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2011 DIGILAW 1301 (CAL)

Swapan Kumar Dey v. Jayfta @ Chaita Roy

2011-09-20

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THIS revisional application is pertaining to miscellaneous proceeding, being No. 474M of 2007, under Section 125 of the Code of Criminal Procedure. The petitioner herein is he father of the opposite party, Jayita @ Chaita Dey. Jayita Dey initiated the maintenance proceeding against her father, the petitioner herein, praying for maintenance to the tune of Rs.3,000/- per month. In her petition she stated clearly that on the date of filing of this petition, she was 19 years old and that she was major. The learned Chief Judicial Magistrate, Malda, disposed of the application by an order dated 21.07.2010 thereby allowing the prayer of the petitioner, Jayita, for maintenance to the tune of Rs. 3,000/- per month. The opposite party/Father, Swapan Kumar Dey has come up with this application challenging the legality, validity and propriety of the order, mainly, on the following grounds : (a) that the learned Court ought not to have entertained the application which was, ex facie, not maintainable in view of the fact that the petitioner, Jayita, being major daughter of the present petitioner, cannot claim maintenance under Section 125 of the Code of Criminal Procedure; (b) that the learned Magistrate did not even consider as to whether the father refused and neglected to maintain Jayita. 2. MR. Roy, learned Counsel appearing on behalf of the petitioner/ father, contends that in view of Section 125 of the Code of Criminal Procedure, a major daughter cannot maintain an application under Section- 125 of the Code for maintenance from her father. He takes me to the provisions laid down in Section 125 of the Code of Criminal Procedure and submits that the languages of Section 125 of the Code are free from ambiguity and are explicit enough to indicate that none but legitimate or illegitimate minor child whether married or not, who are unable to maintain, are entitled to maintenance. MR. Roy in support of his contention refers to a decision of the Hon'ble Apex Court in Amarendra Kumar Paul v. Maya Paul and Ors., reported in 2010 Cr. L.J. 395 : (2009)2 C Cr LR (SC) 800. Mr. Chatterjee, learned Counsel appearing on behalf of the opposite party/daughter, contends that while dealing with an application under Section 125 of the Code of Criminal Procedure, Court may take into consideration the provisions of Hindu Adoption and Maintenance Act which provides maintenance of a daughter till marriage. L.J. 395 : (2009)2 C Cr LR (SC) 800. Mr. Chatterjee, learned Counsel appearing on behalf of the opposite party/daughter, contends that while dealing with an application under Section 125 of the Code of Criminal Procedure, Court may take into consideration the provisions of Hindu Adoption and Maintenance Act which provides maintenance of a daughter till marriage. He also refers to a decision of the Hon'ble Apex Court in Jagdish Jugtawat v. Manju Lata and Ors., reported in 2002 SCC (Cr) 1147. 3. THE Section 125 of the Code of Criminal Procedure is reproduced below :- "125. He also refers to a decision of the Hon'ble Apex Court in Jagdish Jugtawat v. Manju Lata and Ors., reported in 2002 SCC (Cr) 1147. 3. THE Section 125 of the Code of Criminal Procedure is reproduced below :- "125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain - (a) his wife unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his 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 itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct : Provided that the Magistrate may order the father or a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person Explanation.-For the purposes of this Chapter,- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2)....................................................." 4. A bare reading of the provisions of Section 125 of the Code of Criminal Procedure makes it abundantly clear that only minor children are entitled to maintenance from their father. The Explanation added to Section 125 of the Code of Criminal Procedure defines "minor" for the purposes of Chapter IX of the Code. This being the statutory provision of law, the learned Magistrate should not have entertained the application filed by the opposite party mentioning clearly therein that she was a major daughter of the petitioner on the date of filing of the application. The Hon'ble Apex Court in Amerendra Kumar Paul (supra) while dealing with similar question, expressed its view in paragraph 11 to the effect that, "an application for grant of maintenance, therefore, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child unable to maintain itself. Once, therefore, the children attained majority, the said provisions would cease to apply to their cases." In that case a question was raised before the Hon'ble Apex Court as to whether in an execution case in the matter of arrear maintenance, can a major daughter or son claim maintenance for a period after attaining her/his majority or not. The view of the Hon'ble Apex Court, mentioned above, clearly goes to show that once the children attained majority, the said provision ceases to apply to their cases This view of the Hon'ble Apex Court obviously supports the contention of Mr. Roy. 5. IN Jagdish Jugtawat (supra) the application for maintenance was, in fact, filed for a girl who was minor on that time. The Family Court allowed maintenance to the daughter who, ultimately, became major in course of trial although was a minor at the time of filing of the application. The Hon'ble Court did not interfere into the order passed by the Family Court on the ground that benefit of personal law (Hindu Adoptions and Maintenance Act) for awarding or continuing maintenance proceedings can be given to the applicant who is otherwise ineligible under Section 125 of the Code of Criminal Procedure to avoid multiplicity of the proceedings. 6. The Hon'ble Court did not interfere into the order passed by the Family Court on the ground that benefit of personal law (Hindu Adoptions and Maintenance Act) for awarding or continuing maintenance proceedings can be given to the applicant who is otherwise ineligible under Section 125 of the Code of Criminal Procedure to avoid multiplicity of the proceedings. 6. THE factual background of the case and that of this case are quite different and distinguishable. In this case the application itself was not maintainable in view of the fact that it was filed by the daughter who was a major at that time. It is not that she attained majority in course of trial and any order was passed in favour of her on that ground, not that any execution case for realizing arrear maintenance till the period of her attaining majority was also pending. That being so, the learned Magistrate had no reason to entertain the application of the opposite party/daughter on the sole ground that she was not eligible for maintaining any application under Section 125 of the Code of Criminal Procedure. The order impugned is suffering from another patent illegality, i.e., the earned Magistrate has not spared a single word as to whether or not the major daughter was neglected and refused to be maintained by her father. Refusal and neglect to maintain being sine-qua-non for getting an order of maintenance, the learned trial Court ought to have considered that aspect before passing that order. On that ground itself, the order impugned cannot be allowed to be remained effective. 7. IN view of the facts above, I allow this revisional application. The order impugned is set aside. The revisional application is, thus, disposed of. The opposite party/daughter, however, is at liberty to take out an application under the Hindu Adoptions and Maintenance Act in the proper Forum praying for her maintenance till her marriage takes place. 8. IN the facts of the present case, there will, however, be no order as to costs. Interim order, if there be any, stands vacated.