1. By way of present Criminal Revision Application, the petitioner has challenged the judgment and order dated Page 1 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined 04/12/2021 passed by the learned Principal Judge, Family Court, Navsari in Criminal Misc. Application No.172 of 2016 (Old Maintenance Application No.17 of 2015), disputing the order of maintenance qua respondent no.2- the daughter.

2. Facts of the case in brief are that the petitioner had married respondent no.1. Respondent no.2 is his younger daughter. Respondent no.1 and respondent no.2 are residing separately since about 22 years. Elder daughter, of the petitioner and respondent no.1, had been married by the petitioner. The Respondents had earlier filed Maintenance Application No.72 of 2000 under Section 125 of the Criminal Procedure Code, 1973 (for short 'the CrPC ") against the petitioner before the JMFC, Navsari. The JMFC, Navsari, was pleased to grant Rs.350/- and Rs.250/- per month as maintenance to respondent nos.1 and 2 respectively. Thereafter, the respondents preferred Maintenance Application No.135 of 2002 under Section 127(1) of the CrPC for enhancement of maintenance and the same was allowed and the maintenance was enhanced to Rs.500/- and Rs.400/- for respondents nos.1 and 2 respectively. Thereafter, the respondents again preferred Maintenance Application No.409 Page 2 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined of 2009 under Section 127(1) of the CrPC for enhancement. The learned 4th Additional Chief Judicial Magistrate, Navsari vide judgment and order dated 20/04/2011 allowed the same and enhanced maintenance of respondents to Rs.2,000/- each per month. Thereafter, again the respondents preferred an application being Criminal Misc. Application No.172 of 2016 (Maintenance Application No.17 of 2015) and the same was allowed by the learned Principal Judge, Family Court, Navsari vide judgment and order dated 04/12/2021 and enhanced maintenance of the respondents to Rs.5,000/- each per month, aggrieved by the same, the petitioner is before this Court.

3. Mr. H. B. Shethna, learned advocate for the applicant submitted that the impugned order of the learned Principal Judge, Family Court, Navsari dated 04/12/2021 in a proceedings of Maintenance Application No.17 of 2015 (renumbered as Criminal Misc. Application No.172 of 2016) under Section 127 of the CrPC has failed to note that the age of the applicant no.2 would be 17 years and six months at the time of institution of the petition on 07/01/2015. Learned advocate Mr.Shethna submitted that as per the record, the date of birth is 22/07/1997 and, therefore, learned judge was Page 3 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined required to pass an order to the effect that applicant no.2 would be entitled to receive maintenance amount till she attains majority. Mr.Shethna, learned advocate submitted that since the impugned order does not specify the date, so a challenge is given, since the father would not be legally liable to pay the maintenance amount to the major daughter. Relying upon the judgment of Abhilasha vs. Parkash reported in AIR 2020 SC 4355, Mr. Shethna, learned advocate submitted that this aspect has already been covered by the judgment where the Supreme Court has laid down that the Hindu unmarried daughter is entitled to receive maintenance from her father under Section 125 of CrPC only till she attains majority and if she remains unmarried then she would have to go under Section-20 of the Hindu Adoption and Maintenance Act, 1956 (for short 'the HAM Act') and, thus, stated that unless and until she does not plead and prove that she is unable to maintain herself and for that files an application/suit under Section 20 of HAM Act, she would not be entitled to any maintenance amount from her father. Mr.Shethna, learned advocate has also relied upon various decisions in support of his submissions and thus, stated that the order impugned requires modification. The relevant Page 4 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined paragraphs relied upon by learned advocate Mr.Shethna are narrated as under:

