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Agnes Lilly Irudaya vs Irudaya Kani Arasan And Anr on 6 April, 2018

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Ladda
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.2872 of 2017

Agnes Lily Irudaya .. Petitioner.
versus
Irudaya Kani Arsan .. Respondent.

Mrs Sumangala Biradar Advocate for the petitioner.
Ms Shabnam Kazi i/by Ms Suvarna Joshi, Advocate
for Respondent No.1.

CORAM : SMT.BHARATI H.DANGRE, J.
Reserved for order on:- 23 rd March, 2018.

th
Pronounced on :- 6 April, 2018.
JUDGMENT :-

1 The present petition is filed by the petitioner-mother

claiming maintenance for her major daughter under section 125 of

the Code of Criminal Procedure and the legal issue involved is

whether a major daughter is entitled for maintenance under section

125 of the Code of Criminal Procedure (“the Cr.P.C.” for short) and

another issue which arises out of the present proceedings, whether a

mother is competent to file proceedings claiming maintenance on

behalf of her major daughter.

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2 A brief in sight into the facts would reveal that the

petitioner, a Roman Catholics, was married to respondent no.1 in the

year 1988 and three children were born from the wedlock. At

present, two sons are aged 25 and 24 years respectively and daughter

Alcina Judy is presently 19 years. It is the claim of the petitioner that

all the major children are residing with her. It is the specific case of

the petitioner that the respondent had deserted her in the year 1997

and she was living with her minor children and on the contrary the

respondent is living an adulterous life. The petitioner had filed

proceedings under section 125 of Cr.P.C. bearing petition No. E-

24/2003 in the Family Court, Mumbai seeking maintenance for her

three children who were then minors. The said petition resulted into

consent terms being signed by the parties on 25 April 2003 where the

respondent no.1 agreed to pay maintenance @ Rs.1000/- per month

towards each minor child. Subsequently on account of change in

circumstances the petitioner moved an application for enhancement

of maintenance for her three children and by judgment dated

30/12/2009, the respondent was directed to pay an amount of

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Rs.5000/- per month towards maintenance of the second son till he

attained majority and an amount of Rs.3000 per month was awarded

for maintenance of minor daughter Alcina Judy, attained age of

majority on 21st August 2015. It is the case of the petitioner that

though the daughter has attained the age of majority and she is

financially depending on the petitioner, since she is persuading her

higher education and considerable amount is required to meet her

day to day expenses which the petitioner is not able to arrange for.

According to the petitioner, she is not getting any financial assistance

from her elder son who had already obtained an educational loan for

graduation and he is repaying said loan. As far as second son is

concerned, according to the petitioner, he has graduated but is

without any job opportunity.

3 The petitioner moved an application under section 125 of

the Cr.P.C. before the Family Court at Bandra and in the said

application she claimed maintenance to the tune of Rs.25000 per

month for herself. In the said application, the petitioner stated that

though her major sons are residing with her, but they are not

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contributing towards her maintenance. She has stated that the

daughter is prosecuting her studies and in the academic year 2015-16

she had to pay amount of Rs.1,02,834 as college admission fee of the

Xavier’s Institute of Engineering, Mahim and she has also paid an

amount of Rs.60,000/- as contribution towards development of

educational infrastructure of the institute. The petitioner stated in

the application that in the next two academic years there is likely to

be increase in the educational fees of the daughter Alcina Judy and

she also has to bear the expenses for books and stationery, travelling

expenses, her mobile bill, Internet expenses, clothing, medical

expenses and she is also required to keep some amount for her

marriage expenses. The petitioner specifically claim that she had

borne the major financial burden of maintenance of three children

and she is left with no savings, resultantly she is forced to approach

the court seeking maintenance for herself so that she can pay for the

daughter’s higher education and repay the loans. She therefore

claimed an amount of Rs.15000/- per month from the date of

application as an interim maintenance.

