Civil Procedure Code (CPC)

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Key Takeaways

  • In India, several judgments have been passed where the courts have stated that a major child, whether daughter or son, is also entitled to get maintenance from his/her father if they are dependent on their parents.
  • Dependency on parents means that the children are not in a position to earn for themselves, either because they are studying or due to any disease.
  • The High Court of Delhi in a recent judgement has also stated that at the age of 18, the education of the son is not complete and therefore he cannot be expected to sustain himself.
  • It has also observed that the obligation of a father to maintain his son under Sec. 125 of Cr.P.C. would not come to an end after his son attains the age of majority.

Introduction

A person is entitled to basic amenities like food, clothing, shelter, and other requirements to live a dignified life. Under the principles of social justice, it is the natural duty of parents to provide these amenities to his/her children in the form of maintenance.

In India, a child can claim maintenance from his/her father under Section 125 of CrPC,1973. Further Section-26 of the Hindu Marriage Act,1955 also provides for maintenance of the child under Hindu law.

The Section-125 of C.r. P.C. states that a minor child is entitled to get maintenance from the father if during the divorce proceeding, the custody of a child has been awarded to the mother or otherwise also.

Earlier, the father was only entitled to provide child support to his children until they reached the age of majority, which is 18 in India, provided that the daughter is unmarried and the children do not suffer from any mental or physical abnormality.

However, recently Indian courts have also said that a major child, whether daughter or son, under the family law in India, is also entitled to get maintenance from his/her father if they are dependent on their parents. Dependency on parents means that the children are not in a position to earn for themselves either because they are studying or due to any disease.

Statutory Provisions

Hindu Marriage Act, 1955

Under Section-26 of this Act, during the proceedings under the Act, the court may pass orders concerning the custody, maintenance, and education of minor children. Under this Act, both parents are liable to maintain the children as ordered by the court. While making such orders, the court also takes into consideration the wishes of the children, as far as possible. Any such orders and provisions passed by the courts may be altered from time to time, due to changes in the circumstances of the parents. Any application concerning maintenance and education of the minor children during the proceedings under this Act has to be decided within sixty days from the date of service of notice to the respondent.

Hindu Adoption and Maintenance Act, 1956

Under Section-20 of this Act, a Hindu male or female is bound to maintain his or her legitimate/illegitimate minor children and aged/infirm parents. Aged/infirm parent or unmarried daughter have to be maintained if they are unable to maintain themselves. Under Section 23 sub-section (2), while determining the amount of maintenance to be awarded to children or aged or infirm parents, the court shall consider the following:

a) position and status of the parents;
b) reasonable wants of the claimants;
c) if the claimant is living separately, whether the claimant is justified in doing so;
d) claimants’ income and property possessed by him/her.

Criminal Procedure Code, 1973

Under Section-125 of this Act, a Magistrate may order a father to make monthly allowance for maintenance in a case where any person who despite having sufficient means neglects or refuses to maintain –

(i) his legitimate/illegitimate child who has not attained the age of majority and is unable to maintain itself; or
(ii) his legitimate/illegitimate major child (not being a married daughter) is unable to maintain herself due to any physical or mental abnormality/injury; or
(iii) his married daughter until she attains the age of majority, if her husband is not able to maintain her; or
(iv) his/her father or mother who are unable to maintain themselves.

This section also makes a provision for maintenance until the completion of proceedings regarding monthly maintenance allowance, which is to be decided by the Magistrate within sixty days of the date of service of notice to such person. A person who fails to comply with the order of the Magistrate without showing sufficient cause may also be sent to prison.

• Muslim Women (Protection of Rights on Divorce) Act, 1986

Under Section 3 of this Act, a divorced Muslim woman is entitled to reasonable and fair maintenance for her children for a period of two years from the date of the birth of such children. It does not matter if the children were born before or after the divorce, the former husband is liable to pay for their maintenance. If the husband fails to comply with the order passed by the Magistrate without showing sufficient reason, he may have to suffer imprisonment for up to one year.

