Gujarat High Court
Maheshbhai Vamanbhai Baviskar vs Ashaben Maheshbhai Baviskar on 22 August, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 80 of
2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed No.
to see the judgment ?
2 To be referred to the Reporter or not ? Yes.
3 Whether their Lordships wish to see the fair copy No.
of the judgment ?
4 Whether this case involves a substantial question No.
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MAHESHBHAI VAMANBHAI BAVISKAR
Versus
ASHABEN MAHESHBHAI BAVISKAR & ORS.
==========================================================
Appearance:
H B SHETHNA(2436) for the Applicant(s) No. 1
MR VAIBHAV N SHETH(5337) for the Respondent(s) No. 1,2
MR HARDIK MEHTA, APP for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/08/2024
ORAL JUDGMENT
1. By way of present Criminal Revision Application, the
petitioner has challenged the judgment and order dated
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04/12/2021 passed by the learned Principal Judge, Family
Court, Navsari in Criminal Misc. Application No.172 of 2016
(Old Maintenance Application No.17 of 2015), disputing the
order of maintenance qua respondent no.2- the daughter.
2. Facts of the case in brief are that the petitioner had
married respondent no.1. Respondent no.2 is his younger
daughter. Respondent no.1 and respondent no.2 are residing
separately since about 22 years. Elder daughter, of the
petitioner and respondent no.1, had been married by the
petitioner. The Respondents had earlier filed Maintenance
Application No.72 of 2000 under Section 125 of the Criminal
Procedure Code, 1973 (for short ‘the CrPC”) against the
petitioner before the JMFC, Navsari. The JMFC, Navsari, was
pleased to grant Rs.350/- and Rs.250/- per month as
maintenance to respondent nos.1 and 2 respectively.
Thereafter, the respondents preferred Maintenance
Application No.135 of 2002 under Section 127(1) of the CrPC
for enhancement of maintenance and the same was allowed
and the maintenance was enhanced to Rs.500/- and Rs.400/-
for respondents nos.1 and 2 respectively. Thereafter, the
respondents again preferred Maintenance Application No.409
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of 2009 under Section 127(1) of the CrPC for enhancement.
The learned 4th Additional Chief Judicial Magistrate, Navsari
vide judgment and order dated 20/04/2011 allowed the same
and enhanced maintenance of respondents to Rs.2,000/- each
per month. Thereafter, again the respondents preferred an
application being Criminal Misc. Application No.172 of 2016
(Maintenance Application No.17 of 2015) and the same was
allowed by the learned Principal Judge, Family Court, Navsari
vide judgment and order dated 04/12/2021 and enhanced
maintenance of the respondents to Rs.5,000/- each per month,
aggrieved by the same, the petitioner is before this Court.
3. Mr. H. B. Shethna, learned advocate for the applicant
submitted that the impugned order of the learned Principal
Judge, Family Court, Navsari dated 04/12/2021 in a
proceedings of Maintenance Application No.17 of 2015
(renumbered as Criminal Misc. Application No.172 of 2016)
under Section 127 of the CrPC has failed to note that the age
of the applicant no.2 would be 17 years and six months at the
time of institution of the petition on 07/01/2015. Learned
advocate Mr.Shethna submitted that as per the record, the
date of birth is 22/07/1997 and, therefore, learned judge was
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required to pass an order to the effect that applicant no.2
would be entitled to receive maintenance amount till she
attains majority. Mr.Shethna, learned advocate submitted
that since the impugned order does not specify the date, so a
challenge is given, since the father would not be legally liable
to pay the maintenance amount to the major daughter.
Relying upon the judgment of Abhilasha vs. Parkash
reported in AIR 2020 SC 4355, Mr. Shethna, learned
advocate submitted that this aspect has already been covered
by the judgment where the Supreme Court has laid down that
the Hindu unmarried daughter is entitled to receive
maintenance from her father under Section 125 of CrPC only
till she attains majority and if she remains unmarried then she
would have to go under Section-20 of the Hindu Adoption and
Maintenance Act, 1956 (for short ‘the HAM Act’) and, thus,
stated that unless and until she does not plead and prove that
she is unable to maintain herself and for that files an
application/suit under Section 20 of HAM Act, she would not
be entitled to any maintenance amount from her father.
Mr.Shethna, learned advocate has also relied upon various
decisions in support of his submissions and thus, stated that
the order impugned requires modification. The relevant
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paragraphs relied upon by learned advocate Mr.Shethna are
narrated as under:
3.1. Decision of the Karnataka High Court in the case of
L. Usharani vs. D. S. Lakshmaniah reported in 1992(0)
AIJEL-KA 1000843 wherein it is observed in para-2 and 5 as
under:
“2. The revision petitioners had filed a petition before
J.M.F.C., Sidlaghatta in C.M.C. 46/88 under S. 125 of
Code of Criminal Procedure against their father-
respondent herein for grant of maintenance of Rs. 500/-
per month to each of them. The petition so far as
petitioners 1 and 2 came to be dismissed. So far as
petitioner No. 3 is concerned, the learned Magistrate
directed payment of separate maintenance at the rate of
Rs. 150/- per month from the date of petition till 30-4-90
on which date 3rd petitioner also attained majority.
Being aggrieved by this order of the learned Magistrate,
the petitioners have preferred this revision petition.
….
….
5. It may be noticed that we are dealing with a case
not under S.488 of Code of Criminal Procedure, 1898,
but a case arising under S. 125 of the Code of Criminal
Procedure, 1973. The qualifying word minor which was
not there in S.488(1) of Cr.P.C. 1898, has been
introduced in S.125(1)(b) of Cr.P.C. 1973. Sub-sections
(b) and (c) of S. 125(1) of 1973 Code, which refer to the
right of a child to claim maintenance read as hereunder :
“(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, wherePage 5 of 46
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such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or”
It may be noticed that the Parliament in its wisdom has
enabled only a minor child whether legitimate or
illegitimate to claim maintenance under S. 125(1)(b) and
only one exception has been made by enacting sub-
section (c) which enables the child which has attained
majority to claim maintenance. That is a case where the
child by reason of any physical or mental abnormality or
injury is unable to maintain itself. It is not the case of
any of the petitioners that they have any physical or
mental abnormality or injury or on that account they are
unable to maintain themselves. Therefore, it is clear that
the case of petitioners 1 and 2 does not come under
either sub-clause (b) or (c) of S. 125(1) and the case of
the 3rd petitioner subsequent to 30-4-90 does not also
come under any of these sub-sections. In this view of the
matter, the decision relied upon has no application to a
case arising under S. 125(1)(b) of Code of Criminal
Procedure, 1973. Therefore, the learned Magistrate was
right in negativing the claim made by petitioner 1 and 2
restricting the claim of 3rd petitioner to that date.
