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Allahabad High Court · body

2018 DIGILAW 575 (ALL)

MEERA JAISWAL v. STATE OF U. P.

2018-03-09

SAUMITRA DAYAL SINGH

body2018
JUDGMENT : Hon'ble Saumitra Dayal Singh,J. Heard learned counsel for the parties and perused the record. 2. The present revision has been filed by the applicants against the order passed by the Principal Judge, Family Court, Kanpur Nagar dated 08.12.2016, by which monthly maintenance allowance @ Rs. 4,000/- per month to the applicant no.1 and @ Rs. 2,000/- per month to the applicant no.3 has been awarded from the date of application. 3. Learned counsel for the applicants submits that the learned court below has erred in not awarding any amount towards maintenance allowance to the applicant no.2. Learned counsel for the applicant has further relied on two judgments of the Supreme Court in Noor Saba Khatoon Vs. Mohd Quasim1 and Jagdish Jugtawat Vs. Manju Lata2 to submit that the applicant no. 2 would continue to be entitled to maintenance allowance upto her marriage, despite her attaining majority. 4. He further submits that maintenance allowance awarded to the applicant nos. 1 and 3 are inadequate and the same deserve to be enhanced. 5. Having perused the order passed by the court below, it appears that the application for payment of maintenance allowance to the applicant no.2 had been rejected on account of her having attained the age of majority. The Supreme Court in a case arising under the Muslim law, in Noor Saba Khatoon Vs Mohd Quasim1 had first held that a daughter of a Muslim father, would continue to be entitled to maintenance allowance beyond her attaining majority, till her marriage. Subsequently, in Jagdish Jugtawat v. Manju Lata2 the Supreme Court noticed a statutory principle enshrined in section 20(3) of the Hindu Adoptions and Maintenance Act that provides a similar right to a daughter born of a Hindu father. Upon a conjoint reading of the provision of section 125 Cr.P.C. and section 20(3) of the Hindu Adoptions and Maintenance Act, it held the High Court did not commit any error in upholding an order passed under section 125 Cr.P.C. allowing for such maintenance allowance to be paid so as to avoid duplicity of proceedings. In this regard, the Supreme Court held as below: "2. The petitioner is the father of Kumari Rakhi, Respondent 3 herein, who is a minor unmarried girl. In this regard, the Supreme Court held as below: "2. The petitioner is the father of Kumari Rakhi, Respondent 3 herein, who is a minor unmarried girl. Considering the application filed under Section 125 of the Criminal Procedure Code by Respondent 1, wife of the petitioner and mother of Respondent 3, claiming maintenance for herself and her two children, the Family Court by order dated 22-7-2000 granted maintenance @ Rs 500 per month to each of the applicants. The petitioner herein filed a revision petition before the High Court assailing the order of the Family Court on the ground, inter alia, that Respondent 3 was entitled to maintenance only till she attains majority and not thereafter. Considering the point the learned Single Judge of the High Court accepted the legal position that under Section 125 CrPC, a minor daughter is entitled to maintenance from her parents only till she attains majority, but declined to interfere with the order passed by the Family Court taking the cue from Section 20(3) of the Hindu Adoptions and Maintenance Act under which the right of maintenance is given to a minor daughter till her marriage. The learned Single Judge was persuaded to maintain the order of the Family Court with a view to avoid multiplicity of proceedings. The relevant portion of the judgment of the High Court is quoted here: "Thus, in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon'ble Supreme Court, the provisions of Section 125 CrPC are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon'ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under Section 125 CrPC on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub-section (3) of Section 20 of the Act of 1956 for further maintenance etc. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent 3 as she would be forced to file another petition under sub-section (3) of Section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference." 3. In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Quasim [ (1997) 6 SCC 233 : 1997 SCC (Cri) 924 : AIR 1997 SC 3280 ] relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 CrPC does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl. 4. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 CrPC and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for. 6. For the reasons aforestated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for. 6. While it is true that in Jagdish Jugtawat v. Manju Lata2 the Supreme Court upheld the order passed by the High Court arising from proceedings arising under section 125 Cr.P.C. providing for maintenance allowance to an unmarried daughter of a Hindu father, despite her majority, however, the Supreme Court did not lay down the principle that though such maintenance may be payble under section 20(3) of the Hindu Adoptions and Maintenance Act, the same should be directed to be paid in proceedings under section 125 Cr.P.C. 7. In that case, it was noted that the claimant was unmarried and had not filed a separate application under section 20(3) of the Hindu Adoptions and Maintenance Act. Moreover, crucially, in that case the learned court below had, under section 125 Cr.P.C. passed an order to provide maintenance allowance to an unmarried daughter of a Hindu father, after her attaining majority. Upon challenge made to that order, the High Court declined to interfere with that order. It was in those facts that the Supreme Court held as noted above. 8. In this case the application for maintenance allowance made by applicant no.2 has been rejected. Also, there is no material on record to indicate if she had filed an application under section 20(3) of the Hindu Adoptions and Maintenance Act. 9. Therefore, in view of the admitted facts that the applicant no.2 had attained the age of majority, the learned court below has not committed any error in rejecting the application to that extent. It is therefore open to her to claim maintenance under section 20(3) of the Hindu Adoptions and Maintenance Act. 10. Insofar as the monthly maintenance allowance had been awarded to the applicants no. 1 and 3, it is seen that the court below has found that the said applicants did not have any earning capacity. On the other hand, considering the facts that the opposite party no.2 is engaged in a trading in towel cloth and had taken a shop after payment of security money of Rs. 2.5 lacs in the year 1999, it has awarded the maintenance allowance @ Rs. 4,000/- per month and Rs. 2,000/- per month as noted above. 11. On the other hand, considering the facts that the opposite party no.2 is engaged in a trading in towel cloth and had taken a shop after payment of security money of Rs. 2.5 lacs in the year 1999, it has awarded the maintenance allowance @ Rs. 4,000/- per month and Rs. 2,000/- per month as noted above. 11. Other than the oral evidence thus led by the parties, no documentary or other evidence exists on record to establish any particular or higher level of earning of the opposite party no.2. In view of the above, the estimation of monthly maintenance allowance made by the learned court below, does not suffer from any infirmity keeping in mind minimum monetary means required to protect human life and dignity. 12. In view of the above, the instant revision is disposed of with the observation that in the event of any evidence coming to the knowledge of the applicants in respect of higher income of the opposite party no.2, it would be open to them to file an application under section 127 Cr.P.C. for enhancement of the maintenance allowance at that stage. Also, it would be open to applicant no. 2 to seek payment of maintenance allowance under section 20(3) of the Hindu Adoptions and Maintenance Act.