A Bombay High Court Bench comprising of Justice A.P. Bhangale and Justice A.S. Oka has upheld the constitutional validity of subsection 3 of section 20 of the Hindu Adoption and Maintenance Act, 1956.
It is also held that the applicability of Hindu Adoption and Maintenance Act, 1956 does not depend upon the nationality of the child or domicile of the child. If both the parents of the child are either Hindu or Buddhist or Jain or Sikh by religion, the said Act becomes applicable to such children.
The Petitioner, Mr. Ramesh Gajanan Rege had challenged constitutional validity of subsection 3 of section 20 of the Hindu Adoption and Maintenance Act, 1956.
The respondent daughter had filed a petition under Section 20 of the Act before the Family Court at Pune in 2005. She was 16 years old then. The petition had prayed for grant of maintenance at the rate of Rs.50, 000/per month and for issuing a direction to provide a residence to her.
The petitioner father had contended that the daughter is a British citizen and she is not domiciled in India. Apart from granting injunction against the petitioner, the Judge of the Family Court directed the petitioner to pay interim alimony of Rs.10, 000 to the daughter.
The Petitioner had then challenged the validity of Section 20 (3) of the Act, contending that it is violative of the fundamental rights of the petitioner guaranteed under Articles 14 and 15 of the Constitution of India.
This was because sub section 3 places an obligation over a person to maintain his daughter who is unmarried when she is unable to maintain herself. He thereby submitted that there is no reason to discriminate between a son and a daughter. He urged that if a father is under no obligation to maintain unmarried son after he attains majority, there is no reason to grant such a benefit to the unmarried daughter. His submission was that there is no justifiable reason to protect only a daughter. He, therefore, urged that the provision of subsection (3) is arbitrary and is violative of Article 14 of the Constitution of India.
He urged that the said provision is also violative of Article 15 which prohibits discrimination on the ground of sex. He urged that it is unjust to put responsibility on the parents to maintain an unmarried daughter even after she attains majority as the daughter may choose to remain unmarried forever.
He also submitted that his daughter is not domiciled in India and is not a citizen of India. Therefore, the Act won’t be applicable to her. Rejecting this contention, the Court observed, “The question of applicability of the said Act is different from the territorial jurisdiction of the Court to entertain the proceedings under the said Act.”
Dismissing the contention as to violation of Article 14 of the Constitution of India, the Court observed, “Sub-section (3) operates independently of subsection (2). It seeks to protect an unmarried daughter even after she attains majority. A person is under an obligation to maintain his or her daughter who is unmarried and who is unable to maintain herself. The class of unmarried sons who have attained majority is completely different from the class of unmarried daughters who have attained majority. The reason being the peculiar position of a daughter and especially an unmarried daughter in Hindu society. Therefore, the argument that two equals are being treated as unequals is not at all acceptable and therefore, Article 14 will have no application.”
The Court also rejected the contention of violation of Article 15 of the Constitution of India, in view of clause (3) of Article 15.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.10312 OF 2014
Ramesh Gajanan Rege
vs.
Gauri Ramesh Rege
Union of India
CORAM : A.S.OKA, &
A.P.BHANGALE, JJ.
DATE : MARCH 18, 2015
Constitution of India, the petitioner has challenged
the constitutional validity of subsection 3 of
section 20 of the Hindu Adoption and Maintenance
Act,1956 (for short “the said Act”).
2
Few facts of the case are necessary to be
considered with a view to appreciate the factual
controversy. The first respondent is the daughter of
the present petitioner. The first respondent filed
a petition under section 20 of the said Act before
the Family Court at Pune. When the petition was
filed in the year 2005, the age of the first
respondent was 16 years. A prayer was made in the
petition filed by the first respondent for grant of
maintenance at the rate of Rs.50,000/ per month and
for issuing a direction to provide a residence to
her. The contention of the petitioner is that the
first respondent is a British citizen and she is not
domiciled in India. An application was made by the
petitioner for rejection of the said petition filed
by the first respondent. The said application along
with interim application in the said petition were
decided by the learned Judge of the Family Court by
order dated 9th August 2005. Thereafter, an
application was made by the first respondent for
ig
grant of educational expenses. An application was
made by the petitioner for cancellation of order of
interim maintenance granted under the order dated 9 th
August 2005. By the said order dated 9 th August
2005, the prayer of the petitioner for rejection of
the petition filed by the first respondent was
rejected. Apart from granting injunction against the
petitioner, the learned Judge of the Family Court
directed the petitioner to pay interim alimony of
Rs.10,000/ to the first respondent.