3.2. Decision of the Hon’ble Allahabad High Court in the
case of Amod Kumar Saivastava vs. State of Uttar
Pradesh reported in 2008 (0) AIJEL-UP 331186 wherein
in para-8 to 13, it is observed as under:
“8. Having given my thoughtful consideration to the rival
submissions made by the parties’ counsel, I agree with
the first contention only of the learned Counsel for Sri
Amod Kumar Srivastava. His first contention that on
attaining majority a child (not being a married daughter)
is not entitled to get maintenance allowance under the
provisions of Section 125 Cr. P.C. unless on account of
any physical or mental abnormality or injury, such child
is unable to maintain itself, has got force and must be
accepted. Before coming to the facts of instant case, it
would be useful to reproduce the provisions of claiming
maintenance allowance under the old and new Cr.P.C.
Section 488 of old Cr.P.C., which was corresponding to
Section 125 of new Cr.P.C. reads as under:
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488(1) If any person having sufficient means, neglects or
refuses to maintain his wife or his legitimate or
illegitimate child unable to maintain, itself, the District
Magistrate, a Presidency Magistrate, a Sub-Divisional
Magistrate or a Magistrate of the Ist 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, at such monthly rate, not exceeding
Rs. 500/- in the whole, as such Magistrate thinks fit, and
to pay the same to such person as the Magistrate from
time to time directs.
Relevant part of Section 125(1) of new Cr.P.C. after
amendment in the year 2001 reads as hereunder:
125(1) 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. Basing on the difference of wordings in Section 488
and 125 old and new Cr.P.C., Sri Samir Jain submitted
that in instant case, both the daughters are not entitled
to get maintenance allowance from their father under
the provisions of Section 125 Cr.P.C. after attainingPage 7 of 46
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majority, because there is nothing on record to show
that after attaining majority they are unable to maintain
themselves by reason of any physical or mental
abnormality or injury. I entirely agree with this
submission. Admittedly both the daughters namely Km.
Divya and Km. Bhavya have attained majority. Annexure
No. 1 to the accompanying affidavit in criminal revision
No. 4400 of 2006 is the copy of the application under
Section 125 Cr.P.C., which was filed by Smt. Neelam
Srivastava against her husband Amod Kumar Srivastava.
According to para 6 of this application, the first
daughter of the couple was born on 14.09.1982 and the
second daughter was born on 14.06.1984. The impugned
order granting maintenance allowance to the daughters
and their mother Smt. Neelam Srivastava was passed by
the Family Court, Varanasi on 24.06.2006. Much prior to
the passing of impugned order, both the daughters had
attained majority. Therefore, having regard to the
provisions of Section 125(1)(c) Cr.P.C., both the
daughters were not entitled to get any maintenance
allowance after attaining majority, because under
Section 125(1)(c) Cr.P.C., the inability to maintain itself
must be by reason of any physical or mental abnormality
or injury in the case of child (not being a married
daughter) who has attained majority.
10. The matter of granting maintenance allowance under
the provisions of Section 125(1)(c) Cr.P.C. to the
unmarried daughter who attained majority came up for
consideration before Madras High Court in the case of
T.P.S.H. Selva Saroja v. T.PS. H. Sasinathana 1989 Cri
L.J. 2032. After considering the provisions of Section
488 of old Cr.P.C. and Section 125 of new Cr.P.C., it is
observed as under in para 10 of the judgement at page
2035:
It is, therefore, seen that the Act makes it clear that any
child, who has attained majority, is not automatically
entitled to claim maintenance, even if he is unable to
maintain himself, as was the case in the old Code but
inability to maintain should arise out of physical or
mental abnormality or injury. In the past as well as in
the present, the limitation is the inability to maintainPage 8 of 46
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itself. This inability to maintain in the case of a major
must be by reason of any physical or mental abnormality
or injury. A mere physical or mental abnormality or a
mere injury, which does not make the child unable to
maintain itself will not be covered under Section 125(1)
(c) of the Code.
11. This matter was considered by Karnatka High Court
also in the case of Kum. L. Usharani and Ors. v. D.S.
Lakshmaiah 1993 Cri L.J. 982. In that case also,
provisions of Section 488 and 125 of the old and new Cr.
P. C. were considered and it was held that “it may be
noticed that the Parliament in its wisdom has enabled
only a minor child whether legitimate or illegitimate to
claim maintenance under Section 125(1)(b) and only one
exception has been made by enacting Sub-section
(c)which enables the child which has attained majority
to claim maintenance. That is a case where the child by
reason of any physical or mental abnormality or injury is
unable to maintain itself.”
12. In the case of Moideenkuttty v. Pathumma and Ors.
1984 (2) Crimes 355, Kerela High Court has also taken
the similar view. The following observations made in
para 5 and 6 of the judgement at page 356 of the report
are worth mentioning:
5. The liability to maintain a child who has attained
majority arise only (a) if that child is not a married
daughter and (b) if it is unable to maintain itself on
account of (i) physical or mental abnormality or (ii)
injury.
6. The Act, therefore, makes it clear that any child who
has attained majority is not automatically entitled to
claim maintenance even if he is unable to maintain
himself as was the case under the old Code. The inability
to maintain himself should arise out of physical or
mental abnormality or injury.
13. Keeping in view the law laid down in above
mentioned cases, the impugned judgement granting
maintenance allowance to Km. Bhavya and Km. Divya
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even after their attaining majority cannot be sustained,
because as stated earlier also, both these daughters had
attained majority much prior to the date of passing the
impugned order and since their inability to maintain
themselves cannot be attributed to any physical or
mental abnormality or injury within the meaning of
Section 125(1)(c) Cr.P.C., hence, they had become dis-
entitled to get maintenance allowance from their father
after attaining majority under the provisions of Section
125Cr.P.C. If they want to claim maintenance allowance
from their father even after attaining majority, then they
can approach Civil Court for this purpose.”
3.3 Decision of the Apex Court in the case of Amarendra
Kumar Paul v. Maya Paul and others reported in (2009)
8 SCC 359, wherein it is held that an application for grant of
maintenance is maintainable regarding children, till they have
not attained majority. The cause of action for grant of
maintenance would arise only in the event a person having
sufficient means, neglects or refuses to maintain his
legitimate or illegitimate minor children, unable to maintain
themselves. Hence, once children attain majority, said
provision would cease to apply.
