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Right of Maintenance of unwed daughter from father.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.06.2019
CORAM
THE HON’BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.No.15336 of 2019

R.KirubaKanmani                                   …Petitioner

-Vs

L.Rajan                                        … Respondent

Prayer: Criminal Original petition filed underneath Section 482 of Code of Criminal Procedure, to set aside a sequence antiquated 02.04.2019 upheld in MC SR.No.185 of 2019 on a record of Principal Judge, Family Court Chennai.               ORDER

This petition has been filed severe a sequence of a Court next rejecting a petition filed by a postulant under Section 125 of Cr.PC seeking for monthly upkeep from a respondent, who is a father of a petitioner.

  1. The postulant who is aged about 18 years is the  unwed daughter of a respondent and she has sought for upkeep from a respondent father on a belligerent that she is not in a position to take caring of a losses incurred by her towards her education.
  2. The Court next has deserted a petition especially on a belligerent that a postulant is a vital and that in terms of Section 125 (1) (b) and (c) of Cr.PC, a postulant is not entitled for any upkeep and that she does not humour from any earthy or steel disablement.
  3. Mr.Sharath Chandran, schooled warn for a postulant submitted that a Court next has totally misdirected itself in rejecting a petition and that a sequence of a Court next is against to staid beliefs of law. The schooled warn for a postulant serve submitted that a total reading of Section 125 of Cr.PC and Section 20(3) of a Hindu Adoption and Maintenance Act makes it really transparent that a father is underneath an requirement to say his unwed daughter even if she has achieved majority.

5. The schooled warn for a postulant in sequence to substantiate his arguments cited a following judgments and a germane portions of a judgments are also extracted hereunder :-[Noor Saba Khatoon Vs.Mohammed.Quasim] reported in 1997 6 SCC 323.

A brief nonetheless engaging doubt endangered in this appeal, by special leave, is either a children of Muslim relatives are entitled to extend of upkeep under Section 125 CrPC for a duration compartment they achieve infancy or are means to say themselves whichever date is progressing or in a box of womanlike children compartment they get married or is their right limited to a extend of upkeep usually for a duration of dual years prescribed under Section 3(1)(b) of a Muslim Women (Protection of Rights on Divorce) Act, 1986 notwithstanding Section 125 CrPC.

Thus, both underneath a personal law and a orthodox law (Section 125 CrPC) a requirement of a Muslim father, carrying sufficient means, to say his teenager children, incompetent to say themselves, compartment they achieve infancy and in box of females compartment they get married, is absolute, notwithstanding a fact that a teenager children are vital with a divorced wife.

Thus, a answer to a doubt acted in a progressing partial of a opinion is that a children of Muslim relatives are entitled to explain upkeep under Section 125 CrPC for a duration compartment they achieve infancy or are means to say themselves, whichever is progressing and in box of females, compartment they get married, and this right is not restricted, influenced or tranquil by a divorcee wife’s right to explain upkeep for progressing a tot child/children in her control for a duration of dual years from a date of birth of a child endangered under Section 3(1)(b) of a 1986 Act. In other words Section 3(1)(b) of a 1986 Act does not in any approach impact a rights of a teenager children of divorced Muslim relatives to explain upkeep from their father under Section 125 CrPC compartment they achieve infancy or are means to say themselves, or in a box of females, compartment they are married.

It, therefore, follows that a schooled hearing probity was ideally right in directing a remuneration of volume of upkeep to any of a 3 children as per a sequence antiquated 19-1-1993 and a schooled 2nd Additional Sessions Judge also committed no blunder in dismissing a supplement petition filed by a respondent. The High Court, on a other hand, fell in finish blunder http://www.judis.nic.in in holding that a right to explain upkeep of the children under Section 125 CrPC was taken divided and superseded by Section 3(1)(b) of a 1986 Act and that upkeep was payable to a teenager children of Muslim relatives usually for a duration of dual years from a date of a birth of a child endangered notwithstanding a supplies of Section 125 CrPC. The sequence of a High Court cannot, therefore, be sustained. It is accordingly set aside. The sequence of a hearing probity and a revisional probity is restored. This interest succeeds and is authorised nonetheless yet any orders as to cost.

