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2006 DIGILAW 424 (ORI)

Labanya Senapati v. State of Orissa

2006-05-19

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : The question that arises for determination in this case is whether a major unmarried daughter can claim maintenance from her old mother under Section 125 Cr.PC. 2. Petitioner Labanya Senapati is the widow of one Souri Charan Senapati. The couple had been blessed with four sons and four daughters, and present opposite party No.2 being the eldest daughter. Late Souri Charan Sepanati was a Government employee. After his death in harness in 1998, the petitioner is receiving family pension and one of the sons of he deceased employee has been given compassionate/rehabilitation appointment in the Excise Department. While matter stood thus, opposite party No.2, the eldest daughter, filed petition under Section 125 CrPC before the SDJM, Dhenkanal, registered as Crl.Misc.Case No.186 of 1998, claiming monthly maintenance of Rs.1,500.00 besides a lump-sum amount of Rs.10,000.00 towards the litigation expenses from the petitioner mother and two brothers alleging that after the death of her father the latter had been neglecting to maintain her and were harassing her. She further alleged that the petitioner-mother had received all the financial dues of her deceased father and had been receiving family pension also besides enjoying the usufructs of the landed properties left by her father. She claimed that she was entitled to live in her paternal house and to be maintained herself by her mother from the income out of the estate left by her deceased father and the family pension re¬ceived by her. 3. The present petitioner and her two sons who were ar¬rayed as opposite parties in the case filed under Section 125 CrPC; as stated above, appeared before the Court below and filed their counter inter alia taking the stand that there were four unmarried daughters of deceased Souri Charan Mohapatra and the amount of family pension being not sufficient for maintenance of all the family members, it was not possible to provide separate maintenance to opposite party No.2. The allegation that deceased Souri Charan Mohapatra had left behind landed property was de¬nied. They further averred that opposite party No.2-daughter was very obstinate. She never respected the elder members in the family and although she was of marriageable age used to remain outside of her own occurred and when her activities were not appreciated by the other members of the family she had alleged that she was being harassed. They further averred that opposite party No.2-daughter was very obstinate. She never respected the elder members in the family and although she was of marriageable age used to remain outside of her own occurred and when her activities were not appreciated by the other members of the family she had alleged that she was being harassed. The allegation of opposite party No.2 that she was being neglected by her mother and other family members was strongly repudiated. According to them, opposite party No.2 was educated and she was earning not less than Rs.2,000.00 per month from private tuition and therefore the petition filed by her under Section 125 CrPC was liable to be rejected. 4. In order to substantive their respective cases, oppo¬site party No.2 (petitioner before the Court below) got examined herself and another as witnesses on her behalf, while petitioner (opposite party No.1 before the Court below) got examined herself and another as witnesses on her behalf. No documentary evidence was adduced by either side. The trial Court after discussing on the evidence came to the conclusion that as the applicant-daughter was unable to earn her livelihood she was entitled to maintenance by her mother and directed the latter to pay a monthly maintenance to her at the rate of Rs.500.00 per month. The said order of the trial Court was assailed in revision by the mother, the present petitioner, being registered as Crl.Rev. No.54 of 2001/99 of 2001. The Addl. Sessions Judge, Dhenkanal who heard the said revision, after taking into consideration the submissions of the parties came to the conclusion that the trial Court had not committed any error. He also held that an unmarried daughter who was not able to maintain herself can claim mainte¬nance under Section 125 CrPC and accordingly dismissed the revi¬sion. 5. Circumventing the bar under Section 397(3) CrPC against filing a second revision, the present petitioner who had pre¬ferred Criminal Revision before the sessions Court has filed the present CRLMC invoking inherent jurisdiction of this Court under Section 482 CrPC. According to learned counsel for the petitioner as the order passed by the revisional Court greatly prejudices the present petitioner and causes miscarriage of justice the present petition under Section 482 CrPC can be maintained. According to learned counsel for the petitioner as the order passed by the revisional Court greatly prejudices the present petitioner and causes miscarriage of justice the present petition under Section 482 CrPC can be maintained. He also forcefully submitted that both the trial Court and the revisional Court have acted illegally and with material irregular¬ity in entertaining the petition filed under Section 125 CrPC by present opposite party No.2 though her claim for maintenance was prima facie illegal, inasmuch as a major daughter not suffering from any physical or mental disability or infirmity cannot claim maintenance for herself only on the ground that she is unable to maintain herself. According to the learned counsel that represent petitioner is at the fag end of her life and she is receiving only a paltry amount as family pension which is hardly sufficient to meet the day to day requirement of herself and her other dependent daughters and, as such, directing her to pay a sum of Rs.500.00 per month to opposite party No.2 who is wayward and disrespectful towards the petitioner is not just and proper. The further contention of the learned counsel for the petitioner is that the petitioner being the mother is ready and willing to accommodate opposite party No.2-daughter provided the latter stays in the family with dignity and respect. 