It may be noticed that the Parliament in its wisdom has enabled only a minor child whether legitimate or illegitimate to claim maintenance under S. 125(1)(b) and only one exception has been made by enacting sub- section (c) which enables the child which has attained majority to claim maintenance. That is a case where the child by reason of any physical or mental abnormality or injury is unable to maintain itself. It is not the case of any of the petitioners that they have any physical or mental abnormality or injury or on that account they are unable to maintain themselves. Therefore, it is clear that the case of petitioners 1 and 2 does not come under either sub-clause (b) or (c) of S. 125(1) and the case of the 3rd petitioner subsequent to 30-4-90 does not also come under any of these sub-sections. In this view of the matter, the decision relied upon has no application to a case arising under S. 125(1)(b) of Code of Criminal Procedure, 1973. Therefore, the learned Magistrate was right in negativing the claim made by petitioner 1 and 2 restricting the claim of 3rd petitioner to that date. 3.2. Decision of the Hon'ble Allahabad High Court in the case of Amod Kumar Saivastava vs. State of Uttar Pradesh reported in 2008 (0) AIJEL-UP 331186 wherein in para-8 to 13, it is observed as under:

Divya and Km. Bhavya have attained majority. Annexure No. 1 to the accompanying affidavit in criminal revision No. 4400 of 2006 is the copy of the application under Section 125 Cr.P.C., which was filed by Smt. Neelam Srivastava against her husband Amod Kumar Srivastava. According to para 6 of this application, the first daughter of the couple was born on 14.09.1982 and the second daughter was born on 14.06.1984. The impugned order granting maintenance allowance to the daughters and their mother Smt. Neelam Srivastava was passed by the Family Court, Varanasi on 24.06.2006. Much prior to the passing of impugned order, both the daughters had attained majority. Therefore, having regard to the provisions of Section 125(1)(c) Cr.P.C., both the daughters were not entitled to get any maintenance allowance after attaining majority, because under Section 125(1)(c) Cr.P.C., the inability to maintain itself must be by reason of any physical or mental abnormality or injury in the case of child (not being a married daughter) who has attained majority.

10. The matter of granting maintenance allowance under the provisions of Section 125(1)(c) Cr.P.C. to the unmarried daughter who attained majority came up for consideration before Madras High Court in the case of T.P.S.H. Selva Saroja v. T.PS. H. Sasinathana 1989 Cri L.J. 2032. After considering the provisions of Section 488 of old Cr.P.C . and Section 125 of new Cr.P.C ., it is observed as under in para 10 of the judgement at page 2035:

11. This matter was considered by Karnatka High Court also in the case of Kum. L. Usharani and Ors. v. D.S. Lakshmaiah 1993 Cri L.J. 982. In that case also, provisions of Section 488 and 125 of the old and new Cr. P. C. were considered and it was held that "it may be noticed that the Parliament in its wisdom has enabled only a minor child whether legitimate or illegitimate to claim maintenance under Section 125(1)(b) and only one exception has been made by enacting Sub-section

(c)which enables the child which has attained majority to claim maintenance. That is a case where the child by reason of any physical or mental abnormality or injury is unable to maintain itself."

12. In the case of Moideenkuttty v. Pathumma and Ors. 1984 (2) Crimes 355, Kerela High Court has also taken the similar view. The following observations made in para 5 and 6 of the judgement at page 356 of the report are worth mentioning:

13. Keeping in view the law laid down in above mentioned cases, the impugned judgement granting maintenance allowance to Km. Bhavya and Km. Divya Page 9 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined even after their attaining majority cannot be sustained, because as stated earlier also, both these daughters had attained majority much prior to the date of passing the impugned order and since their inability to maintain themselves cannot be attributed to any physical or mental abnormality or injury within the meaning of Section 125(1)(c) Cr.P.C., hence, they had become dis- entitled to get maintenance allowance from their father after attaining majority under the provisions of Section 125Cr.P.C. If they want to claim maintenance allowance from their father even after attaining majority, then they can approach Civil Court for this purpose." 3.3 Decision of the Apex Court in the case of Amarendra Kumar Paul v. Maya Paul and others reported in (2009) 8 SCC 359, wherein it is held that an application for grant of maintenance is maintainable regarding children, till they have not attained majority. The cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor children, unable to maintain themselves. Hence, once children attain majority, said provision would cease to apply.

3.4. Decision the case of Nitaben Dineshkumar Oza v. Dineshkumar Ishwarlal Oza & Anr. reported in 2016 (3) GLR 1877 wherein it is held that major son is not entitled to receive maintenance from father. It was observed in the said Page 10 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined case that though father has no legal obligation, nevertheless he has social and moral obligation to maintain his son who is still studying till he is able to stand on his own legs but, it is for father to act accordingly.

