Abhilasha vs Parkash on 15 September, 2020


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Supreme Court of India

Abhilasha vs Parkash on 15 September, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                                               REPORTABLE

                                   IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NO. 615    of 2020
                           (arising out of SLP (Crl.) No.8260/2018)


         ABHILASHA                                                     ...APPELLANT(S)

                                                 VERSUS

         PARKASH & ORS.                                                ...RESPONDENT(S)



                                           J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.

2. This appeal has been filed by the appellant,

daughter of respondent Nos. 1 and 2, challenging the

order of the High Court of Punjab and Haryana at

Chandigarh dated 16.08.2018 by which order the High

Court dismissed the application under Section 482

Cr.P.C. filed by the appellant praying for setting

aside the order of the Judicial Magistrate First

Class, Rewari dated 16.02.2011 as well as the order

dated 17.02.2014 passed by the Additional Sessions
Signature Not Verified

Judge, Rewari.

Digitally signed by
MEENAKSHI KOHLI
Date: 2020.09.15
16:27:31 IST
Reason:

1

3. The brief facts necessary to be noticed for

deciding this appeal are:-

3.1 The respondent No.2, mother of the appellant,

on her behalf, as well as on behalf of her

two sons and the appellant daughter, filed an

application under Section 125 Cr.P.C. against

her husband, the respondent No.1, Parkash,

claiming maintenance for herself and her

three children. The learned Judicial

Magistrate vide its judgment dated 16.02.2011

dismissed the application under Section 125

Cr.P.C. of the applicant Nos. 1, 2 and 3 and

allowed the same for applicant No.4

(appellant before us) for grant of

maintenance till she attains majority.

3.2 Aggrieved against the judgment dated

16.02.2011, all the four applicants filed a

criminal revision before the Court of

Sessions Judge, which criminal revision was

dismissed by learned Additional Sessions

Judge by order dated 17.02.2014 with the only

2
modification that revisionist No.4 (appellant

before us) shall be entitled to maintenance

till 26.04.2005 when she attains majority.

Learned Additional Sessions Judge held that

as per provision of Section 125 Cr.P.C., the

children, who had attained majority are

entitled to maintenance, if by reason of any

physical or mental abnormality or injury,

they are unable to maintain themselves.

Learned Additional Sessions Judge also held

that the revisionist No.4 (i.e. appellant) is

not suffering from any physical, mental

abnormality or injury, therefore, she is

entitled to maintenance only till 26.04.2005

i.e., till she attains majority.

3.3 Challenging the order of Sessions Judge as

well as the Judicial Magistrate, an

application under Section 482 Cr.P.C. was

filed before the High court by all the

applicants including the appellant. High

Court by the impugned judgment dated

16.02.2018 dismissed the application filed

3
under Section 482 Cr.P.C. by making following

observations:-

           “Both      the     Courts    are
       consistent     with     regard    to
       declining        maintenance      to

petitioners No. 1 to 3. As regards
grant of maintenance to Abhilasha
by the trial Court, the order
regarding it was modified by
learned Additional Sessions Judge,
Rewari observing that she was
entitled to get maintenance till
attaining majority and not
thereafter since she is not
suffering from any physical or
mental abnormality or injury, in
those eventualities a child, who
though has attained majority but
is unable to maintain itself is
entitled to get maintenance.

I do not find any illegality
or infirmity in the judgment
passed by learned Additional
Sessions Judge, Rewari, which
might have called for interference
by this Court while exercising
jurisdiction under Section 482
Cr.P.C.

Therefore, the petition stands
dismissed.”

3.4 This appeal has been filed challenging the

judgment of the High Court.

4

4. Ms. Vibha Datta Makhija, learned senior counsel

appearing for the appellant submits that even though

the appellant had attained majority on 26.04.2005 but

since she is unmarried, she is entitled to claim

maintenance from her father. Learned senior counsel

contends that High Court committed error in

dismissing the application filed under Section 482

Cr.P.C. of the appellant on wrong premise that since

appellant has attained majority and is not suffering

from any physical or mental abnormality, she is not

entitled for any maintenance. Ms. Makhija has relied

on provisions of Section 20 of the Hindu Adoptions &

Maintenance Act, 1956 (hereinafter referred to as

“Act, 1956”) and submits that as per Section 20

obligation of a person to maintain his daughter, who

is unmarried, extends till she is married. Ms.

