etc.

CONCLUSION

The Courts, in a plethora of judgments have pointed out that the purpose of Section 125 is to provide social justice. Certainly, if the father is discharged of his liability to maintain the wife and the child subsequent to the divorce, then in such a case the wife and the child may be pushed to destitution.

With the advancement of society, the education of children usually extends beyond their adulthood. In such cases, even after the child has attained adulthood, the entire burden of the child's education cannot be put on the mother. Section 125 seems to be unhappily worded in this regard as it puts certain hurdles for an adult son or daughter to claim maintenance from their father. In order to claim maintenance under Section 125 they have to prove that they are suffering either from a mental injury or physical disability.

In today's highly competitive and uncertain world, a child may not be able to earn or may not have a sufficient income as soon as he attains adulthood. Section 125 needs to be amended taking cognizance of the contemporary realities. However, the Courts have been interpreting the Section in accordance with the prevalent realities and have held in several cases that the father is liable to pay maintenance fee even after the child attains adulthood, provided that the child is incapable of maintaining himself. Where the child has some source of income, the amount of maintenance can be revised upon subsequent appeal to the Magistrate on the basis of change in circumstances.

Furthermore, with respect to the custody of the child, the Courts have rightly prioritized the interests of the child while deciding such matters. The Courts have adopted a progressive outlook while deciding these cases. The Courts have also laid down the guidelines with regards to the factors that must be considered while deciding the issues relating to the custody of the child.


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