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Cites 12 docs - [View All]
Section 125 in The Code Of Criminal Procedure, 1973
The Essential Services Maintenance Act, 1968
The Code Of Criminal Procedure, 1973
Section 3 in The Essential Services Maintenance Act, 1968
Section 20(3) in The Hindu Adoptions and Maintenance Act, 1956
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Chattisgarh High Court
Smt. Sushila Bai vs Bisauharam on 1 September, 2009
       

  

  

 
 
             HIGH COURT OF CHATTISGARH AT BILASPUR      




           Criminal Misc. Petition No.242 of 2007




                  1.  Smt.  Sushila Bai

                   2.  Topin    Bai
                                 ...Petitioners


                           Versus


                    Bisauharam
                               ...Respondents




     {Petition under Section 482 of the Code of Criminal
                      Procedure, 1973}



!     Mr. Anup Majumdar, counsel for the petitioners


^     Mr. Rakesh Sahju, counsel for the respondent






Honble Mr. T.P. Sharma, J 



       Dated:01/09/2009




:       Judgment

                            ORDER

(Passed on 1st September, 2009)

1. This petition is for quashment of the order dated 26-5- 2007 passed by the 1st Additional Sessions Judge, Rajnandgaon in Criminal Revision No.29/2007 affirming the order dated 24- 1-2007 passed by the Judicial Magistrate First Class, Rajnandgaon in Misc. Criminal Case No.7/2007, whereby learned Judicial Magistrate First Class has awarded maintenance of Rs.2,000/- per month to petitioner No.1, but has denied maintenance to petitioner No.2, the unmarried daughter, on the ground that she is not entitled for maintenance in terms of Section 125 (1) (a) of the Code of Criminal Procedure, 1973 (for short `the Code') which has been affirmed by the revisional Court.

2. Order is challenged on the ground that the unmarried daughter is still unable to maintain herself and only after attaining the age of majority she does not become an earning member or she does not cease her character to maintain herself without any change relating to income and earning of such daughter, but the Courts below have not considered the material fact and thereby committed illegality by denying maintenance to the unmarried daughter only on the ground of attaining the age of majority.

3. I have heard learned counsel for the parties, perused the order impugned and record of the Courts below.

4. Brief facts giving rise to filing of this petition are that petitioner No.1 is wife & petitioner No.2 is unmarried daughter of the respondent and they are residing separately from the respondent. The respondent has contacted marriage with another woman and has deserted the present petitioners. Petitioner No.2 is unmarried daughter and she is unable to maintain herself. On the ground of inability to maintain themselves, the petitioners have filed petition under Section 125 of the Code. The respondent has opposed the petition. He has admitted that he is residing with another woman Pushpa as wife and he has contacted marriage with Pushpa with the consent of petitioner No.1. The petitioners are residing in the house of respondent and getting their livelihood from the agricultural land of the petitioners which is in possession of the petitioners. Petitioner No.2 is an unmarried daughter and she is not entitled for any maintenance under Section 125 of the Code.

5. After appreciating the evidence adduced on behalf of the parties, learned Judicial Magistrate First Class has awarded maintenance of Rs.2,000/- per month to petitioner No.1 and denied maintenance to petitioner No.2 on the ground that she is not minor and is not entitled for maintenance under Section 125 (1) (a) of the Code. The order is affirmed by the revisional Court.

6. Learned counsel for the petitioners vehemently argued that the Courts below have arrived at a finding that petitioner No.2 is not having sufficient means for her maintenance and income of the respondent is at least more than Rs.5,000/- per month. Learned Courts below have further arrived at a finding that petitioner No.2 is not able to maintain herself. The respondent has examined himself and has deposed that he has contacted marriage with Pushpa after getting consent from petitioner No.1 and petitioner No.2 is his unmarried daughter. Petitioner No.1 has also deposed that petitioner No.2 is her unmarried daughter and Rs.2,000/- per month would be required for maintenance of her daughter. Both the parties have led evidence but they have not adduced any evidence to the effect that petitioner No.2 is major and she is having some means of earning or income for her livelihood. Learned counsel placed reliance in the matter of Noor Saba Khatoon v. Mohd. Quasim1 in which the Apex Court has held that Muslim children are entitled for maintenance till they attain majority or are able to maintain themselves, female children are also similarly entitled till they get married. Learned counsel further placed reliance in the matter of Jagdish Jugtawat v. Manju Lata and others2 in which the Apex Court has held that though Section 125 of the Code does not fix liability of parents to maintain children beyond attainment of majority, but right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized under Section 20 (3) of the Hindu Adoptions and Maintenance Act, 1956 (for short `the Act'). Therefore, on a combined reading of the two provisions, daughter even after her attaining majority is entitled for maintenance till her marriage and benefit of personal law for awarding or continuing maintenance proceedings can be given to the applicant, ineligible under Section 125 of the Code, to avoid multiplicity. Learned counsel also placed reliance in the matter of Yugeshwar Nath Mishra v. Arpana Kumari and another3 in which the Patna High Court after relying upon the case of Noor Saba (supra) has held that major unmarried daughter is also entitled for maintenance till her marriage. Learned counsel further placed reliance in the matter of Rama Chandra Sahu v. Tapaswini Sahu and another4 in which it has been held by the Orissa High Court that major unmarried daughter is entitled for maintenance in terms of Section 125 (1) (c) of the Code and the word `injury' need not necessarily denote physical injury, it has to be read in context of inability to maintain.

