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2023 DIGILAW 2468 (ALL)

Kumari Nidhi Gupta v. State of U. P.

2023-11-01

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record. 2. By means of instant criminal revision, the revisionist has assailed the order dated 25.4.2022, passed by Additional Principal Judge, Family Court No.3, Kanpur Nagar, in Maintenance Case No.12 of 2017, under Section 125 Cr.P.C., whereby the application for maintenance moved by the revisionist, who is daughter of opposite party No.2 has been dismissed on the ground that she was not entitled to seek maintenance from her father after attaining age of majority, as under the provisions of Section 125 Cr.P.C., only minor children of a person are entitled to seek maintenance whether married or not. 3. The factual matrix of the case in brief which led to filing present revision are that the marriage of the revisionist’s mother and father was solemnized on 21.4.1994 and two children were born out of their wedlock, out of whom the applicant/revisionist is elder one. She was born on 13.9.1995 and her younger sibling born on 1.9.2000. The relations between the parents of the applicant got strained and father of the applicant filed a Divorce Petition No.65 of 2011, before Principal Judge, Family court, Kanpur Nagar and consequently, a decree of divorce dated 12.7.2016 followed. The Family Court also granted a lump-sum amount of Rs.5 lacs as maintenance to the mother of the applicant. The applicant was initially residing with her father/opposite party No.2. After filing of divorce petitioner, her father expelled her from his home on 31.12.2010 at the age of 15 years and since then, she is residing alone alongwith her mother. The applicant is completely dependant on her mother for food, clothing, shelter, education and other expenses also. Therefore, she filed an application under Section 125 Cr.P.C. for maintenance before the court below on 8.12.2016 at the age of 21, as she intended to receive higher education and also for bearing expenses of her marriage. During pendency of proceedings under Section 125 Cr.P.C., before the family court, the applicant had moved an application under Section 125(c) Cr.P.C. for interim maintenance, in which a meagre amount of interim maintenance of Rs.2,000/-per month was paid to the applicant, which was not in consonance with the financial needs of the applicant. During pendency of proceedings under Section 125 Cr.P.C., before the family court, the applicant had moved an application under Section 125(c) Cr.P.C. for interim maintenance, in which a meagre amount of interim maintenance of Rs.2,000/-per month was paid to the applicant, which was not in consonance with the financial needs of the applicant. The respondent No.2, in his belatedly filed written statement, has stated that he has already paid Rs.5 lacs as lump-sum amount towards the maintenance, which is part of decree of divorce. The applicant has filed rejoinder affidavit before the court below, in which she filed receipt of educational fees which show that her mother has been bearing her educational expenses and she is not having enough resources to meet out educational and other expenses of the applicant. However, the family Court without going into the merits of the case, dismissed the application under Section 125 Cr.P.C. in limine by impugned order dated 25.4.2022 on impression that as the applicant had already attained age of majority, she is not entitled to seek maintenance from her father/the respondent No.2 under Section 125 Cr.P.C. and she has to seek maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956, as appropriate remedy available to her. While giving this finding, the Court placed reliance on a judgement of Apex Court in Dr. Jagdish Jugtawat vs Smt. Manjulata And Ors, (2002) 5 SCC 424 . 4. Learned counsel for the revisionist submitted that from the joint reading of two judgments of Hon’ble Apex Court in Noorsaba Khatoon v. Mohammad Quasim, AIR 1997 SC 3282 and Nanak Chand vs. Chandra Kishore Agrawal, AIR 1970 SC 446 , it is apparent that Section 125 Cr.P.C. is a summary remedy of secular character and provisions of Hindu Marriage Act, which is part of personal law, does not repel nor affect the beneficial provisions of Section 125 Cr.P.C., which are applicable to every citizen in the country, irrespective of his or her personal law. A Hindu major daughter, who is not able to maintain herself can claim maintenance from her father till she gets married in the same manner as a Muslim major daughter, who is entitled to seek maintenance from his father. The learned court court has misread the judgment of Hon’ble Apex Court in Dr. Jagdish Jugtawat vs Smt. Manjulata And Ors, (supra) and has drawn long long conclusion. The learned court court has misread the judgment of Hon’ble Apex Court in Dr. Jagdish Jugtawat vs Smt. Manjulata And Ors, (supra) and has drawn long long conclusion. A judgment of Hon’ble Apex Court in Abhilasha vs. Prakash and others, AIR 2020 SC 4355 , Hon’ble Supreme Court has considered the claim of a daughter, who has attained age of majority and held that there may be a case where family court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as a suit under Section 20 of Hindu Adoption and Maintenance Act, 1956 and in such eventuality, the family court can exercise jurisdiction under both the acts and in an appropriate case can grant maintenance to unmarried daughter, even though, she has become major enforcing her right of the Act, 1956, so as to avoid multiplicity of the proceeding as observed by this Court in the case of Dr. Jagdish Jugtawat vs Smt. Manjulata And Ors, (supra) . However, the magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such orders. 