Judgments

• Mohan Singh Mawri v. Smt.Haripriya Mawri,2017

In this case, the Uttarakhand High Court, while revising the amount of maintenance given to the wife, observed that although an adult son cannot demand maintenance from his parents as a matter of right, in the Indian culture, we cannot forget the fact that the parents have the responsibility to hold their adult child until he gets a suitable job and that it is the social duty of the parents to provide for the adult child.The Court held that the Indian culture and custom cannot be equated with European culture and custom.

• Jayvardhan SinhChapotkat vs. Ajayveer Chapotka, 2014

In this case, the Bombay High Court held that under the Hindu Marriage Act, a major son may not be entitled to maintenance. However, the petitioner in the present case has made a specific application for educational expenses, which he can use until he reaches the age of 18. The Court further observed that even though the son/claimant will reach the age of majority, it would not be considered the right age to become economically independent and expected to make his living. Thus, the Court held that a major son of well-educated and economically sound parents may claim educational expenses from his father or mother even though he has attained the age of majority. It does not strictly fall under the category of maintenance as contemplated under Section 125 of the Code of Criminal Procedure or maintenance as contemplated under section 20(2) of the Hindu Marriage Act.

• T.Vimala vs S.Ramakrishnan, 2014

In this caseit was held that fathers are liable to pay maintenance to their children even after they attain the age of majority if they do not have sufficient financial capacity to sustain themselves.They are entitled to get educational expenses as well under Section-125 of the Cr.P.C.The Bench held that education is an important aspect in children’s life and no father is expected to bring up a criminal or a disorderly person.

• Abhilasha v Parkash & Others, 2020

In this case, an unmarried daughter challenged the order of the High Court of Punjab and Haryana at Chandigarh, in which the High Court dismissed the application under Section 482 Cr.P.C. filed by the appellant, praying for setting aside the order of the Judicial Magistrate First Class, Rewari, granting her maintenance in 2011 at Rs 3,000 per month, to be paid by her father under Section 125 of Cr.P.C., from the date of the filling of this petition to until she becomes a major.The unmarried daughter was found to be entitled to get maintenance from October 17, 2002, when she applied, till February 7, 2005, when she became a major.

International view

• USA

In US, generally many non-custodial divorced are entitled to provide maintenance to their children as long as they are minor. Depending upon the state, the age of majority can be 18, 19, or 21 years old.
Even in US "child" support can be extended beyond the age of majority if the child is in college or attending university. This is called post-secondary educational support.
However, no uniform policy exists regarding post-secondary educational support. As a result of this, each state treats the issue differently. In some states, post-secondary educational support is disallowed while in others, post-secondary educational support is explicitly provided for by state. Most states treat post-secondary educational support on a case-by-case basis and accordingly the courts dictate the nature of support to be ordered, if any.
In the case of Sinclair v. Sinclair,1992 the court held that a father had a statutory duty to provide child support until his son completes his education and is no longer considered a student, or attains the age of 22.

• Canada

In Canada, the courts have recognized that financial dependency does not end upon a child turning 18. Under the provisions of Divorce Act and the Family Law Act, there is no upper age limit under which support automatically terminates. As a result, child support may extend beyond the age of 18 years of age if needed.
The country’s child support guidelines states that children who are over 18 years of age andthe “child” attends university, his/her post-secondary expenses will be treated as extraordinary expenses. In addition to basic child support, the court can order child’s post-secondary education expenses to the parents. Such expenses include reasonable costs for tuition, accommodation, meals, and groceries, cellphone, books, etc. The court will take into consideration that adult children should contribute towards their costs of study as well. The amount of these“special expenses” is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. Most courts are reluctant to allow the parent to avoid child support obligations by requiring that the child relies on student loans since student loans are just costs that must be repaid when the child finishes school.

Conclusion

Thus, we cannot shut our eyes from the fact that at the age of 18 the education of the children is not complete and therefore they cannot be reasonably expected to sustain themselves without any financial support from their parents. At the age of 18 the children would have barely passed their 12th Standard and therefore the father would still be entitled to look after his children and bear the expenses of their education until they are able to earn a living for themselves.


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