02 October 2020

Husband is duty bound to maintain his dependants, regardless of his job and income

Insofar as the plea of the petitioner that he has no means to pay maintenance is concerned, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Sumitra Devi vs Bhikan Choudhary, reported in [1985] 1 SCC 637, wherein, it has been held as follows:
“4.Now that the matter is going back to the original Court we think it appropriate to bring it to the notice of the learned Magistrate that under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance.
Husband is duty bound to maintain his dependants, regardless of his job and income

    Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”[Para no.13]


    The Hon'ble Supreme Court in Bakulbhai and another vs Gangaram & another, reported in 1988 SCC (1) 537 has held that even an illegitimate child is entitled for maintenance and the relevant portion of the judgment reads as follows:
“The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows:
"16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."

    Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of s. 125(1) of the Code specifically referring to an illegitimate child. We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No.2 was correctly passed.”[Para No.14]

.........

   In view of discussion held above, it is well settled that the husband is duty bound to maintain his dependants, regardless of his job and income. As already held, the petitioner is having sufficient means to pay maintenance to the first respondent, who is none other than his own child and as a father of the chid, it is his responsibility and moral duty to take care of his own daughter by paying the maintenance.[Para No.16]


Madras High Court

Pachaimuthu
Vs.
Minor Vishanthini

Decided on 01/10/2020

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