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4 The said application came to be opposed by the

respondent and it is attempted to demonstrate that the major

daughter is not entitled to any maintenance and in fact under the

guise of maintenance for herself, she is actually claiming daughter’s

maintenance. It is specifically stated in the reply that the respondent-

husband is not bound by law to maintain major children and he

categorically stated that he was working as a driver and is about to

retire and he is suffering from several health hazards and in such a

position it is not possible for him to provide maintenance to the

applicant as he has to incur his own expenses including the medical

expenses.

5 On consideration of the said application, the Family Court

at Bandra proceeded to decide the same by order dated 13 th February

2017. The Court made a full attempt to refer the parties to mediation

but the matter could not be settled. The Court observed that the

petitioner is not entitled for maintenance for herself as she is working

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as a school teacher and earning Rs.48000 per month. The

maintenance amount is claimed for herself for maintaining her

daughter who is unable to maintain herself. The impugned order

makes a reference to Section 125 (1) (b) of the Cr.P.C. where the

maintenance can be granted to the minor children only and the major

daughter cannot claim maintenance through her mother. The Judge

Family Court Mumbai therefore held that the petitioner is not entitled

to claim maintenance for the major daughter under Section 125 of

the Cr.P.C. and rejected the application.

6 In support of the petition, I have heard Ms Sumangala

Biradar and Ms. Suvarna Joshi appearing for respondent No.1. The

learned Counsel for the petitioner would place reliance on the

judgment of the Hon’ble Apex Court in the case of Noor Saba

Kahtoon vs. Mohd. Quasim 1997 (5) SCALE 248 and the Division

Bench of this Court in Vijaykumar Jagdishrai Chawla vs. Reeta

Vijaykumar Chawla, reported in III (2011) DMC 687 (DB) to support

her submission that though the daughter has attained majority, as per

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the Family Law an unmarried daughter is entitled to claim

maintenance from her parents till she attains majority. The learned

counsel would submit that the statutory obligation to maintain the

daughter who is unmarried, though she has attained majority, would

entitled the mother to claim maintenance for her daughter.

7 Per contra, the learned counsel for the respondent would

submit that the wife had initially sought maintenance for her minor

children which was granted by the competent court and which was

subsequently modified taking into consideration need of the children.

According to the learned counsel, the application claiming

maintenance was filed by the mother and the daughter was not

impleaded as an applicant in the said application and the mother was

claiming amount towards maintenance of the daughter which is not

permissible since it is for the daughter has attained majority and is

conferred with several rights being major and is the competent

person to invoke jurisdiction of the Court and to lead evidence to

demonstrate that she is unable to maintain herself and her father has

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neglected to maintain her. The learned counsel for the respondent

would concede to the position of law that the major daughter, till she

is married is entitled for maintenance but her objection is to the

application preferred by the mother on behalf of daughter which did

not fit into the parameters of Section 125 of Cr.P.C. She therefore

submits that the order passed by the Family Court is just and proper

and needs to be upheld and the present petition deserves to be

dismissed.

8 In order to effectively adjudicate the controversy,

reference needs to be made to Section 125 of the Cr.P.C. which is

included in Chapter IX of the Cr.P.C. which provides for maintenance

of wife, children and parents. Section 125 of Cr.P.C. reads thus :-

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

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such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or
herself, a Magistrate of the first class may, upon proof
of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate not
exceeding five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make
such allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of sufficient
means.

Provided further that the Magistrate may, during
the pendency of the proceeding regarding monthly
allowance for the maintenance under this sub-section,
order such person to make a monthly allowance for the
interim maintenance of his wife or such child, father or
mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same
to such person as the Magistrate may from time to
time direct;

9 Perusal of Section 125 of Cr.P.C. would reveal that the said

provision enables a wife, a legitimate or illegitimate minor child and

the legitimate or illegitimate child, who has attained majority, but

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unable to maintain itself on account of physical or mental

abnormality or injury and a father or mother can claim maintenance,

if there is neglect or refusal to maintain and if they are unable to

maintain themselves. What is pertinent to note in Section 125 of the

Cr.P.C. is the neglect or refusal on the part of a person having

sufficient means to maintain his wife, his legitimate or illegitimate

minor children who are unable to maintain themselves. The order of

maintenance can be made under Section 125 of Cr.P.C. by a

Magistrate of First Class, upon proof of such neglect or refusal and a

direction can be issued to make monthly allowance for maintenance

of those who are entitled under clause (a), (b), (c),(d) and (e) of

Section 125 (1) of the Cr.P.C.