4. Countering the submissions of learned advocate for the applicant, Mr.Vaibhav Sheth, learned advocate for the respondents nos.1 and 2 submitted that modification in the order is possible only by the Magistrate who has passed order under Section 127 of the Criminal Procedure Code and for that the petitioner father is required to move the concerned Magistrate Court under Section 127 of the CrPC for alteration in the order and on proof of change in the circumstances of any person receiving, under Section 125, a monthly allowance for the maintenance or ordered under the same section to pay a monthly allowance for the maintenance or interim maintenance. Mr. Sheth, learned advocate submitted that attainment of majority is a ground which is required to be pleaded and proved before the court while making a prayer for cancellation or variation of order, by way of a separate application.

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5. Mr. Vaibhav Sheth, learned advocate has relied upon the decision in the case of Jagdish Jugtawat v. Manju Lata and others reported in (2002) 5 SCC 422, wherein it is observed that Section 125 does not fix liability of parents to maintain children beyond attainment of majority, but right of minor girl for maintenance from parents after attaining majority till her marriage, is recognized under S.20(3) of Hindu Adoptions and Maintenance Act. Therefore, on a combined reading of the two provisions, it was held that High Court was justified in upholding the order of Family Court, by which it granted maintenance under S. 125 to the daughter even after her attaining majority but till her marriage, taking the view that it would avoid multiplicity of proceedings as otherwise the party would be forced to file another petition under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956, for further maintenance.

6. Referring to provision of Section-7 of the Family Court Act, 1984, learned advocate Mr.Vaibhav Sheth submitted that the act does not make any difference between the power to be exercised under Chapter-IX of the CrPC by the Family Court Judge or under Section 20 of the Hindu Adoption and Page 12 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined Maintenance Act ('the HAM Act') and, thus, referring to decision of Jagdish Jugtawat (supra), stated that though Section 125 of the CrPC does not allow maintenance beyond attaining of majority, the right of the girl for maintenance from parents till she gets married is recognized under Section 20 of the HAM Act.

7. Mr. Sheth, learned advocate, thus, submitted that case of Jagdish Jugtawat (supra) has been referred in the judgment of Abhilasha vs. Parkash (supra) relied upon by learned advocate Mr.Shethna and thus, stated that while the Family Court has passed the order of maintenance to the daughter, has exercised the power which the Family Courts have under the Family Court Act, 1984 , which aims at speedy settlement of the dispute of the family matters.

8. Mr. Sheth, learned advocate submitted that Section 7 of the Family Court Act, 1984 gives power to the Family Court to exercise jurisdiction under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation of Section 7 which under clause-(f) of the explanation permits a suit or proceedings for maintenance Page 13 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined and Sub-section (2) of Section 7 gives power to the Family Court to exercise a jurisdiction exercisable by a Magistrate of the First Class under Chapter-IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure , 1973 (2 of 1974); and such other jurisdiction as may be conferred on it by any other enactment. Mr. Sheth, learned advocate submitted that to avoid multiplicity of the proceedings, the order passed by the Family Court should be upheld, in view of the fact that the Family Court has the power to pass an order for maintenance under the personal law even in continuation of the maintenance proceedings under Section 125 of the CrPC.

9. The impugned order dated 04/12/2021 is allowing the application moved under Section 127 of the CrPC. The applicants as a wife and minor daughter have claimed the enhancement of the maintenance amount. The learned Family Court having noted the salary of the present petitioner i.e. opponent for the year 2019 as of Rs.42,025/- serving in the police department had ordered the revisionist to pay Rs.5,000/- to the wife and Rs.5,000/- to the daughter. Thus, enhancing the monthly amount of Rs.5,000/- to Rs.10,000/- Page 14 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024

NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined directing to pay Rs.10,000/- monthly instead of Rs.5,000/-. Thus, enhancement of monthly maintenance of Rs.5,000/- for each of the applicant.