3.4. Decision the case of Nitaben Dineshkumar Oza v.
Dineshkumar Ishwarlal Oza & Anr. reported in 2016 (3)
GLR 1877 wherein it is held that major son is not entitled to
receive maintenance from father. It was observed in the said
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case that though father has no legal obligation, nevertheless
he has social and moral obligation to maintain his son who is
still studying till he is able to stand on his own legs but, it is
for father to act accordingly.
4. Countering the submissions of learned advocate for the
applicant, Mr.Vaibhav Sheth, learned advocate for the
respondents nos.1 and 2 submitted that modification in the
order is possible only by the Magistrate who has passed order
under Section 127 of the Criminal Procedure Code and for
that the petitioner father is required to move the concerned
Magistrate Court under Section 127 of the CrPC for alteration
in the order and on proof of change in the circumstances of
any person receiving, under Section 125, a monthly allowance
for the maintenance or ordered under the same section to pay
a monthly allowance for the maintenance or interim
maintenance. Mr. Sheth, learned advocate submitted that
attainment of majority is a ground which is required to be
pleaded and proved before the court while making a prayer
for cancellation or variation of order, by way of a separate
application.
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5. Mr. Vaibhav Sheth, learned advocate has relied upon the
decision in the case of Jagdish Jugtawat v. Manju Lata and
others reported in (2002) 5 SCC 422, wherein it is
observed that Section 125 does not fix liability of parents to
maintain children beyond attainment of majority, but right of
minor girl for maintenance from parents after attaining
majority till her marriage, is recognized under S.20(3) of
Hindu Adoptions and Maintenance Act. Therefore, on a
combined reading of the two provisions, it was held that High
Court was justified in upholding the order of Family Court, by
which it granted maintenance under S. 125 to the daughter
even after her attaining majority but till her marriage, taking
the view that it would avoid multiplicity of proceedings as
otherwise the party would be forced to file another petition
under Section 20(3) of the Hindu Adoptions and Maintenance
Act, 1956, for further maintenance.
6. Referring to provision of Section-7 of the Family Court
Act, 1984, learned advocate Mr.Vaibhav Sheth submitted that
the act does not make any difference between the power to be
exercised under Chapter-IX of the CrPC by the Family Court
Judge or under Section 20 of the Hindu Adoption and
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Maintenance Act (‘the HAM Act’) and, thus, referring to
decision of Jagdish Jugtawat (supra), stated that though
Section 125 of the CrPC does not allow maintenance beyond
attaining of majority, the right of the girl for maintenance
from parents till she gets married is recognized under Section
20 of the HAM Act.
7. Mr. Sheth, learned advocate, thus, submitted that case
of Jagdish Jugtawat (supra) has been referred in the judgment
of Abhilasha vs. Parkash (supra) relied upon by learned
advocate Mr.Shethna and thus, stated that while the Family
Court has passed the order of maintenance to the daughter,
has exercised the power which the Family Courts have under
the Family Court Act, 1984, which aims at speedy settlement
of the dispute of the family matters.
8. Mr. Sheth, learned advocate submitted that Section 7 of
the Family Court Act, 1984 gives power to the Family Court to
exercise jurisdiction under any law for the time being in force
in respect of suits and proceedings of the nature referred to in
the explanation of Section 7 which under clause-(f) of the
explanation permits a suit or proceedings for maintenance
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and Sub-section (2) of Section 7 gives power to the Family
Court to exercise a jurisdiction exercisable by a Magistrate of
the First Class under Chapter-IX (relating to order for
maintenance of wife, children and parents) of the Code of
Criminal Procedure, 1973 (2 of 1974); and such other
jurisdiction as may be conferred on it by any other enactment.
Mr. Sheth, learned advocate submitted that to avoid
multiplicity of the proceedings, the order passed by the
Family Court should be upheld, in view of the fact that the
Family Court has the power to pass an order for maintenance
under the personal law even in continuation of the
maintenance proceedings under Section 125 of the CrPC.
9. The impugned order dated 04/12/2021 is allowing the
application moved under Section 127 of the CrPC. The
applicants as a wife and minor daughter have claimed the
enhancement of the maintenance amount. The learned Family
Court having noted the salary of the present petitioner i.e.
opponent for the year 2019 as of Rs.42,025/- serving in the
police department had ordered the revisionist to pay
Rs.5,000/- to the wife and Rs.5,000/- to the daughter. Thus,
enhancing the monthly amount of Rs.5,000/- to Rs.10,000/-
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directing to pay Rs.10,000/- monthly instead of Rs.5,000/-.
Thus, enhancement of monthly maintenance of Rs.5,000/- for
each of the applicant.
10. The plea was raised before the Family Court about
applicant no.2-daughter attaining majority. The learned
Judge, considering the arguments, has concluded that though
applicant no.2 had turned major, since she is not in a position
to maintain herself, has considered the obligation of the father
to pay maintenance till she marries and for the same, the
learned Family Court Judge has referred to the judgment of
this Court in case of of Vinitaben Naranbhai and others vs.
N. R. Makwana and others reported in 1991 (1) GLH
227, to note that in the case where the wife and children are
not earning then they are entitled to receive maintenance
amount under Section 125 of the CrPC.
11. In case of Nitaben Dineshkumar Oza vs.
Dineshkumar Ishwarlal Oza reported in 2016 GLR 1877,
the question was whether the Hindu father is liable to
maintain his major son and pay maintenance under Section
125 of the CrPC. The Court considered the question under
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the provisions of Section 125 of the CrPC to examine whether
the relief can be extended to a son not suffering from
mental/physical disability beyond the date of attaining his
majority. The Court was of the view that if allowed to have
maintenance even after attaining majority, the word “minor”
which has been defined under the provisions of Majority Act,
1875, would be reduced to otiose and such an interpretation
is not permissible, nor it is permissible by the judicial
interpretation that any word can be added or subtracted. It
was held that whether legitimate or illegitimate child having
attained majority as per the Majority Act, 1875, and is not
suffering by any physical or mental injury, abnormality or
injury, thereby unable to maintain itself would not be entitled
to receive maintenance under Section 125 of the Act.
Therefore, it was found clear that provision of Section 127 of
the CrPC were always subject to provision of Section 125 of
CrPC and if the person ceases to be entitled to receive
maintenance under Section 125 of the CRPC he cannot seek
an order of enhancement under Section 127 of the CrPC.