6. Looking at the facts from another angle, it appears that the petitioner being the widow has received all the finan¬cial benefits flowing from the service of her late husband Souri Charan Senapati who was the father of opposite party No.2 and was a Government employee. Apart from that one of the sons of the petitioner has been given Government service under rehabilitation Scheme. Receipt of the financial benefit by the petitioner was for and on behalf of all the legal heirs/successors of the de¬ceased. Similarly, family pension is being paid for sustenance of the family of a deceased Government employee. All the said benefits are being availed of by the mother. It is needless to say that opposite party No.2 being a daughter of the deceased has a legitimate share in the financial benefit flowing from her fa¬ther’s service which was paid to the family. All the family members of the deceased are residing in the joint family house. All the said benefits are being availed of by the mother. It is needless to say that opposite party No.2 being a daughter of the deceased has a legitimate share in the financial benefit flowing from her fa¬ther’s service which was paid to the family. All the family members of the deceased are residing in the joint family house. Thus it can be safely concluded that the widow mother has an obligation to maintain her daughter from the financial benefits received by her. 7. The aforesaid submissions of the learned counsel for the petitioner are repudiated by the learned counsel for opposite party No.2-daughter. It is submitted that the petitioner-mother has received all the financial dues of her deceased husband and has been receiving the family pension and has been staying in the joint family residential house. At the other hand opposite party No.2-daughter is an unmarried daughter having absolutely no source of income. It is further submitted that the Courts below after appreciating the entire facts of the case have rightly directed the mother to pay the monthly maintenance to opposite party No.2 as stated earlier. The orders of the Courts below being just, proper and in consonance with law it is a fit case that the CRLMC which is otherwise not maintainable in view of the bar under Section 397(3) CrPC should be dismissed in limine. 8. I have heard learned counsel for the parties at length and perused the materials including the judgments of the Courts below. The entitlement of a progeny to maintenance after attain¬ing majority is the subject matter of dispute in the present case. Section 125(1) CrPC deals with persons who can claim main¬tenance. Clause (a) thereof refers to the wife unable to maintain herself, clause (b) refers to legitimate or illegitimate minor child whether married or not who is unable to maintain herself, and clause (c) provides exception to the general provision con¬tained in clause (b) above. As per clause (c), a legitimate or illegitimate child not being a married daughter who has attained majority but then where such child for the reasons of her physi¬cal or mental abnormality or injury is unable to maintain him¬self/herself, will be entitled to maintenance. The word ‘minor’ referred to in clause (b) would mean a person as defined in Explanation (a) to sub-section (1) of the Indian Majority Act, 1875 who has not attained majority. The word ‘minor’ referred to in clause (b) would mean a person as defined in Explanation (a) to sub-section (1) of the Indian Majority Act, 1875 who has not attained majority. Section 3 of the said Act provides that normally a child attains majority on its completing eighteen years. But where a guardian has been appointed by a Court before it (child) completed eighteen years, it (child) shall be deemed to have attained majority on its completing twenty-one years. A cumulative reading of Section 125 CrPC and the aforesaid provision in the Indian Majority Act leads to an irresistible conclusion that any child who has attained majority becomes disentitled to maintenance even if it is unable to main¬tain itself. Only if the inability arises out of physical or mental abnormality or injury, however its right to entitlement to maintenance arises (see Upendra Mohapatra v. Smt. Kanchanbala Mohapatra, reported in (1995) 9 OCR 15. At the other hand, accord¬ing to Section 20(3) of Hindu Adoption and Maintenance Act, a girl is entitled to maintenance from her parents even after attaining majority till her marriage. 9. In the case at hand, the age of opposite party No.2 is stated to be thirty years. She has not married yet. Of course there are some allegations that she was not willing to marry though suitable matches were arranged by the petitioner-mother. Strictly speaking, in consonance with Section 125 CrPC opposite party No.2 is not entitled to any maintenance from the petitioner as she is now a major. However, she has a right to be maintained in consonance with the provisions of Section 20(3) of the Hindu Adoption and Maintenance Act. This view finds support from the decision of the Supreme Court reported in (2002) 23 OCR (SC) 434 (Jagdish Jugtawat v. Manjulata and others). That apart, opposite party No.2 has a share in the properties left behind by her father and so also can claim her share from the emoluments re¬ceived by her mother towards the financial dues of her deceased father. It is needless to say that a mother receives the finan¬cial dues of her deceased husband for herself and as guardian or trustee of other legal heirs of the deceased husband. One of the brothers of opposite party No.2 has been given reha¬bilitation/compassionate appointment in the Excise Department on account of death of the father of opposite party No.2 in harness. One of the brothers of opposite party No.2 has been given reha¬bilitation/compassionate appointment in the Excise Department on account of death of the father of opposite party No.2 in harness. The petitioner is staying in the family residential house and is receiving family pension apart from her receiving the entire financial dues of her husband (father of opposite party No.2). At the other hand their is no iota of evidence to show that the petitioner is having any earning of her own, and though such a plea was advanced, that was not substantiated. 10. In the aforesaid scenario, I do not find that the Courts below have committed any flagrant violation of law and procedure, or that any miscarriage of justice has been caused. Therefore no exception can be taken to the judgments of the Courts below calling for interference of this Court in exercise of inherent jurisdiction under Section 482 CrPC. The CRLMC is therefore bound to be dismissed, and I order accordingly. CRLMC dismissed.