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2022 DIGILAW 1258 (GAU)

Champak Dutta S/o Shri Manik Chandra Dutta v. State of Assam

2022-11-16

MALASRI NANDI

body2022
JUDGMENT : MALASRI NANDI, J. 1. Heard Ms. G. Borah, learned counsel for the petitioner and Mr. D. Sarmah, learned counsel for the respondent No. 2. Also heard Mr. B. Sarma, learned Additional Public Prosecutor appearing on behalf of the State of Assam/respondent No. 1. 2. The petitioner has preferred an application under Section 482 of the Code of Criminal Procedure, 1973, for quashing of the order dated 28.10.2021, passed by the learned Sessions Judge, Jorhat, in Criminal Revision Case No. 04/2019, directing the petitioner to pay the maintenance @ Rs. 3,200/- (Rupees Three Thousand Two Hundred Only) to the wife of the petitioner as per order of this Court as well as to pay an amount of Rs. 5,000/- (Rupees Five Thousand) only as per order of the learned JMFC, in favour of the respondent, for maintenance of his daughter/respondent No. 2. 3. The brief facts of the case is that the petitioner is an employee of Katolgoorie Tea Estate under Assam Company India Limited in the district of Jorhat and as such, the petitioner is residing at Staff Line Quarter No. 029, allotted by the Company. The petitioner is the father of the respondent No. 2 and the petitioner had initiated a divorce suit against his wife being Title Suit (M) No. 59/2009. The petitioner and his wife finally in Case No. CRP 310/2011, came to a settlement and on the basis of the terms and conditions of settlement dated 10.04.2012, this Court passed an order dated 25.04.2012, whereby the marriage between the petitioner and his wife was dissolved and the petitioner was directed to pay maintenance @ Rs. 3,200/- to his wife, i.e., mother of the respondent No. 2. The petitioner, abiding by the terms and conditions of the settlement dated 10.04.2012, before the Mediation Centre of Gauhati High Court, has been paying Rs. 3,200/- to the mother of the respondent No. 2. 4. It is further stated by the petitioner that the respondent No. 2, subsequently filed the case under Section 125 Cr.P.C. being Misc. Case No. 10/2018, before the Court of JMFC, Jorhat, with a prayer to pay maintenance allowance from the petitioner. The Court of JMFC, Jorhat passed the order dated 15.11.2018, with a direction to the petitioner to pay Rs. 5,000/- per month to the respondent No. 2 to maintain herself. 5. Case No. 10/2018, before the Court of JMFC, Jorhat, with a prayer to pay maintenance allowance from the petitioner. The Court of JMFC, Jorhat passed the order dated 15.11.2018, with a direction to the petitioner to pay Rs. 5,000/- per month to the respondent No. 2 to maintain herself. 5. Being aggrieved by the said Judgment dated 15.11.2018 passed by the JMFC, Jorhat, the petitioner had preferred a revision petition vide Criminal Revision Case No. 04/2019, before the Court of Sessions Judge, Jorhat. The learned Sessions Judge, Jorhat, after hearing both sides, passed the order dated 28.10.2019, directing the petitioner to abide by the order dated 25.04.2012, passed by this Court in CRP No. 310 of 2011 as well as the order passed in Misc. Case No. 10 /2018, passed by the learned JMFC, Jorhat. Hence, this petition. 6. Learned counsel for the petitioner submits that the impugned order is illegal, perverse and contrary to law, as learned Sessions Judge, Jorhat has failed to consider the fact that the respondent No. 2 has attained the majority and she is fit in mental condition and from the date of majority she is not entitled to get any maintenance. 7. Learned counsel for the petitioner also submits that the respondent No. 2 is not at all eligible to seek maintenance under Section 125 Cr.P.C. since already she attained majority and as such, she is not entitled to any maintenance, under Section 125 of Cr.P.C. Though the respondent No. 2 is entitled to maintenance under Section 20 (3) of the Hindu Adoption and Maintenance Act, 1956, the maintenance petition filed under Section 125 Cr.P.C. is not at all maintainable. The Court below failed to give any opportunity to the petitioner, while passing the order by invoking the provision under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In support of his submission, learned counsel for the petitioner has placed reliance on the following case-law: Abhilasha vs. Prakash and Others in Crl. Appeal No. 615 of 2020 and SLP (Crl.) No. 8260/2018 8. In support of his submission, learned counsel for the petitioner has placed reliance on the following case-law: Abhilasha vs. Prakash and Others in Crl. Appeal No. 615 of 2020 and SLP (Crl.) No. 8260/2018 8. Per contra, learned counsel for the respondent No. 2, has argued that though Section 125 Cr.P.C. does not fix liability of parents to maintain children beyond attainment of majority, but the right of a minor girl for maintenance from her parents, after attaining majority till her marriage is recognized, is provided under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. Therefore, on a combined reading of the two provisions, it can be said that the right of an unmarried daughter under Section 20 (3) of Hindu Adoption and Maintenance Act, 1956, to claim maintenance from her father, when she is unable to maintain herself is absolute and the right given under Section 20 (3) is a right granted under Personal law, which can very well be enforced by her against her father. In support of his submission, learned counsel for the respondent No. 2, cited the following case law: Jagjit Juktawat vs. Manjulata and Others, (2002) 5 SCC 422 9. I have considered the submissions made by the learned counsel for the parties. I have also gone through the order dated 28.10.2021, passed by the learned Sessions Judge, Jorhat and the order passed in Misc. Case No. 10/2018, passed by the learned JMFC, Jorhat. 