12. In case of Meharunnisa d/o Syed Habeeb @ Syed
Habeebulla vs. Syed Habeeb @ Syed Habeebulla s/o Late
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Syed Ghouse Peer reported in 2015 Criminal Law General
1836, the question which arose before the High Court of
Karnataka was “Whether the unmarried daughters of Muslim
parents are entitled for an award of maintenance under
Section 125 of CrPC even after attaining the age of majority
till their marriage, if they are unable to maintain themselves,
from their father?” The question was considered upon the
interpretation of several statutes and also considering the
customary principles of Mohammedan Personal Law. The
interpretation of Section 125(c) of CrPC was noted to consider
the entitlement of maintenance amount against any person
having sufficient means neglects or refuses to maintain – 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. Considering that the provision does not make
any difference between a child legitimate or illegitimate, male
or female, observed that the laudable object of this provision
is to protect child from destitution and vagrancy. Noting, that
if such son or daughter is a major, according to plain reading
of the provision, there is no obligation on the father, as such
situation under law is expected to be handled by the child
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itself or if the girl is married, law expects that the situation
should be handled by her husband.
13. Section 125 of the CrPC requires to be reproduced
herein under, to consider the provisions under Section 125(1)
(b) and 125(1)(c) of the CrPC. The relevant part of Section
125 of the CrPC reads as under:
“125. Order for maintenance of wifes, childrena nd
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,”
14. In case of Meharunnisha (supra), the court has
observed recording the contraction in both the sub-clause (b)
and (c) of Section 125(1) of CrPC to consider the gray area
and has observed in para-10 of the said decision as under:
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“10. The provisions u/s. 125(1)(b) of Cr.P.C. if it is
meaningfully read and construed appropriately, it makes
no difference whether the child is legitimate or
illegitimate minor child, but if it is unable to maintain
itself, the father is liable to maintain them. The
contradiction to Section 125(1) (b) and 125(1) (c) lies in
a gray area that if the major daughters are neglected by
their father or refused to maintain them, if they are
unable to maintain themselves whether they are also
entitled for maintenance U/s. 125 (1)(c) of CrPC.”
15. Elaborating on the interpretation for “unable to maintain
themselves” as amounting to mental injury and infringement
of legal right of major daughters to claim maintenance, was
expressed would have cascading effect and far reaching
consequences and, thus, proper and purposive interpretation
of the said provision with a broad intention of legislature was
opined to be considered to plug the said gray area. In the
decision in case of Meharunnisha (supra), the court has also
referred to the judgment of Jagdish Jugtawat (surpa) and the
judgment in case of Noor Saba Khatoon vs. Mohd. Quasim
reported in (1997) 6 Supreme Court Cases 233 and has
noted that both the decisions of the Supreme Court has not in
detail gone through whether the major daughters either under
Hindu Law or under the Mohammedan Personal Law or under
any statute or personal law can also claim maintenance under
Section 125 of CrPC as a matter of right, which the Court in
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case of Meharunnisha (supra) considers an important aspect
to be dealt with and was concluded that the words used in
Section 125 (c) of CrPC i.e. “physical, mental abnormality or
injury” require a paramount consideration and interpretation
to attain the real object. Relevant paragraph nos.25 to 27 of
decision in case of Meharunnisha (supra) reads as under:
” 25. The words used in Sec.125(c) Cr.P.C. ie; “physical,
mental abnormality or injury” require a paramount
consideration and interpretation to attain the real
object.
26. But the Court has to examine the phraseology used
in S. 125(c) of Cr.PC particularly the wordings “physical
or mental abnormality or injury” if meaningfully
understood, and properly interpreted, whether the
unmarried daughters if they are unable to maintain
themselves neglected and refused by their father, itself
becomes an injury to any of their legal right and is
sufficient to bring them within the ambit of S.125(c) of
Cr.PC to claim maintenance from their father. In this
background, it needs to be analyzed what constitutes an
injury as contemplated under the said provision.
27. As it is apparent that physical or mental abnormality
can be easily ascertained from the facts and
circumstances of the case, the physical or mental
abnormality is altogether different from physical or
mental injury. If the legislators intended to address only
a physical or mental abnormality they would have
stopped there itself without inserting the word ‘or injury’
into the statute book u/s. 125(c). Therefore, apart from
understanding what is meant by ‘physical or mental
abnormality’, the Court also should bear in mind what is
intended by the legislators in using the words ‘physical
or mental injury’ to a person. So far as physical injury is
concerned, there is no difficulty to come to aPage 20 of 46
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definite conclusion that the physical injury which
amounts to disability, for which the person unable to
maintain himself/herself, then the father is liable to
maintain such of the children even after attaining the
age of majority. Therefore, what meaning that should be
attached to ‘mental injury’, play a dominant role in
ascertaining the real and dominant intention of the
legislators u/s. 125 (c) of Cr.P.C.”
16. It was observed that if a person legally bound to do
something if he refuses to do that particular act it amounts to
mental injury which creates a right in another person either to
exercise that right against the person who violated his duty,
as if an offence or to exercise a civil action for the purpose of
his remedies. It was further clarified that if any such right is
created by law for the time being in force whether it is a
customary law or statutory law by virtue of such legal right, a
person can enforce against another person who is legally
bound to respect that right, if he does not, then it amounts to
an act prohibited by law.
17. On the facts and circumstances of the matter, it was
noted that the Mohammedan major unmarried girl has got
right to claim maintenance under the Mohammedan Personal
Law. The father under the Mohammedan Customary Law is
legally bound to maintain his major daughter not only also till
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she attains the age of majority but also till she gets married.
Further, if he fails to accept the liability whether moral or
legal, it becomes illegal act of the father.
18. In Meharunnisha case (supra), while considering the
issue as to whether major daughters in India are vested with
any right to claim either under the Personal Law or under any
other statutory law, it was noted in para-44 as under:
“44. In this background, it needs a detailed analysis of
the provisions under Mohammedan and Hindu,
Christian; Parsi personal laws in contrast to Section 125
of Cr.P.C. It is worth to note here there is a specific
provision u/s. 20(2) of Hindu Adoption & Maintenance
Act wherein the said Act imposes an obligation upon the
parents, mother and father both equally to maintain the
children both legitimate and illegitimate and even major
daughters till they get married. But there are absolutely
no such contemporary provisions under any statute so
far as Muslim, Christian and Parsi daughters are
concerned. The Hindu Law which recognized the right of
maintenance, after long lapse of time transforming
Hindu law into Hindu Adoption & Maintenance Act. But
till date the Mohammedan law which governs the grant
of maintenance to the daughters even after they attain
the age of majority till they get married is not yet
transformed into any statutory right.”
19. In the background of the provision of Section 20 of the
HAM Act it was noted that Section 20 of the HAM Act gives an
absolute right to the daughters to claim maintenance against
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their father under the civil proceedings by means of a duly
constituted suit. But in order to acquire speedy remedy, the
said right can also be exercised under Section 125 of CrPC, as
narrated in the judgment of Noor Saba Khatoon (supra) and
Jagdish Jugtawat (supra). Having observed that though the
Apex Court has not in detail dealt with Section 125(c) of the
CrPC, but the right of female even after attaining the age of
majority till she is married in order to avoid vagrancy and
driving her to immorality and the subsistence of maintenance,
the Court, can award maintenance under Section 125 of the
CrPC.
