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R.Kiruba Kanmani vs L.Rajan on 17 June, 2019

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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.Kiruba Kanmani …Petitioner
-Vs-

L.Rajan … Respondent

Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to set aside the order dated 02.04.2019 passed in
MC SR.No.185 of 2019 on the file of Principal Judge, Family Court,
Chennai.

For Petitioner : Mr.Sharath Chandran

ORDER

This petition has been filed challenging the order of the

Court below rejecting the petition filed by the petitioner under

Section 125 of Cr.PC seeking for monthly maintenance from the

respondent, who is the father of the petitioner.

2. The petitioner who is aged about 18 years is the
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2

unmarried daughter of the respondent and she has sought for

maintenance from the respondent father on the ground that she is not

in a position to take care of the expenses incurred by her towards her

education.

3. The Court below has rejected the petition mainly on the

ground that the petitioner is a major and that in terms of Section 125

(1) (b) and (c) of SectionCr.PC, the petitioner is not entitled for any

maintenance and that she does not suffer from any physical or metal

disablement.

4. Mr.Sharath Chandran, learned counsel for the petitioner

submitted that the Court below has completely misdirected itself in

rejecting the petition and that the order of the Court below is

opposed to settled principles of law. The learned counsel for the

petitioner further submitted that a combined reading of Section 125

of Cr.PC and Section 20(3) of the Hindu Adoption and SectionMaintenance Act

makes it very clear that a father is under an obligation to maintain his

unmarried daughter even if she has attained majority.

http://www.judis.nic.in 5. The learned counsel for the petitioner in order to
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substantiate his arguments cited the following judgments and the

relevant portions of the judgments are also extracted hereunder :-

i. [Noor Saba Khatoon Vs.Mohammed.Quasim] reported

in 1997 6 SCC 323.

1. A short but interesting question involved in this

appeal, by special leave, is whether the children of

Muslim parents are entitled to grant of maintenance

under Section 125 CrPC for the period till they attain

majority or are able to maintain themselves whichever

date is earlier or in the case of female children till they

get married or is their right restricted to the grant of

maintenance only for a period of two years prescribed

under Section 3(1)(b) of the Muslim Women (Protection

of Rights on SectionDivorce) Act, 1986 notwithstanding Section

125 CrPC.

10. Thus, both under the personal law and the
statutory law (Section 125 CrPC) 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
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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 CrPC 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 the divorcee
wife’s right to claim maintenance for maintaining the
infant child/children in her custody for a 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 CrPC till they attain majority or are able to maintain
themselves, or in the case of females, till they are
married.

12. It, therefore, follows that the learned trial
court was perfectly right in directing the payment of
amount of maintenance to each of the three children as
per the order dated 19-1-1993 and the learned 2nd
Additional Sessions Judge also committed no error in
dismissing the revision petition filed by the respondent.
The High Court, on the other hand, fell in complete error
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in holding that the right to claim maintenance of the
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children under Section 125 CrPC was taken away and
superseded by Section 3(1)(b) of the 1986 Act and that
maintenance was payable to the minor children of Muslim
parents only for a period of two years from the date of
the birth of the child concerned notwithstanding the
provisions of Section 125 CrPC. The order of the High
Court cannot, therefore, be sustained. It is accordingly
set aside. The order of the trial court and the revisional
court is restored. This appeal succeeds and is allowed but
without any orders as to cost.

ii. [Jagdish Jugtawat Vs.Manju Lata and others]

reported in 2002 5 SCC 422

2……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
http://www.judis.nic.in provisions under Section 125 CrPC on attaining majority,
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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 avoid multiplicity of
litigations, the order impugned does not warrant
interference.”

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.
A similar question came up for consideration by this
Court in the case of SectionNoor Saba Khatoon v. Mohd.
Quasim [(1997) 6 SCC 233 : 1997 SCC (Cri) 924 : AIR 1997
SC 3280] relating to the claim of a Muslim divorced
woman for maintenance from her husband for herself and
her minor children. This Court while accepting the
position that Section 125 CrPC does not fix liability of
parents to maintain children beyond attainment of
majority, read the said provision and Section 3(1)(b) of
the Muslim Women (Protection of Rights on SectionDivorce) Act
together and held that under the latter statutory
provision liability of providing maintenance extends
beyond attainment of majority of a dependent girl.
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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 SectionMaintenance
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 CrPC and
Section 20(3) of the Hindu Adoptions and SectionMaintenance
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.

