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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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15 wp-2872-17.docAs 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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16 wp-2872-17.docher 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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17 wp-2872-17.docthe 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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18 wp-2872-17.docthe 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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