20. The Court in case of Meharunnisha (supra), in para-50,
has concluded that “….. In this background coupled with the
object of Section 125 of CrPC, in my humble opinion, that the
word “injury” as contemplated u/s. 125(c) of CrPC is to be
interpreted in such a manner so that it would benefit the
persons who are entitled to claim maintenance in that
particular provision in order to survive till they get other
alternative for their subsistence. Therefore, in the said
background, I am of the considered opinion that, the said
provision is to be interpreted in such a manner so as to
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advance justice and to suppress the mischief.” And
accordingly, in para-52 and 57 observed as under:
52. If the above said principles are applied to this case,
S.125(c) of Cr.PC has to be understood along with the
main object of introducing the provisions u/s. 125 to 128
of Cr.PC and the Court should bear in mind that the
provisions have to be interpreted in such a manner, that
it is in conformity with the main intention of the
legislators in bringing those provision into the statute
book. Therefore, if the words are susceptible to two
interpretations, the interpretation which is more
harmonious with the intention of the legislator with
reference object of the statute, though it may be less
correct grammatically, but if the words are plain and can
be of holding one meaning, effect should be given to
them irrespective of the conclusion that might play from
it.
…..
…..
57. Having come to such a conclusion, it is also to be
noted here that only major daughters whether Hindu,
Muhammadan, Parsi or Christian wherever their rights
are recognized under any other personal law or statute
for the time being in force that they are entitled for
maintenance at the hands of their father or anybody till
they get married, if they are unable to maintain
themselves and father is capable of maintaining them.
Then only the word ‘injury’ used in Section 125 (c) of
Cr.PC can be pressed into service in order to hold that
their right has been infringed and therefore, they are
entitled for maintenance u/s. 125 of the Cr.P.C.”
21. The word “injury” thus, in Section 125(c) of CrPC was
considered in the context that if a major daughters
irrespective of their rights under personal law, they are
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entitled for maintenance at the hands of their father or
anybody till they get married, if they are unable to maintain
themselves and father is capable of maintaining them, then
only the word ‘injury’ used in Section 125 (c) of CrPC can be
pressed into service in order to hold good that their right has
been infringed.
22. This Court considers the interpretation of the expression
“injury” under Section 125(c) of CrPC carrying to the extent
that non providing the maintenance amount to the major
daughter would amount to legal infringement of their rights,
would be an interpretation too far fetched. The test would be
whether this interpretation could be extended to son as major
child, when the provision under Section does not make any
difference on gender of child. For the purpose of Chapter IX
of Cr.PC which includes Section 125 of CrPC expression
‘minor’ has been put in sub-clause (a) under explanation to
mean a person who, under the provision of the Indian Majority
Act, 1875 (9 of 1875) is deemed not to have attained his
majority. Section 3 of the Indian Majority Act provides that a
person attains the age of majority on completing the age of 18
years and not before.
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23. Section 125 of CrPC is a piece of social legislation which
provides for a summary and speedy relief by way of
maintenance. The purpose of this statue is to provide a
remedy, against men who neglect or refuse to maintain their
dependents, like their children, or wife. It is crucial to note
that the provision is secular in nature, there is no
discrimination on the basis of religion. However, this law is
extremely gender specific and specifies that law for
maintenance is only applicable when a wife, child or parent is
dependent on a man. There is no provision for a dependent
man being able to seek maintenance from his wife, or for
maintenance in queer relationship. Section 125 of CrPC does
not further categorize minor child into female child or male
child. Clause (b) notes under Sub-Section (1) legitimate or
illegitimate minor child, whether married or not unable to
maintain itself. Clause (b) thus, mandates to the father having
sufficient means who neglects or refuses to maintain minor
son or daughter, to pay maintenance, and clause (c) excludes
a married daughter from the child having attained majority,
clause (c) lays liability to provide maintenance to major son or
daughter if they by reason of any physical or mental
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abnormality or injury are unable to maintain themselves. The
Act, therefore, makes it clear that any child having attained
majority is not automatically entitled to claim maintenance
even if he/she is unable to maintain himself/herself. The
inability to maintain should arise out of physical or mental
abnormality or injury. A major daughter or son thus if has to
claim maintenance in the summary proceeding under Section
125 of CrPC, should be one facing physical or mental
abnormality or injury. In other words, the inability to
maintain herself/himself should arise out of physical or mental
abnormality or injury.
24. In Nitaben Oza case (supra), judgment of Karnataka
High Court in case of Mallayya v. Smit Mahadvei reported
in reported in 2009 (2) Karnataka Law General (1) 130
is referred and the views expressed by the Karnataka High
Court was agreed upon where the principle laid down by the
Supreme Court in case of Nanak Chand v. Chandar
Kishore Aggarwal reported in 1970 CRI.L.J. 522=AIR
1970 SC 446 was relied upon. In case of Nanakchand
(supra), in para-5 and 12, it is observed as under:
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“5. Section 4 of the Maintenance Act reads
“4. Save as otherwise expressly provided in this
Act,-
(a)……..
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to
Hindus insofar as it is inconsistent with any of the
provisions contained in this Act.”
The learned counsel says that s. 488 Cr. P.C., insofar as
it provides for the grant of maintenance to a Hindu, is
inconsistent with Chapter III of the Maintenance Act,
and in particular, s. 20, which provides for maintenance
to children. We are unable to see any inconsistency
between the Maintenance Act and S. 488, Cr. P.C. Both
can stand together. The Maintenance Act is an act to
amend and codify the law relating to adoptions and
maintenance among Hindus. The law was substantially
similar before and nobody ever suggested that Hindu
Law, as in force immediately before the commencement
of this Act, insofar -as it dealt with the maintenance of
children, was in any way inconsistent with s. 488, Cr.
P.C. The scope of the two laws is different. Section 488
provides a summary remedy and is applicable to all
persons belonging to all religions and has no
relationship with the personal law of the parties.
Recently the question came before the Allahabad High
Court in Ram Singh v. State(1), before the Calcutta High
Court in Mahabir Agarwalla v. Gitia Roy (2) and before
the Patna High Court in Nalini Rajan v. Kiran Ran (3).
The three High Courts have, in our view, correctly come
to the conclusion that s. 4(b) of the Maintenance Act
does not repeal or affect in any manner the provisions
contained in S. 488, Cr. P.C.