10. The plea was raised before the Family Court about applicant no.2-daughter attaining majority. The learned Judge, considering the arguments, has concluded that though applicant no.2 had turned major, since she is not in a position to maintain herself, has considered the obligation of the father to pay maintenance till she marries and for the same, the learned Family Court Judge has referred to the judgment of this Court in case of of Vinitaben Naranbhai and others vs. N. R. Makwana and others reported in 1991 (1) GLH 227, to note that in the case where the wife and children are not earning then they are entitled to receive maintenance amount under Section 125 of the CrPC.

11. In case of Nitaben Dineshkumar Oza vs. Dineshkumar Ishwarlal Oza reported in 2016 GLR 1877, the question was whether the Hindu father is liable to maintain his major son and pay maintenance under Section 125 of the CrPC. The Court considered the question under Page 15 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined the provisions of Section 125 of the CrPC to examine whether the relief can be extended to a son not suffering from mental/physical disability beyond the date of attaining his majority. The Court was of the view that if allowed to have maintenance even after attaining majority, the word "minor" which has been defined under the provisions of Majority Act, 1875 , would be reduced to otiose and such an interpretation is not permissible, nor it is permissible by the judicial interpretation that any word can be added or subtracted. It was held that whether legitimate or illegitimate child having attained majority as per the Majority Act, 1875 , and is not suffering by any physical or mental injury, abnormality or injury, thereby unable to maintain itself would not be entitled to receive maintenance under Section 125 of the Act. Therefore, it was found clear that provision of Section 127 of the CrPC were always subject to provision of Section 125 of CrPC and if the person ceases to be entitled to receive maintenance under Section 125 of the CRPC he cannot seek an order of enhancement under Section 127 of the CrPC.

12. In case of Meharunnisa d/o Syed Habeeb @ Syed Habeebulla vs. Syed Habeeb @ Syed Habeebulla s/o Late Page 16 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined Syed Ghouse Peer reported in 2015 Criminal Law General 1836, the question which arose before the High Court of Karnataka was "Whether the unmarried daughters of Muslim parents are entitled for an award of maintenance under Section 125 of CrPC even after attaining the age of majority till their marriage, if they are unable to maintain themselves, from their father?" The question was considered upon the interpretation of several statutes and also considering the customary principles of Mohammedan Personal Law. The interpretation of Section 125(c) of CrPC was noted to consider the entitlement of maintenance amount against any person having sufficient means neglects or refuses to maintain - 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. Considering that the provision does not make any difference between a child legitimate or illegitimate, male or female, observed that the laudable object of this provision is to protect child from destitution and vagrancy. Noting, that if such son or daughter is a major, according to plain reading of the provision, there is no obligation on the father, as such situation under law is expected to be handled by the child Page 17 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined itself or if the girl is married, law expects that the situation should be handled by her husband.

13. Section 125 of the CrPC requires to be reproduced herein under, to consider the provisions under Section 125(1)

(b) and 125(1)(c) of the CrPC . The relevant part of Section 125 of the CrPC reads as under:

14. In case of Meharunnisha (supra), the court has observed recording the contraction in both the sub-clause (b) and (c) of Section 125(1) of CrPC to consider the gray area and has observed in para-10 of the said decision as under: Page 18 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024

15. Elaborating on the interpretation for "unable to maintain themselves" as amounting to mental injury and infringement of legal right of major daughters to claim maintenance, was expressed would have cascading effect and far reaching consequences and, thus, proper and purposive interpretation of the said provision with a broad intention of legislature was opined to be considered to plug the said gray area. In the decision in case of Meharunnisha (supra), the court has also referred to the judgment of Jagdish Jugtawat (surpa) and the judgment in case of Noor Saba Khatoon vs. Mohd. Quasim reported in (1997) 6 Supreme Court Cases 233 and has noted that both the decisions of the Supreme Court has not in detail gone through whether the major daughters either under Hindu Law or under the Mohammedan Personal Law or under any statute or personal law can also claim maintenance under Section 125 of CrPC as a matter of right, which the Court in Page 19 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined case of Meharunnisha (supra) considers an important aspect to be dealt with and was concluded that the words used in Section 125 (c) of CrPC i.e. "physical, mental abnormality or injury" require a paramount consideration and interpretation to attain the real object. Relevant paragraph nos.25 to 27 of decision in case of Meharunnisha (supra) reads as under:

16. It was observed that if a person legally bound to do something if he refuses to do that particular act it amounts to mental injury which creates a right in another person either to exercise that right against the person who violated his duty, as if an offence or to exercise a civil action for the purpose of his remedies. It was further clarified that if any such right is created by law for the time being in force whether it is a customary law or statutory law by virtue of such legal right, a person can enforce against another person who is legally bound to respect that right, if he does not, then it amounts to an act prohibited by law.

