# Roshni Tiwari v. Balmukund Tiwari

- **Citation:** (2021) 11 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-21
- **Case number:** First Appeal No. 400 of 2021
- **Bench:** Mrs. Sunita Agarwal, Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roshni-tiwari-v-balmukund-tiwari-46633
- **Pages:** 7

## Headnote

834 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Rajendra Prasad Tiwari, Sri Vinay Kumar
Tiwari

Civil Law - Maintenance - Hindu Adoptions and
Maintenance Act, 1956 - Sections 3(b) & 20(3)
- Maintenance of unmarried daughter - an
unmarried daughter is entitled for maintenance
from her parents till she is unmarried, in case,
she is unable to maintain herself out of her
own earnings or other property - maintenance
includes the reasonable expenses and incident
to her marriage apart from food, clothing,
residence, education and medical attendance
and treatment (Para 7)

Appellant daughter had been left on her own by the
father as soon as she attained majority - daughter
pressed that her father should bear the expenses of
her marriage as her mother has no such resources -
father contested claim on ground that during
pendency of application, daughter got job and is
earning Rs 4500/ - Held - petty amount of Rs 4500/-
being earned by the daughter cannot be a reason to
reject her prayer for grant of maintenance towards
marriage expenses- demand of Rs. 10 Lacs towards
marriage expenses in the current scenario when the
daughter is aged about 27-28 years cannot be said to
unjustified or excessive - father directed to pay Rs. 10
Lacs in two installments each (Para 14, 15)

Allowed. (E-5)

## Text

11 All. Roshni Tiwari Vs. Balmukund Tiwari
833
2015 such person is termed as child. Admittedly,
the petitioner was minor as well as a child also
when she allegedly entered into the agreement to
marry on 02.11.2020. The law applicable to her
being a Hindu, is "The Hindu Marriage Act,
1955". Section 5 (iii) of the said Act provides
the marriageable age, according to which the
marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled:-

"(iii) the bride groom has completed
the age of twenty one years and the bride, the
age of eighteen years at the time of the
marriage."

14. Under both the Acts viz. The Hindu
Marriage Act, 1955 and The Indian Contract
Act, 1872 the petitioner had no legal capacity
and competence to enter into the agreement to
marry.

15. According to the Indian law, in
marriage where either the woman is below the
age of 18 years or the man is below the age of
21 years, such marriages, if solemnized even by
the guardians becomes voidable under Section 5
of the Hindu Marriage Act at the instance of
minor. He has option to ratify the marriage
attaining the age of majority.

16. A criminal case i.e. F.I.R. No.443 of
2020, under Section 363 of the I.P.C., Police
Station Motipur, District Bahraich is also
pending against the alleged next friend as
husband, Ram Mitra. The action of such
proceeding against any criminal case cannot
provide justification subsequently by any
judicial order unless it is not concluded under
the said criminal case.

17. A minor, if on attaining majority is
willing to ratify the marriage and accepts his/her
marital status and relations with the other party
of the marriage, the marriage would subsist. In
the present case, the detenue when alleged to
have entered into marriage with the present next
friend she was minor but when she is produced
before the Court, has attained the majority.
Being major, she does not ratify the alleged
marriage nor her marital status with the alleged
next friend namely Ram Mitra. Even she does
not want to go with Ram Mitra aforesaid to
cohabit with him. The writ of Habeas Corpus in
said circumstances cannot be issued in favour of
said Ram Mitra as husband for carrying of the
alleged detenue ''Suneeta' as his wife.

18. In view of the statement recorded in the
Court of the detenue-Smt. Suneeta, the petition
has no merit and, therefore, decided in terms of
the statement.

19. Accordingly, the present writ petition
is dismissed.

20. The opposite party i.e. the officer
attending the Court for production of the detenue
namely Sri Awadesh Kumar Dwivedi, S.I. and
Ms. Pratima Yadav, C.P. No.182082245 posted
at Police Station Motipur, District Bahraich are
discharged from attending the Court.
----------
(2021)11ILR A833
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

First Appeal No. 400 of 2021

Roshni Tiwari ...Appellant
Versus
Balmukund Tiwari ...Respondent

Counsel for the Appellant:
Ms. Akansha Sharma

Counsel for the Respondents:
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Rajendra Prasad Tiwari, Sri Vinay Kumar
Tiwari

