OgAyaw? " V”‘ ‘ WW AP/Z W HIGH COURT OF CHHATTISGARH BILASPUR Criminal Misc. Petition No.242 of 2007 PETITIONERS: Smt. Sushila Bai and another Versus RESPONDENT: Bisauharam “ erl 2009 SdA r W T.P Sharma Judge .. Post for gronouncement of order on 1 Segtemb tlIGH COURT OF CHHATTISGARH BILASPUR Criminal Misc. Petition Nq.__242 of 2007 {Petition under Section 482 of the Code of Criminal Procedure, 1973} P resent: L, Mr. Anup Majumdar, counsel for the petitioners. Mr. Rakesh Sahju, counsel forthe respondent. Single Bench: Hon'bie Mr. T.P. Sharma, J ORDER (Passed on 1“ September, 2009) 1. This petition is for quashment of the order dated 26-5-2007 passed by the 1“ Additionai Sessions Judge, Rajnandgaon in Criminal Revision No.29/2007 affirming the orderdated 24-1-2007 passed by the Judicial Magistrate First Class, Rajnandgaon in Misc. Criminal Case No.7/2007, whereby learned Judicial Magistrate First Class has awarded maintenance of Rs.2,000/— per‘month to petitioner No.1, but has denied maintenance to petitioner No.2, the unmarried daughter, on the ground that she is not entitled for maintenance in terms of Section 125 (1) (a) of the Code of Criminal Procedure, 1973 (for short ‘the Code’) which has been affirmed by the revisional Court. . Order is challenged. onlthe ground that the unmarried daughter is still 'unable to maintain herself and oniy after attaining the age of majority she does not become an earning member or she does not cease her character to maintain herseif without any change relating to income and earning of such daughter, but the Courts below have not considered the material fact and thereby committed illegality, by \ PETITIONERS/: 1. Smt. Sushila Bai, W/o Bisauharam (Applicants) Baghmare, aged‘ about 45 years, 2. Topin Bai, D/o Bisauharam Baghmare, aged about 27 years, Both R/o Village Pendarwani, Tehsil Dongargaon, Police Station Dongargaon, Distt. Rajnandgaon (C.G.) Versus ' RESPONDENT/: Bisauharam, S/o Late Kaluram (Non-applicant) Baghmare, aged about 48 years, R/o Quarter No.8—A, Street No.13, Sector 5, Bhilai, Distt. Durg (C.G.) @., denying maintenance to the unmarried daughter only on the ground of attaining the age of majority. . I have heard learned counsel for the parties impugned and record of the Courts below. I Brief facts giving rise to filing of this, petition are that petitioner No.1 is wife & petitioner No.2 is unmarried daughter of the respondent and they are residing separately from the respondent. The respondent has contacted marriage with another woman and has deserted the present petitioners. Petitioner No.2 is unmarried inability daughter to and maintain she is themselves, unable to maintain the petitioners herself. have On the filed ground petition o under Section 125 of the Code. The respondent has opposed the petition. He has admitted that he is residing with another woman Pushpa as wife and he has contacted marriage with Pushpa with the consent of petitioner No.1. The petitioners are residing in the house of respondent and getting their livelihood from the agricultural land f the petitioners which is in possession of the petitioners. Petitioner o.2 is an unmarried daughter and she is not entitled for any maintenance under Section 125 of the Code. . After appreciating the evidence adduced on behalf of the parties, learned Judicial Magistrate First Class has awarded maintenance of Rs.2,000/— per month to petitioner No.1 and denied maintenance to petitioner No.2 on the ground that she is not minor and is not order entitled is affirmed for maintenance by the revisional under Section Court. 125 (1) (a) of the Code. The_ Learned counsel for the petitioners vehemently argued that the Courts below have arrived at a finding that petitioner No.2 is not having sufficient means for her maintenance and income of the respondent is at least more than Rs.5,000/~ per month. Learned Courts below have further arrived at a finding that petitioner No.2 is not able to maintain herself. The respondent and has deposed that‘he has contacted marriage with Pushpa after getting consent from petitioner No.1 and petitioner No.2 is his unmarried daughter. Petitioner No.1 has also deposed that petitioner No.2 is her unmarried daughter and Rs.2,000/~ per month ‘ would be required for maintenance of her daughter. Both have led evidence but they have not adduced any evid . f o N . e b). effect that petitioner No.2 is major and she is having some means of earning or income for her livelihood. Learned counsei placed reliance in the matter of Noor Saba Khatoon v. Mohd. Quasiml in which the Apex Court has held that Muslim children are entitled for maintenance till they attain majority or are able to maintain themselves, female children are also similarly entitled till they get married. Learned counsel further placed reliance in the matter o Jagdish Jugtawat v. Manju Lata and others2 in which the Apex Court has held that though Section 125 of the Code does not fix liability of parents to maintain children beyond attainment o majority, but right of a minor girl for maintenance from parents after ttaining majority till her marriage is recognized under Section 2O (3) of the Hindu Adoptions and Maintenance Act, 1956 (for short ‘the Act'). Therefore, on a combined reading of the two provisions, daughter even after her attaining majority is entitled for maintenance till her marriage and benefit of personal law for awarding or continuing maintenance proceedings can be given to the applicant, ineligible under Section 125 of the Code, to avoid multiplicity. Learned counsel also placed reliance in the matter of Yugeshwar Nath Mishra v. Arpana Kumari and another3 in ‘ which the Patna High Court after relying upon the case of Noor Saba (supra) has held that major unmarried daughter isalso entitled for maintenance till her marriage. Learned counsei further placed reliance in the matter of Rama Chandra Sahu v. Tapaswini Sahu and another4 in which it has been held by the Orissa High Court that major unmarried daughter is entitled for maintenance in terms of Section 125 (1) (c) of the Code and the word ‘injury' need not necessarily denote physical injury, it has to be read in context o inability to maintain. . On the other hand, learned counsel for the respondent opposed the petition and submitted that this is a proceeding under Section 125 of the Code for grant of maintenance and not a petition under Section 20 (3) of the Act. Thisis a summary proceeding to save the person from vagrancy and destitution. Unmarried daughters are not entitled for maintenance from their parents under Section 12S of the Code, . 