5. He lastly submitted that if a major daughter is unable to maintain herself because of her illiteracy, unemployment or if being student, she will be considered at par with a person having physical or mental abnormality and will be entitled to seek maintenance. Even after attaining age of majority under provisions of Section 125 Cr.P.C. before the Family Court. The applicant is a unemployed major and unmarried girl. She is a victim of domestic friction and matrimonial discord between her father and mother. Her father is a man of sufficient economic resources and he is under liability to look after his daughter, who is socially vulnerable and unemployed. 6. Per contra, learned AGA and learned counsel for the respondent No.2 submitted that revision is ill conceived. There is no illegality or infirmity in impugned order passed by the court below. A Hindu daughter, who has attained age of majority is not entitled to seek maintenance under provisions of Section 125 Cr.P.C. from her father or mother and only remedy available to her, if she is unable to maintain herself or is unmarried, to seek maintenance under provisions of Section 20 of Hindu Adoption and Maintenance Act, 1956. A Hindu daughter, who has attained age of majority is not entitled to seek maintenance under provisions of Section 125 Cr.P.C. from her father or mother and only remedy available to her, if she is unable to maintain herself or is unmarried, to seek maintenance under provisions of Section 20 of Hindu Adoption and Maintenance Act, 1956. The provisions of Section 20 of the Act, bestow the Court specific power of grant of maintenance to such daughter who has attained age of majority. 7. The revisionist had initially filed a petition under Section 482 Cr.PC. Feeling aggrieved by the impugned order before this Court, however, during the course of pendency of application under Section 482 Cr.P.C. No.2695 of 2022, an application for amendment was moved by her with prayer to permit her to convert the application under Section 482 Cr.P.C. into criminal revision under Section 397/401 Cr.P.C. and the prayer was allowed eventually by this Court and application was converted into present criminal revision by the order of this Court dated 23.3.2023. 8. From the perusal of record, it appears that the decree of divorce under Section 13 of Hindu Marriage Act was passed on 12.7.2016 on application of respondent No.2 against his wife Smt. Alka Gupta @ Bebi, the mother of the applicant and Rs.5 lacs was granted as lump-sum amount of maintenance in said judgment for maintenance of the applicant and her son, as at that time present applicant was residing with her father and her younger brother was living with her mother and probably, for that reason, no provision was made for present applicant in said decree of divorce. The applicant has stated before the court below in her representation that she was undergoing MCA course. In Jagdish Jugtawat vs Smt. Manjulata And Ors, (supra), the petitioner was father of Kumari Rekha, respondent No.3, who is minor and unmarried daughter of respondent No.1, wife of petitioner, had filed a claim for maintenance before the family court by order dated 22.7.2000, granted maintenance at the rate of Rs.500/-per month to each of the applicants. The petitioner filed a revision petition before the High Court, assailing the order of family court on the ground, inter-alia that respondent No.3 was entitled to maintenance only till she attains majority and not thereafter. The petitioner filed a revision petition before the High Court, assailing the order of family court on the ground, inter-alia that respondent No.3 was entitled to maintenance only till she attains majority and not thereafter. Considering the points, learned Single Judge of the High Court accepted the legal position that under Section 125 Cr.P.C., a minor daughter is entitled to maintenance from her parents only till she attains majority. A minor daughter is entitled to maintenance only till she attains majoirty, but declined to interfere with the order passed by family court taking cue from Section 20(3) of the Hindu Adoption and Maintenance Act, 1956, under which the right of maintenance is given to a minor daughter till her marriage. Learned Single Judge was persuaded to maintain the order of the family court with a view to avoid multiplicity of proceeding. Hon’ble Apex Court observed as under:- “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 , AIR 1997 SC 3280 : 1997 (6) SCC 233 : 1997 SCC (Cri) 924 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(l)(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 Cr.P.C. and 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 Cr.P.C. 