Makhija relies on judgment of this Court in Jagdish

Jugtawat Vs. Manju Lata and Others, (2002) 5 SCC 422

in support of her submission. She submits that High

Court committed error in taking a contrary view to

the above judgment of this Court. Ms. Makhija

submits that appellant is still unemployed, hence,

she is entitled to claim maintenance from her father.

5

5. Learned counsel for the respondent refuting the

submission of the learned senior counsel for the

appellant contends that Courts below have rightly

confined the claim of the maintenance of the

appellant till she attains majority on 26.04.2005.

It is submitted that as per Section 125 Cr.P.C.

entitlement to claim maintenance by daughter, who has

attained majority is confined to case where the

person by reason of any physical or mental

abnormality or injury unable to maintain herself.

Revisional Court has returned a finding that there is

no case that appellant is by reason of any physical

or mental abnormality or injury is unable to maintain

herself. It is submitted that High Court has rightly

dismissed the application filed under Section 482

Cr.P.C. of the appellant since no case was made out

to interfere in orders passed by the Judicial

Magistrate and learned Revisional Court in exercise

of jurisdiction under Section 482 Cr.P.C.

6. We have considered the submissions of the learned

counsel for the parties and have perused the records.
6

7. From the submissions of the learned counsel for

the parties, following two questions arise for

consideration in this appeal:-

(i) Whether the appellant, who although had

attained majority and is still unmarried is

entitled to claim maintenance from her

father in proceedings under Section 125

Cr.P.C. although she is not suffering from

any physical or mental abnormality/injury?

(ii) Whether the orders passed by learned

Judicial Magistrate as well as learned

Revisional Court limiting the claim of the

appellant to claim maintenance till she

attains majority on 26.04.2005 deserves to

be set aside with direction to the

respondent No.1 to continue to give

maintenance even after 26.04.2005 till the

appellant remains unmarried?

8. Both the questions being interconnected, we

proceed to take them together. Application under

Section 125 Cr.P.C. was filed on 17.10.2002 by the
7
applicants including the appellant as applicant No.4

against Parkash, father of the appellant. The date

of birth of the appellant being 26.04.1987, she was

minor at the time when the application was filed.

Learned Judicial Magistrate allowed the application

of the appellant for maintenance till she attains

majority. Learned Revisional Court has also affirmed

the judgment with modification that appellant was

entitled to receive maintenance till 26.04.2005

instead of 07.02.2005, which is date when she attains

majority. In support of application under Section

125 Cr.P.C., applicant had examined Surya Dev Pandey

as PW1, Chunni Lal Saini as PW2, Vikas Saini as PW3

and Dr. Raj Saini as PW4. The claim of the applicant

Nos. 1, 2 and 3 was rejected, which was also affirmed

by Courts below and is not subject matter of this

appeal.

9. The question to be answered in the present case

is as to whether a Hindu unmarried daughter is

entitled to claim maintenance from her father under

Section 125 Cr.P.C. only till she attains majority or

she can claim maintenance till she remains unmarried.

8
Section 125(1) Cr.P.C., which is relevant for the

present case is 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,

XXXXXXXXXXXXXXXXXXXXXXXX”

10. The claim of maintenance of applicant No.4 was

filed at the time when she was minor. During

pendency of the application, she became major on

26.04.2005. The learned Judicial Magistrate,

therefore, allowed the application of the appellant

for maintenance till she attains majority on

26.04.2005.

9

11. Learned counsel for the appellant contends that

the appellant is entitled to receive maintenance till

she remains unmarried but said argument was rejected

only on the ground that appellant is not suffering

from any physical or mental abnormality or injury,

therefore, she is not entitled for maintenance. The

provision on which learned counsel for the appellant

has placed reliance, i.e., Section 20 of the Hindu

Adoptions and Maintenance Act, 1956, needs to be

noted, which provides for maintenance of children and

aged parents, which is as follows:-

“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.
Explanation.— In this section “parent”
includes a childless step-mother.”