17. On the facts and circumstances of the matter, it was noted that the Mohammedan major unmarried girl has got right to claim maintenance under the Mohammedan Personal Law. The father under the Mohammedan Customary Law is legally bound to maintain his major daughter not only also till Page 21 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined she attains the age of majority but also till she gets married. Further, if he fails to accept the liability whether moral or legal, it becomes illegal act of the father.

18. In Meharunnisha case (supra), while considering the issue as to whether major daughters in India are vested with any right to claim either under the Personal Law or under any other statutory law, it was noted in para-44 as under:

19. In the background of the provision of Section 20 of the HAM Act it was noted that Section 20 of the HAM Act gives an absolute right to the daughters to claim maintenance against Page 22 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined their father under the civil proceedings by means of a duly constituted suit. But in order to acquire speedy remedy, the said right can also be exercised under Section 125 of CrPC, as narrated in the judgment of Noor Saba Khatoon (supra) and Jagdish Jugtawat (supra). Having observed that though the Apex Court has not in detail dealt with Section 125(c) of the CrPC, but the right of female even after attaining the age of majority till she is married in order to avoid vagrancy and driving her to immorality and the subsistence of maintenance, the Court, can award maintenance under Section 125 of the CrPC.

20. The Court in case of Meharunnisha (supra), in para-50, has concluded that "..... In this background coupled with the object of Section 125 of CrPC, in my humble opinion, that the word "injury" as contemplated u/s. 125(c) of CrPC is to be interpreted in such a manner so that it would benefit the persons who are entitled to claim maintenance in that particular provision in order to survive till they get other alternative for their subsistence. Therefore, in the said background, I am of the considered opinion that, the said provision is to be interpreted in such a manner so as to Page 23 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined advance justice and to suppress the mischief." And accordingly, in para-52 and 57 observed as under:

57. Having come to such a conclusion, it is also to be noted here that only major daughters whether Hindu, Muhammadan, Parsi or Christian wherever their rights are recognized under any other personal law or statute for the time being in force that they are entitled for maintenance at the hands of their father or anybody till they get married, if they are unable to maintain themselves and father is capable of maintaining them. Then only the word 'injury' used in Section 125 (c) of Cr.PC can be pressed into service in order to hold that their right has been infringed and therefore, they are entitled for maintenance u/s. 125 of the Cr.P.C."

21. The word "injury" thus, in Section 125(c) of CrPC was considered in the context that if a major daughters irrespective of their rights under personal law, they are Page 24 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined entitled for maintenance at the hands of their father or anybody till they get married, if they are unable to maintain themselves and father is capable of maintaining them, then only the word 'injury' used in Section 125 (c) of CrPC can be pressed into service in order to hold good that their right has been infringed.

22. This Court considers the interpretation of the expression "injury" under Section 125(c) of CrPC carrying to the extent that non providing the maintenance amount to the major daughter would amount to legal infringement of their rights, would be an interpretation too far fetched. The test would be whether this interpretation could be extended to son as major child, when the provision under Section does not make any difference on gender of child. For the purpose of Chapter IX of Cr.PC which includes Section 125 of CrPC expression 'minor' has been put in sub-clause (a) under explanation to mean a person who, under the provision of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority. Section 3 of the Indian Majority Act provides that a person attains the age of majority on completing the age of 18 years and not before.

