| NAME | ABHILASHA v. PARKASH & ORS |
| CITATION | (2020) 11 S.C.R. 244 |
| BENCH | ASHOK BHUSHAN, R. SUBHASH REDDY AND M. R. SHAH, JJ. |
| STATUTES | Code of criminal procedure, 1973; Hindu Adoption and Maintenance Act,1956 |
| PROVISIONS | Section 125- Cr.P.C., Section 20- Hindu adoption and maintenance act |
FACTS
- The appellant in this case is the daughter of respondent, no 1 & 2 who has challenged the order of Punjab and Haryana High court passed on 16th of August, 2018, through which Hon’ble court has dismissed appeal U/S 482 of Cr.P.C.[1] filed for setting aside order of Ist Class Judicial magistrate, Rewari as well as the order of Additional session judge dated 17.02.2014.
- Respondent no 2 (mother of appellant) filed an application of maintenance against her husband on 17.10.2002(respondent no 1) under section 125 Cr.P.C. for herself, her 2 sons & daughter, which was dismissed for rest three, except for appellant (in this case) who was granted maintenance until she attains majority, by Ld. Magistrate by order dated 16.02.2011.
- They filed a criminal revision, to which ld. Additional Session Judge dismissed and made a variation that revisionist no 4 shall be enabled to get maintenance only till 26.04.2005 when she attains majority, it was decided that under section 125 of Cr.P.C., only those children who are major are eligible for maintenance if they are physically or mentally abnormal or injured and aren’t able to maintain themselves , and he asserted that applicant no 4 (appellant in this case) is not suffering from any physical or mental abnormality or injury.
- Which was challenged before high court, it was dismissed by High court on the grounds of no legal infirmity or illegality in the judgment passed by ld. Additional session judge by making the same observations about physical and mental health status of appellant as was held by ld. Additional session judge. So, this appeal is filed to challenge high court judgment.
ISSUES
- Is the appellant, who is unmarried and is major in terms of age now, empowered to ask for maintenance from her father U/S 125 of Cr.P.C, even though she doesn’t suffer from any mental or physical abnormality or injury?
- Whether the orders passed by Magistrate as well as Revisional courts which limits the claim of maintenance of appellant only till date of she attaining majority is liable to set aside with a direction of continuing maintenance, even after 26.04.2005 until she gets married, to respondent no 1?
CONTENTIONS BY APPELLANT
- The appellant is qualified to seek maintenance from her father even though she has attained the age of legal adulthood as she is unmarried.
- The high court erred when it dismissed the appellant’s claim under section 482 of the Criminal Procedure Code on the grounds that she was not entitled to maintenance because she had reached majority and was not physically or mentally injured or abnormal.
- Appellant has looked towards the Hindu Adoptions & Maintenance Act, 1956[2] , Section 20 and submitted that under this provision of the said act the liability of father for maintenance of his daughter, who remains unmarried, extends till she gets married.
- Appellant has based her contention on Jagdish Jugtawat Vs. Manju Lata[3] case and stated that the High Court has committed error in taking a contrary view of this judgment of Apex court.
CONTENTIONS BY RESPONDENTS
- The maintenance claim of the appellant has been rightly limited by the courts below until her attainment of majority on 26.04.2005.
- Under section 125 of Cr.P.C. daughter who has attained majority, is only entitled only if she is suffering from Mental or Physical abnormality or injury unable to maintain herself. The Court of Revision has established the fact that the appellant does not suffer from any such abnormality or injury.
- The application was rightly rejected by the High Court U/S 482 Cr.P.C as no case was made out.
RATIONALE
- Court held the examination of nature, extent &scope of section 125 Cr.P.C. is vital to adjudicate the issues, in order to understand its scope it is necessary to undermine the scope of section 488 of 1898 code, which is similar to scope of section 125.
Court referred to Nanank Chand Vs. Chandra Kishore Aggarwal[4], in which the court held that
The Hindu Adoption & Maintenance Act 1956 and Section 488 of the Cr.P.C. 1898 according to this court, are not incompatible with one another and can coexist. This Court also ruled that Section 488 of the Criminal Procedure Code offers a summary remedy that is available to all people irrespective of their religion, exhibiting no relation with personal laws.
- Then court referred to Jagdish Jugtawat Vs. Manju Lata[5] In this case the family court passed an order granting maintenance established on joint reading of section 125 & section 20(3) of Cr.P.C. and 1956 act respectively. In the revision filed before high court , The court accepted the legal justification that, under Section 125 Cr.P.C., a minor daughter is only entitled to maintenance from her parents until she reaches majority, but it chose not to interfere with the orders made by the Family Court, on the note of Section 20(3) of 1956 act. The order was maintained, to avoid multiplicity of proceedings.
