BABY SAROJINI ALIAS OBI Vs. ACHUTHAN

JUDGEMENT

(1.) Under S.20 of the Hindu Adoptions & Maintenance Act, 78 of 1956 both parents (if they are Hindus) are bound to maintain their minor children and by reason of S.4 of that Act this provision must override S.13 of the Cochin Thiyya Act, 7 of 1107 under which the obligation is cast only on the father. I agree with the lower appellate court in so far as it has held that this does not mean that a child can claim double maintenance; in other words, I think that if the child is being adequately maintained by one parent it cannot claim maintenance from the other as well, although I think that, if the maintenance provided by one parent is inadequate, the use of the word or in sub-s.(2) of S.20 of Act 78 of 1956 which says that a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor would not preclude the child from claiming the deficiency from the other parent. But, in this case, although it would appear that the minor plaintiff is in the custody of the mother who brought the suit on her behalf as her next friend, there is nothing in the pleadings to show that the plaintiff was being adequately maintained or maintained at all by the mother. No such defence was taken; nor was issue joined on the question whether the plaintiff could make no claim against the defendant father because she was being maintained by the coobligant mother. All that the written statement said was that the plaintiff and her mother had sufficient property to provide for the plaintiffs maintenance - that is an entirely different matter. That being so, I think the lower appellate court was wrong in disallowing the plaintiff appellants claim for the period after Act 78 of 1956 came into force on the sole ground that the plaintiff was being maintained by her mother.

(2.) In the result I allow this appeal with costs, set aside the decree of the lower appellate court, and restore that of the Trial Court.