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23. Section 125 of CrPC is a piece of social legislation which provides for a summary and speedy relief by way of maintenance. The purpose of this statue is to provide a remedy, against men who neglect or refuse to maintain their dependents, like their children, or wife. It is crucial to note that the provision is secular in nature, there is no discrimination on the basis of religion. However, this law is extremely gender specific and specifies that law for maintenance is only applicable when a wife, child or parent is dependent on a man. There is no provision for a dependent man being able to seek maintenance from his wife, or for maintenance in queer relationship. Section 125 of CrPC does not further categorize minor child into female child or male child. Clause (b) notes under Sub-Section (1) legitimate or illegitimate minor child, whether married or not unable to maintain itself. Clause (b) thus, mandates to the father having sufficient means who neglects or refuses to maintain minor son or daughter, to pay maintenance, and clause (c) excludes a married daughter from the child having attained majority, clause (c) lays liability to provide maintenance to major son or daughter if they by reason of any physical or mental Page 26 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined abnormality or injury are unable to maintain themselves. The Act , therefore, makes it clear that any child having attained majority is not automatically entitled to claim maintenance even if he/she is unable to maintain himself/herself. The inability to maintain should arise out of physical or mental abnormality or injury. A major daughter or son thus if has to claim maintenance in the summary proceeding under Section 125 of CrPC, should be one facing physical or mental abnormality or injury. In other words, the inability to maintain herself/himself should arise out of physical or mental abnormality or injury.

24. In Nitaben Oza case (supra), judgment of Karnataka High Court in case of Mallayya v. Smit Mahadvei reported in reported in 2009 (2) Karnataka Law General (1) 130 is referred and the views expressed by the Karnataka High Court was agreed upon where the principle laid down by the Supreme Court in case of Nanak Chand v. Chandar Kishore Aggarwal reported in 1970 CRI.L.J. 522=AIR 1970 SC 446 was relied upon. In case of Nanakchand (supra), in para-5 and 12, it is observed as under: Page 27 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024

The learned counsel says that s. 488 Cr. P.C., insofar as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, s. 20, which provides for maintenance to children. We are unable to see any inconsistency between the Maintenance Act and S. 488, Cr. P.C. Both can stand together. The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, insofar -as it dealt with the maintenance of children, was in any way inconsistent with s. 488, Cr. P.C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State(1), before the Calcutta High Court in Mahabir Agarwalla v. Gitia Roy (2) and before the Patna High Court in Nalini Rajan v. Kiran Ran (3). The three High Courts have, in our view, correctly come to the conclusion that s. 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in S. 488, Cr. P.C. .....

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25. In para-19 in the case of Meharunnisa (supra), it has been observed in para-19 as under:

26. The Court, in case of Neetaben (supra), in para-19, 20 and 24, has observed as under:

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20. The question, thus, arises whether under the provisions of Section 125 of the Cr.P.C., a relief can be extended to a son not suffering from mental/physical abnormality beyond the date of attaining his majority? I am of the view that if he is allowed to have maintenance even after attaining majority, the word "minor" which has been defined by giving reference to the provisions of Majority Act, 1875 would be reduced to otiose and such an interpretation is not permissible, nor it is permissible by the judicial interpretation that any word can be added or subtracted. [ Vide A.K. Gopalan v. State of Madras , AIR 1950 SC 27; Ashwani Kumar Ghose and Anr. v. Arbindo Bose and Anr. AIR 1952 SC 369; State of Bihar v. Hiral Lal Kejriwal and Ors. , AIR 1960 SC 47; Shyam Kishori Devi v. Patna Municipal Corporation , AIR 1966 SC 1678; Patel Chunibhai Dajibha v. Narayanrao K. Jambekar and Anr. , AIR 1965 SC 1457; Sultan Begum v. Prem Chand Jain , (1997) 1 SCC 373 : (AIR 1997 SC 1006); South Central Railway Employees Cooperative Society Employees Union, Secunderabad v. Registrar of Cooperative Societies and Ors. , (1998) 2 SCC 580 : II (1998) SLT 273 : (AIR 1998 9 SC 703); and Subhash Chander Sharma and Anr. v. Subhash Chander Sharma and Anrs. v. State of Punjab and Ors., (1999) 5 SCC 171:

Maya Paul and others [(2009) 8 SCC 359] : (AIR 2009 SC (Supp) 2869, Para 11, wherein, the Supreme, after quoting Section 125 of the Code in para 10, observed in last part as under: "An application for grant of maintenance, therefore, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child unable to maintain itself. Once, therefore, the children attained majority, the said provision would cease to apply to their cases." Page 30 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024

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27. Herein the present matter, the question is to maintain unmarried major daughter.