[Jagdish Jugtawat Vs.Manju Lata and others] reported in 2002 5 SCC 422

2……The schooled Single Judge was swayed to say a sequence of a Family Court with a perspective to equivocate multiplicity of proceedings. The germane apportionment of a visualisation of a High Court is quoted here: “Thus, in perspective of a above, nonetheless it can't be pronounced that a sequence impugned runs opposite to a law laid down by a Hon’ble Supreme Court, a supplies of Section 125 CrPC are germane irrespective of a personal law and it does not make any eminence either a daughter claiming upkeep is a Hindu or a Muslim. However, holding an altogether perspective of a matter, I, with all honour to a Hon’ble Court, am of a vehement perspective that a supplies need verbatim interpretation and a daughter would stop to have a advantage of the  supplies under Section 125CrPC on attaining majority, though she would be entitled to explain a advantages serve underneath a statute/personal law. But a Court is not prone to interfere, as a sequence does not outcome in miscarriage of justice, rather interfering with a sequence would emanate good nuisance to Respondent 3 as she would be forced to record another petition underneath sub- territory (3) of Section 20 of a Act of 1956 for serve upkeep etc. Thus, in sequence to equivocate multiplicity of litigations, a sequence impugned does not aver interference.”

  1. In perspective of a anticipating available and a observations done by a schooled Single Judge of a High Court, a usually doubt that arises for care is either a sequence calls for interference. A identical doubt came adult for care by this Court in a box of Noor Saba Khatoon v. Mohd. Quasim [(1997) 6 SCC 233 : 1997 SCC (Cri) 924 : AIR 1997 SC 3280] relating to a explain of a Muslim divorced lady for upkeep from her father for herself and her teenager children. This Court while usurpation a position that Section 125 CrPC does not repair guilt of relatives to say children over achievement of majority, review a pronounced sustenance and Section 3(1)(b) of a Muslim Women (Protection of Rights on Divorce) Act together and reason that underneath a latter orthodox sustenance guilt of providing upkeep extends over achievement of infancy of a contingent girl.
  2. Applying a element to a contribution and resources of a box in hand, it is perceptible that a right of a teenager lady for upkeep from relatives after attaining infancy compartment her matrimony is famous in Section 20(3) of a Hindu Adoptions and Maintenance Act. Therefore, no difference can be taken to a judgment/order upheld by a schooled Single Judge for progressing a sequence upheld by a Family Court that is formed on a total reading of Section 125 CrPC and Section 20(3) of a Hindu Adoptions and Maintenance Act. For a reasons aforestated we are of a perspective that on contribution and in a resources of a box no division with a impugned judgment/order of a High Court is called for.
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iii. [Mansi Vohra Vs. Ramesh Vohra] reported in 2012 SCC online Del 5835

  1. Present petition has been filed under Section 482 Cr. P.C. severe a sequence antiquated 17th March, 2012 upheld by a Additional Sessions Judge (‘ASJ’) in Criminal Revision Petition No. 147 of 2011 wherein it was reason that a petition filed by a vital unwed daughter for upkeep was not maintainable under Section 125 Cr.P.C. The ASJ in a impugned sequence antiquated 17th March, 2012 has reason as under:-

“8. we have bestowed my clever care to a opposition submissions done by schooled warn for revisionist as good as schooled warn for respondent in a light of a germane supplies of law as good as a cases relied on in support of their particular submissions and we have come to a end that u/s 125 Cr.P.C. a vital unwed daughter can't explain upkeep from her father unless her box is lonesome u/s 125(1)(c) Cr.P.C. Admittedly, Mansi Vohra is vital daughter of a revisionist Ramesh Vohra and she is not physically or mentally aberrant and as such her petition u/s 125 Cr. P.C. for claiming upkeep is not legally maintainable. we also determine with a submissions done by schooled warn for revisionist that a vital daughter incompetent to say herself can explain upkeep from her father usually u/s 20 of Hindu Adoptions and Maintenance Act, 1956. Keeping in perspective this good staid authorised tender of law, we am of a perspective that a impugned sequence upheld by schooled MM is not in suitability with law and accordingly it is set aside by holding that a upkeep petition filed by Mansi Vohra, a benefaction respondent, for claiming upkeep from her father Ramesh Vohra, a benefaction revisionist u/s 125 Cr. P.C. is not legally maintainable. With these observations, this supplement petition stands likely of.” (emphasis supplied)