10

12. The Act, 1956 was enacted to amend and codify the

law relating to adoptions and maintenance among

Hindus. A bare perusal of Section 125(1) Cr.P.C. as

well as Section 20 of Act, 1956 indicates that

whereas Section 125 Cr.P.C. limits the claim of

maintenance of a child until he or she attains

majority. By virtue of Section 125(1)(c), an

unmarried daughter even though she has attained

majority is entitled for maintenance, where such

unmarried daughter is by reason of any physical or

mental abnormality or injury is unable to maintain

itself. The Scheme under Section 125(1) Cr.P.C.,

thus, contemplate that claim of maintenance by a

daughter, who has attained majority is admissible

only when by reason of any physical or mental

abnormality or injury, she is unable to maintain

herself. In the present case, the Revisional Court

has returned a finding that appellant is not

suffering from any physical or mental abnormality or

injury due to which she is unable to maintain

herself. The above findings are not even questioned

before us. What is contended that even if she is not

suffering from any physical or mental abnormality or

11
injury, by virtue of Section 20 of Act, 1956, she is

entitled to claim maintenance till she is unmarried.

13. For answering the question as noted above, we

need to examine the nature, extent and scope of

Section 125 Cr.P.C. In the Code of Criminal

Procedure, 1898, Section 488 Cr.P.C. was the

provision governing the maintenance of wife or

legitimate or illegitimate child of any person.

Section 488(1) Cr.P.C. provided:

“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 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, at such monthly rate, not exceeding
five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same
to such person as the Magistrate from time
to time directs.”

14. Section 488 Cr.P.C. sought to inhibit negligence

of woman and children with intent to serve a social

purpose. The provision provided for summary

proceeding to enable a deserted wife or helpless
12
child, legitimate or illegitimate, to get urgent

relief. The laws are nothing but collective

consciousness of community. It is in the interest of

the community and social order that woman and child

who are neglected be maintained and should be

provided a forum to obtain urgent relief to enable

them to sustain.

15. This Court in Nanank Chand Vs. Chandra Kishore

Aggarwal and Others, (1969) 3 SCC 802 had occasion to

consider the provision of Section 488 Cr.P.C., 1898

The Court had occasion to consider the nature of

proceedings under Section 488 Cr.P.C. in reference to

provisions of Hindu Adoptions and Maintenance Act,

1956, which provided for overriding effect of Act.

Section 4 of the Act, 1956 is to the following

effect:

“Section 4. Overriding effect of Act-
Save as otherwise expressly provided in
this Act,-

(a) any text, rule or interpretation
of Hindu law or any custom or usage as
part of that law in force immediately
before the commencement of this Act shall
cease to have effect with respect to any
matter for which provision is made in this
Act;

13

(b) any other law in force immediately
before the commencement of this Act shall
cease to apply to Hindus in so far as it
is inconsistent with any of the provisions
contained in this Act.”

16. In Nanak Chand’s case the question arose as to

whether by virtue of Section 4 of Act, 1956, the

provision of Section 488 Cr.P.C. shall be overridden.

In the above case this Court explained the provisions

of Section 488 Cr.P.C. as well as Section 20 of the

Act, 1956. This Court held that there is no

inconsistency between Section 488 Cr.P.c. and the

Hindu Adoptions and Maintenance Act and both can

stand together. This Court further held that Section

488 Cr.P.C. 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. Following was laid down in paragraph 4:

“4…..The learned Counsel says that
Section 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,
Section 20, which provides for maintenance
to children. We are unable to see any
inconsistency between the Maintenance Act
and Section 488, Cr.P.C. Both can stand
together. The Maintenance Act is an act to
amend and codify the law relating to
14
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 Section
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
, AIR 1963 All 355 , before the
Calcutta High Court in Mahabir Agarwalla
v. Gita Roy
[1962] 2 Cr. L.J.528 and
before the Patna High Court in Nalini
Ranjan v. Kiran Rani
, AIR 1965 Pat 442.
The three High Courts have, in our view,
correctly come to the conclusion that
Section 4(b) of the Maintenance Act does
not repeal or affect in any manner the
provisions contained in Section 488,
Cr.P.C.”

17. In Nanak Chand (supra) this Court had approved

the judgments of Allahabad High Court in Ram Singh

Vs. State, AIR 1963 All 355, judgment of Patna High

Court in Nalini Ranjan Vs. Kiran Rani, AIR 1965 Pat.

