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2023 DIGILAW 37 (HP)

Ashwani Kumar v. Parwati

2023-01-09

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, filed under Section 482 of the Criminal Procedure Code, the petitioner has prayed for the following relief: “It is, therefore, respectfully prayed that the petition may kindly be allowed and order dated 09.08.2019 passed in a Criminal Revision No.27S/10 of 2018, titled as Ashwani Kumar Versus Parwati and another passed by the ld. Additional Sessions JudgeI Solan, District Solan (HP), whereby the order passed by the ld. Judicial Magistrate First Class Court No.1, Solan, District Solan, H.P. in Cr.MA No.128/4 of 2018 dated 12-10-2018 has been affirmed may kindly be set aside and petition filed by the present respondents may kindly order to be dismissed.” 2. Brief facts necessary for the adjudication of the present petition are that a petition was filed under Section 125 of the Criminal Procedure Code (hereinafter to be referred as ‘Cr.P.C.’) by the respondents herein against the present petitioner, seeking maintenance on the ground that the applicants were the wife and daughter of the respondent therein and as they were not being looked after by the husband, therefore, they were legally entitled for maintenance from the husband. 3. An order was passed by the Court of learned Judicial Magistrate, 1st Class, Court No.1, Solan, District Solan, H.P., in Cr.MA No.128/4 of 2018, titled as Smt. Parwati & another Versus Sh. Ashwani Kumar, decided on 12.10.2018, in terms whereof, learned Trial Court ordered that the daughter was entitled for interim maintenance to the tune of Rs.15,000/per month, though no maintenance was awarded in favour of the wife. This conclusion was arrived at by learned Trial Court by observing that an unmarried daughter till she attained the age of majority was entitled for grant of maintenance under 4. Feeling aggrieved, the petitioner herein preferred a revision petition, i.e. Criminal Revision No. 27S/10 of 2018, titled as Ashwani Kumar Versus Parwati & another, and in terms of order dated 09.08.2019, the Court of learned Additional Sessions Judge-I, Solan, District Solan, H.P. modified the maintenance amount from Rs.15,000/to Rs.10,000/per month. 5. Feeling aggrieved, the petitioner herein preferred a revision petition, i.e. Criminal Revision No. 27S/10 of 2018, titled as Ashwani Kumar Versus Parwati & another, and in terms of order dated 09.08.2019, the Court of learned Additional Sessions Judge-I, Solan, District Solan, H.P. modified the maintenance amount from Rs.15,000/to Rs.10,000/per month. 5. Learned counsel for the petitioner has argued that order of grant of maintenance in favour of daughter passed by learned Trial Court, as affirmed by learned Revisional Court with some modifications is perverse and not sustainable in the eyes of law as both the learned Courts below erred in not appreciating that as the daughter was major as on the date when the application was filed under Section 125 of the Criminal Procedure Code, therefore, no interim orders could have been passed in her favour of learned Court below qua grant of maintenance. Learned counsel has placed reliance upon the judgment of Hon’ble Supreme Court, reported in 2020 AIR (SC) 4355, titled Abhilasha Versus Parkash & Ors., and argued that as the order of grant of maintenance is per se in violation of the provisions of Section 125 of the Criminal Procedure Code, therefore, present petition be allowed. 6. Learned counsel for the respondent, however, defended the order passed by learned Courts below and submitted that the father otherwise owes a duty to maintain her daughter and therefore, he had no right to invoke the inherent jurisdiction of this Court so vested under Section 125 of the Criminal Procedure Code and seek setting aside of aforesaid orders. 7. I have heard learned counsel for the parties and have gone through the impugned order. 8. It is not in dispute that as on the date when the petition was filed under Section 125 of the Cr.P.C. by the respondents herein seeking maintenance, the daughter was a major. The application under Section 125 of the Cr.P.C. was instituted on 03.04.2018, whereas the date of birth of the daughter of the present petitioner is stated to be 21.08.1995. Qua this, there is no dispute between the parties. 9. The application under Section 125 of the Cr.P.C. was instituted on 03.04.2018, whereas the date of birth of the daughter of the present petitioner is stated to be 21.08.1995. Qua this, there is no dispute between the parties. 9. Section 125 of the Criminal Procedure Code inter alia, provides that if any person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, then 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 child. The provision further contemplates that if a person having sufficient means, neglects or refuses to maintain his child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, then also the Magistrate upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of the child. 10. In the present case, there is nothing on record from which it can be inferred that the daughter who was major as on the date petition was filed under Section 125 of the Criminal Procedure Code was suffering from any physical or mental abnormality or on account of some injury she was unable to maintain herself. 11. This being the factual matrix, the award of maintenance by learned Courts below in favour of the daughter is not sustainable in the eyes of law. In fact, learned Trial Court held the daughter to be entitled for grant of maintenance by erring in coming to the conclusion that the daughter was a minor, whereas the fact of the matter was that she was a major on the date concerned when the petition was preferred under Section 125 of the Criminal Procedure Code. Therefore, findings returned by learned Trial Court are per se perverse. 12. Hon’ble Supreme Court in Abhilasha Versus Parkash & Ors. (supra) has been pleased to hold that a Magistrate in exercise of powers under Section 125 of the Criminal Procedure Code cannot pass an order for grant of maintenance to an unmarried daughter who is a major. Therefore, findings returned by learned Trial Court are per se perverse. 12. Hon’ble Supreme Court in Abhilasha Versus Parkash & Ors. (supra) has been pleased to hold that a Magistrate in exercise of powers under Section 125 of the Criminal Procedure Code cannot pass an order for grant of maintenance to an unmarried daughter who is a major. Hon’ble Supreme Court, however, held that an unmarried Hindu daughter can claim maintenance from her father till she is married, in terms of the provisions of Section 23 of the Hindu Adoption and Maintenance Act, 1956. 13. Accordingly, in view of the above observations, this petition is allowed. Order dated 09.08.2019 passed in a Criminal Revision No.27S/10 of 2018, titled as Ashwani Kumar Versus Parwati and another, by the Court of learned Additional Sessions Judge-I Solan, District Solan (HP), whereby the order passed by the Court of learned Judicial Magistrate First Class Court No.1, Solan, District Solan, H.P. in Cr.MA No.128/4 of 2018 dated 12102018 has been affirmed, are ordered to be quashed and set aside. 14. At this stage, learned counsel for the respondents submits that the adjudication of this petition should not come in the way of the daughter in case she intends to invoke the provisions of appropriate laws under which she is entitled for maintenance from her father. It is clarified that as this adjudication is only with regard to maintainability of a petition under Section 125 of the Criminal Procedure Code by a major daughter who is not suffering from any infirmity as are spelled out in Section 125 of the Criminal Procedure Code, therefore, same shall not come in the way of the respondent daughter to otherwise move appropriate petition against the father seeking maintenance. 15. The petition stands disposed of in above terms, so also the pending miscellaneous applications, if any.