1 AIR 1997 sc 3280 ‘ 2 (2002) 5 scc-422 3 2003Cri.L.J. 2625 ‘ 4 2007 Cri.L.J. 2241 f f a f u y may ek remedy under Section 20 of the Act after attaining the age of majority without assigning any cause for inability as a result of physical or mental injury. But in case of grant o maintenance under Section 125 of the Code an unmarried daughter who has attained the age of majority is required to prove that she is unable to maintain herself by reason of any physical or mental abnormality or injury. In this case, petitioner No.2 has not adduced ny‘evidence to show that she is unable to maintain herself by reason of any physical or mental abnormality or injury, therefore, she is not entitled for maintenance in a summary proceeding under Section 125 of the Code. I t dispu tt peitoer No.2 is nmarried ger the oent. he responnt, father of petitioner No.2, is not aintning petionr o.2 or providg any amount of maintenance to her. Section 25 (1) of te Code reads as follos: - “15. Orr for ienc o wives childre d part—(1 lf any rson hving sufficient means neglects or refuses to maintai—— (a)his f uble to maintain herself, or l or e ch (b)hs legitimate illgitimate minor ild, whether rried r not, unable maintai itself, r (c)h gitimte or llegitimate child (not being a married aughter) who has attained jority, here such child is, by reon o any pical or menal abnorlity or njuy nable o ainain t ma ir u t mt itself, or (d)is hr r mother, unable to maia himself or hrself, a Marate of the first class may, upn roof such neglect or reusal, rde such person to a a monthly llowane for the maintenan of his wife r such child father or other, at such monthly rate, as sh magistrate thinks fit, and to pay the same to such person a the Maistrate ay from time o ti direct: s g m t me de the provisions of Section 125 of the Code, the ajor nrred daught i equired to prove that she is unable to iain herse y reson of any pysical or mental abnormity or i But as h en ld by e Apex ourt in te mtt f Noor Saba (supra), even unmarried daughters are entitled for maintenance till they get married. Paras 10 & 11 of the sai judgment read thus, “10. Thus, both under the personal law and the statutory law (Sec. 125, Cr.P.C.) the obligation of a Muslim father, having sufficient means, to maintain bt 'the se f a . t is no ted ha tin u dauht of respnd T de mai tie N in 1 h w 2 de mantnae f , n an ens) pe a n wie, na ma o to n o is lea i d ma w as f hys h fate o ntin e gist o p of f or mke ac ce o , m uc . Unr m umai er s r mant lf b a h al njury. as be he th C h aer o d his minor children, unable to maintain temselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife. 11. Thus, our answer to the question posed in the earlier part of the opinion is that the children o Muslim parents are entitled to claim maintenance under Section 125, Cr.P.C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married, and this right is not restricted, affected or controlled by the divorcee wife’s right to claim maintenance for maintaining the infant child/children in her custody for a period of two years form the date of birth of the child concerned under Section 3 (1) (b) of the 1986 Act. In other words Section 3 (1) (b) of the 1986 Act does not in any way affect th rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case o females, till they are married.“ 10.While dealing with the same question of award of maintenance to unmarried daughter after attaining the age of majority, the Apex Court in the matter of Jagdish (supra), after applying the principle has dismissed the S.L.P. filed against the award of maintenance to the major unmarried daughter under Section 125 of the Code. t Paras 3 & 4 of the said judgment read thus, “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 (supra) 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(1)(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 yeg 4. h f e f learned Single Judge for maintaining the order passed by the Family Court which is based on a» combined reading of Section 125 CrPC 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 judgment/order of the High Court is called for.” 11.Further, while dealing with same question and the word ‘injury’ in the matter of Rama Chandra (supra), the Orissa High Court has held that word ‘injury' need not necessarily denote physical injury and it has to be read in context of inability to maintain. Therefore, as held in the matters of Noor Saba & Jagdish (supra), unmarried daughters are entitled for maintenance even after attainment of the age of majority till they get married. 12.The provisions of Section 125 of the Code are beneficial legislation to protect the dependent from vagrancy and destitution and to provide reasonable amount of maintenance for their livelihood. In case of children viz., male till attainment of the age of majority and in case of female till the marriage, but if the daughter is unable to maintain herself by reason of any physical or mental abnormality or injury she is entitled for maintenance till she gets married even after attainment of majority, however, she is required to prove the fact that she is‘ unable to maintain herself and her father is having sufficient means to maintain her. If a minor daughter is unable to maintain herself till the age of her majority and after attainment of majority she does not able to maintain herself, then her inability to maintain herself does not cease automatically and such inability to maintain herself makes her entitle for maintenance from her parents even after the attainment of her age of majority. 13.For the foregoing reasons, it is held that unmarried daughter is entitled for maintenance even after attainment of the age of majority, till her marriage, but she is required to prove her inability to maintain herself and that in spite of having sufficient means, her parents are not maintaining her. Consequently, the order impugned requires modification. 14.In the present case, application for maintenance has been filed by petitioner No.2 after attainment of the age of majority. She has shown her age as 27 years, but she has not examined herself before the trial Court or adduced any specific evidence relating to her