442 and judgment of Calcutta High Court in Mahabir

Agarwalla Vs. Gita Roy, [1962] 2 Cr. L.J.528. This

Court in Mst. Zohara Khatoon Vs. Mohd. Ibrahim,

(1981) 2 SCC 509, after noticing the judgment of this

Court in Nanak Chand’s case extracted relevant

portions of judgments of Ram Singh, Mahabir Agarwalla
15
and Nalini Ranjan (supra) which were approved by this

Court in Nanak Chand. In Ram Singh’s case, Allahabad

High Court took the view that Section 18 of Act, 1956

cannot be substituted for Section 488 Cr.P.C. In

Nalini Ranjan, Patna High Court held that Section 488

Cr.P.C. provided a separate remedy and Section 488

Cr.P.C. covered the civil liability of a husband

under the personal law. It is useful to extract

paragraphs 8, 9 and 10 of the judgment of this Court

in Zohara Khatoon which are to the following effect:

“8. It would be seen that this Court
approved of the decisions in the cases of
Ram Singh, Mahabir Agarwalla and Nalini
Ranjan mentioned in the observations
extracted above. In order to understand
the proper scope of Section 488 of the
1898 Code which is almost the same as that
of Section 125 of the 1973 Code, it may be
necessary to examine the decisions which
were referred to with approval by this
Court in Nanak Chand’s case (supra). In
Ram Singh v. State and Anr. Kailash
Prasad, J
. observed as follows :-

“There is nothing in the Hindu
Adoptions and Maintenance Act to
suggest expressly or by necessary
implication that the Act is
intended to be a substitute for
the provisions of Section 488
Cr.P.C. In fact the provisions of
Section 18 of the Act cannot be a
substitute for Section 488 Cr.P.C.

The latter provision is general
and is applicable to a wife,
irrespective of her religion, but
16
the former is applicable to the
case of Hindus only. It could not,
therefore, be intended to be a
substitute for Section 488 Cr.P.C.

To the same effect is the decision of the
Patna High Court in Nalini Ranjan
Chakravarty v. Smt. Kiran Rani
Chakravarty
, AIR 1965 Pat 442 where the
following observations were made :-

Before the enactment of 1956,
it was well settled that the right
conferred by Section 488 Cr.P.C.
was independent of the personal
law of the parties. The right of
maintenance under Section 488 was
irrespective of the nationality or
creed of the parties, the only
condition precedent to the
possession of that right being in
the case of a wife the acceptance
of the conjugal relation. Further,
Section 488 provided for only a
speedy remedy and a summary
procedure before a Magistrate
against starvation of a deserted
wife or child. This section did
not cover the civil liability of a
husband or a father under his
personal law to maintain his wife
and children.

9. The Calcutta High Court also took
the same view in Mahabir Agarwalla v. Gita
Roy
[1962] 2 Cr. L.J. 528 where the
following observations were made :-

An alternative but not
inconsistent summary remedy was
provided by Section 488 of the
CrPC not only to the Hindu wife
but generally to wives
irrespective of religion for
recovery of maintenance from the

17
husband. The two remedies were,
however, not co-extensive.

10. Thus, on a consideration of the
authorities mentioned above, it is clear
that the 1898 Code by virtue of Section
488
provided a summary remedy for awarding
maintenance to neglected wives
irrespective of caste, creed, community or
religion to which they belonged. It was in
this context that the Courts referred to
above considered the effect of Hindu
Adoption and Maintenance Act and other
similar Acts.”

18. This Court in Yamunabai Anantrao Adhav Vs.

Anantrao Shivram Adhav and Another, (1988) 1 SCC 530,

held that personal law applicable to the parties

cannot altogether be excluded from consideration in

proceeding under Section 125 Cr.P.C.

19. In Yamunabai’s case (supra), the question

involved was as to whether a Hindu woman who is

married after coming into force of Hindu Marriage

Act, 1955 to a Hindu male having a living lawfully

wedded wife, can maintain an application for

maintenance under Section 125 Cr.P.C. This Court in

the above case held the marriage of Yamunabai to be

null and void from its very inception. In the above

context, this Court referred to provision of Hindu

18
Marriage Act, 1955 to find out marital status. In

paragraphs 5 and 6, following was laid down:

