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2007 DIGILAW 108 (ORI)

Rama Chandra Sahu v. Tapaswini Sahu

2007-02-15

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. — Whether a major unmarried daughter is entitled to maintenance from her father under Section 125 of the Code of Criminal Procedure is the point which needs determination in this case. 2. Tapaswini Sahoo, and her daughter Kumari Bhanumati Sahoo, present opposite party Nos.1 and 2 respectively, filed a petition under Section 125 CrPC before the SDJM, Anandapur which was registered as Criminal Misc. Case No.62 of 2002 claiming maintenance from the present petitioner Rama Chandra Sahoo with the averments that Tapaswini was the legal married wife of Rama Chandra. Their marriage was celebrated in the year 1979 according to their caste customs. The couple had a blissful married life, but dissension cropped up soon after the birth of their daughter Bhanumati. Rama Chandra on demand of dowry tortured Tapaswini. He used to assault Tapaswini, threatened her for getting married second time and neglected to maintain her and daughter Bhanumati who was a minor. Intervention of the family members and well-wishers yielding no result, Tapaswini was constrained to leave her matrimonial house along with daughter Bhanumati and stayed separately. Rama Chandra still did not desist from torturing Bhanumati. He took forcible occupation of the house where Tapas¬wini was staying with her daughter and drove them out of that house. Finding no other alternative, Tapaswini took shelter in her father’s house along with Bhanumati. Asserting that Rama Chandra is an able-bodied person, was earning Rs.6,000.00 per month in the minimum out of his business in running a hotel and restaurant, had 3 to 4 acres of landed property of his own and was a well-to-do person, Tapaswini claimed a maintenance of Rs.1,000.00 each for herself and daughter Bhanumati. 3. Present petitioner Rama Chandra, as the opposite party in the said Criminal Misc.Case, entered appearance and filed his show cause reply taking the stand that Tapaswini was not his legally married wife nor Bhanumati was anyway related to him. He further asserted that he had his separate family having wife and children and the petition under Section 125 Cr.P.C. was liable to be dismissed in limine. 4. In order to establish their respective cases, Tapaswini got three witnesses examined on her behalf. Rama Chandra also got two witnesses examined on his behalf. He further asserted that he had his separate family having wife and children and the petition under Section 125 Cr.P.C. was liable to be dismissed in limine. 4. In order to establish their respective cases, Tapaswini got three witnesses examined on her behalf. Rama Chandra also got two witnesses examined on his behalf. The learned trial Court after discussing the evidence came to the conclusion that Tapaswini was the legally married wife of Rama Chandra and Bhanumati was born out of their wedlock. On the basis of such finding the trial Court directed Rama Chandra to pay maintenance to his wife and daughter at the rates of Rs.500.00 and Rs.300.00 per month respectively from the date of filing of the Criminal Misc.Case, i.e. 23.9.2002. Being aggrieved by the order of the trial Court, Rama Chandra filed Criminal Revision No.5/28 of 2004 which was heard and disposed of by the learned Ad hoc Addl. Sessions Judge, FTC-I, Keonjhar. The revisional Court after discussing the evi¬dence and the case law came to the conclusion that materials were there to reveal that Rama Chandra had married Tapaswini during the subsistence of his earlier marriage with one Kamala and accordingly the marriage being not legal, Tapaswini was not entitled to any maintenance from Rama Chandra. The revisional Court however held that daughter Bhanumati was entitled to main¬tenance from Rama Chandra and thus directed Rama Chandra to pay a sum of Rs.300.00 per month to Bhanumati towards her maintenance. Assailing the said judgment of the revisional Court, Rama Chandra has filed this WPCRL. 5. Mr. Srinivas Misra, learned senior counsel appearing for petitioner Rama Chandra, relying upon Section 125(1)(b) and (c) of the Code of Criminal Procedure submitted before this Court that a person is only liable to maintain his legitimate or ille¬gitimate child when such child by reason of its physical or mental abnormality or injury is unable to maintain itself. In the present case Bhanumati even if she is held to be an illegitimate child of Rama Chandra, she having attained majority and not being physically or mentally abnormal or unable to maintain herself, her father, the present petitioner, is not liable to maintain her. Therefore the judgment of the revisional Court directing the petitioner to pay interim maintenance for Bhanumati being ab initio void is liable to be quashed. 6. The submissions of Mr. Therefore the judgment of the revisional Court directing the petitioner to pay interim maintenance for Bhanumati being ab initio void is liable to be quashed. 6. The submissions of Mr. S. Misra are strongly repudiated by the learned counsel for the opposite parties who submitted that only because a daughter has attained majority and does not have any physical or mental abnormality she cannot be deprived of maintenance from her father. Drawing attention of the Court to the word ‘injury’ used in Section 125(1)(c) it is argued that the said word though has not been defined in the Criminal Procedure Code, in consonance with Section 2(y) of the Criminal Procedure Code, the expressions used in the said Code which are not defined shall carry the meaning of the same word in the Indian Penal Code. The word ‘injury’ has been defined in Section 44 of the Indian Penal Code as follows :- “The word ‘injury’ denotes any harm whatever illegally caused to any person in body, mind, reputation or property.” Relying on the decision of this Court in the case of Jiten¬dranath Sarkar v. Dalia Sarkar, reported in 87(1999) CLT 668, learned counsel for the opposite parties submitted that injury also connotes mind and reputation. Non-maintenance of a daughter by her father affects the mind of the daughter causing mental injury, and therefore the daughter would be entitled to main¬tenance from her father. 7. I have heard learned counsel for the parties at length and perused the materials available on record. No doubt ‘injury’ has not been defined under the Criminal Procedure Code, but then in consonance with Section 2(y) CrPC, the definition of ‘injury’ would be the same as defined under the Indian Penal Code. The word ‘injury’ used in Section 125(1)(c) need not necessarily denote ‘physical injury’ for it can be mental injury as well. If the definition of the word ‘injury’ as per Section 44 of the Indian Penal Code is to be attracted, then it has to be read in the context of inability to maintain, which does not require recourse to the definition of that word in the Indian Penal Code. In other words, a father is bound to maintain his illegitimate or legitimate child who has attained majority where such child, by reason of any physical or mental abnormality or injury is unable to maintain itself, and not otherwise. In other words, a father is bound to maintain his illegitimate or legitimate child who has attained majority where such child, by reason of any physical or mental abnormality or injury is unable to maintain itself, and not otherwise. Therefore, if a legitimate or illegitimate child is a major and is neither mentally or physically abnormal, nor is unable to maintain itself due to any injury, it is not entitled to any maintenance. 8. The expression “unable to maintain” used by the Legis¬lature cannot be said to be superfluous or that it has no impor¬tance. In view of various social measures and social changes, Legislature in its wisdom has probably thought it necessary that maintenance of wife and daughter, legitimate or illegitimate, as provided under Section 125 CrPC should be made available only to those who are unable to maintain themselves, or have no suffi¬cient means to maintain themselves. In the case at hand, the revisional Court has not examined this aspect and has not arrived at the conclusion that Bhanumati, daughter of Rama Chandra, was unable to maintain herself. In the absence of such conclusion, the order of the revisional Court cannot be sustained. 9. This Court therefore quashes the impugned order of the revisional Court and remands the matter to that Court for a de novo disposal of the same in the light of the observation made above. The WPCRL is accordingly disposed of. WPCRL disposed of.