…..
“12. In view of the reasons given above we must hold
that the word “child” in s. 488 does not mean a minor
son or daughter and the real limitation is contained in
the expression “unable to maintain itself.”
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25. In para-19 in the case of Meharunnisa (supra), it has
been observed in para-19 as under:
“19. Though the Apex Court has held that u/s. 20(3) of
the Hindu Adoption & Maintenance Act provides right to
claim maintenance after attaining the majority till the
date of their marriage. Nevertheless, in this case also as
rightly argued by the learned counsel for the respondent
Sec.125(c) of Cr.PC has not been in detail dealt with by
the Court. However, as a speedy remedy the petition has
been allowed u/s. 125 of Cr.P.C. providing maintenance
to the daughter even after attaining the age of majority
till her marriage.”
26. The Court, in case of Neetaben (supra), in para-19, 20
and 24, has observed as under:
“19. Under Sub-section (3) of Section 20 of the Hindu
Adoption and Maintenance Act, 1956 (for short, ‘the
Act, 1956’), a Hindu parent is bound not only to
maintain unmarried daughter even after she attains the
majority, but the marriage expenses of the daughter is
also a legal obligation of parents and property given to
her in marriage would amount to be a gift. Thus, under
the Act of 1956, obligation of a Hindu father to maintain
his unmarried daughter remains so far she is unable to
maintain herself out of her own earnings. Similar
remains the position under the Mohammedan Law. I fail
to understand how this principle is made applicable in
the case in hand. I am not concerned with the obligation
of the father to maintain his unmarried major daughter.
The case in hand is of obligation of the Hindu father to
maintain his son who has attained majority.”
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20. The question, thus, arises whether under the
provisions of Section 125 of the Cr.P.C., a relief can be
extended to a son not suffering from mental/physical
abnormality beyond the date of attaining his majority? I
am of the view that if he is allowed to have maintenance
even after attaining majority, the word “minor” which
has been defined by giving reference to the provisions of
Majority Act, 1875 would be reduced to otiose and such
an interpretation is not permissible, nor it is permissible
by the judicial interpretation that any word can be added
or subtracted. [Vide A.K. Gopalan v. State of Madras,
AIR 1950 SC 27; Ashwani Kumar Ghose and Anr. v.
Arbindo Bose and Anr. AIR 1952 SC 369; State of Bihar
v. Hiral Lal Kejriwal and Ors., AIR 1960 SC 47; Shyam
Kishori Devi v. Patna Municipal Corporation, AIR 1966
SC 1678; Patel Chunibhai Dajibha v. Narayanrao K.
Jambekar and Anr., AIR 1965 SC 1457; Sultan Begum v.
Prem Chand Jain, (1997) 1 SCC 373 : (AIR 1997 SC
1006); South Central Railway Employees Cooperative
Society Employees Union, Secunderabad v. Registrar of
Cooperative Societies and Ors., (1998) 2 SCC 580 : II
(1998) SLT 273 : (AIR 1998 9 SC 703); and Subhash
Chander Sharma and Anr. v. Subhash Chander Sharma
and Anrs. v. State of Punjab and Ors., (1999) 5 SCC 171:
V (1999) SLT 198] : (AIR 1999 SC 2076).
…..
24. I may refer to and rely upon a decision of the
Supreme Court in the case of Amarendra Kumar Paul v.
Maya Paul and others [(2009) 8 SCC 359] : (AIR 2009 SC
(Supp) 2869, Para 11, wherein, the Supreme, after
quoting Section 125 of the Code in para 10, observed in
last part as under: “An application for grant of
maintenance, therefore, is maintainable, so far as the
children are concerned, till they had not attained
majority. As a cause of action for grant of maintenance
would arise only in the event a person having sufficient
means, neglects or refuses to maintain his legitimate or
illegitimate minor child unable to maintain itself. Once,
therefore, the children attained majority, the said
provision would cease to apply to their cases.”
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27. Herein the present matter, the question is to maintain
unmarried major daughter.
28. A Hindu parent is bound not only to maintain daughter
till she attains majority but till she is married, subject to the
condition that after having attained majority, she is unable to
maintain herself out of her own earnings or other property.
29. Mr. Sheth, learned advocate contended that in the
present mater the Family Court Judge, having recognized the
purpose of the Hindu Law regarding maintenance of children
under Section 20(3) of the HAM Act, and being a statutory
obligation of Hindu father to maintain his or her daughter who
is unmarried, is unable to maintain herself out of an own
earnings or other property, has invoked the power of granting
the maintenance to present respondent no.2 and thus, stated
that the impugned order would sustain in view of the
provision of Section 20(3) of HAM Act to avoid multiplicity of
proceedings, as laid down in the case of Jagdish Jugtawat
(supra), Mr.Sheth, learned advocate submitted that the order
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passed is just and proper under the HAM Act and, therefore,
is legal and valid.
“Section 20 of HAM Act is reproduced herein under:
20. Maintenance of children and aged parents.–
(1)Subject to the provisions of this section a Hindu is
bound, during his or 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
in so far 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.”
30. In case of Jagdish Jugtawat (supra), it was held that
the High Court was justified in upholding the order of family
court by which it has granted maintenance under Section 125
of the Criminal Procedure Code to the daughter even after her
attaining majority but till her marriage, taking the view that it
would avoid multiplicity of proceedings as otherwise the party
would be forced to file another petition for further
maintenance. Whether this aspect was construed in case of
Abhilasha vs. Parkash (supra) vis-a-vis enactment of the
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Family Court Act, 1984 and its jurisdiction, falls for
consideration. In para nos.31, 32, 33, 38 and 39 in case of
Abhilasha vs. Parkash (supra), it was observed as referred
herein under:
“31. The provision of Section 20 of Act, 1956 cast clear
statutory obligation on a Hindu to maintain his
unmarried daughter who is unable to maintain herself.
The right of unmarried daughter under Section 20 claim
maintenance from her father when she is unable to
maintain herself is absolute and the right given to
unmarried daughter under Section 20 right granted
under personal law, which can very well be enforced by
her against her father. The judgment of this Court in
Jagdish Jugtawat (supra) laid down that Section 20(3) of
Act, 1956 recognised the right of a minor girl to claim
maintenance after she attains majority till her marriage
from her father. Unmarried daughter is clearly entitled
for maintenance from her father till she is married even
though she has become major, which is a statutory right
recognised by Section 20(3) and can be enforced by
unmarried daughter in accordance with law.
