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Allahabad High Court · body

2015 DIGILAW 259 (ALL)

MUSTAKIM v. STATE OF U. P.

2015-02-10

PANKAJ NAQVI

body2015
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Sumit Goyal, learned counsel for revisionist and Ms. Anjum Haq, learned A.G.A. “Whether an unmarried major Muslim daughter who is unable to maintain herself, can claim maintenance from her father under Section 125 Cr.P.C, is an issue which has fallen for consideration in this revision.” Ms. Anjum/O.P. No. 2, daughter of the revisionist, claimed maintenance from her father under Section 125 Cr.P.C. The trial Court on 30.6.2007 granted maintenance @ Rs. 1000/- per month, which was paid for certain duration. However, as maintenance awarded, was insufficient to maintain O.P. No. 2, she filed an application for enhancement which came to be rejected on 28.5.2013 on the ground that after she had attained majority, she forfeits her right to claim maintenance. On 14.5.2013 as arrears of Rs. 12000/- for the period 31.5.2012 to 31.5.2013 remained unpaid, she initiated proceedings for recovery of the said amount. The application was opposed on the ground that once she had attained majority on 10.3.2011, she is not entitled to claim maintenance. The Principal Judge (Family Court), Saharanpur dismissed the objection of the father on 16.9.2004 on the ground that the liability of a father to maintain his daughter under Section 125 Cr.P.C, continues till her marriage, which is impugned herein. 2. It is urged on behalf of revisionist that the liability of a father to maintain a daughter under Section 125 Cr.P.C. continues till such time, she has not attained majority and the view taken by the Court below is in the teeth of the judgments of the Apex Court in the case of Amarendra Kumar Paul v. Maya Paul and others, 2009(3) SCC (Crl.) 868 and that of this Court in the case of Amod Kumar Srivastava v. State of U.P. and others, 2008 (62) ACC 591. 3. Per contra, learned A.G.A. would submit that the view taken by the Court below is sustainable in law and the revision is liable to be dismissed. 4. An issue similar, to the one raised herein, came up for consideration before the Apex Court in the case of Noor Saba Khatoon v. Mohd. Quasim, 1997 (6) SCC 233 . For ready reference, the issue is extracted hereunder: 1. 4. An issue similar, to the one raised herein, came up for consideration before the Apex Court in the case of Noor Saba Khatoon v. Mohd. Quasim, 1997 (6) SCC 233 . For ready reference, the issue is extracted hereunder: 1. Short but interesting question involved in this appeal, by special leave, is whether the children of Muslim parents are entitled to grant of maintenance under Section 125 Cr.P.C. for the period till they attain majority or are able to maintain themselves whichever date is earlier or in the case of female children till they get married or is their right restricted to the grant of maintenance only for a period of two years prescribed under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 notwithstanding Section 125 Cr.P.C.” 5. The Apex Court after analyzing the scheme of Section 125 Cr.P.C. and that of the personal law, held that both under the personal law and the statutory law (Section 125 Cr.P.C.), the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, is to last till they attain majority and in case of females till they get married. The precise answer returned by the Apex Court is extracted in paragraph 11 as hereunder : 11. Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125, Cr.P.C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married, and this right is not restricted, affected or controlled by divorcee wife’s right to claim maintenance for maintaining the infant child/children in her custody for a period of two years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married. 6. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married. 6. The decision in Noor Saba Khatoon (supra) was followed by the Apex Court in the case of Jagdish Jugtawat v. Manju Lata and others, 2002 (5) SCC 422 . In the latter case, an unmarried major daughter was granted maintenance by the Family Court. The father challenged the said order in revision before the High Court on the ground that once she had attained majority, she is not entitled to claim any maintenance. The High Court accepted the legal position that under Section 125 Cr.P.C, a minor daughter is entitled to maintenance from her parents till she attains majority, but declined to interfere with the order of the Family Court on the ground that her right to claim maintenance remains intact under Section 20(3) of the Hindu Adoptions and Maintenance Act. The High Court thus maintained the order of the Family Court with a view to avoid multiplicity of proceedings. An appeal preferred before the Apex Court, was dismissed. 7. A similar view has also been taken by the Karnataka High Court in the case of Smt. Fousia Banu and others v. Mohammed Saleem, ILR 2013 Karnataka 6009 and by the Patna High Court in the case of Subhash Ray Chaudhary v. State of Bihar, 2004 Crl LJ 573. 8. Thus, from the aforesaid analysis, position which emerges is that an order granting maintenance to an unmarried Muslim major daughter, may not be strictly justified under Section 125 Cr.P.C, yet such an order is not liable to be interfered with a view to prevent multiplicity of the proceedings, provided the daughter who is unable to maintain herself, has a right to claim maintenance from her father till her marriage under the personal law. 9. 9. The judgment in the case of Amarendra Kumar Paul (supra) is not applicable on the facts of the present case, firstly, in view of the judgment of the Apex Court in the case of Noor Saba Khatoon (supra) and that of the Jagdish Jugtawat (supra), and secondly the case of Amarendra Kumar Paul (supra) related to the period of limitation for filing an execution application under Section 125 Cr.P.C., which has no application to the issue involved in the present case. 10. Now a look at the judgment of this Court in the case of Amod Kumar Srivastava v. State of U.P. and others, 2008 (62) ACC 591. This judgment takes a view that upon attaining majority an illegitimate/legitimate child including an unmarried daughter, is not entitled to claim maintenance, but it does not take into consideration the judgments of the Apex Court in the cases of Noor Saba Khatoon and Jagdish Jugtawat (both supra), wherein it has been held that notwithstanding the ineligibility of a major unmarried daughter to claim maintenance under Section 125 Cr.P.C, yet an order granting maintenance to such a daughter is not liable to be interfered with a view to avoid multiplicity of proceedings provided she has a right to claim maintenance from her father under the personal law. 11. The Apex Court in the case of Noor Saba Khatoon (supra), after examining the personal law of muslims, has already held that a muslim father is liable to maintain his major daughter till such time she is not married. It is not disputed that O.P. No. 2 is major and that she is not yet married. 12. It is held that notwithstanding the ineligibility of a muslim major unmarried daughter to claim maintenance under Section 125 Cr.P.C, yet an order granting maintenance to her is not liable to be interfered, with a view to avoid the multiplicity of proceedings, as such a daughter, who is unable to maintain herself can claim maintenance from her father under the personal law. 13. Thus in view of the aforesaid discussion, there is no illegality/impropriety in the impugned order. 14. No other plea is urged. 15. The revision is dismissed. ——————