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Child Maintenance After Divorce Under CrPc In Light Of Abhilasha v/s Prakash

In the present case an appeal was made in the Supreme Court by a woman against her husband claiming maintenance for herself and her three children under Section 125 of Cr.P.C.. The Supreme Court was entrusted with the question whether to grant maintenance to the appellant (the daughter) or not. According to the law of maintenance a man is entrusted with the duty to maintain his dependent wife, children or his parents for their living. And law of maintenance is not only discussed in personal laws but also by the Criminal Procedure Code, 1973. The Sections of Cr.P.C. are applicable to every citizen, unlike the personal laws which are applicable to particular people of a particular religion.

In this case the court stated that an unmarried daughter can claim maintenance from her father under Section 20 of the HAMA, 1956, provided she is unable to maintain herself. Whilst, under Section 125 of Cr.P.C., after attaining the age of majority, she cannot claim maintenance, unless and until she is suffering from any mental or physical injury.

Facts of the Case:
The mother of appellant, on her as well as on behalf of her two sons and daughter (appellant), filed an application under Section 125 Cr.P.C. against her husband, Prakash (respondent), claiming maintenance for herself and her three children (Two sons and one daughter), on October 17, 2002. The learned Judicial Magistrate First Class dismissed the application, on February 16, 2011, under Section 125 Cr.P.C. of the applicant and of her two sons, however, allowed the application for the daughter (appellant), who was a minor at that time, for grant of maintenance till she attains majority, i.e. February 7, 2005.

Aggrieved by the judgment the applicants moved to the Additional Sessions Judge, who dismissed the criminal revision for the three appellants and allowed the daughter's application, stating that she is entitled to maintenance only till she attains majority, however, the Sessions Judge allowed the appellant for maintenance till April 26, 2005, exceeding it for more than two months, and not after that. Also, she is not suffering from any mental or physical, as per provisions of Section 125 of Cr.P.C., it is necessary ground for maintenance.

Challenging the order of Judicial Magistrate and Sessions Judge, an application by all the applicants (including the appellant, Abhilasha) was filed under Section 482 Cr.P.C before High Court, which got dismissed, as the court did not find any illegality or infirmity in the judgment passed by the Sessions Judge.

Hence, an Appeal was made in Supreme Court, regarding the same.

Arguments from the Appellant side.
The appellant counsel appearing on behalf of Abhilasha relied heavily of Section 20 of Hindu Maintenance and Adoption Act, 1956 and submitted that as per this section, the obligation of a person to maintain his daughter, who is unmarried. extends till she is married. The appellant stated that the High Court committed error in taking a contrary view of the judgment given by the High Court, and also the upheld by the Supreme Court, in case of Jagdish Jugtawat Vs Manju Lata and Ors. where it was held that under personal law a unmarried daughter can claim maintenance. And as the appellant is unemployed and unmarried, hence, she is entitled to claim maintenance from her father (respondent). They contended that even if she is not suffering from any physical or mental abnormality or injury, by virtue of Section 20 of HAMA, 1956, she is entitled to claim maintenance till she is unmarried.

Arguments from the Respondent Side.
The respondent contended that under Section 125 of Cr.P.C. the entitlement of a daughter to claim maintenance is confined or restrained to the case where the person is mentally or physically ill, and cannot maintain herself, and in this present scenario the daughter is not mentally or physically ill and is not liable to ask for maintenance under this provision. And the High Court had rightly dismissed the application filed under Section 482 of Cr.P.C. of the appellant as they found nothing wrong in the orders passed by the Judicial Magistrate and the Sessions judge.

The Court after submissions from both the sides, framed two issues that arose for consideration in this appeal.
  1. Whether the appellant, who although had attained majority and is still unmarried is entitled to claim maintenance from her father in proceedings under Section 12Cr.P.C. although she is not suffering from any physical or mental injury?
  2. Whether the orders passed by learned Judicial Magistrate as well as learned Additional Sessions Court, which limited the appellant for maintenance till she attains majority on 26 April, 2005, could be set aside with direction to the respondent to continue giving maintenance even after 26.04.2005, till the appellant remains unmarried?

