IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.668 of 2008 MOST.SARASWATI DEVI, WIFE OF LATE SURENDRA PRASAD …PETITIONER Versus 1. STATE OF BIHAR 2. REENA KUMARI, DUAGHTER OF LATE SURENDRA PRASAD …OPPOSITE PARTIES For the petitioner : Mr. Alamdar Hussain, Sr. Advocate & : Mr. Syed Asgher Nezami For the O.P.No.2 :Mr.Bajrangilal For the State : Mr.Jharkhandi Upadhyay,APP ----------- 03. 21.09.2010 Heard counsel for the parties. Petitioner is the mother of the applicant- daughter, namely, Reena Kumari. She is aggrieved by the order dated 14.05.2008, passed by learned Principal Judge, Family Court, Jehanabad in Maintenance Case No.81/06/116/06(Reena Kumari vs. Mos. Saraswati Devi). Learned Principal Judge on a consideration of the matter and after going through materials on record, passed the following order: “I am of the opinion that a maintenance amount of Rs.1200/-(One thousand and two hundred) per month would be proper and justified and accordingly the o.p.Saraswati Devi is hereby directed to pay a maintenance at the rate of Rs.1200(one thousand and two hundred) per month to the applicant Reena Kumari since the date of filing of this case, i.e. 15.12 2006 till she marries.” Few relevant facts necessary for disposal of the case may be indicated. In the year 1991 the father of the applicant Reena Kumari who was serving as casual labour in 2 the Patna High Court died. At the time of death of her father, she was merely two years old. According to the policy decision of the Patna High Court, the mother(Saraswati Devi) was offered appointment on compassionate ground. It is the case of the mother that the grand-mother of Reena Kumari (mother-in-law of the petitioner), took her daughter away to her home. It is also the case of the petitioner that in the year 1993, she remarried and the wedlock produced three children. It appears from the pleadings on record that the grand-mother filed certain application in this Court seeking removal of the petitioner from service on the ground that she had re-married and that she had neglected to maintain the mother-in-law as well as her daughter. Certain enquiries appear to have been made whereafter the said application was not found sustainable. It is also the admitted position that the petitioner is now confirmed employee of this Court and working as such. On 05.04.2007, an application was filed by the mother-in-law of the petitioner (grand-mother of Reena Kumari) on behalf of the Reena Kumari seeking maintenance. The petitioner appeared in the said proceeding and contested the same. It was claimed that the post retirement benefits paid on account of the death of her husband has been credited in the name of Reena Kumari which was sufficient for her maintenance. On these facts a submission was made that she was not legally liable to maintain Reena Kumari who was not ready to live with her. 3 Learned trial court on a consideration of materials on record found and held as under in paragraph 15: “Heard carefully the argument of learned counsel for both the sides and also perused the case record. At the very outset I must say that all the arguments advanced for on behalf of the opposite party on the basis of the Hindi Widow Re-Married Act 1856 is of no avail to o.p. because this Act has been repealed by the Hindu Widow Re- Married(repeal) Act 1983 i.e. by Act No.24 of 1983 and accordingly this can not be accepted that a mother who has remarried would not be liable to maintain her minor unmarried daughter. She is still her natural guardian and according to Sec. 20 of Hindu Adoption of Maintenance Act,1956 she is liable to maintain her daughter. One argument has been advanced forth from the side of the opposite party to the effect that mother has not been held responsible to maintain her children u/s 1235 Cr.P.C. and for this he has relied on a case law as cited in 1978 Criminal Law Jerenal, P.609. May be so but at the same time it is established principle that justice can not be denied even if the case is filed under wrong notion and wrong proposition of law. the application claim of maintenance is well within the provisions of the Hindu Adopti09ns and Maintenance Act,1956 and now telling the applicant to withdrawn this case and filed another case under the Hindu Adoptions and Maintenance Act, 1956 would be only a misuse of process of law because this is a Family Court and the Family Court has been established with a view to promote conciliation in, and secure speedy affairs and for matter connected therewith, and accordingly in order to save the multiplicity of suit and also with a view to secure speedy settlement of dispute, this argument of the learned counsel for the o.p. is of no merit. It has rightly been argued on behalf of the learned counsel for the applicant that the fact that Lacks rupees have been deposited in the name of Reena Kumari in Bank has not been proved by placing any relevant documents and further argument that Reena Kumari is being well maintained by her grandmother 4 out of the estate of her father is also of not merit., because if a person is alive and unable to maintain, it is natural that he or she is being maintained by others but that does not mean that a person who is legally responsible to maintain him or her would be exonerated from his or her legal duty. Moreover, Reena Kumar has no legal claim over the pension amount of her grand-mother and also she can not be absolute owner for all of his father estate because her grandmother is still alive and partition has not taken place. The argument on behalf of the learned counsel for the o.p. to the effect that o.p. is ready to maintain the applicant if she becomes ready to reside with her, but to this, reply of learned counsel for the applicant on this question is convincing because the o.p. and her second husband have totally neglected her up till now for the last 13-14 years not taking care even at the time of her illness and the applicant has totally refused to live with her mother and