10. The Judgment of Hon’ble Supreme Court in Jagdish Juktawat (supra) laid down that Section 20 (3) of Hindu Adoption and Maintenance Act, 1956, recognizes the right of a minor girl to maintenance after attaining her majority till her marriage, from her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major, which is a statutory right recognized by Section 20 (3) and can be enforced by unmarried daughter, in accordance with law. 11. Section 125 of Cr.P.C. and Section 20(3) of the Hindu Adoption and Maintenance Act deal with the maintenance to minor & major Hindu daughter. For ready reference, Section 125(1)(b) of Cr.P.C. and Section 20(3) of the Act is being reproduced herein-below: “125. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain. For ready reference, Section 125(1)(b) of Cr.P.C. and Section 20(3) of the Act is being reproduced herein-below: “125. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain. (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself. 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 the Magistrate think fit, and to pay the same to such person as the Magistrate may order the father of 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.” “20. Maintenance of children and aged parents: (3) the obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parents or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.” 12. From a bare reading of Section 125(1)(b) of the Act, it is evident that it does not provide for maintenance to a major unmarried daughter, whereas Section 20(3) of the Act does so. Thus, there are two statutes, which make provision for grant of maintenance. If two statutes grant the same relief then both the provisions have to be read in harmony, not in contradiction. If such a rule is applied, same will avoid any apparent contradiction between the different statutes dealing with the same subject, it would not be a proper construction of law to hold that under the Code a major unmarried daughter would not be entitled to maintenance, but the Act governing the same field, major unmarried daughter would be entitled for maintenance. It is evident that the right of major unmarried girl for maintenance from parents after attaining majority till her marriage flows from the combined reading of Section 125 of the Code and 20 (3) of the Act. 13. It is evident that the right of major unmarried girl for maintenance from parents after attaining majority till her marriage flows from the combined reading of Section 125 of the Code and 20 (3) of the Act. 13. There cannot be any difficulty to hold that under the Hindu Adoptions and Maintenance Act 1956, a Hindu is bound to maintain an unmarried daughter, if she is unable to maintain herself. The Apex Court in Abhilasha vs. Parkash (supra) in categorical terms had taken the view that under Section 20 of the above Act, an unmarried daughter, who is unable to maintain herself is entitled to claim maintenance from her father. 14. In the case of Viswambharan vs. Dhanya, 2005 (1) KLT 708 also held that a Hindu unmarried daughter on attaining majority is entitled to continue to claim maintenance from her father until marriage, if she is unable to maintain herself. Under Section 23 of the said Act, the Court shall be at the discretion to determine the reasonable wants of the claimant. No doubt, in normal course, the father is bound to make provisions for education of unmarried daughter even after attaining majority. 15. As per order of the learned Sessions Judge in Criminal Revision No. 04/2019, the petitioner was directed to abide by the terms and conditions of the order dated 25.04.2012, passed by this Court as well as by the learned JMFC, Jorhat, on 15.11.2018, which cannot be said to be illegal or perverse. 16. Apparently, it is the duty of the father to protect his daughter. The petitioner was willfully neglecting to protect respondent No. 2, and as such, she filed a petition for maintenance under Section 125 Cr.P.C. In the divorce petition filed by the mother of the respondent No. 2, this Court has dissolved the marriage between the petitioner and the mother of the respondent No. 2, and there was a Clause in the Settlement report that the petitioner would bear all responsibilities of his minor daughter, Shweta Dutta, i.e. respondent No. 2, in respect of her education, maintenance and medical treatment etc. till the date of her marriage. 17. till the date of her marriage. 17. The Hon’ble Supreme Court had occasion to consider in the case of Jagjit Juktawat (supra), in which it has been held that: “Applying to 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 Hindu Adoption and Maintenance Act, 1956. Therefore, no exception can be taken to Judgment and Order passed by the learned Single Judge, for maintaining the order, which is based on a combined reading of Section 125 Cr.P.C. and Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956.....” 18. Considering the facts and circumstance of the case, and the law laid down in the case of Jagdish Juktawat (supra), this Court is of the view that the impugned order passed by the learned Sessions Judge, Jorhat is based on proper appreciation of oral and documentary evidence and need not be interfered. Hence, the petition filed by the petitioner under Section 482 Cr.P.C. is dismissed.