“5. It has been contended on behalf of
the appellant that the term ‘wife ‘ in
Section 125 of the Code should be given a
wider and extended meaning so as to
include therein not only a lawfully wedded
wife but also a woman married in fact by
performance of necessary rites or
following the procedure laid down under
the law. Relying upon the decision of this
Court in Mohd. Ahmed khan v. Shah Bano
Beghum, 1985 Cri LJ 875 it was argued that
the personal law of the parties to a
proceeding under Section 125 of the Code
should be completely excluded from
consideration. The relationship of husband
and wife comes to an end on divorce, but a
divorcee has been held to be entitled to
the benefits of the section, it was urged,
and therefore applying this approach a
woman in the same position as the present
appellant should be brought within the
sweep of the section. We are afraid, the
argument is not well founded. A divorcee
is included within the section on account
of Clause (b) of the Explanation. The
position under the corresponding Section
488
of the code of 1898 was different. A
divorcee could not avail of the summary
remedy. The wife’s right to maintenance
depended upon the continuance of her
married status. It was pointed out in Shah
Bano’s case that since that right could be
defeated by the husband by divorcing her
unilaterally under the Muslim Personal Law
or by obtaining a decree of divorce under
any other system of law, it was considered
desirable to remove the hardship by
extending the benefit of the provisions of
the section to a divorced woman so long as
she did not remarry, and that was achieved
by including Clause (b) of the
Explanation. Unfortunately for the
19
appellant no corresponding provision was
brought in so as to apply to her. The
legislature decided to bestow the benefit
of the Section even on an illegitimate
child by express words but none are found
to apply to a de facto wife where the
marriage is void ab initio.

6. The attempt to exclude altogether the
personal law applicable to the parties
from consideration also has to be
repelled. The section has been enacted in
the interest of a wife, and one who
intends to take benefit under Sub-section
(1)(a) has to establish the necessary
condition, namely, that she is the wife of
the person concerned. This issue can be
decided only by a reference to the law
applicable to the parties. It is only
where an applicant establishes her status
on relationship with reference to the
personal law that an application for
maintenance can be maintained. Once the
right under the section is established by
proof of necessary conditions mentioned
therein, it cannot be defeated by further
reference to the personal law. The issue
whether the section is attracted or not
cannot be answered except by the reference
to the appropriate law governing the
parties. In our view the judgment in Shah
Bano’s case does not help the appellant.
It may be observed that for the purpose of
extending the benefit of the section to a
divorced woman and an illegitimate child
the Parliament considered it necessary to
include in the section specific provisions
to that effect, but has not done so with
respect to women not lawfully married.”

20. It is to be noted that in the above case personal

law was looked into to find out as to whether an

20
application filed by the appellant Yamunabai claiming

to be his wife was maintainable or not. Another

judgment which needs to be noted is Kirtikant D.

Vadodaria Vs. State of Gujarat and Another, (1996) 4

SCC 479. The question which came for consideration

before this Court was as to whether expression

“mother” used in clause (d) of sub-section (1) of

Section 125 Cr.P.C. includes stepmother. This Court

referring to Section 125 Cr.P.C. as well as provision

of Section 20 of Act, 1956 held that stepmother can

claim maintenance from her stepson provided she is

widow of her husband, if living, and also incapable

of maintaining and supporting her.