32. After enactment of Family Courts Act, 1984, a Family
Court shall also have the jurisdiction exercisable by a
Magistrate of the First Class under Chapter IX of Cr.P.C.
relating to order for maintenance of wife, children and
parents. Family Courts shall have the jurisdiction only
with respect to city or town whose population exceeds
one million, where there is no Family Courts,
proceedings under Section 125 Cr.P.C. shall have to be
before the Magistrate of the First Class. In an area
where the Family Court is not established, a suit or
proceedings for maintenance including the proceedings
under Section 20 of the Act, 1956 shall only be before
the District Court or any subordinate Civil Court.
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33. There may be a case where the Family Court has
jurisdiction to decide a case under Section 125 Cr.P.C.
as well as the suit under Section 20 of Act, 1956, in such
eventuality, Family Court can exercise jurisdiction under
both the Acts and in an appropriate case can grant
maintenance to unmarried daughter even though she has
become major enforcing her right under Section 20 of
Act, 1956 so as to avoid multiplicity of proceedings as
observed by this Court in the case of Jagdish Jugtawat
(supra). However the Magistrate in exercise of powers
under Section 125 C.P.C. cannot pass such order.
…..
38. We, thus, accept the submission of the learned
counsel for the appellant that as a preposition of law, an
unmarried Hindu daughter can claim maintenance from
her father till she is married relying on Section 20(3) of
the Act, 1956, provided she pleads and proves that she is
unable to maintain herself, for enforcement of which
right her application/suit has to be under Section 20 of
the Act, 1956.
39. In facts of the present case the ends of justice be
served by giving liberty to the appellant to take recourse
to Section 20(3) of the Act, 1956, if so advised, for
claiming any maintenance against her father. Subject to
liberty as above, the appeal is dismissed.”
(emphasis supplied).
31. The Family Court’s jurisdiction and power cannot be
exercised by the Magistrate First Class. The power to
Magistrate is only under Chapter-IX of CrPC which deals with
the proceedings under Section 125-128 of the CrPC at places
where family courts establishment are not there, while the
proceedings of Section 20 of HAM Act shall only be before the
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district court or concerned subordinate civil court in such
places.
32. As noted in the case of Abhilasha vs. Parkash (supra),
the family courts have jurisdiction to decide the cases under
Section 125 of the CrPC as well Section 20 of the HAM Act, in
such a duty, the family court can exercise jurisdiction in both
the cases. But such dual power cannot be exercised by a
Magistrate dealing with the proceedings under Section 125 of
the CrPC. While right under Section 20 of the HAM Act needs
determination by a civil court. Thus, it would be a claim never
contemplated to be exercised by the Magistrate who would
have the jurisdiction under Section 125 of CrPC to deal with
the reliefs in summary proceedings. In case of Abhilasha vs.
Parkash (supra) having accepted the submission of the
learned counsel regarding the proposition of law that
unmarried Hindu daughter is entitled to get maintenance till
she is married relying on Section 20 of the HAM Act 1956 was
considered with conclusion provided she pleads and proves
that she is unable to maintain herself and for that purpose and
for the enforcement of such right it was noted that there
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should be an application/suit under Section 20 of the Act,
1956.
33. In view of above discussion and reasons, as observed in
the case of Abhilasha vs. Parkash (supra), the unmarried
Hindu daughter on attaining majority is entitled to get
maintenance under Section 20 of HAM Act till she marries,
but she has to plead her case by filing her application/suit
proving to fall under the Section for the entitlement.
34. The contention raised by Mr. Sheth, learned advocate is
to be now dealt with, where advocate Mr. Sheth was of
opinion that since the matter was before the family court and
when family court has the jurisdiction to entertain suits and
proceedings for maintenance and also has been entrusted
with the jurisdiction to exercise the power under Chapter-IX
of CrPC., Mr.Sheth, learned advocate submitted that learned
Family Court would have to exercise the power under
Chapter-IX as well as under Section 20 of the HAM Act and,
submitted that learned Family Court, thus, can consider the
proceeding under Section 125 of CrPC filed as of by the
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daughter on attaining majority as the proceedings under
Section 20 of the HAM Act.
35. Though there is no specific provision in code to amend
complaint or petition, amendment sought to correct curable
infirmities that would not change nature or character of
proceedings, can be allowed. The order passed in an
application filed under Section 125 of CrPC is in a proceeding
summary in nature which does not finally determine the right
and obligation of the parties thereto. For example, the
decision of the criminal court that there was a marriage
between the parties concerned and that it was a valid
marriage will not operate as decisive in any civil proceedings
between the parties for determining those questions.
36. The proceeding under Section 125 to 128 of CrPC is
criminal proceedings within the meaning of Article 134 of the
Constitution of India.
37. The two proceedings, under Section 125 of CrPC and the
other under the respective personal laws operates in different
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spheres though in very limited scope, they do overlap.
Generally they intend to serve different purposes, the remedy
under Section 125 of CrPC is a purely discretionary one. It is
not so, to that extent, under the personal law. The fact that
the proceedings are essentially civil in nature does not mean
that the provision of the code of civil procedure would apply
to the proceedings summarily tried.
38. It has been considered in the case of Pendiyala
Sureshkumar Ramaro vs. Sompally Arunabindu w/o.
Sureshkumar reported in 2005 CrLJ 1455 (Guj.) that
maintenance proceedings are quasi-civil proceedings.
39. The issue for consideration is whether the Family Court
Judge can suo motu convert the proceedings under sub-
section (2) of Section 7 to sub-section (1) of Section 7 of the
Family Court Act, 1984 with the jurisdiction to try the
matters.
40. “Section 7 of the Family Court Act, 1984 is reproduced
hereunder
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7. Jurisdiction.–(1) Subject to the other provisions of
this Act, a Family Court shall–
(a) have and exercise all the jurisdiction exercisable
by any district court or any subordinate civil court
under any law for the time being in force in respect
of suits and proceedings of the nature referred to in
the Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court
or, as the case may be, such subordinate civil court
for the area to which the jurisdiction of the Family
Court extends.
Explanation.–The suits and proceedings referred to in
this sub-section are suits and proceedings of the
following nature, namely:–
(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage
(declaring the marriage to be null and void or, as
the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation
or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial
status of any person;
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties
or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the
guardianship of the person or the custody of, or
access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise–
(a) the jurisdiction exercisable by a Magistrate of
the first class under Chapter IX (relating to order
for maintenance of wife, children and parents) of
the Code of Criminal Procedure, 1973 (2 of 1974);
and
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(b) such other jurisdiction as may be conferred on it
by any other enactment.”
41. The Family Court’s jurisdiction exercisable in respect of
suits and proceedings are referred in the explanation.