10 Under Section 125 of the Cr.P.C. it is only the minor child

who is entitled to claim maintenance if such child is not able to

maintain itself. A child who has attained majority is held entitled for

claiming maintenance, on account of physical or mental abnormality

or injury he is unable to maintain himself. There is no any specific

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provision contained in Section 125 for grant of maintenance to a

daughter who is major. However, perusal of the judgment of the

Hon’ble Apex Court in the case of Noor Saba Khatoon vs. Mohd.

Quasim (supra) where the Hon’ble Apex Court had an opportunity to

deal with the issue as to whether children of Muslim parents are

entitled to grant maintenance under Section 125 of the Cr.P.C. after

they attain majority, the Hon’ble Apex Court by making a reference to

Section 3 (1) (b) of the Muslim Women (Protection of Rights on

Divorce) Act, 1986 observed thus :-

10. Thus, both under the personal law and the
statutory law (Sec. 125. Cr.P.C.) the obligation of a
Muslim father, having sufficient means, to maintain
his minor children, unable to maintain themselves,
till they attain majority and in case of females till
they get married, is absolute, notwithstanding the
fact that the minor children are living with the
divorced wife.

11. Thus, our answer to the question posed in
the earlier part of the opinion is that the children
of Muslim parents are entitled to claim
maintenance under Section 125, Cr.P.C. for the
period till they attain majority or are able to
maintain themselves, whichever is earlier, and in
case of females, till they get married, and this right
is not restricted, affected or controlled by divorcee
wife’s right to claim maintenance for maintaining
the infant child/children in her custody for a

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period of two years from the date of birth of the
child concerned under Section 3(1)(b) of the 1986
Act. In other words Section 3(1)(b) of the 1986 Act
does not in any way affect the rights of the minor
children of divorced Muslim parents to claim
maintenance from their father under Section 125,
Cr.P.C. till they attain majority or are able to
maintain themselves, or in the case of females, till
they are married.

11 Further, the Division Bench of this Court in case of

Vijaykumar Jagdishrai Chawla vs. Reeta Vijaykumar Chawala

reported in III (2011) DMC 687 while dealing with similar issue as to

whether unmarried daughter is entitled to receive amount of of

maintenance from her father or mother so long she is unable to

maintain herself out of her own earnings. By referring to the

provisions of Section 20 of the Hindu Adoption and Maintenance Act,

1956 the Division Bench of this Court was pleased to hold that the

father cannot be extricated from his liability to maintain his

unmarried daughter who is staying with his wife and he would be

bound not only to maintain his unmarried daughter but also

responsible to maintain until her marriage while dealing with the

objection of the respondent as to whether a wife can seek relief of

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maintenance on behalf of her major daughter, the Division Bench

held that the unmarried daughter is entitled to receive maintenance

from her father and the mother is competent to pursue relief of

maintenance for the daughters even if they have become major if the

daughters are staying with her and if she was taking responsibility of

their maintenance and education. At this stage, it is also relevant to

refer to the judgment of the Apex Court in the case of Jagdish

Jugtawat Vs. Manju Lata and ors reported in (2002) 5 SCC 422,

where the Apex Court held as follows :-

“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 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.”

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From the aforestated position, it is clear that the unmarried

daughter though attained majority is entitled to claim maintenance

from the father.

12 The next question is whether the mother can claim

maintenance on behalf of the daughter by initiating proceedings. The

learned counsel for the respondent has vehemently argued that

though the entitlement of the unmarried daughter with the aid of

personal law, imposes an obligation on the parents, mother and

father, equal responsibility is not on both of them to maintain the

children. The question whether a mother can file proceeding on

behalf of the daughter is moot question.