it is also a convincing argument that she can not be directed by this Court, under these circumstances, to live with her step father. And accordingly on the basis of the discussions as made above, I am of the opinion that the o.p. Saraswati Devi is liable to maintain her daughter Reena Kumari.” While assailing the order, learned counsel for the petitioner submits that in terms of the provisions contained in section 125 of the Criminal Procedure Code(hereinafter referred to as the „Code‟), the petitioner- mother was not legally obliged to maintain the child either male or female beyond the age of attaining his/her majority. It is the contention of the petitioner that Reena Kumarri has already attained majority. It is next contended that as per section 20(3) of the Hindu Adoptions and Maintenance Act, 1956(hereinafter referred to as the „Act‟), she may be 5 saddled with the liability to maintain Reena Kumari till her re-marriage, but in view of the provision contained therein a suit has to be filed in which the court has to consider all relevant aspects of the matter. Section 20(3) of the Act reads as follows: “20(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 parent or the unmarried daughter, as the case may, is unable to maintain himself or herself out of his or her own earnings of other property.” Learned counsel has thus emphasized that Reena Kumari shall be entitled to seek maintenance from the petitioner-mother only if it is shown from materials on record that he/she is unable to maintain herself/himself having regard to her own earning or other property. Learned counsel for the petitioner draws attention of the Court to Grounds VIII of this application which reads as under: “For that the court below fail to consider that the petitioner has for gone all her late husband‟s property and money which fact is also admitted in her deposition.” It is contended that during her deposition she has stated the aforesaid fact. Before this Court also she has repudiated all her claim(s) on the property left behind by her Late husband, namely Surendra Prasad Learned counsel for o.p.no.2, on the other hand, supports the impugned order. It is contended that the petitioner got appointment on compassionate ground. One of 6 the conditions of appointment is that she is legally bound to maintain the daughter and other family members including the mother of the deceased employee. If she has failed in her duty, then she was fit to be removed from service. According to him, this aspect of the matter should also be considered by this court while deciding the issue. This Court proposes first to deal with the submission advanced on behalf of the o.p. It has been contended that in terms of the guidelines of the circular/policy decision, a person who has been given compassionate appointment is legally obliged to maintain the member of the deceased family who are unable to maintain themselves. It is the contention that if the petitioner is defaulting in maintaining the daughter as well as the mother-in-law, then she should be removed from service. In the present proceeding this issue is not relevant. O. P. No.2 can very well raise this issue before an appropriate forum in accordance with law. This Court for the present only notices that such an application appears to have been filed by the mother-in-law which was not acceded to. Counsel for the petitioner has submitted that going by the provisions contained in section 125 of the Code, the petitioner is liable to maintain her daughter (Reena Kumari) till she attains majority. It is thus the contention that the order impugned, directing her to pay maintenance amount of Rs.1200/- till she is re-married is contrary to the 7 provision of law. It is contended that any such direction could have been passed in view of the provisions contained in section 20(3) of the 1956 Act which lays down a distinct parameter. The petitioner has already repudiated her entire claim on the property left behind by her deceased husband including the post-retiral dues. There is thus sufficient property available in the family which shall be adequate for maintenance of her daughter(Reena Kumari) till she is married. These considerations are germane while deciding the said issue. In the proceeding under section 125 of the Code, the same could not be legally raised and entertained. Learned counsel for the petitioner also highlights that her claim with regard to sufficiency of property has been set aside by learned trial court on the reasoning that there is no partition between the grand-mother and the deceased son of which Reena Kumari seems to be the sole legal heir. Learned counsel for o.p.no.2 has not been able to controvert the aforesaid argument. However, it is contended that apart from maintaining her daughter, the petitioner would also be legally and morally obliged to ensure that Reena Kumari is married and settled in life. He, however, is not able to refer to any provision under which this Court can direct for the same. I have perused the materials available on record and considered the submissions advanced on behalf of the parties. This Court is satisfied from the submissions made 8 on behalf of the parties that the following modifications in the impugned order would meet the ends of justice. The present application is disposed of by modifying the operative portion of the order impugned in the following manner: Applicant Reena Kumari(o.p.no.2 herein) shall be entitled to payment of maintenance of Rs.1200/-( Rupees one thousand two hundred) per month with effect from the date of fling of the case(15.12.2006) till she attains majority. If the applicant Reena Kumari desires further maintenance then she would be at liberty to file a separate application seeking relief in terms of section 20(3) of 1956 Act. In case, such an application/suit is filed, the same shall be disposed of in accordance with law on its own merit uninfluenced by the observation(s) hereinabove. hr ( Kishore K. Mandal )