7. On the other hand, learned counsel for the respondent opposed the petition and submitted that this is a proceeding under Section 125 of the Code for grant of maintenance and not a petition under Section 20 (3) of the Act. This is a summary proceeding to save the person from vagrancy and destitution. Unmarried daughters are not entitled for maintenance from their parents under Section 125 of the Code, but they may seek remedy under Section 20 of the Act after attaining the age of majority without assigning any cause for inability as a result of physical or mental injury. But in case of grant of maintenance under Section 125 of the Code an unmarried daughter who has attained the age of majority is required to prove that she is unable to maintain herself by reason of any physical or mental abnormality or injury. In this case, petitioner No.2 has not adduced any evidence to show that she is unable to maintain herself by reason of any physical or mental abnormality or injury, therefore, she is not entitled for maintenance in a summary proceeding under Section 125 of the Code.

8. It is not disputed that petitioner No.2 is unmarried daughter of the respondent. The respondent, father of petitioner No.2, is not maintaining petitioner No.2 or providing any amount of maintenance to her. Section 125 (1) of the Code reads as follows: -

"125. Order for maintenance of wives, children and parents.-(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

9. Under the provisions of Section 125 of the Code, the major unmarried daughter is required to prove that she is unable to maintain herself by reason of any physical or mental abnormality or injury. But as has been held by the Apex Court in the matter of Noor Saba (supra), even unmarried daughters are entitled for maintenance till they get married. Paras 10 & 11 of the said judgment read thus, "10. Thus, both under the personal law and the statutory law (Sec. 125, Cr.P.C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.

11. Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125, Cr.P.C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married, and this right is not restricted, affected or controlled by the divorcee wife's right to claim maintenance for maintaining the infant child/children in her custody for a period of two years form the date of birth of the child concerned under Section 3 (1) (b) of the 1986 Act. In other words Section 3 (1) (b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married."

10. While dealing with the same question of award of maintenance to unmarried daughter after attaining the age of majority, the Apex Court in the matter of Jagdish (supra), after applying the principle has dismissed the S.L.P. filed against the award of maintenance to the major unmarried daughter under Section 125 of the Code. Paras 3 & 4 of the said judgment read thus, "3. In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba (supra) relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 CrPC does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl.

4. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 CrPC and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for."

11. Further, while dealing with same question and the word `injury' in the matter of Rama Chandra (supra), the Orissa High Court has held that word `injury' need not necessarily denote physical injury and it has to be read in context of inability to maintain. Therefore, as held in the matters of Noor Saba & Jagdish (supra), unmarried daughters are entitled for maintenance even after attainment of the age of majority till they get married.

12. The provisions of Section 125 of the Code are beneficial legislation to protect the dependent from vagrancy and destitution and to provide reasonable amount of maintenance for their livelihood. In case of children viz., male till attainment of the age of majority and in case of female till the marriage, but if the daughter is unable to maintain herself by reason of any physical or mental abnormality or injury she is entitled for maintenance till she gets married even after attainment of majority, however, she is required to prove the fact that she is unable to maintain herself and her father is having sufficient means to maintain her. If a minor daughter is unable to maintain herself till the age of her majority and after attainment of majority she does not able to maintain herself, then her inability to maintain herself does not cease automatically and such inability to maintain herself makes her entitle for maintenance from her parents even after the attainment of her age of majority.

13. For the foregoing reasons, it is held that unmarried daughter is entitled for maintenance even after attainment of the age of majority, till her marriage, but she is required to prove her inability to maintain herself and that in spite of having sufficient means, her parents are not maintaining her. Consequently, the order impugned requires modification.

14. In the present case, application for maintenance has been filed by petitioner No.2 after attainment of the age of majority. She has shown her age as 27 years, but she has not examined herself before the trial Court or adduced any specific evidence relating to her inability to maintain herself. In spite of having sufficient means the respondent is not maintaining his major daughter.

15. The petition is partly allowed. Orders of the Courts below are modified and denial of maintenance to petitioner No.2 is hereby set aside. The case is remitted back to the Court of Judicial Magistrate First Class, Rajnandgaon for deciding the claim of petitioner No.2 for her maintenance and to pass order afresh.

16. Parties are directed to appear before the trial Court on 6-10-2009.

JUDGE