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. challenging the order dated 17th March, 2012
passed by the Additional Sessions Judge (‘ASJ’) in Criminal
Revision Petition No. 147 of 2011 wherein it was held that
the petition filed by a major unmarried daughter for
maintenance was not maintainable under Section 125
Cr.P.C. The ASJ in the impugned order dated 17th March,
2012 has held as under:-

“8. I have bestowed my careful consideration
http://www.judis.nic.in to the rival submissions made by learned counsel for
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revisionist as well as learned counsel for respondent in
the light of the relevant provisions of law as well as the
cases relied upon in support of their respective
submissions and I have come to the conclusion that u/s
125 SectionCr.P.C. a major unmarried daughter cannot claim
maintenance from her father unless her case is covered
u/s 125(1)(c) SectionCr.P.C. Admittedly, Mansi Vohra is major
daughter of the revisionist Ramesh Vohra and she is not
physically or mentally abnormal and as such her petition
u/s 125 Cr. P.C. for claiming maintenance is not legally
maintainable. I also agree with the submissions made by
learned counsel for revisionist that a major daughter
unable to maintain herself can claim maintenance from
her father only u/s 20 of Hindu Adoptions and
SectionMaintenance Act, 1956. Keeping in view this well settled
legal proposition of law, I am of the view that the
impugned order passed by learned MM is not in
accordance with law and accordingly it is set aside by
holding that the maintenance petition filed by Mansi
Vohra, the present respondent, for claiming maintenance
from her father Ramesh Vohra, the present revisionist
u/s 125 Cr. P.C. is not legally maintainable. With these
observations, this revision petition stands disposed of.”
(emphasis supplied)

3. Learned Counsel for the petitioner argued that
under Section 125 of the Code the child cannot be
granted maintenance after he/she has attained the age
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of majority in the absence of any physical or mental
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infirmity, even if he or she is unable to maintain herself,
in terms of Clause (c) of Sub-section (1) of Section 125 of
the Code…………

5. The law laid down by the Supreme Court while
dealing with entitlement of the children to claim
maintenance from the Muslim parents under Section 125
of the Code till they attain majority or in case of females
till they get married, is fully applicable to the facts at
hand. It may be noted here that under Sub-section (3) of
Section 20 of the Hindu Adoptions and SectionMaintenance Act,
1956, obligation of a Hindu father includes the obligation
to maintain his unmarried daughter not only for the
purposes of her day-to-day expenses, but also in respect
of the reasonable expenses of her marriage. It arises
from the very existence of relationship.

6. The above view finds support from the
observations made by the Calcutta High Court in SectionBankim
Ch. Banerjee v. Chinmoyee Banerjee, 2003 (1) Crimes

215. The ratio of the two decisions cited by the learned
Counsel for the petitioner are not applicable to the facts
at hand in view of the law laid down by the Supreme
Court in Noor Saba Khatoon (supra).

7. For the foregoing reasons, I find no
illegality or impropriety in the impugned order to
warrant interference.

6. This Court is also of the opinion that even
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in Jagdish Jugtawat (supra), the Supreme Court has held
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that maintenance petition filed by the major daughter
even if she does not fall in one of the exceptions
mentioned in Section 125(1)(c) Cr. P.C., would be still
maintainable on a combined reading of both Sections 125
Cr.P.C. and Section 20(3) of Hindu Adoptions and
SectionMaintenance Act, 1956.

7. Moreover, to ask the petitioner to now file an
independent petition before the Family Court under
Section 20(3) of Hindu Adoptions and SectionMaintenance Act,
1956 would not only cause her inconvenience but would
also defeat her right to claim maintenance for the period
Section 125 Cr.PC proceeding was pending before the
Metropolitan Magistrate. Such an interpretation would,
in certain cases where both sections clearly overlap,
create multiplicity of litigation.

iv. [T.Vimala and others Vs. S.Ramakrishnan] reported in

2016 SCC Online Mad 12324

10. No doubt, Section 125 Cr.P.C. is not happily
worded, since it has prescribed certain riders for a
daughter or son who has attained majority to claim
maintenance from their father. They must establish that
they are under physical disability or they are suffering
out of injury. There may be cases, where a daughter or a
son, even after having attained majority, may not have
sufficient financial capacity to maintain themselves and
they continue to need the support of their father. This is
http://www.judis.nic.in a reality of the situation. But, the Court cannot simply
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put the blame on the draftsman. Court must interpret
the law. It should advance the cause of justice. That will
be march of law.