Civil Law - Maintenance - Hindu Adoptions and
Maintenance Act, 1956 - Sections 3(b) & 20(3)
- Maintenance of unmarried daughter - an
unmarried daughter is entitled for maintenance
from her parents till she is unmarried, in case,
she is unable to maintain herself out of her
own earnings or other property - maintenance
includes the reasonable expenses and incident
to her marriage apart from food, clothing,
residence, education and medical attendance
and treatment (Para 7)

Appellant daughter had been left on her own by the
father as soon as she attained majority - daughter
pressed that her father should bear the expenses of
her marriage as her mother has no such resources -
father contested claim on ground that during
pendency of application, daughter got job and is
earning Rs 4500/ - Held - petty amount of Rs 4500/-
being earned by the daughter cannot be a reason to
reject her prayer for grant of maintenance towards
marriage expenses- demand of Rs. 10 Lacs towards
marriage expenses in the current scenario when the
daughter is aged about 27-28 years cannot be said to
unjustified or excessive - father directed to pay Rs. 10
Lacs in two installments each (Para 14, 15)

Allowed. (E-5)

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Krishan Pahal, J.)

1. The present appeal is directed against
the order of rejection of application of the
daughter filed under Section 20(3) of the
Hindu Adoptions and Maintenance Act, 1956
(hereinafter referred to as "the Act, 1956")
seeking maintenance from her father. In the
said application, she had claimed maintenance
on two grounds; firstly that she had been
doing nursing course and her mother had
incurred huge expenditures in educating her.
She was paying Rs. 3500/- per month towards
fee and there was no other source of income.
She, therefore, demanded the fee being paid
by her for continuing the said course. Another
ground to seek maintenance was that the
applicant-daughter was of marriageable age
and she needed money towards marriage
expenses which was the responsibility of her
father.

2. The said application filed on 7.5.2015
had been rejected vide order dated 6.10.2017
on the ground that the fee receipts which were
submitted by the applicant for pursuing the
nursing course were of the year 2012. By the
time the case was decided, she had completed
the nursing course. Further after completion of
the said course, the appellant got a job from
which she was earning Rs. 4500/- per month.
It was also noted by the family court that an
amount of Rs. 1000/- per month was being
paid to the appellant till she attained the age of
majority on 25.2.2011. As regards the claim of
the appellant for marriage expenses, there is
no whisper in the entire judgment.

3.

The
respondent
namely
Sri
Balmukund Tiwari, father of the appellant is
personally present in the Court. The personal
presence of the appellant has been dispensed
with by the order dated 20.10.2021.

4. Ms. Akanksha Sharma learned Advocate
for the appellant, at the outset, states that the
appellant though is pursuing a higher study
course namely "Post Basic Nursing Training
course" in a college at Bhopal wherein she had
taken admission in the Academic session 201718 but she has decided not to pursue her prayer
for grant of expenditures/fee incurred for the
said course.

The contention is that the appellant is
aged
about
27-28
years
and
being
of
marriageable age, her mother is looking to the
suitable proposals but none of them could be
materialized for want of financial resources. The
amount of Rs. 10 Lacs has been demanded by
11 All. Roshni Tiwari Vs. Balmukund Tiwari
835
the appellant towards the expenditures to be
incurred in her marriage.

5. On a query made by the Court, Sri
Rajendra Prasad Tiwari learned Advocate for the
respondent-father states that an amount of Rs.
1000/- per month was being given towards
maintenance to the appellant till she had attained
majority on 25.2.2011. It is admitted that the
respondent-father had not paid a single penny
towards education of his daughter who had
completed Nursing Course and is pursuing a
"Post Basic Nursing Training course" in a
college at Bhopal, from the finances initially
arranged by her

The contention of the learned counsel
for the respondent-father is that the appellant is
self-sufficient as she has started earning after
completion of the Staff Nursing Course.
However, it is an admitted fact of the matter that
the respondent is in the Government Department
and he is working as Tube-Well Operator in the
Irrigation Department. As per own admission of
the respondent-father, he is receiving salary of
Rs. 42,506/- per month, after deduction of the
P.F. and other amount towards compulsory
deductions. Whereas the appellant has no other
source of income than her own earning, which
according to the respondent itself is barely Rs.
4500/- per month. Out of the said earning the
appellant is also incurring expenditures for
payment of fee for pursuing higher study
Nursing course and also bearing her daily
expenditures.