The said application made by the petitioner for
cancellation of the order of interim maintenance
dated 9th August 2005 was rejected by the learned
Judge of the Family Court by order dated 16 th October
2012. We must note here that there is no
substantive prayer made in this petition for
challenging the orders passed by the Family Court.
The substantive prayers are prayers (a) and (b).
The submission of the learned counsel for the
petitioner is that subsection (3) of section 20 of
the said Act is violative of the fundamental rights
of the petitioner guaranteed under Articles 14 and
15 of the Constitution of India. His submission is
that as far as the subsection (2) of section 20 of
the said Act is concerned, it makes no distinction
between a male or a female child. His submission is
that under subsection (3) of section 20, the law
provides that it is the obligation of a person to
maintain his daughter who is unmarried when she is
unable to maintain herself. The learned counsel
submitted that there is no reason to discriminate
between a son and a daughter. He urged that if a
father is under no obligation to maintain unmarried
son after he attains majority, there is no reason to
grant such a benefit to the unmarried daughter. His
submission is that there is no justifiable reason to
protect only a daughter. He, therefore, urged that
the provision of subsection (3) is arbitrary and is
violative of Article 14 of the Constitution of
India. He urged that the said provision is also
violative of Article 15 which prohibits
discrimination on the ground of sex. He urged that
it is unjust to put responsibility on the parents to
maintain an unmarried daughter even after she
attains majority as the daughter may choose to
remain unmarried for ever.
He urged that the first respondent daughter is
not a citizen of India and she is not domiciled in
India. He, therefore, submitted that the said Act
is not applicable to the first respondent. He urged
that the first respondent is very affluent.
We deal with the first submission in support of
plea that subsection (3) of section 20 is
unconstitutional. Section 20 of the said Act reads
thus:
“(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
7
earnings or other property.”
Subsections (1) and (2) of section 20 apply to
a child whether male or female. Obligations created
by subsections (1) and (2) of section 20 to
maintain are in relation to the sons or daughters so
long as they do not attain majority. Subsection
(3) of section 20 is applicable to an unmarried
daughter who may have attained majority. Sub
section (3) operates independently of subsection
(2). It seeks to protect an unmarried daughter even
after she attains majority. A person is under an
obligation to maintain his or her daughter who is
unmarried and who is unable to maintain herself.
The class of unmarried sons who have attained
majority is completely different from the class of
unmarried daughters who have attained majority.
The reason being the peculiar position of a
daughter and especially an unmarried daughter in
Hindu society. Therefore, the argument that two
equals are being treated as unequals is not at all
acceptable and therefore, Article 14 will have no
8
application.
For the same reason, Article 15 will have no
application. Moreover clause (3) of Article 15
specifically provides that nothing in the Article 15
shall prevent the State from making any special
provision for women and children. Subsection (3)
of section 20 is a special provision within the
meaning of clause (3) of Article 15. As stated
earlier, the class of unmarried major sons is
different from the class of unmarried major daughter
and, therefore, the discrimination which is
prohibited under Article 15 is not at all attracted.
Therefore, challenge to the constitutional validity
must fail.
As far as applicability of the said Act is
concerned, the same applies to all persons named in
section 2. It applies to any child, legitimate or
illegitimate, both of whose parents are Hindu,
Budhist, Jaina or Sikh by religion. The
applicability of the said Act does not depend upon
the nationality of the child or domicile of the
child. If both the parents of the child are either
Hindu or Buddhist or Jaina or Sikh by religion, the
said Act becomes applicable to such children.
Moreover, as per subsection (1) of section 20 of
the said Act, the obligation to maintain his other
children is of a person who is Hindu by religion.
Therefore, applicability of the Act does not depend
on the nationality or domicile of the child. We are
not dealing with a parent who is not domiciled in
India. Whether section 20 will apply to a parent who
is not domiciled in India or who is not a citizen of
India is an altogether separate issue.
The question of applicability of the said Act
is different from the territorial jurisdiction of
the Court to entertain the proceedings under the
11
said Act.
Therefore, we find no merit in both the
contentions raised by the petitioner. The petition
deserves to be rejected. However, We have made no
adjudication on the merits of the pending
proceedings.
12
Writ Petition is rejected.
(A.P.BHANGALE,J.)
(A.S.OKA,J.)
No comments:
Post a Comment