11. In Jagdish Jugtawat v. Manju Lata [(2002) 5
SCC 422] exactly, as in our case, it was argued before the
Hon’ble Supreme Court that the daughter having attained
majority and as it has not been established that she is
suffering out of any physical disability or injury, she is
not entitled to maintenance from her father. The Hon’ble
Supreme Court noticing the phraseology employed in
Section 125 Cr.P.C. encountered a difficult situation.
However, in its zeal to advance the scheme of social
justice incorporated in Section 125 Cr.P.C. and to protect
a daughter, who has attained majority, but who does not
suffer any physical disability, the Hon’ble Supreme Court
called in aid Section 20 of the Hindu Adoption and
Maintenance Act and held that although in view of the
rider attached to a daughter, who attained majority, she
may not be eligible for maintenance under Section 125
Cr.P.C., yet she is eligible for maintenance under Section
20 of the Hindu Adoption and Maintenance Act from her
father and thus maintained the maintenance order
passed in her favour under Section 125 Cr.P.C.

12. Exactly, similar is the situation before us. The
said Apex decision was not brought to the notice of the
learned Principal Sessions Judge, Dindigul. Had it was
produced, the thinking of the learned Principal Sessions
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Judge, Dindigul would have been different. So, in such
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view of the matter, scraping of maintenance granted to
the second daughter on account of her attaining majority
and her inability to establish physical disability is to be
set aside.

v. [Agnes Lily Irudaya Vs. Irudaya Kani Arasan] reported in

2018 SCC Online Bom 617

The present petition is filed by the petitioner-
mother claiming maintenance for her major daughter
under Sectionsection 125 of the Code of Criminal Procedure and
the legal issue involved is whether a major daughter is
entitled for maintenance under Sectionsection 125 of the Code
of Criminal Procedure (“the SectionCr.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.

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
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 SectionNoor Saba Khatoon v. Mohd. Quasim (supra)
http://www.judis.nic.in where the Hon’ble Apex Court had an opportunity to deal
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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 SectionDivorce) Act,
1986 observed thus:—

10. Thus, both under the personal law and the statutory
law (Sec. 125. SectionCr.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,
SectionCr.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 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
http://www.judis.nic.in
125, SectionCr.P.C. till they attain majority or are able to
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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 v. Reeta Vijaykumar
Chawalareported 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
SectionMaintenance 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 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 v. Manju Lata reported in (2002) 5 SCC 422,
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where the Apex Court held as follows:—
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“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 SectionMaintenance 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 SectionMaintenance
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.”

12. From the aforestated position, it is clear that the
unmarried daughter though attained majority is entitled
to claim maintenance from the father.

6. It is very clear from the above judgments that even

though Section 125 restricts the payment of maintenance to the

children till they attain majority, when it comes to the daughter,

Courts have taken a consistent stand that even though the daughter

has attained majority, she will be entitled for maintenance till she

remains unmarried by virtue of Section 20(3) of the Hindu Adoption

and SectionMaintenance Act, 1956. In order to avoid multiplicity of
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proceedings, the Courts have taken a consistent stand that the

petition under Section 125 of Cr.PC can be entertained without

pushing her to file an independent petition seeking for maintenance

under Section 20(3) of the Hindu Adoption and SectionMaintenance Act, 1956.

7. That apart, the Hon’ble Supreme Court has also held that

mental injury is nothing but malice in law which can be gathered on

the basis of violation of a legal right to claim maintenance vested

under any law for the time being in force including Section 125 of

Cr.PC. If the right to claim maintenance of the daughter is infringed,

definitely it can be called as a injury which can very well be fit into

the definition of mental injury.

8. The Court below has not taken into consideration the

march of law that has taken place by virtue of the above judgments

and had committed an error by rejecting the petition at the threshold

on the ground of maintainability and the same requires interference

by this Court in exercise of its jurisdiction under Section 482 of Cr.Pc.

9. This Criminal Original Petition is allowed and the order

passed by the Court below dated 02.04.2019 is hereby set aside. The
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petitioner is directed to re-present the petition before the Court

below and the Court below shall proceed to number the petition and

thereafter deal with the same in accordance with law. The Registry is

directed to handover the original maintenance petition filed before

this Court to the learned counsel for the petitioner by retaining the

copy of the same in order to enable the petitioner to re-present the

petition before the Court below.

17.06.2019

Issue order copy on 20.06.2019
Index : Yes
Internet: Yes
rka

To

1. The Principal Judge,
Family Court, Chennai

2. The Public Prosecutor,
High Court, Madras

http://www.judis.nic.in
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N.ANAND VENKATESH.,J
rka

Crl.O.P.No.15336 of 2019

http://www.judis.nic.in
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17.06.2019

http://www.judis.nic.in

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