13 Perusal of Section 125 of Cr.P.C. would reveal that the

wife, legitimate or illegitimate child or major child covered under

clause (c) and the father or mother who are unable to maintain

themselves, upon a proof of neglect or refusal to maintain by any

person, can be fastened with the liability of monthly allowance for

maintenance of such wife, child, father or mother as may be directed

by the Magistrate.

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As per section 126 of the Cr.P.C., the evidence is required

to be tendered and is to be recorded in the manner prescribed for

summons cases and it then contemplates followance of the procedure

prescribed in Chapter XX of the Cr.P.C. The party who claim

maintenance is duty bound to tender proof about neglect or refusal to

maintain and also the factum that the person claiming maintenance is

unable to maintain herself. Undisputedly, it is the person claiming

maintenance would be required to discharge the burden of proving

such neglect or refusal. The learned counsel for the respondent had

vehemently argued that on attaining majority the daughter can

herself file proceeding and would step into the witness box to

discharge the said burden and the mother is not competent to do so

on behalf of the daughter. The said argument appears to be

misconceived as in the present case the mother who moved an

interim application claiming maintenance has prayed that an amount

of Rs.15000/- per month be granted to her as an interim

maintenance so as to enable her to meet the expenses of the

daughter's education. She has made it clear in the application that

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her income is insufficient to meet her personal medical and other

expenses as well as the daughter's expenses and she has approached

the Court seeking maintenance for herself so that she can arrange for

daughter's higher education and repaying loans. Once the learned

counsel for the respondent has conceded to the position of law that

major unmarried daughter is entitled to claim maintenance from the

father, then, hyper technical objection that it is she, who should enter

the witness box and discharge the burden of proving neglect or

refusal to maintain and to prove her dependency is to be discharged

by her cannot be sustained. Even if the daughter would have filed the

proceedings, the parameters for deciding her entitlement would have

been the neglect and refusal of the father to pay for the educational

expenses and other expenses of the daughter. The daughter can be a

competent person to file her own application claiming maintenance.

However, in order to avoid multiplicity of the proceeding, no fault

can be found in the application preferred by the mother claiming

maintenance with a view to meet the expenses of the daughter, since

wife has not claimed maintenance for herself and she has not denied

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the factum of her employment. In such circumstances, it appears that

the stand taken by the respondent is a hyper technical plea and the

respondent cannot be absolved of his liability to meet the necessary

expenses of his major unmarried daughter who is persuading her

education and she needs cannot be met by the petitioner wife who

has her limited source of earning. Once this principle is clear, then,

the technical objection cannot come in the way of granting

substantive relief in favour of the petitioner to claim an amount of

maintenance for meeting the expenses of her daughter's education.

The Family Court, however, has cursorily dealt with the

application filed by the petitioner wife and has rejected it with a one

line reasoning, namely,

"Under section 125 of Cr.P.C., the major
daughter cannot claim maintenance from her
father through her mother. The petitioner is
therefore not entitled to claim maintenance for
her major daughter under section1 125 of Cr.P.C."

The order passed by the Principal Judge, Family Court, Mumbai

cannot be sustained in the light of the aforesaid observation and in

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the light of the settled position of law that a major unmarried

daughter is entitled for maintenance from her father and since this

Court do not find any fault in the application being preferred by the

mother claiming only that amount which she requires for meeting the

educational expenses and other expenses of the daughter as

maintenance amount, the impugned order passed by the Family Court

is liable to be set aside. The Principal Judge, Family Court, Mumbai

is directed to entertain the claim of the petitioner by properly

examining the wilful neglect or refusal to maintain the daughter to

maintain herself and also the inability of the petitioner to arrange for

daughter's maintenance. The impugned order passed by the Family

Court is quashed and set aside. Application preferred by the

petitioner-wife is remanded back to the Family Court for proper

adjudication by applying the parameters for grant of maintenance.

[SMT.BHARATI H.DANGRE, J.]

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