As regards the decision of the family
court, there is no deliberation on the issue of
demand of the appellant for marriage expenses.

6. The claimant daughter is living with her
mother for the last several years who has borne
all her living expenses including education. The
mother has managed to provide her daughter a
good education. There was virtually no
contribution of the father in the upbringing of
his daughter. Meagre amount of Rs. 1000/- was
paid under the order of the Court that too had
been stopped as soon as she had attained
majority, though the father was under obligation
to pay the said amount to the claimant being his
unmarried daughter. The respondent though is a
Government employee did not volunteer to raise
the maintenance amount to meet the requirement
of his own child. The daughter had been left to
live on her own. Apart from the claimant
daughter, there are other male children of the
respondent. The respondent though in his
objection had alleged that the claimant is earning
from the employment but he did not state that it
was sufficient for her daughter. The maintenance
does not mean the expenses sufficient for bare
living or surviving but its object is to provide
such means of sustenance with dignity which is
befitting to the position and status of the parties.
The living expenses is not the bare means of
survival like food and clothings only. For a
dignified living and to grow to become a
responsible citizen, a child has to receive proper
education. To be able to earn his livelihood, a
child has to attain higher/vocational education.

7. On the maintainability of the application
of the daughter to seek marriage expenses
though there is no objection but we deem it fit
and proper to consider the relevant provisions of
the Act, 1956, quoted hereunder:-

"Section
3(b).
Maintenance"
includes-- (i) in all cases, provision for food,
clothing, residence, education and medical
attendance and treatment;

(ii) in the case of an unmarried
daughter, also the reasonable expenses of an
incident to her marriage;

Section 20. Maintenance of children
and aged parents:- (1) Subject to the provisions
of this section a Hindu is bound, during his or
836 INDIAN LAW REPORTS ALLAHABAD SERIES
her lifetime, to maintain his or her legitimate or
illegitimate children and his or her aged or
infirm parents.

(2) A legitimate or illegitimate child
may claim maintenance from his or her father or
mother so long as the child is a minor.

(3) The obligation of a person to
maintain his or her aged or infirm parent or a
daughter who is unmarried extends insofar 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 earnings or other
property.

Explanation: In this section "parent"
includes a childless step-mother.

Section 21. Dependants defined:- For
the purposes of this Chapter "dependants"
means the following relatives of the deceased:

(i) his or her father;

(ii) his or her mother;

(iii) his widow, so long as she does not
re-marry;

(iv) his or her son or the son of his
predeceased son or the son of predeceased son
of his predeceased son, so long as he is a minor;
provided and to the extent that he is unable to
obtain maintenance, in the case of a grandson
from his father's or mother's estate, and in the
case of a great grand-son, from the estate of his
father or mother or father's father or father's
mother;

(v) his or her unmarried daughter, or
the unmarried daughter of his predeceased son
or the unmarried daughter of a predeceased son
of his predeceased son, so long as she remains
unmarried: provided and to the extent that she
is unable to obtain maintenance, in the case of a
grand-daughter from her father's or mother's
estate and in the case of a great-grand-daughter
from the estate of her father or mother or
father's father or father's mother;

(vi) his widowed daughter: provided
and to the extent that she is unable to obtain
maintenance-

(b) from her son or daughter if any, or
his or her estate; or

(c) from her father-in-law or his father
or the estate of either of them;

(vii) any widow of his son or of a son
of his predeceased son, so long as she does not
remarry: provided and to the extent that she is
unable to obtain maintenance from her
husband's estate, or from her son or daughter, if
any, or his or her estate; or in the case of a
grandson's widow, also from her father-in-law's
estate;

(viii) his or her minor illegitimate son,
so long as he remains a minor;

(ix) his or her illegitimate daughter, so
long as she remains unmarried.

Section 23. Amount of maintenance:-
(1) It shall be in the discretion of the court to
determine whether any, and if so what,
maintenance shall be awarded under the
provisions of this Act, and in doing so the court
shall have due regard to the considerations set
out in sub-section (2), or sub-section (3), as the
case may be, so far as they are applicable.

