The Kerala High Court held that a father is legally bound to maintain his child, regardless of the fact that she was born out of an inter-faith marriage (JW Aragadan v. Hashmi NS and anr).
The observation came from a Division Bench of Justices A Muhamad Mustaque and Kauser Edappagath, who held,
“Every children born to this world is entitled to be maintained. It is their right-both legal and moral. The right of children for maintenance has been recognized for a long time. The duty to take care of the children has also been duly recognised as an enforceable obligation in the entire civilized society…The custom as well as statutes recognize father as a natural guardian. He is entitled to the custody of the minor child’s person and property. The right to custody carries a duty to take care. The right necessarily carries with it a corresponding duty. Since father is recognized as the guardian, he is under a duty to maintain and protect the child…”
The Court was hearing a maintenance petition filed by a daughter born out of an inter-faith marriage. The father is a Hindu and the mother and daughter were Muslims.
The daughter had filed the original plea for maintenance before a family court under provisions of the Hindu Adoptions and Maintenance Act (HAMA). The lower court passed a decree for ₹1,08,000 towards past maintenance, ₹14,66,860 towards marriage expenses and ₹96,000 towards educational expenses, with interest. This prompted the father to move the High Court.
The High Court noted that the daughter had stated that when she was three years of age, her father left them and she was left to the custody her maternal grandparents, who were Muslims. Thus, it was clear that after three years of age, she was not brought up as a Hindu. In this light, the Court held that the provisions of the HAMA would not apply.
It was also noted that Muslim Personal Law also cannot be applied since both parties are not Muslims. Given the context, the Court asked,
“There is no substantive law mandating a father of a child born out of an inter–religion marriage to maintain it. The Special Marriage Act, 1984 is silent on this. Then, the crucial question is whether father of a child born out of an inter–faith marriage has legal obligation to maintain it in the absence of a statutory stipulation?”
It was observed that under Section 9 and Order XXXII A of the Code of Civil Procedure (PC) and Section 7(1)(e) of the Family Courts Act, every child irrespective of their race, caste or religion has a remedy by way of a suit or petition to claim maintenance. Under Sec 125 of the Code of Criminal Procedure (CrPC), a criminal liability is imposed upon the father irrespective of the faith or religion professed, to maintain his children. Section 20 of the HAMA imposes a statutory obligation on parents to maintain their legitimate or illegitimate children, it was observed.
The Court noted that a Muslim father is bound to maintain his sons until they have attained the age of puberty and daughters until they are married.
The Court relied on its judgement Mathew Varghese v. Rosamma Varghese where it held that all fathers, be they Hindus, Muslims, Christian or others, have a duty to maintain their children.
“The caste, faith or religion cannot have any rational basis for determining the parental duty of a father. All the children have to be treated alike irrespective of the faith or religion professed by the parents. We, hence, hold that the children of an inter-faith couple are entitled to be maintained by their father,” the Court held after going through various legal provisions and precedents.
It further explained that maintenance is the right of the child and such maintenance does and must include all expenses for the mental and physical well-being of the child. So far as an unmarried daughter is concerned, her marriage is something essential for her mental and physical well-being, and such maintenance is inclusive of educational expenses.
“Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 which obliges the father to maintain his unmarried daughter specifically includes the right of the claimant for marriage expenses. For all these reasons we hold that an unmarried daughter born to an inter religious couple is entitled to marriage expenses from her father,” the Court held.
With regard to the amount that the daughter was entitled to for her marriage expenses, the Court noted that the father cannot be fastened with the liability to bear the amount spent by the daughter lavishly according to her whims and fancies. Section 3(b) (ii) of the HAMA makes it clear that the entitlement is only for reasonable expenses, the Court stated.
“The financial capacity of the father has also to be taken into consideration while determining the quantum. Hence, in a petition filed by the unmarried daughter against the father claiming marriage expenses, the court can only award bare minimum reasonable expenses, that too only if the father has requisite means and the daughter is dependent on him.”
The Court went on to observe that in Islam, a marriage ceremony comprised a nikah ceremony followed by the walima. There is no obligation for the father to pay any money, gold or sthreedhanam to his daughter. In fact, under the Muslim Law, mahar (dower) is to be paid by the groom to the bride. Hence, there is absolutely no justification in directing the appellant to meet all the marriage expenses allegedly incurred by the first respondent, especially the amount spent purchasing gold ornaments.
The Court noted that a sum of ₹3,00,000 would be just and reasonable towards marriage expenses, and disposed of the petition.
Read judgment here: