No Refund for Excess Maintenance Paid by Father

Source: Himachal Pradesh High Court 

Why in News? 

The bench of Justices Vivek Singh Thakur and Sushil Kukreja in the case of Rishita Kapur and Another v. Vijay Kapur and Another (2025) partially allowed a criminal revision petition concerning enhancement of maintenance for major children, clarifying that maintenance under Section 125 of the Criminal Procedure Code, 1973 (CrPC) is available only until a child attains majority, except in cases of physical or mental disability.  

• Importantly, the Court held that fathers cannot claim refund of maintenance already paid to children after they attain majority, as they have a moral obligation to support their education. 

What was the Background of Rishita Kapur and Another v. Vijay Kapur and Another (2025) Case? 

• The petitioners were children of respondent Vijay Kapur and proforma respondent Neelam Kumari, born on 01.08.1998 (daughter Rishita) and 17.03.2002 (son Suchet), attaining majority on 01.08.2016 and 17.03.2020 respectively. 
• The daughter was pursuing Ph.D from H.P. Krishi Vishwa Vidyalaya, Palampur, while the son was doing B.Tech from Guru Nanak Dev University, Amritsar. 
• Initially, in 2012, the Judicial Magistrate First Class, Sarkaghat awarded Rs.2,000/- per month maintenance to the mother and each child. 
• In 2015, the Additional Sessions Judge enhanced the maintenance from Rs.2,000/- to Rs.3,000/- per month. 
• In 2017, through Lok Adalat, the maintenance was further enhanced to Rs.4,000/- per month. 
• On 02.07.2018, an application under Section 127 CrPC was filed seeking further enhancement of maintenance. 
• The Family Court enhanced the mother's maintenance from Rs.4,000/- to Rs.8,000/- per month but dismissed the children's claim on the ground that they had attained majority. 
• The children approached the High Court challenging the dismissal of their enhancement application. 

What were the Court's Observations? 

• The Court examined the provisions of Section 125 CrPC (Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)), which provide maintenance entitlement to minor children and major children only if they suffer from physical or mental abnormality or injury rendering them unable to maintain themselves. 
• The Court observed that at the time of filing the enhancement application on 02.07.2018, the daughter had already attained majority on 01.08.2016, while the son was still a minor until 17.03.2020. 
• The Court held that the Family Court committed an error by rejecting the son's claim for enhancement entirely, instead of allowing it until he attained majority on 17.03.2020. 
• The Court found no infirmity in denying maintenance to the major daughter, as Section 125 CrPC does not provide for maintenance to major daughters even if unmarried, unlike Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956. 
• The Court directed that the son was entitled to enhanced maintenance of Rs.8,000/- per month from 02.07.2018 to 17.03.2020 and ordered arrears payment by 15.10.2025 if unpaid. 
• The Court ruled that even if the father had voluntarily paid maintenance to his children after they attained majority, he would not be entitled to recover or adjust such amounts, citing his moral obligation as a father to support children completing their education. 
• The Court clarified that rejection of maintenance claims under Section 125 CrPC after attaining majority shall not bar the children from claiming maintenance or rights in their father's estate under other provisions of law. 

What is Section 144 of BNSS? 

About: 

• Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a social justice provision aimed at preventing destitution and financial hardship of a neglected spouse and children. It empowers a Magistrate of the First Class to grant monthly maintenance, interim maintenance, and proceeding expenses to the wife, legitimate or illegitimate child, who is unable to maintain themselves, from a person who has sufficient means but refuses or neglects to do so. 

Key statutory Features: 

• Section 144(1): Empowers the Magistrate to order monthly maintenance to wife and children. 
• Second Proviso to Section 144(1): Allows the Magistrate to grant interim maintenance and expenses during the pendency of proceedings. 
• Third Proviso to Section 144(1): Directs that interim maintenance applications should ideally be disposed of within 60 days from the date of service of notice. 
• Section 144(2): Maintenance may be payable either from the date of application or order, as the Magistrate deems fit. 
• Section 144(3): Non-payment of maintenance can attract warrant proceedings and imprisonment up to one month. 
• Section 144(4): Disqualifies the wife from receiving maintenance in cases of adultery, refusal to live with husband without sufficient cause, or mutual consent to live separately. 
• Further procedural clarity is offered under Section 145(2), which mandates that evidence must be recorded in the presence of the respondent or their advocate, with a provision for ex parte proceedings and setting aside such orders upon showing sufficient cause within three months.