Supreme Court while addressing the issues stated that a daughter, who is Hindu and unmarried has the right to get maintenance from her father under Section 20(3) of the Hindu Adoption and Maintenance Act, and in order get entitled for this maintenance she should prove that she is not able to maintain herself, and the case must be filed under Section 20 of the Hindu Adoption and Maintenance Act, 1956. However, in the present case the application that has been filed is under Section 125 of Cr.P.C., and not under Section 20 of Hindu Adoption and Marriage Act, 1956.

In the case of, Jagdish Jugtawat Vs Manju Lata & Ors, which the appellant used as a defence, High Court and Supreme Court held that under Section 125 of Cr.P.C. a minor daughter has the right to get maintenance from her parents till she attains the age of majority, however both the Courts had declined not to interfere with the order of the Family Court. The Family Court passed an order, in the aforementioned case, granting maintenance to a daughter till she gets married, while reading Section 125 of Cr.P.C. and Section 20(3) of HAMA in accordance with each other.

And in the case of Jagdish Jugtawat (supra), the court decided not to interfere with the judgment given by the family law, because the court was of the opinion that interference with the order of Family court will lead to inconvenience of the respondent as she would be forced file another petition under Section 20(3) of HAMA, 1956 for further maintenance, and in order to avoid multiplicity of litigation the High Court did not interfere with the judgment. And when the case was filed under Article 136 in the Supreme Court, the apex court refused to interfere with the judgment.

However, in the present case the apex court is of the opinion that there are no such circumstances through which the case of Jagdish Jugtawat (supra) can be used as sheet anchor by the appellant. And the application filed by the appellant is under Section 125 of Cr.P.C. and not under Section 20 of the HAMA, 1956, thus, this application is not maintainable and hence was dismissed by the apex court.

Scope of Section 125:

  • Marriage should be lawful:

    The Supreme Court stated the case of Yamuna Anantrao Adhav Vs Anantrao Shivram Adhav and Anr., while stating the scope of Section 125 of Cr.P.C.. In this case the question involved was whether a Hindu woman who is married after coming into force of Hindu Marriage Act, 1956, to a Hindu male, who is already having a living lawfully wedded wife, can claim maintenance under Section 125 of Cr.P.C.

    The apex court in this case held that, marriage of a woman with a man who is already having a legal spouse, is null and void from its very inception. Section 5(1)(i) of Hindu Marriage Act (HMA) lays down the condition for valid marriage and Section 11 states any marriage in contravention of Section 5 to be null and should be considered as non-existing, when the question of legality arise. Section 125 of Cr.P.C. is enacted in interest of divorced wife, however, a woman cannot be considered as a divorcee unless there was a marriage in eyes of the law. Thus, the prayer of the appellant is not maintainable, as she is not a lawfully wedded wife.
  • Stepmother can claim maintenance:

    In the case of Kirtikant D. Vadodaria Vs State of Gujarat and Anr., the question before the Hon'ble Court was whether the word 'mother' used in the Section 125(1)(d) includes stepmother. The apex court held that a childless stepmother can claim maintenance from her stepson provided she is widow or her husband, if living, is also incapable of supporting and maintaining her.
  • Maintenance under Muslim Law:

    In the case of State of Haryana and others Vs Santra, while referring to Mulla's principle of Mohammedan Law, Supreme court held that under the Mohammedan law, a father is bound to maintain his sons until they have attained the age of puberty and is also bound to maintain his daughters until they are married.

    In the case of Noor Saba Khatoon VS Mohd. Qasim, it was held that under Section 125, Cr.P.C., the maintenance of the children is obligatory on the father, irrespective of his religion, and, as long as he is in the position to do so and the children does not have independent means of their own. There is nothing in Section 125 of Cr.P.C. which exempts a Muslim father from his obligation to maintain the children.

The Supreme Court in light of this case ruled out that Section 125 of the Cr.P.C. which provides immediate relief to an applicant in a summary proceeding whereas Section 20 of the Hindu Adoption and Maintenance Act has a larger scope which needs to can be determined by a Civil Court. Also, there should not be overlapping of powers between the Courts. The Judicial Magistrate has rightly decided not to grant maintenance under Hindu Adoption and Maintenance Act as the appellant has not filed the suit under the same. So, it becomes every necessary for any party filing a petition or appeal before any court, while taking in account of the sections or articles and their scope.

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