21. Now, we come to the Three Judge Bench judgment of

this Court as relied by learned counsel for the

appellant, i.e., Jagdish Jugtawat (supra). In the

above case, the respondent No.3 was a minor unmarried

girl of the petitioner. The wife of the petitioner,

i.e., mother of respondent No.3 filed an application

under Section 125 Cr.P.C. claiming maintenance @

Rs.500/- per month to each of the applicant, which

was granted by the Family Court. A revision was filed

21
before the High Court assailing the order contending

that the respondent No.3, Kumari Rakhi was entitled

to maintenance only till she attains majority and not

thereafter. High Court although accepted the legal

position that under Section 125 Cr.P.C., a minor

daughter is entitled to maintenance from her parents

only till she attains majority but declined to

interfere with the orders passed by the Family Court

taking the cue from Section 20(3) of the Hindu

Adoptions and Maintenance Act. The facts of the case

and observations of the High Court have been made in

the paragraph 2 of the judgment, which is to the

following effect:-

“2. The Petitioner is the father of Kumari
Rakhi, Respondent 3 herein, who is a minor
unmarried girl. Considering the
application filed under Section 125 of the
Criminal Procedure Code by Respondent 1,
wife of the Petitioner and mother of
Respondent 3, claiming maintenance for
herself and her two children, the Family
Court by order dated 22.7.2000 granted
maintenance @ Rs.500 per month to each of
the Applicants. The Petitioner herein
filed a revision petition before the High
Court assailing the order of the Family
Court on the ground, inter alia, that
Respondent 3 was entitled to maintenance
only till she attains majority and not
thereafter. Considering the point the
learned Single Judge of the High Court
accepted, the legal position that under
Section-125, CrPC, a minor daughter is
22
entitled to maintenance from her parents
only till she attains majority, but
declined to interfere with the order
passed by the Family Court taking the cue
from Section 20(3) of the Hindu Adoptions
and Maintenance Act under which the right
of maintenance is given to a minor
daughter till her marriage. The learned
Single Judge was persuaded to maintain the
order of the Family Court with a view to
avoid multiplicity of proceedings. The
relevant portion of the judgment of the
High Court is quoted here:

“Thus, in view of the above,
though it cannot be said that the
order impugned runs counter to the
law laid down by the Hon’ble
Supreme Court, the provisions of
Section 125 CrPC are applicable
irrespective of the personal law
and it does not make any
distinction whether the daughter
claiming maintenance is a Hindu or
a Muslim. However, taking an
overall view of the matter, I,
with all respect to the Hon’ble
Court, am of the candid view that
the provisions require literal
interpretation and a daughter
would cease to have the benefit of
the provisions under Section 125
CrPC on attaining majority, though
she would be entitled to claim the
benefits further under the
statute/personal law. But the
Court is not inclined to
interfere, as the order does not
result in miscarriage of justice,
rather interfering with the order
would create great inconvenience
to Respondent 3 as she would be
forced to file another petition
under sub-section (3) of Section
20
of the Act of 1956 for further
maintenance etc. Thus, in order to
23
avoid multiplicity of litigations,
the order impugned does not
warrant interference.”
(underlined by us)

22. The judgment of this Court in Jagdish Jugtawat

(supra) is sheet anchor of learned counsel for the

appellant. The question which came for consideration

before this Court in Jagdish Jugtawat’s case has

been noted in paragraph 3 of the judgment which is to

the following effect:

“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. …..”

23. This Court answered the question noticed in

paragraph 3 as above in paragraph 4 in the following

words:

“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, Code
24
of Criminal Procedure 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.”

24. In the above case, an order was passed by the

Family Court by granting maintenance which was based

on combined reading of Section 125 Cr.P.C. and

Section 20 of Act, 1956. Although, the High Court and

this Court had declined to interfere with the order

of the Family Court taking the cue from Section 20(3)

of the Act, 1956 under which the right of maintenance

is given to a minor daughter till her marriage, but

the judgment of this Court in Jagdish Jugtawat

(supra) cannot be read to laying down the ratio that

in proceedings under Section 125 Cr.P.C. filed by the

daughter against her father, she is entitled to

maintenance relying on the liability of the father to

maintain her unmarried daughter as contained in

Section 20(3) of the Act, 1956. The High Court in

exercise of Criminal Revisional jurisdiction can very

well refuse to interfere with the judgment of Courts

below by which maintenance was granted to unmarried
25
daughter. This Court while hearing criminal appeal

against the above judgment of High Court was

exercising jurisdiction under Article 136 of the

Constitution of India, and in the facts of that case,

this Court refused to interfere with the judgment of

High Court but in refusal to interfere by this Court,

no ratio can be read in the judgment of Jagdish

Jugtawat (supra) as contended by learned counsel for

the appellant.

25. In Classical Hindu Law prior to codification, a

Hindu male was always held morally and legally liable

to maintain his aged parents, a virtuous wife and

infant child. Hindu Law always recognised the

liability of father to maintain an unmarried

daughter. In this context, we refer to paragraph 539

and 543 of Mulla – Hindu Law – 22 nd Edition, which is

as follows:-

“539. Personal liability: liability of
father, husband and son.– A Hindu is
under a legal obligation to maintain his
wife, his minor sons, his unmarried
daughters, and his aged parents whether he
possesses any property or not. The
obligation to maintain these relations is
personal in character and arises from the

26
very existence of the relation between the
parties.