  1. Learned Counsel for a postulant argued that under Section 125 of a Code a child can't be postulated upkeep after he/she has achieved a age  of infancy in a deficiency of any earthy or mental infirmity, even if he or she is incompetent to say herself, in terms of Clause (c) of Sub-section (1) of Section 125 of a Code…………
  2. The law laid down by a Supreme Court while traffic with desert of a children to explain upkeep from a Muslim relatives under Section 125 of a Code compartment they achieve infancy or in box of females compartment they get married, is entirely germane to a contribution during hand. It might be remarkable here that underneath Sub-section (3) of Section 20 of a Hindu Adoptions and Maintenance Act, 1956, requirement of a Hindu father includes a requirement to say his unwed daughter not usually for a functions of her day-to-day expenses, nonetheless also in honour of a reasonable losses of her marriage. It arises from a really existence of relationship.
  3. The above perspective finds support from a observations done by a Calcutta High Court in Bankim Ch. Banerjee v. Chinmoyee Banerjee, 2003 (1) Crimes
  4. The ratio of a dual decisions cited by a schooled Counsel for a postulant are not germane to a contribution during palm in perspective of a law laid down by a Supreme Court in Noor Saba Khatoon (supra).
  5. For a foregoing reasons, we find no illegality or impropriety in a impugned sequence to aver interference.
  6. This Court is also of a opinion that even in Jagdish Jugtawat (supra), a Supreme Court has held that upkeep petition filed by a vital daughter even if she does not tumble in one of a exceptions mentioned in Section 125(1)(c) Cr. P.C., would be still maintainable on a total reading of both Sections 125 Cr.P.C. and Section 20(3) of Hindu Adoptions and Maintenance Act, 1956.
  7. Moreover, to ask a postulant to now record an eccentric petition before a Family Court underneath Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 would not usually means her nuisance nonetheless would also better her right to explain upkeep for a period Section 125 Cr.PC move was tentative before a Metropolitan Magistrate. Such an interpretation would, in certain cases where both sections clearly overlap, emanate multiplicity of litigation.
  8. [T.Vimala and others Vs. S.Rama krishnan ] reported in 2016 SCC Online Mad 12324
  9. No doubt, Section 125 Cr.P.C. is not happily worded, given it has prescribed certain riders for a daughter or son who has achieved infancy to explain upkeep from their father. They contingency settle that they are underneath earthy incapacity or they are pang out of injury. There might be cases, where a daughter or a son, even after carrying achieved majority, might not have sufficient financial ability to say themselves and they continue to need a support of their father. This is  a existence of a situation. But, a Court can't simply put a censure on a draftsman. Court contingency appreciate a law. It should allege a means of justice. That will be impetus of law.
  10. In Jagdish Jugtawat v. Manju Lata [(2002) 5 SCC 422] exactly, as in a case, it was argued before a Hon’ble Supreme Court that a daughter carrying achieved infancy and as it has not been determined that she is pang out of any earthy incapacity or injury, she is not entitled to upkeep from her father. The Hon’ble Supreme Court seeing a phraseology employed inSection 125 Cr.P.C. encountered a formidable situation. However, in a fervour to allege a intrigue of amicable probity incorporated in Section 125 Cr.P.C. and to strengthen a daughter, who has achieved majority, nonetheless who does not humour any earthy disability, a Hon’ble Supreme Court called in assist Section 20 of a Hindu Adoption and Maintenance Act and reason that nonetheless in perspective of a supplement trustworthy to a daughter, who achieved majority, she might not be authorised for upkeep underneath Section 125 Cr.P.C., nonetheless she is authorised for upkeep underneath Section 20 of a Hindu Adoption and Maintenance Act from her father and so confirmed a upkeep sequence upheld in her foster underneath Section 125 Cr.P.C.
  11. Exactly, identical is a conditions before us. The pronounced Apex preference was not brought to a notice of a schooled Principal Sessions Judge, Dindigul. Had it was produced, a meditative of a schooled Principal Sessions Judge, Dindigul would have been different. So, in such view of a matter, scraping of upkeep postulated to a second daughter on comment of her attaining infancy and her inability to settle earthy incapacity is to be set aside.
  12. [Agnes Lily Irudaya Vs. Irudaya Kani Arasan] reported in 2018 SCC Online Bom 617 The benefaction petition is filed by a petitioner- mom claiming upkeep for her vital daughter under section 125 of a Code of Criminal Procedure and a authorised emanate endangered is either a vital daughter is entitled for upkeep under section 125 of a Code of Criminal Procedure (“the Cr.P.C.” for short) and another emanate that arises out of a benefaction proceedings, either a mom is efficient to record record claiming upkeep on interest of her vital daughter.
  13. Under Section 125 of a Cr.P.C. it is usually a teenager child who is entitled to explain upkeep if such child is not means to say itself. A child who has achieved infancy is reason entitled for claiming maintenance, on comment of earthy or mental monstrosity or damage he is incompetent to say himself. There is no any specific sustenance contained in Section 125 for extend of upkeep to a daughter who is major. However, examination of a visualisation of a Hon’ble Apex Court in a box of Noor Saba Khatoon v. Mohd. Quasim (supra)  where a Hon’ble Apex Court had an event to deal with a emanate as to either children of Muslim relatives are entitled to extend upkeep under Section 125 of a Cr.P.C. after they achieve majority, a Hon’ble Apex Court by creation a anxiety to Section 3(1)(b) of a Muslim Women (Protection of Rights on Divorce) Act, 1986 celebrated thus:—
