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2010 DIGILAW 2174 (ALL)

USHA v. MAHENDRA PAL SINGH

2010-07-23

RAM AUTAR SINGH

body2010
JUDGMENT Hon’ble Ram Autar Singh, J.—This revision has been filed against the judgment and order dated 24.10.2008 passed by Principal Judge, Family Court, Bareilly in Case No. 1123 of 2005 (Smt. Usha and others v. Mahendra Pal Singh). 2. It transpires from the record that an application was moved by the revisionist No. 1 Smt. Usha under Section 125 Cr.P.C. for maintenance allowance of revisionists No. 2 to 4 with this allegation that the revisionist No. 1 Smt. Usha was married with respondent No. 1 Mahendra Pal Singh on 3.4.1990 and out of their wedlock revisionists No. 2 to 4, namely, Km. Sakshi, Km. Nishtha and Umang were born and thereafter dissolution of their marriage under Section 13-B of Hindu Marriage Act took place. The respondent No. 1 is a B.A.M.S. doctor and he has been living separately from his family for last two years and earning Rs. 15,000/- per month out of his agricultural land apart from income out of his medical practice. Before dissolution of marriage the respondent No. 1 has also married with another woman belonging to Tanakpur District Champawat (Uttrakhand), who has been working as teacher in Primary School and earning Rs. 1500/ per month. Each of the revisionists No. 2 to 4 has claimed Rs. 3000/- per month as maintenance allowance as none of them have any source of income. 3. The respondent No. 1 in his written statement alleged that petition No. 457 of 2005 under Section 13-B of Hindu Marriage Act was moved by the parties on 6.7.2005, which was dismissed on 13.1.2006 in absence of revisionist No. 1. The respondent No. 1 has no house or agricultural property and he has been earning Rs. 1200/- per month by way of working in a clinic of a doctor but the said doctor has expelled him and as such he is unemployed. The respondent No. 1 has not married with any woman, while revisionist No. 1 being a teacher in Primary Pathshala, Khadoua has been earning Rs. 10,000/- per month and she has been residing in adultery with a police constable, namely, Jasram Singh posted in Kotwali. 4. The learned trial Court on the basis of the evidence dismissed the prayer under Section 125 Cr.P.C. for maintenance allowance of Km. Sakshi and Km. Nishtha on the ground of their being major but allowed maintenance allowance of revisionist No. 3 Umang awarding Rs. 4. The learned trial Court on the basis of the evidence dismissed the prayer under Section 125 Cr.P.C. for maintenance allowance of Km. Sakshi and Km. Nishtha on the ground of their being major but allowed maintenance allowance of revisionist No. 3 Umang awarding Rs. 500/- per month with effect from the date of the order, aggrieved by which the revisionists filed this revision. 5. I have heard Shri R. N. Maurya, learned counsel for the revisionists and learned A.G.A. for the respondent No. 2 on this revision and perused the record. None has appeared on behalf of respondent No. 1 to oppose this revision. 6. The learned counsel for the revisionists has contended that the maintenance allowance awarded in favour of the revisionist No. 4 is very low and insufficient. The respondent No. 1 has been earning Rs. 15,000/- per month by doing medical practice in Bareilly but the Court below has recorded its perverse finding in this regard. Moreover respondent No. 1 has agricultural land measuring 14 1/2 bighas in his village out of which he has been earning some amount. The revisionist No. 1 is still legally wedded wife of respondent No. 1 and the revisionists No. 2 and 3 are his daughters and they are entitled for maintenance allowance till their marriage but the learned Court below has dismissed the claim of revisionists No. 2 and 3 without considering the above facts and circumstances. 7. A perusal of record goes to show that the learned trial Court has observed that revisionist No. 1 Smt. Usha has not claimed any maintenance allowance for herself on the ground that she has been earning Rs. 10,000/- per month by way of working as teacher in primary school but the respondent No. 1 has been earning sufficient income by carrying on his medical profession. 8. This finding has been recorded by the learned trial Court that the revisionists No. 2 and 3 have become major and thus they are not entitled to get maintenance allowance. No material has been placed by the learned counsel for the revisionists that revisionists No. 2 and 3 have not become major and they are entitled for interim maintenance till their marriage. The right of a minor girl for maintenance from parents after attaining majority till her marriage under Section 20(3) of Hindu Adoption and Maintenance Act survives. 9. No material has been placed by the learned counsel for the revisionists that revisionists No. 2 and 3 have not become major and they are entitled for interim maintenance till their marriage. The right of a minor girl for maintenance from parents after attaining majority till her marriage under Section 20(3) of Hindu Adoption and Maintenance Act survives. 9. Section 125 Cr.P.C. provides that legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain herself is entitled to get the maintenance allowance. The language of the statute does not permit an unmarried major daughter to be brought within the purview of Section 125 (c) of Cr.P.C. She has to prove further that she is unable to maintain herself and such inability to maintain herself is attributable to physical or mental abnormality or injury, if any, she is afflicted with. If the intention of the legislature was to grant maintenance to unmarried female children, solely on the ground that they are unmarried female children, nothing prevented the legislature from making expressed provisions imposing liability on the parents to provide maintenance to their female children till they are married. Their disabilities if that be one of remaining unmarried alone, was definitely not reckoned by the legislature as sufficient to entitle them to claim maintenance under Section 125 of Cr.P.C. 1973. That evidently is the reason why the Parliament which must be presumed to have been conscious of the rights of the unmarried daughter under the Hindu and Mohammedan Personal Law (statutory and customary) to claim maintenance from their parents till they are married, did not choose to confer such right on them under Section 125 of Cr.P.C. Under Section 125 of Cr.P.C. a major unmarried daughter is not entitled to claim maintenance from her parents unless her inability to maintain herself is attributable to her physical or mental abnormality or injury and that her mere status as unmarried daughter, whatever be her religion, does not entitle her to claim maintenance under Section 125 of Cr.P.C. 10. In view of above legal provisions the learned trial Court has rightly dismissed the claim of revisionists No. 2 and 3, who have been found major and the findings recorded by the trial Court in this regard cannot be said to be perverse. In view of above legal provisions the learned trial Court has rightly dismissed the claim of revisionists No. 2 and 3, who have been found major and the findings recorded by the trial Court in this regard cannot be said to be perverse. No material has been placed before this Court by the revisionists in order to contradict the above findings recorded by the trial Court. Under these circumstances the revisionists No. 2 and 3 are not entitled to get maintenance allowance from their father respondent No. 1. 11. Consequently, this revision is not to be allowed for maintenance of revisionists No. 2 and 3. So far as the question of maintenance of revisionist No. 4 is concerned, the trial Court has awarded Rs. 500/- per month as maintenance allowance, which appears to be insufficient in view of present costly living and education. The trial Court has recorded its finding that the revisionist No. 4 is entitled to get maintenance allowance from respondent No. 1 till he gets his age of majority. It has also been found that the respondent No. 1 has been earning Rs. 10,000/- per month by way of carrying his medical profession. Thus it would be just and proper to award Rs. 3000/- per month as maintenance allowance for revisionist No. 4 looking to the present costly living and education. Consequently, this revision is liable to be partly allowed. 12. Thus revision is partly allowed to this extent that respondent No. 1 is liable to pay Rs. 3000/- per month as maintenance allowance to revisionist No. 4 with effect from the date of application moved under Section 125 Cr.P.C. ————