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2008 DIGILAW 314 (GAU)

Satya Das @ Satyabrata Das v. Sujata Das

2008-04-30

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the order, dated 21.1.2008, passed by the learned Family Court, North Tripura, Kailashahar, in Cri. Misc. No. 66 of 2007, which arose out of an application, made under Section 125 of CrPC, by the opposite party herein, claiming herself to be unmarried daughter of the present petitioner. The petitioner herein contested the proceeding by denying not only the parentage of the opposite party, but also her right to receive maintenance, under Section 125. CrPC, on the ground that the opposite party herein, having attained majority, was no longer entitled to claim maintenance under Section 125, CrPC. Having found that the opposite party herein has been proved to be present petitioner's daughter, the learned Court below directed the petitioner to pay maintenance allowance to the opposite party at the rate of Rs.1,000/- per month with effect from the month of January, 2008. Aggrieved by the order aforementioned, the petitioner has impugned the same in this revision. 2. I have heard Mr. S. Lodh, learned Counsel appearing for the petitioner, and Mr. R. Debnath, learned Counsel appearing for the respondent-opposite party. 3. The order impugned, in this revision, is assailed on two grounds, namely, (i) that the opposite party has not been proved to be legitimate issue borne out of the cohabitation between the present petitioner and the opposite party's mother, Smti. Rani Das, and (ii) that the opposite party, having already attained majority, could not have been held entitled to receive maintenance under Section125, CrPC. 4. Apart from the fact that the learned Family Court has discussed thread-bare the evidences on record, which reflect that the opposite party was born out of the cohabitation between the present petitioner and the opposite party's mother, Smti. Rani Das, there was, admittedly, a maintenance proceeding earlier instituted by Smti. Rani Das, which ended in a compromise, where-under Smti. Rani Das, gave an undertaking that she would not claim herself to be present petitioner's wife nor would her daughter claim to be the issue of the present petitioner. In this regard, what needs to be noted is that the undertaking given by Smti. Rani Das, which ended in a compromise, where-under Smti. Rani Das, gave an undertaking that she would not claim herself to be present petitioner's wife nor would her daughter claim to be the issue of the present petitioner. In this regard, what needs to be noted is that the undertaking given by Smti. Rani Das that she would not claim herself to be the wife of the petitioner and/or that her daughter would not claim herself to be the daughter of the present petitioner is not binding on the present petitioner, particularly, when she has attained majority nor can her mother's said undertaking disentitle the opposite party herein from receiving maintenance if she is, otherwise, found to be an illegitimate daughter of the present petitioner and not capable of maintaining herself. 5. In the face of the evidence on record as discussed herein above, this Court does not notice any reason to interfere with the finding, reached by the learned Court below, that the opposite party has been proved to be an illegitimate issue of the present petitioner. 6. It is, no doubt, that under Section 125, CrPC, a female child, on attaining majority, ceases to have any right to claim maintenance. What is, however, of immense importance to note is that the parties to the proceeding are, admittedly, Hindus and they are governed by the provisions of Hindu Adoptions and Maintenance Act, 1956. Section 20 of this Act reads as under: 20. Maintenance of children and aged parents.-(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other properties. 7. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other properties. 7. A careful analysis of the provisions, contained in Sub- section (2) of Section 20 of the Act, clearly show that legitimate or illegitimate, a Hindu Minor child is entitled to receive maintenance so long as he or she does not attain majority. Sub-section (3) of Section 20 of the Act imposes an additional obligation on a person, whose daughter is unmarried, to maintain the daughter until the time she gets married irrespective of the fact as to whether the daughter is legitimate or illegitimate so long as she is unable to maintain herself. A Hindu male person is, thus, liable, under the law, to maintain his unmarried daughter, even if the daughter has attained majority, provided that she is unable to maintain herself and this obligation continues until the times she gets married. In short, thus, the law imposes an obligation, on the present petitioner, to maintain the opposite party, even if she has attained majority until the time she gets married, for, she is, admittedly, a student of college and has no source of livelihood or sustenance. 8. In the case at hand, though the order has been made under Section 125, CrPC, the fact remains that a Family Court, being competent to deal with the provisions, under the Hindu Adoptions and Maintenance Act, an order, in terms of Sub-section (3) of Section 20, could have been passed by the Family Court in a case of present nature. In other words, the impugned order, which has been passed under Section 125, CrPC, can be treated to be an order passed in terms of Sub-section (3) of Section 20 of the said Act. Though in a proceeding under the Hindu Adoptions and Maintenance Act, court-fees is required to be affixed to an application for maintenance, the payment of court-fees cannot be held to be such a ground, which would make an order passed by a Court, which is, otherwise, competent to deal with the matter, as an order suffering from inherent lack of Jurisdiction. In such circumstances, I do not find that the impugned order needs any interference. I am guided to adopt this view from the decision of the Supreme Court in Jagdish Jugtawat v. Manju Lata and Ors. (2002) 5 SCC 422 . 9. Before parting with this revision, it is, however, made clear that had the order, in question, been passed by a Judicial Magistrate under Section 125, CrPC. the legality of the order could have been questioned on the ground that the Magistrate is not competent by the law to entertain any application or pass any order in terms of the provisions of Section 20 of the said Act. In the result and the foregoing reasons, this revision fails and the same shall accordingly stand dismissed. Petition dismissed.