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? = 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 Act, 1956.-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.
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.
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.
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.”
Apex court held that (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?
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. 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 Act, 1956.
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
Judge, Rewari.
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 ActSave 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 – 22nd 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 requiresXXXXXXXXXXXXXXX
(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