Section 18 and 20 of the Hindu
Adoptions and Maintenance Act, 1956 deal
with the question of maintenance of wife,
children and aged parents. Reference may
be made to the notes under those sections.

543. Daughter. – (1) A father is bound to
maintain his unmarried daughters. On the
death of the father, they are entitled to
be maintained out of his estate.

XXXXXXXXXXXXXX”

26. Muslim Law also recognises the obligation of

father to maintain his daughters until they are

married. Referring to Mulla’s Principle of

Mohammedan Law, this Court in State of Haryana and

Others Vs. Santra (Smt.), (2000) 5 SCC 182 in

paragraph 40 held:-

“40. Similarly, under the Mohammedan Law,
a father is bound to maintain his sons
until they have attained the age of
puberty. He is also bound to maintain his
daughters until they are married. [See:
Mulla’s Principles of Mohammedan Law (19th
Edn.) page 300]………………….”

27. Section 20(3) of Hindu Adoptions and Maintenance

Act, 1956 is nothing but recognition of principles of

Hindu Law regarding maintenance of children and aged

27
parents. Section 20(3) now makes it statutory

obligation of a Hindu to maintain his or her

daughter, who is unmarried and is unable to maintain

herself out of her own earnings or other property.

28. Section 20 of Hindu Adoptions and Maintenance

Act, 1956 cast a statutory obligation on a Hindu to

maintain his daughter who is unmarried and unable to

maintain herself out of her own earnings or other

property. As noted above, Hindu Law prior to

enactment of Act, 1956 always obliged a Hindu to

maintain unmarried daughter, who is unable to

maintain herself. The obligation, which is cast on

the father to maintain his unmarried daughter, can be

enforced by her against her father, if she is unable

to maintain herself by enforcing her right under

Section 20.

29. We may also notice another judgment of this Court

in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC

233, which was a case under Section 125 Cr.P.C. A

Muslim wife with her two daughters and a son filed an

application claiming maintenance under Section 125
28
Cr.P.C. The trial court allowed the maintenance to

the wife and children from her husband. The husband

after divorcing the wife filed application in the

trial court seeking modification of the order in view

of the provisions of the Muslim Women (Protection of

Rights on Divorce) Act, 1986. The trial court

modified the order insofar as the grant of

maintenance of wife was concerned but maintained the

order of maintenance to each of the three minor

children. The husband challenged the order by means

of revision, which was dismissed by the Revisional

Court. An application under Section 482 Cr.P.C. was

filed in the High Court. The High Court accepted the

claim of husband and relying on provision of Section

3(1)(b) of the Act, 1986 held that a Muslim wife is

entitled to claim maintenance from her previous

husband for her children only for a period of two

years from the date of birth of the child concerned.

The High Court held that minor children were not

entitled for maintenance under Section 125, Cr.P.C.

A special leave to appeal was filed questioning the

judgment. This Court dealing with Section 125 Cr.P.C.

as well as Act, 1986 held that effect of a beneficial

29
legislation like Section 125 Cr.P.C. cannot be

allowed to be defeated except through clear

provisions of a statute. This Court held that there

is no conflict between the two provisions.

30. This Court noticed the provisions of Section 3 of

Muslim Women (Protection of Rights on Divorce) Act,

1986 and Section 125 Cr.P.C. It is relevant to refer

to the following observations made by this Court in

paragraph 7 of the above judgment:

“7….Under Section 125, CrPC the
maintenance of the children is obligatory
on the father (irrespective of his
religion) and as long as he is in a
position to do so and the children have no
independent means of their own, it remains
his absolute obligation to provide for
them. Insofar as children born of Muslim
parents are concerned there is nothing in
Section 125 CrPC which exempts a Muslim
father from his obligation to maintain the
children. These provisions are not
affected by Clause (b) of Section 3(1) of
the 1986 Act and indeed it would be
unreasonable, unfair, inequitable and even
preposterous to deny the benefit of
Section 125 CrPC to the children only on
the ground that they are born of Muslim
parents. The effect of a beneficial
legislation like Section 125 CrPC, cannot
be allowed to be defeated except through
clear provisions of a statute. We do not
find manifestation of any such intention
in the 1986 Act to take away the
independent rights of the children to
claim maintenance under Section 125 CrPC
30
where they are minor and are unable to
maintain themselves. A Muslim father’s
obligation, like that of a Hindu father,
to maintain his minor children as
contained in Section 125 CrPC is absolute
and is not at all affected by Section 3(1)

(b) of the 1986 Act. ……”

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 to

claim maintenance from her father when she is unable

to maintain herself is absolute and the right given

to unmarried daughter under Section 20 is 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.