(2) In determining the amount of
maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this
Act, regard shall be had to-
11 All. Roshni Tiwari Vs. Balmukund Tiwari
837

(a) the position and status of the
parties;

(b) the reasonable wants of the
claimant;

(c) if the claimant is living separately,
whether the claimant is justified in doing

(d) the value of the claimant's property
and any income derived from such property, or
from the claimant's own earnings or from any
other source;

(e) the number of persons entitled to
maintenance under this Act.

(3) In determining the amount of
maintenance, if any, to be awarded to a dependant
under this Act, regard shall be had to-

(a) the net value of the estate of the
deceased after providing for the payment of his
debts;

(b) the provision, if any, made under a
will of the deceased in respect of the dependant;

(c) the degree of relationship between
the two;

(d) the reasonable wants of the
dependant;

(e) the past relations between the
dependant and the deceased;

(f) the value of the property of the
dependant and any income derived from such
property; or from his or her earnings or from
any other source;

(g) the number of dependants entitled
to maintenance under this Act."

A conjoined reading of Section 3(b)
and Section 20(3) of the Act, 1956 indicates that
an
unmarried
daughter
is
entitled
for
maintenance from her parents till she is
unmarried, in case, she is unable to maintain
herself out of her own earnings or other
property.
The
maintenance
includes
the
reasonable expenses and incident to her
marriage apart from food, clothing, residence,
education and medical attendance and treatment.
The obligation cast under Section 20 of the Act,
1956 is on both the parents. A daughter can
claim maintenance from either of her parents, in
case, she is unable to maintain herself or is
unable to bear the expenses related to her
marriage.

8. In the instant case, the appellant
daughter had been left on her own by the father
as soon as she attained majority. Even prior to
that, only Rs. 1000/- was being paid to her by
the father towards living expenses. The mother
(wife of the respondent) had been awarded
maintenance in the proceeding under Section
125 Cr.P.C. where she was getting a petty
amount of maintenance for herself and her
children. Apart from the appellant, there were
other two children of the respondent who were
also looked after by his wife only.

9. The respondent admittedly did not bear
the responsibility of education of his children
including the appellant herein. Somehow the
appellant had been able to educate herself with
the help of her mother and completed vocational
Nursing course. Though it was the responsibility
of the father to bear expenses of education
including higher education of his daughter but
the appellant has given up the said claim.

10. The only claim being pressed by the
appellant is that at least the father should bear
the expenses of her marriage as her mother has
no such resources.
838 INDIAN LAW REPORTS ALLAHABAD SERIES

11. There is no denial of the said fact. The
only reason given by the respondent to contest
the petition under Section 20(3) moved by his
daughter is that she got a job during the
pendency of the said application and is earning
Rs. 4500/-.

12. No plausible explanation could be
offered by the respondent father as to why he did
not discharge his responsibility towards his
children. He never looked after them nor offered
any kind of financial support. When the claimant
appellant has somehow managed to study, her
claim for maintenance is being contested on the
ground that she has started earning during
pendency of the application.

13. Section 23 of the Act, 1956 as
extracted above provides the criteria for fixing
the quantum of maintenance which shows that a
comparison of income of both the parties has to
be made by the Court while determining the
amount of maintenance. The criteria which are
required to be kept in mind are the position and
status of the parties and the claimants own
earnings or earning from any other source. The
reasonableness of the demand of the claimant
and the reason why the claimant is living
separately, is also to be seen while assessing
whether the demand is justified or not.

14. Having gone through the provisions of
the Act, 1956 as also the factual position with
regard to income and the status of the parties, we
are of the considered view that petty amount of
Rs. 4500/- being earned by the appellant cannot
be a reason to reject her prayer for grant of
maintenance towards education expenses as also
marriage expenses. However, noticing that the
appellant has given up her claim for expenses
towards her education and only demands
marriage expenses, we are of the considered
view that the demand of the appellant is
perfectly justified. We cannot oblivious of the
fact that the respondent had never discharged his
responsibility towards his unmarried daughter
and did not borne her education expenses. The
demand of Rs. 10 Lacs towards marriage
expenses in the current scenario when the
appellant is aged about 27-28 years cannot be
said to unjustified or excessive.

The family court while rejecting the
application under Section 20(3) of Hindu
Adoption and Maintenance Act, 1956 has simply
ignored that the applicant had incurred all
expenditures towards her education, in pursuing
nursing course and at no point of time, during
the entire period, till and after she attained
majority, her education and living expenses were
borne by the father. The family court had
completely ignored that the appellant has a right
to claim expenses towards performance of her
marriage from her father under the statute.

