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2019 DIGILAW 452 (UTT)

Sunita v. State of Uttarakhand

2019-08-18

SHARAD KUMAR SHARMA

body2019
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. In pursuance to the orders passed by this Court on 1st August, 2019, with the consent of the parties and their respective counsel, this case was fixed for conciliation between the parties and today, i.e. 18th August, 2019 (Sunday), was fixed for making an effort for settlement. The parties are present in person along with their Advocates and they have been duly identified by their respective counsel. 2. This Court also directly interacted with the parties, who are present in person and made endeavor to resolve the controversy. But before addressing upon the unanimous decision, which has been taken by the parties after interacting amongst themselves, it becomes imminent for this Court to consider the backdrop, under which, the proceedings has reached upto this stage before this Court. 3. As per the records, which are available before this Court, the fact which emanates for consideration is that it is not in dispute amongst the parties, that the revisionist No. 1 and respondent No. 2 got married on 18th June, 1999, and out of the wedlock, daughter Aradhana revisionist No.2 was born on 15th June, 2000. There had been various allegations and counter allegations amongst one another, but the fact which is legally tenable before this Court is to the effect that admittedly the revisionist No. 1 has initiated the proceedings by way of Case No. 56 of 2005, Sunita Vs. Sunil Kumar by invoking the provisions contained under Section 13, 26 and 27 of the Hindu Marriage Act, which was filed before the Family Court, Dehradun on 9th February, 2005. 4. While the proceedings under Section 13 was pending, it is also yet again an admitted fact that the opposite parties, herein, had filed an application by way of a counter claim under Order 8 Rule 6A being, paper No. 14 (Ka), in the proceedings before the Family Court under Section 13 of the Act. On 29th November, 2016, the proceedings of Case No. 56 of 2005, was taken ex parte and, consequently, the application filed by the respondents under Order 8 Rule 6-A was allowed and the Suit was decreed resulting into dissolving the marriage dated 18th June, 1999 amongst the revisionist and the respondent No. 2. The respondent No. 2 gave no objection before the Family Court, Dehradun, if custody of revisionist No. 2 is given to revisionist No.1. The respondent No. 2 gave no objection before the Family Court, Dehradun, if custody of revisionist No. 2 is given to revisionist No.1. Consequently, Suit was decreed under Order 9 Rule 8 of the C.P.C. 5. On account of the fact that the judgment dated 29th November, 2006, dissolving the marriage was passed ex parte without hearing the revisionist, she on 27th August, 2007 has filed an application under Order 9 Rule 9, seeking to recall the judgment and decree dated 29th November, 2006. It is yet again admitted between the parties that the application filed under Order 9 Rule 9, as filed by the revisionist No. 1 was considered by the Family Court and the same was dismissed by an order dated 2nd April, 2008, upholding the decree dated 29.11.2006. 6. At this stage, itself, it would be essential to point out that when the application under Order 9 Rule 9 was being considered at that stage itself a finding has been recorded by the Court that the revisionist No. 1 had also initiated the proceedings under the Protection of Women from the Domestic Violence Act, 2005which was registered as Misc. Case No. 166 of 2007, in which, the revisionist No. 1 has moved an application on 12th July, 2007, by invoking the provisions contained under Section 23 of the Domestic Violence Act, seeking an order of restraint against the respondents from solemnizing the second marriage. 7. Initially, the Court of Chief Judicial Magistrate had passed an interim order dated 12th July, 2007, staying the attempt of the respondent in solemnizing the 2nd marriage, as against the stay order granted, the respondent No. 2, herein, had preferred a Criminal Appeal, being Criminal Appeal No. 44 of 2007, which was dismissed on 13th December, 2007, against which, a Criminal Revision was preferred before this Court by the respondent/husband, being Criminal Revision No. 270 of 2007, Sunil Kumar Vs. State of Uttarakhand and others, in which, there operates a stay order, which was extended ultimately on 9th April, 2008, until further orders. 8. State of Uttarakhand and others, in which, there operates a stay order, which was extended ultimately on 9th April, 2008, until further orders. 8. The effect of the grant of interim order initially on 11th January, 2008, which ultimately stood extended by an order dated 9th April, 2008, until further order, the judicial effect of it would be that an order of restraint from 2nd marriage as against the opposite party from solemnizing the second marriage, that was kept in abeyance, meaning thereby, the embargo for the respondent to solemnize the second marriage that was eradicated by the interim order dated 11th January, 2008, passed by this Court in Criminal Revision No. 270 of 2007, and it also be taken into consideration that if the effect of the interim order dated 11th January, 2008, as well as that of the grant of a decree dated 29th November, 2006, dissolving the marriage of revisionist No. 1 and respondent No. 2 dated 18.06.1999 is taken into consideration, there was no legal impediment as far as the respondent is concerned from solemnizing the second marriage. 9. It is further an admitted case, which has emerged is that after the grant of the interim order dated 11th January, 2008, in Criminal Revision No. 270 of 2007, Sunil Kumar Vs. State of Uttarakhand and others by this Court and its ultimate extension until further order of this Court on 9th April, 2008, the respondent, herein, has solemnized the second marriage on 21st April, 2008, and out of the second marriage, there are two children, who have taken birth thereafter out of the wedlock. 