31

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.

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
32
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 Cr.P.C. cannot pass such order.

34. In the case before us, the application was filed

under Section 125 Cr.P.C. before Judicial Magistrate

First Class, Rewari who passed the order dated

16.02.2011. The Magistrate while deciding proceedings

under Section 125 Cr.P.C. could not have exercised

the jurisdiction under Section 20(3) of Act, 1956 and

the submission of the appellant cannot be accepted

that the Court below should have allowed the

application for maintenance even though she has

become major. We do not find any infirmity in the

order of the Judicial Magistrate First Class as well

as learned Additional Magistrate in not granting

maintenance to appellant who had become major.

35. The maintenance as contemplated under Act, 1956

is a larger concept as compared to concept of

maintenance under Section 125 Cr.P.C. Section 3(b)
33
while defining maintenance gives an inclusive

definition including marriage expenses in following

words:-

“3. Definitions- In this Act unless the
context otherwise requires-

XXXXXXXXXXXXXXX

(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 and incident to her
marriage;

(c) “minor” means a person who has not
completed his or her age of
eighteen years.”

36. The purpose and object of Section 125 Cr.P.C. as

noted above is to provide immediate relief to

applicant in a summary proceedings, whereas right

under Section 20 read with Section 3(b) of Act, 1956

contains larger right, which needs determination by a

Civil Court, hence for the larger claims as enshrined

under Section 20, the proceedings need to be

initiated under Section 20 of the Act and the

legislature never contemplated to burden the

Magistrate while exercising jurisdiction under
34
Section 125 Cr.P.C. to determine the claims

contemplated by Act, 1956.

37. There are three more reasons due to which we are

satisfied that the orders passed by the learned

Judicial Magistrate as well as learned Additional

Sessions Judge in the revision was not required to be

interfered with by the High Court in exercise of

jurisdiction under Section 482 Cr.P.C. The reasons

are as follows:-

(i) The application was filed by the mother of

the appellant in the year 2002 claiming

maintenance on her behalf as well as on

behalf of her two sons and appellant, who

was minor at that time. The appellant

being minor at that time when application

was filed on 17.10.2002, there was no

occasion for any pleading on behalf of the

appellant that she was not able to maintain

herself even after attaining the majority.

Section 20 of the Act, 1956 on which

reliance has been placed by learned counsel
35
for the appellant recognising the right of

maintenance of unmarried daughter by a

person subject to the condition when “the

parents or the unmarried daughter, as the

case may be, is unable to maintain

themselves/herself out of their/her own

earnings or other property”. The learned

Additional Sessions Judge noticed the

submission of the respondent that appellant

did not come in the witness box even when

she had attained majority to claim that she

was unable to maintain herself, which

contention has been noted in paragraph 12

of the judgment of the learned Additional

Sessions Judge.

(ii) From the judgment of the learned Judicial

Magistrate, another fact, which is relevant

to be noticed is that applicant Nos. 2 to

4, which included the appellant also had

filed the proceedings under Section 20 of

the Act, 1956 being Suit No. 6 of 2001,

which was dismissed as withdrawn on

17.12.2012.

36

(iii) Another factor, which need to be noticed

that in the counter affidavit filed in this

appeal, there was a specific pleading of

the respondent that a plot of land was

purchased in name of the appellant

admeasuring 214 sq. Yds. In the rejoinder

affidavit filed by the appellant, it has

been admitted that the plot was purchased

on 31.07.2000 from the joint income earned

by mother and father of the appellant,

which had been agreed to be sold in the

year 2012 for a total sale consideration of

Rs.11,77,000/-. In the rejoinder affidavit,

an affidavit of prospective purchaser has

been filed by the appellant, where it is

mentioned that agreement to sell had taken

place between appellant and Arjun on

31.07.2000 for a sale consideration of

Rs.11,77,000/-, out of which appellant had

received Rs.10,89,000 as earnest money.

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

37
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 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.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( R. SUBHASH REDDY )

………………….J.

( M.R. SHAH )
New Delhi,
September 15, 2020.

38



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