  14. Thus, both underneath a personal law and a orthodox law (Sec. 125. Cr.P.C.) a requirement of a Muslim father, carrying sufficient means, to say his teenager children, incompetent to say themselves, compartment they achieve infancy and in box of females compartment they get married, is absolute, notwithstanding a fact that a teenager children are vital with a divorced wife.
  15. Thus, a answer to a doubt acted in a progressing partial of a opinion is that a children of Muslim relatives are entitled to explain upkeep under Section 125, Cr.P.C. for a duration compartment they achieve infancy or are means to say themselves, whichever is earlier, and in box of females, compartment they get married, and this right is not restricted, influenced or tranquil by divorcee wife’s right to explain upkeep for progressing a tot child/children in her control for a duration of dual years from a date of birth of a child endangered under Section 3(1)(b) of a 1986 Act. In other words Section 3(1)(b) of a 1986 Act does not in any approach impact a rights of a teenager children of divorced Muslim relatives to explain upkeep from their father underneath Section  125, Cr.P.C. compartment they achieve infancy or are means to maintain themselves, or in a box of females, compartment they are married.
  16. Further, a Division Bench of this Court in box of Vijaykumar Jagdishrai Chawla v. Reeta Vijaykumar Chawalareported in III (2011) DMC 687 while traffic with identical emanate as to either unwed daughter is entitled to accept volume of of upkeep from her father or mom so prolonged she is incompetent to say herself out of her possess earnings. By referring to a supplies of Section 20 of a Hindu Adoption and Maintenance Act, 1956 a Division Bench of this Court was gratified to reason that a father can't be extricated from his guilt to say his unwed daughter who is staying with his mom and he would be firm not usually to say his unwed daughter nonetheless also obliged to say until her matrimony while traffic with a conflict of a respondent as to either a mom can find service of upkeep on interest of her vital daughter, a Division Bench reason that a unwed daughter is entitled to accept upkeep from her father and a mom is efficient to pursue service of upkeep for a daughters even if they have turn vital if a daughters are staying with her and if she was holding shortcoming of their upkeep and education. At this stage, it is also germane to impute to a visualisation of a Apex Court in a box of Jagdish Jugtawat v. Manju Lata reported in (2002) 5 SCC 422, where a Apex Court reason as follows:— “Applying a element to a contribution and resources of a box in hand, it is perceptible that a right of a teenager lady for upkeep from relatives after attaining infancy compartment her matrimony is famous in Section 20(3) of a Hindu Adoptions and Maintenance Act. Therefore, no difference can be taken to a judgment/order upheld by a schooled Single Judge for progressing a sequence upheld by a Family Court that is formed on a total reading of Section 125, Code of Criminal Procedure and Section 20(3) of a Hindu Adoptions and Maintenance Act. For a reasons aforestated, we are of a perspective that on contribution and in a resources of a box no division with a impugned visualisation sequence of a High Court is called for.”
  17. From a aforestated position, it is transparent that a unwed daughter nonetheless achieved infancy is entitled to explain upkeep from a father.
  18. It is really transparent from a above judgments that even though Section 125 restricts a remuneration of upkeep to a children compartment they achieve majority, when it comes to a daughter, Courts have taken a unchanging mount that even nonetheless a daughter has achieved majority, she will be entitled for upkeep compartment she stays unwed by trait of Section 20(3) of a Hindu Adoption and Maintenance Act, 1956. In sequence to equivocate multiplicity of proceedings, a Courts have taken a unchanging mount that a petition under Section 125 of Cr.PC can be entertained yet pulling her to record an eccentric petition seeking for upkeep underneath Section 20(3) of a Hindu Adoption and Maintenance Act, 1956.
  19. That apart, a Hon’ble Supreme Court has also reason that mental damage is zero nonetheless malice in law that can be collected on a basement of defilement of a authorised right to explain upkeep vested underneath any law for a time being in force including Section 125 of Cr.PC. If a right to explain upkeep of a daughter is infringed, really it can be called as a damage that can really good be fit into a clarification of mental injury.
  20. The Court next has not taken into care a impetus of law that has taken place by trait of a above judgments and had committed an blunder by rejecting a petition during a threshold on a belligerent of maintainability and a same requires division by this Court in practice of a office underneath Section 482 of Cr.Pc.
  21. This Criminal Original Petition is authorised and a sequence upheld by a Court next antiquated 02.04.2019 is hereby set aside. The  postulant is destined to re-present a petition before a Court next and a Court next shall ensue to series a petition and afterward understanding with a same in suitability with law. The Registry is destined to handover a strange upkeep petition filed before this Court to a schooled warn for a postulant by maintaining a duplicate of a same in sequence to capacitate a postulant to re-present a petition before a Court below.

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