10. The basic issue of consideration before this Court has arisen out of the impugned order dated 10th July, 2018, whereby, the Additional Family Judge, Dehradun, while considering the application of revisionist No. 1 under Section 125 of the Cr.P.C. preferred by the revisionist No. 1 was rejected the same. 10. The basic issue of consideration before this Court has arisen out of the impugned order dated 10th July, 2018, whereby, the Additional Family Judge, Dehradun, while considering the application of revisionist No. 1 under Section 125 of the Cr.P.C. preferred by the revisionist No. 1 was rejected the same. It was rejected in relation to the revisionist No. 1 on the ground that as per the evidence, which was produced in the proceedings before the Court below, the respondent No. 2, succeeded by placing the document and evidence on record to the effect that the revisionist No. 1 was working in a School called as Aryan School, Mussoorie and from where, she was drawing a salary of about Rs.11,000/- p.m. This fact of being engaged in the Aryan School, was the fact which was admitted by the revisionist No. 1 in the cross examination recorded by her in the proceedings under Section 125 of the Cr.P.C. As far as the grant of maintenance to revisionist No. 2 is concerned, the same was declined to be granted by the Additional Judge Family Court in the proceedings of Case No. 216 of 2015, under Section 125 Cr.P.C. on the ground that the powers under Section 125 of the Cr.P.C. could not have been invoked by the revisionists for granting the maintenance to respondent No. 2, who admittedly, happens to be the daughter of the respondent on the ground that since she has attained the age of majority, she could not be granted maintenance under Section 125 of the Cr.P.C. This logic, as assigned by the Court, cannot be disputed because, admittedly, it is a fact admitted by parties that respondent No. 2, who is a daughter, is major and will not falling within the ambit of consideration for the grant of maintenance as per the parameters provided under Section 125 of the Cr.P.C. 11. When this Revision was considered at an admission stage, an argument was extended by the counsel for the revisionist that even if being a major daughter, if revisionist No. 2 and if she was falling outside the purview of Section 125 of the Cr.P.C., then too, the Court can always considers the interest of an admitted child taking into consideration of the beneficial legislation as carved out under Sub-section (3) of Section 20 of the Hindu Adoption and Maintenance Act and for the said purpose, the learned counsel for the revisionist has placed reliance on the judgment rendered by the Hon'ble Apex Court, Jagdish Jugtawat Vs. Manju Lata and others, (2002) 5 SCC 422 wherein, it has been held that in view of the Subsection (3) of Section 20 of the aforesaid Act, a father would be even responsible to maintain a major child till he / she gets married. Hence, the liability to maintain the major child is solely to be discharged by the father/respondent. Para 2 and 4 of the judgment Jagdish Jugtawat (Supra) is quoted hereunder :- "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 Code of Criminal Procedure by Respondent I, 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, Code of Criminal Procedure ' 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 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference. 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, Code of Criminal Procedure 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." 12. 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." 12. Drawing the strength from the aforesaid ration of the Hon'ble Apex Court as laid down in the aforesaid judgment, the parties were called upon to express their willingness with regard to the extension of financial benefits atleast to the revisionist No. 2 only so far it relates to catering the expenditure, which she has to bear with in order to meet her expenses for studies, which she is investing by way of getting the coaching classes for taking her NEET examination, which she in the first and second attempt did qualify, but according to the merits, she could not allotted the government quota, because of the fact that the opportunity of admission in the private institutions was entailing a higher expenditure for the academics, the revisionist No. 2 or the revisionist No. 1 were not in such a financial position so as to meet the expenses due to which, the opportunity of availing the studies was curtailed and hampered as far as the revisionist No. 2 is concerned. 13. After having interacted, the revisionist No. 2, who is present in person, she has contended that in order to meet her expenses towards the studies only, approximately a sum of Rs.80,000/- to 1,00,000/- p.a. is required by the revisionist No. 2 to pursue her studies further. 14. In that background, the respondent No. 2 was made to understand that since under Section 20 (3) of the Hindu Adoptions and Maintenance Act, he will have to bear the liability to meet the expenditure of maintaining major child and also the fact that being a father, which is an admitted fact, he also owes an honorous responsibility towards his daughter, which cannot be denied atleast by any father who has got more sensitive concern towards the welfare of the female child. 15. 15. In that view of the matter and the goodwill gesture, which has been expressed by the respondent No. 2, who is working as an Assistant Teacher in Government Primary Schools and at the time, when the proceedings were pending before the Additional Family Judge, Dehradun, his income was reflected as to be a sum of Rs.49,286/- per month, which has now been enhanced as per the Rules applicable in the Department. He has expressed his consent and willingness to meet the expenses of studies of revisionist No. 2 by remitting an amount of Rs.10,000/- per month. to be paid and deposited in the Saving Account No. 36478540377, Branch-S.B.I. Rajpur Road Jakhan, Dehradun, IFSC Code-SBIN0006155 of Aradhana Singh / revisionist No. 2. This will be continued to be paid per month till she gets married. 16. As a word of caution, the respondent No. 2 is warned that if there is any dereliction in remittance of Rs.10,000/- per month. as directed above and agreed by him to be paid to respondent No.2, by making deposits in her saving account, it will be open for the revisionist No. 2 to approach to this Court directly in the present revision by filing an appropriate application, if there is any default in remittance of any of the monthly payment, which otherwise is directed to be paid by respondent No. 2 by 10th of each month and if the same is not complied with, the Court would be constraint to exercise its powers under Section 401 of the Cr.P.C. by taking an appropriate action. 17. Subject to the above consensus, which has been arrived at between the parties, this Revision is closed but the closure will not create any embargo for revisionist No. 2 to file an appropriate application for an appropriate order in the event of default in the payment of any of the installment by respondent No. 2, as agreed above. The revisionist No. 2 will provide the Account details to the respondent No. 2 so that he will continue to remit the amount as agreed in the said account of revisionist No. 2. 18. XXX XXX XXX 19. Subject to the above observation, the Revision stands closed.