15. For the aforesaid, while setting aside
the order dated 6.10.2017 being unjustifiable
and unreasonable, we direct the respondentfather to pay Rs. 10 Lacs by submitting the
demand drafts before this Court in two
installments.

The first installment of Rs. 5 Lacs
shall be paid by the respondent-father within a
period of one month from today, i.e. on
22.11.2021 by presenting a demand draft before
this Court.

The remaining second installment of
Rs. 5 Lacs shall be paid within a further period
of two months by presenting another demand
draft before this Court.

The disposal of the present appeal
would be subject to the payment made by the
respondent-father as per the above schedule.

List this matter on 23.11.2021 in the
additional cause list for compliance of the above
directions.
11 All. Jagdish Mani Tripathi Vs. Brij Bhushan Tewari & Ors.
839
----------
(2021)11ILR A839
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 895 of 1994

Jagdish Mani Tripathi ...Appellant
Versus
Brij Bhushan Tewari & Ors. ...Respondents

Counsel for the Appellant:
Sri Dinesh Dwivedi, Sri Ashok Pandey, Sri G.M.
Tripathi, Sri Gambhir Tripathi, Sri Hausihla
Prasad Mishra, Sri V.P.Tripathi

Counsel for the Respondents:
Sri U.S.M. Tripathi, Sri B.P.Tiwari, Sri Pahaloo,
Sri Ram Suphal Shukla, Sri Manvendra Kumar

A. Civil Law - Indian Contract Act,1872 -
Section 55 - Time whether of essence -
Determination of - Section 55 of the Contract
Act makes it dependent upon the intention of
parties whether time is of the essence -
intention has to be gathered from the terms of
the contract, not just going by the letter of it,
but by construing the contract as a whole -
Court has to look to the pith and substance and
decide as to whether time was or was not
essential to the subsistence of the contract -
consideration of surrounding circumstances
may also be relevant in certain cases. (Para 15)

B. Civil Law - Indian Contract Act,1872 -
Section 55 - provisions of Section 55 of the
Contract Act about time being essence of the
contract, making it voidable upon breach,
would apply to a decree of Court founded on
compromise in the same manner as any other
contract (Para 35)

Allowed. (E-5)

Cases Relied on :

1. Tandra Venkata Subrahmanayam Vs Vegesana
Viswanadharaju & anr. AIR 1968 AP 190

2. Nagoo & anr. Vs P.T. Shiv Dularey Dixit & ors. AIR
1955 All 665

3. Hansraj Sangechi & ors. Vs Jogeshar Prasad & anr.
AIR 1925 Pat 691

4. Habib Mian & anr. Vs Mukhtar Ahmad & anr.AIR
1969 All 296 (FB)

5. Smt. Periyakkal & ors. Vs Smt. Dakshyani (1983) 2
SCC 127

(Delivered by Hon'ble J.J. Munir, J.)

This is a plaintiff's second appeal, arising
from a suit for cancellation of sale deed.

2. The facts giving rise to this appeal,
according to the plaintiff's case, are these :

The plaintiff Jagdish Mani Tripathi's
father, Shiv Pujan Mani, was twice married.
Jagdish Mani Tripathi was begotten of Shiv
Pujan Mani's first wife. Jagdish Mani is the sole
survivor and heir of Shiv Pujan. Shiv Pujan's
first wife and Jagdish Mani's mother passed
away and after her death, Shiv Pujan married
Smt. Kailash Pati, who did not bear him any
child. After Shiv Pujan's death, Kailash Pati
would not inherit any estate in his agricultural
holdings, and it all went to Jagdish Mani. But,
after
Shiv
Pujan's
death,
Kailash
Pati's
disposition towards Jagdish Mani turned hostile
and unfriendly. It is Jagdish Mani's case that
fuelled by the hostility of a step relationship
between parties, Smt. Kailash Pati, in conspiracy
with members of her native family, devised
various ways to harm him. She left her
matrimonial home and went back to her parents'
place. She sued Jagdish Mani for maintenance
before the Court of the Munsif, Court No. 2,
Deoria, instituting Original Suit No. 1154 of
1967 for the purpose. The suit aforesaid was
decreed in favour of Smt. Kailash Pati. With the