Explanation in Section 7 delineates the nature of the suits and
proceedings from (a) to (g). Under clause (f), suits or
proceedings for maintenance falls under the jurisdiction of the
family court such may be under personal law of Hindu,
Muslim, Christian. It requires a special mention that
jurisdiction under the Parsi Marriage and Divorce Act, 1936 is
excluded from the family court, by way of provision under
Section 18 laying for constitution of special courts under the
Act.
42. That the family court thereafter under Sub-Section (2) of
the Section is entrusted the jurisdiction under Chapter-IX of
CrPC using the expression in sub-section as “shall also have
and exercise”. The expression, thus, would mean that the
primary jurisdiction is with regard to the suits and
proceedings as noted in sub-section (1) of Section 7 and the
power to be exercised under Chapter-IX, as cannot be
exercisable by the magistrate first class, is an added power
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over and above the powers to be exercised under sub-section
(1).
43. Section 8 of the Family Court Act, 1984 deals with the
pending proceedings and exclusion of jurisdiction. The same
is reproduced as under:
“8. Exclusion of jurisdiction and pending proceedings.–
Where a Family Court has been established for any area,
—
(a) no district court or any subordinate civil court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any
jurisdiction in respect of any suit or proceeding of
the nature referred to in the Explanation to that
sub-section;
(b) no magistrate shall, in relation to such area,
have or exercise any jurisdiction or powers under
Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974);
(c) every suit or proceeding of the nature referred
to in the Explanation to sub-section (1) of section 7
and every proceeding under Chapter IX of the Code
of Criminal Procedure, 1973 (2 of 1974),–
(i) which is pending immediately before the
establishment of such Family Court before
any district court or subordinate court
referred to in that sub-section or, as the case
may be, before any magistrate under the said
Code; and
(ii) which would have been required to be
instituted or taken before such Family Court
if, before the date on which such suit orPage 41 of 46
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proceeding was instituted or taken, this Act
had come into force and such Family Court
had been established,shall stand transferred to such Family Court on the date
on which it is established.”
44. In view of establishment of the family court in any area,
no magistrate in relation to such area will have jurisdiction to
the matter under Chapter-IX of the CrPC. Thus, exclusively in
that particular area, the powers under Chapter-IX has to be
exercised by the family court. In the same way, after the
establishment of family court, no district court or subordinate
civil court would have a power which are exerciseable to
every suit or proceeding of the nature referred to in the
explanation to sub-section (1) of Section 7 in that particular
area. Thus, by way of Section 8, the magistrate and the
district court or any subordinate civil courts are restrained
from exercising the powers as laid down in Sub-Section (1)
and Sub-Section (2) of Section 7. In view of the provision, the
Family Court would then have power to try suits or
proceedings for maintenance, as well as petition filed under
Chapter-IX of the CrPC. Section 125 of CrPC as referred
herein above will permit a minor whether male or female to
claim for maintenance from father. On having attained
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majority under Section 125 of CrPC, the father would have no
obligation to maintain son and a daughter, except when the
claim falls under S.125(1)(c).
45. However, as noted in the case of Nitaben (supra),
Abhilasha vs. Parkash (supra), the daughter after attaining
majority if she proves to be unable to maintain herself out of
her own earnings or other properties, she may by filing a suit
for maintenance can claim the maintenance amount from a
father. The maintenance amount in such suit, before the
family court, in the ultimate analysis, would be followed by a
‘decree’, so a suit filed under the HAM Act would end in
decree of the court. Under the proceedings of Section 125 (c)
of CrPC summarily would end up as an order of the court.
Thus, filing of a separate suit in the family court is the only
remedy available to a person seeking the enforcement of right
under Section 20 of the HAM Act. The Family Court Act does
not statutorily provide for any conversion of the proceedings
under Section 125 of CrPC to one under Section 20 of the
HAM Act for the major daughter, further under Suo Motu
discretion of the court, too, such conversation cannot be
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ordered considering the variation in the nature of
proceedings.
46. Mr. Sheth, learned advocate has relied upon the
judgment of Jagdish Jugtawat (supra) to submit that to avoid
multiplicity of proceedings, the learned Judge should convert
the proceedings under Section 125 of CrPC to that of Section
20 of HAM Act. Since as observed herein above, proceedings
under Section 125 of the CrPC though quasi-civil in nature,
has to be summarily decided and would end up as an order of
the court. While the proceedings as under Section 20 of HAM
Act would be in a form of civil suit which would have to deal
with the issues framed on the pleadings raised. The
proceedings under Section 20 of HAM Act would be under the
Civil Procedure Code, while proceedings under Section 125 of
CrPC would be as per the Criminal Procedure Code. The
learned Judge, cannot, therefore, on its own, convert the
proceedings under Criminal Procedure Code to Civil
Procedure Code
47. Section 20(3) of the HAM Act is only a proviso to Section
20(1) and Section 2(2) of the HAM Act and cannot enlarge the
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scope of Section 20(1) and Section 20(2). There is nothing in
Section 20(2) of the HAM Act to show that a female child
would be entitled to claim maintenance even after she attains
majority. Therefore, Section 20(3) of the Act restrict the
application of Section 20(1) and Section 20(2) in so far as
minor female child is concerned. It does not enlarge the
scope even after she attains majority. The right of the minor
girl for maintenance from parents after attaining majority till
her marriage, is recognized in Section 20(3) of the HAM Act,
provided she pleads and proves that she is unable to maintain
herself from her own earnings or from other property. Thus,
Section 20 (3) of the HAM Act provides inter alia, so far as
unmarried daughter is concerned, to claim maintenance only
if she is unable to maintain herself within her own earning or
other properties. While expression “unable to maintain itself”
under clause(c) of sub-section (1) of Section 125 of CrPC
would entrust power under Section 7 to the Family Court to
grant maintenance to child i.e. male or female on attaining
majority, who cannot maintain themselves because of physical
or mental abnormality or injury. The scope of both the
sections i.e. Section 125 of CrPC and Section 20 of HAM Act is
different.
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48. The minor’s petition under Section 125 of CrPC would
generally be filed by mother or guardian of the minor. On
attaining majority the major person would be required to
move the court. Thus, the minor daughter on attaining
majority if she would want to claim maintenance from her
father would have to file a separate suit/petition.
49. In the result, the present Criminal Revision Application
is partly allowed. The order of the family court is ordered to
be modified to the extent that the applicant no.2, daughter
would be entitled for the maintenance amount under Section
127 read with Section 125 of CrPC till the date of attaining
majority. Rule is made absolute to the aforesaid extent.
50. It is kept open for the daughter of the present matter to
file a separate suit/application before the family court under
the HAM Act in case she wants to invoke her right.
(GITA GOPI,J)
ILA
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