The Apex court held that judgment in Jagdish Jugtawat cannot be read as setting up a ratio decidendithatin trial U/S of 125 Cr.P.C, wherein the daughter claims maintenance from her father, she would be entitled to get maintenance from her father U/S 20(3) of the Act, 1956.
- However, the Supreme Court has ruled that Section 20(3) places an unambiguous legal obligation on a Hindu to maintain his unmarried daughter until she marries if she is unable to maintain herself, and that an unmarried daughter can enforce this legal right in accordance with the law.[6]
- Court held that after enactment of Family Courts Act,1984, a family court jurisdiction extends to hear matter of maintenance under section 125 Cr.P.C., but this jurisdiction could only be exercised with respect to a town or city having its population more than 1 million, where there is no family court it shall have to be before magistrate of the first class and in the same area the civil proceedings under Section 20 of the 1956, act shall only be before the any subordinate Civil Court or District Court.[7]
- In the eventuality where family court has jurisdiction to decide a case under section 125 Cr.P.C. & Section 20(3) of 1956 act, in such situation the family court can exert its jurisdiction under both laws, and can grant maintenance to unmarried Hindu daughter if she has become major, by invoking her legal right under Section 20(3) of the 1956 act to avoid multiplicity of litigation, as observed in Jugtawat case. But the same power does not rests with magistrate.
PRINCIPAL RULING
Supreme court accepted the contention of the appellant that the Unmarried Hindu Daughter can claim maintenance from her father, till she gets married relying on Section 20 (3) of the Hindu Adoptions & Maintenance Act,1956, provided that she is unable to maintain herself and same is pleaded for enforcement of her statutory right.
Since in this case the application for maintenance was filed under section 125 Cr.P.C. and not under section 20 of the Hindu Adoption & Maintenance Act,1956, so the magistrate could not have exercised the jurisdiction under act of 1956, so court don’t find any illegality in order of magistrate and appellate courts, so this appeal was held non maintainable and dismissed.
The Supreme Court at the end advised the appellant to take recourse to section 20 (3) of the 1956 act to claim maintenance against her father.
DEFECTS
This judgment brings clarity that, Unmarried Hindu daughter can claim maintenance if she is not able to maintain herself under the section 20(3) of Hindu Adoption and Maintenance act,1956 i.e the personal law applicable on Hindus and not under the section 125 Cr.P.C. which is a summary remedy to claim maintenance irrespective of religion of parties.
Similarly in State of Haryana and Others Vs. Santra (Smt.)[8] It was held that under the Mohammedan Law, a father is bound to maintain his daughters until they are married.
So it brings a transparent view that the maintenance can be claimed by the unmarried major daughter, if she is not suffering from any kind of mental or physical abnormality or injury under the personal laws of the specific religion and not under the secular section 125 of Cr.P.C.
What amounts to the legal defect here is if there is failure to comply with the order of magistrate without any sufficient cause, he may also imprison the person for such failure under section 125 of Cr.P.C., but in this case sort of situation there is no such provision for imprisonment, which naturally loose the compliance with such order passed by family court.
CONCLUSION
In this case the court clearly sets the ratio decidendi that Unmarried Hindu daughters, even if major, is not able to maintain themselves and aren’t physically or mentally abnormal or injured as required by section 125 of Cr.P.C., can claim maintenance under section 20(3) of Hindu Adoption and Maintenance Act,1956.
It also sets out that it’s the family court who could exercise his jurisdiction under the one proceeding and can deal with both section 125 of Cr.P.C. and Section 20 of the Hindu adoption and maintenance act 1956, to avoid multiplicity of litigation.
This case has set out a landmark ratio decidendi, which will not only bring in the statutory right of the daughter who is unmarried and major to claim maintenance, but also reduce the multiplicity of proceedings in the family court.
Now, if we refer to the solution to the defect mentioned, it could be adding an additional provision of imprisonment as in section 125 of Cr.P.C. for non-compliance of such order or to fast track the execution cases of orders of such maintenance passed under various personal laws.
ANKIT KUNDRA
3RD YEAR B.A.LL. B
PUSSGRC.
[1] THE CODE OF CRIMINAL PROCEDURE, § 125,482, No 2, Acts of Parliament, 1973(INDIA)
[2] THE HINDU ADOPTIONS AND MAINTENANCE ACT, § 20, NO. 78, Acts of Parliament , 1956(INDIA)
[3] Jagdish Jugtawat Vs. Manju Lata (2002) 5 SCC 422
[4] Nanank Chand Vs. Chandra Kishore Aggarwal (1969) 3 SCC 802
[5] Jagdish Jugtawat Vs. Manju Lata (2002) 5 SCC 422
[6] (2020) 11 S.C.R. 244
[7] (2020) 11 S.C.R. 244
[8] (2000) 5 SCC 182