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 judgement/ order of the High Court is called for. With above observations, the Hon’ble Apex Court dismissed the Special Leave Petition. 9. In Abhilasha vs. Prakash and others (supra), a Special Leave to Appeal was filed by the appellant, the daughter of the respondent No.1 and 2, challenging the order of the High Court of Punjab and Haryana dated 16.8.2018, by which the order, the High Court dismissed the application U/S 482 Cr.P.C. filed by the appellant praying for setting aside the order of Judicial Magistrate Ist Class, Revari, dated 16.2.2011 as well as 17.2.2014, passed by the revisional court. The original application for maintenance was filed by the respondent No.2 against her husband, the respondent No.1 Prakash claiming maintenance of herself as well as her three children. The learned Judicial Magistrate dismissed the application in respect of applicant Nos.1, 2 and 3 but granted maintenance to applicant No.4, the appellant before the Apex Court till she attains majority. Aggrieved by the said judgement dated 16.2.2011, all the four applicants filed a criminal revision before the Court of Session, which was also dismissed by order dated 17.2.2014 with the only modification that the revisionist No.4 (appellant) shall be entitled to maintenance till 26.4.2005, when she attains majority, as post majority maintenance can only be granted to a daughter, if she is by reason of any physical or mental abnormality or injury, unable to maintain herself, as she was not suffering from any physical or mental abnormality or injury, she was not entitled to obtain maintenance after the date on which, she attains majority. The High Court by judgement dated 16.2.2018, dismissed the application under Section 482 Cr.P.C. filed by the applicants and affirmed the orders of court below. 10. The High Court by judgement dated 16.2.2018, dismissed the application under Section 482 Cr.P.C. filed by the applicants and affirmed the orders of court below. 10. Hon’ble Supreme Court while discussing its previous judgments in Abhilasha vs. Prakash and others (supra) as well as its judgment in Nanak Chand vs. Chandra Kishore Agrawal and others (supra) and some other previous cases, framed two question for consideration in that appeal:- (i) Whether the appellant, who although had attained majority and is still unmarried is entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C. although she is not suffering from any physical or mental abnormality/injury? (ii) Whether the orders passed by learned Judicial Magistrate as well as learned Revisional Court limiting the claim of the appellant to claim maintenance till she attains majority on 26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to give maintenance even after 26.04.2005 till the appellant remains unmarried? 11. Hon’ble Apex Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, (1988) 1 SCC 530 , held that personal law applicable to the parties cannot altogether be excluded from consideration in proceeding under Section 125 Cr.P.C. 12. Hon’ble Apex Court in Abhilasha vs. Pralasj and others (supra), clarified in paragraph No.24 of its judgement that the judgement of this Court in Jagdish Jugtawat (supra) cannot be read to laying down the ratio that in proceedings under Section 125 Cr.P.C. filed by the daughter against her father, she is entitled to maintenance relying on the liability of the father to maintain her unmarried daughter as contained in Section 20(3) of the Act, 1956. The High Court in exercise of Criminal Revisional jurisdiction can very well refuse to interfere with the judgment of Courts below by which maintenance was granted to unmarried daughter. This Court while hearing criminal appeal against the above judgment of High Court was exercising jurisdiction under Article 136 of the Constitution of India, and in the facts of that case, this Court refused to interfere with the judgment of High Court but in refusal to interfere by this Court, no ratio can be read in the judgment of Jagdish Jugtawat (supra) as contended by learned counsel for the appellant. In Classical Hindu Law prior to codification, a Hindu male was always held morally and legally liable to maintain his aged parents, a virtuous wife and infant child. Hindu Law always recognised the liability of father to maintain an unmarried daughter. In this context, we refer to paragraph 539 and 543 of Mulla – Hindu Law – 22nd Edition, in paragraph No.543, a father is bound to maintain his unmarried daughters. On the death of the father, they are entitled to be maintained out of his estate. 13. Hon’ble Apex Court further observed that Muslim Law also recognises the obligation of father to maintain his daughters until they are married and his sons until they have attained the age of puberty. (Mulla's Principles of Mohammedan Law (19th Edn.) Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20 of the Act. This Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233 , which was a case under Section 125 Cr.P.C. as well as provisions of Muslim Women (Protection of rights on Divorce), Act 1986, held that affect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of statute. In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major. The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept of maintenance under Section 125 Cr.P.C. After enactment of Family Courts Act, 1984, a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Courts, proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. Hon’ble Apex Court further held as under:- 33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order. 34. In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major. 36. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major. 36. The purpose and object of Section 125 Cr.P.C. as noted above is to provide immediate relief to applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b) of Act, 1956 contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956. 38. We, thus, accept the submission of the learned counsel for the appellant that as a preposition of law, an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956. 39. In facts of the present case the ends of justice be served by giving liberty to the appellant to take recourse to Section 20(3) of the Act, 1956, if so advised, for claiming any maintenance against her father. Subject to liberty as above, the appeal is dismissed. 14. In the present case, the family court has committed a legal error while dismissing the application for maintenance filed by the applicant from her father-present respondent No.2 only on the ground that she has attained age of majority despite the admitted fact that she was unmarried at the time of impugned judgement. The marriage of parents of the revisionist has already been dissolved by a decree of divorce passed on 12.7.2016, in Matrimonial Suit No.65 of 2021, Lalit Gupta @ Manoj Gupta vs. Smt. Alka @ Bebi, under Section 13 of Hindu Marriage Act and a lump-sum maintenance has been awarded in said order for maintenance to the mother and minor brother of the revisionist therein as the revisionist was residing with her father at that time. The family court is empowered to treat the application under Section 125 Cr.P.C. moved by the revisionist seeking maintenance from her father may be treated as maintenance petition under Section 20(3) of the Act, 1956 by the court below and same should have been liable to be decided accordingly, without dismissing the application under Section 125 Cr.P.C. on technical ground that the application was not maintainable under Section 125 Cr.P.C. as the applicant-daughter had already attained age of majority and she was not entitled to seek maintenance under Section 125 Cr.P.C. A fine distinction has been drawn by Hon’ble Apex Court in Abhilasha vs. Prakash and others (supra) in this regard, where it is held that the provision of Section 20 of Act, 1956 cast clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself. The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against 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 recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law. 15. In the light of forgoing discussion and placing reliance on dictum of Hon’ble Apex Court in Abhilasha vs. Prakash and others (supra), it is clear that in order to avoid multiplicity of proceedings, a consistent stand is liable to be taken that the petition under Section 125 Cr.P.C. can be entertained by Family Court without pushing the major daughter of the opposite party to file an independent petition seeking maintenance under Section 20(3) of the Act. The family court has got jurisdiction to decide the case under Section 125 Cr.P.C. as well as maintenance suit under Section 20 of the Act, 1956. Therefore, the family court can exercise jurisdiction under both the acts and in appropriate case can grant maintenance to unmarried major daughter from her father, even though she has become major, enforcing her rights under Section 20 of the Act, 1956, so as to avoid multiplicity of the proceedings. 16. Therefore, the family court can exercise jurisdiction under both the acts and in appropriate case can grant maintenance to unmarried major daughter from her father, even though she has become major, enforcing her rights under Section 20 of the Act, 1956, so as to avoid multiplicity of the proceedings. 16. Hon’ble Apex Court also held that there may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceeding. 17. Accordingly, present criminal revision stands allowed and the impugned order passed by learned family court is set aside. 18. The Family Court concerned is directed to treat the application moved by the applicant/revisionist under Section 125 Cr.P.C. as an application moved under Section 20(3) of Hindu Adoption and Maintenance Act, 1956 and decide the same afresh in accordance with law and on merits of the case, after giving opportunity of hearing to both the parties, preferably within a period of three months from the date of presentation of certified order of this Court.