1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Jalaludin @ Jalal Mohammed Vs. Shahida Anjum & Ors. (S.B. Criminal Revision Petition No.700/2009) S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :- 04th November, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Dileep Singh Jadaun, for the petitioner. The petitioner has challenged the order dated 10.02.2009 passed by the learned Judge, Family Court, Kota whereby the learned Judge has partly allowed the application filed by the petitioner under Section 127 Cr.P.C. The Brief facts of the case are that the petitioner and the respondent No.5 were married according to the Muslim rites and customs. During the wedlock, four children were born. Due to certain differences, the parties had separated. Subsequently, respondent No.5 filed an application under Section 125 Cr.P.C. against the petitioner. On the basis of a compromise reached between the parties, vide order dated 08.11.1995, the petitioner was directed to pay Rs.350/- per month for the maintenance to respondent No.1, Shahida Anjum, and to pay Rs.200/- per month for the maintenance to the respondent No.2, Shahid, the respondent No.3, Shabina and to the respondent No.4., Shamina @ Rubina. Subsequently, respondent No.5 moved an application under Section 127 Cr.P.C. for increasing the maintenance amount. Vide order dated 26.04.2001, the maintenance amount was increased. Again the respondent No.5 2 moved an application under Section 127 Cr.P.C. praying for increasing in the maintenance amount. On the other hand, the petitioner also moved an application under Section 127 Cr.P.C. wherein he claimed that the four children had become major during the interim period. Therefore, he is no longer liable to pay maintenance for them. According to him respondent No.1, Shahida Anjum was 28 year old, respondent No.2, Shahid was 24 years old, respondent No.3, Shabina was 19 year old and respondent No.4, Shamina @ Rubina was 17 year old. After consolidating both the applications and after hearing both the parties, vide order dated 10.02.2009, the learned Judge directed that no maintenance needs to be paid to Shahid, the son who had become major. But he increased the maintenance amount of respondent Nos.1, 3 & 4. Hence, this petition before this Court. Mr. Dileep Singh Jadaun, the learned counsel for the petitioner, has contended that since the children had become major, they are disentitled from getting any maintenance under Section 125 Cr.P.C. Heard the learned counsel for the petitioner and perused the impugned order. Section 125 Cr.P.C. reads as under :- 125. Order for maintenance of wives, children and parents. (1) If any person leaving sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, 3 whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate 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, or (d) his father or mother, unable to maintain himself or herself, 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 wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means. Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. (2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: 4 Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. (4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. A bare perusal of the said Section clearly reveals a distinction has been made between a minor child and a major child and between a male child and a female child. While 125(1)(b) clearly stipulates that a legitimate or an illegitimate minor child is entitled to maintenance notwithstanding the fact that he may even be married or not, Section 125(1)(c) clearly stipulates that the child would be entitled to maintenance provided that a female child is not married. Thus, a female child, though major, would be entitled to maintenance, provided she is unmarried. Moreover, in the case of Noor Saba Khatoon Vs. Mohyd. Quasim [(1997)6 SCC 233], the Hon'ble Supreme Court has clearly observed as under :- Thus, our answer to the question posed in the earlier part of the opinion is that the children of 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 from the date of birth of the child concerned under Section 3(1) 5 (b) of the 1986 Act. In other words Section 3(1) (b) of the 1986 Act does not in any way affect the 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 of females, till they are married. In the present case, the petitioner has not been able to prove the fact that the three daughters, namely Shahida Anjum, Shabina, & Shamina @ Rubina were married. Therefore, the learned Judge was certainly justified in granting maintenance for the three daughters. Mr. Jadaun has prayed that he be permitted to bring further evidence to prove the fact that the three daughters are, indeed, married. However, the learned Judge has clearly observed that the petitioner did not produce any evidence to prove the factum that the three daughters were married. It is a settled principle of law that a fact has to be proved by the party who asserts the said fact. Therefore, it was for the petitioner to prove the factum of marriage during the proceeding pending before the Family Court. He cannot be permitted to fill up the lacunae at the appellate stage. Therefore, the request is unacceptable. In this view of the matter, there is neither any illegality, nor any perversity in the impugned order. The petition is devoid of any merit. It is, hereby, dismissed. (R.S.CHAUHAN)J. Manoj Solanki-