28. A Hindu parent is bound not only to maintain daughter till she attains majority but till she is married, subject to the condition that after having attained majority, she is unable to maintain herself out of her own earnings or other property.

29. Mr. Sheth, learned advocate contended that in the present mater the Family Court Judge, having recognized the purpose of the Hindu Law regarding maintenance of children under Section 20(3) of the HAM Act, and being a statutory obligation of Hindu father to maintain his or her daughter who is unmarried, is unable to maintain herself out of an own earnings or other property, has invoked the power of granting the maintenance to present respondent no.2 and thus, stated that the impugned order would sustain in view of the provision of Section 20(3) of HAM Act to avoid multiplicity of proceedings, as laid down in the case of Jagdish Jugtawat (supra), Mr.Sheth, learned advocate submitted that the order Page 31 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined passed is just and proper under the HAM Act and, therefore, is legal and valid.

(1)Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2)A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(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 be, is unable to maintain himself or herself out of his or her own earnings or other property."

30. In case of Jagdish Jugtawat (supra), it was held that the High Court was justified in upholding the order of family court by which it has granted maintenance under Section 125 of the Criminal Procedure Code to the daughter even after her attaining majority but till her marriage, taking the view that it would avoid multiplicity of proceedings as otherwise the party would be forced to file another petition for further maintenance. Whether this aspect was construed in case of Abhilasha vs. Parkash (supra) vis-a-vis enactment of the Page 32 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined Family Court Act, 1984 and its jurisdiction, falls for consideration. In para nos.31, 32, 33, 38 and 39 in case of Abhilasha vs. Parkash (supra), it was observed as referred herein under:

"31. The provision of Section 20 of Act, 1956 cast clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself. The right of unmarried daughter under Section 20 claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 right granted under personal law, which can very well be enforced by her against her father. The judgment of this Court in Jagdish Jugtawat (supra) laid down that Section 20(3) of Act, 1956 recognised the right of a minor girl to claim maintenance after she attains majority till her marriage from her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major, which is a statutory right recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law.

32. After enactment of Family Courts Act, 1984 , a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C . relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Courts, proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. In an area where the Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court. Page 33 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024

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33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 C.P.C. cannot pass such order. .....

38. We, thus, accept the submission of the learned counsel for the appellant that as a preposition of law, an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of the Act, 1956.

39. In facts of the present case the ends of justice be served by giving liberty to the appellant to take recourse to Section 20(3) of the Act, 1956, if so advised, for claiming any maintenance against her father. Subject to liberty as above, the appeal is dismissed."

(emphasis supplied).

31. The Family Court's jurisdiction and power cannot be exercised by the Magistrate First Class. The power to Magistrate is only under Chapter-IX of CrPC which deals with the proceedings under Section 125-128 of the CrPC at places where family courts establishment are not there, while the proceedings of Section 20 of HAM Act shall only be before the Page 34 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined district court or concerned subordinate civil court in such places.

32. As noted in the case of Abhilasha vs. Parkash (supra), the family courts have jurisdiction to decide the cases under Section 125 of the CrPC as well Section 20 of the HAM Act, in such a duty, the family court can exercise jurisdiction in both the cases. But such dual power cannot be exercised by a Magistrate dealing with the proceedings under Section 125 of the CrPC. While right under Section 20 of the HAM Act needs determination by a civil court. Thus, it would be a claim never contemplated to be exercised by the Magistrate who would have the jurisdiction under Section 125 of CrPC to deal with the reliefs in summary proceedings. In case of Abhilasha vs. Parkash (supra) having accepted the submission of the learned counsel regarding the proposition of law that unmarried Hindu daughter is entitled to get maintenance till she is married relying on Section 20 of the HAM Act 1956 was considered with conclusion provided she pleads and proves that she is unable to maintain herself and for that purpose and for the enforcement of such right it was noted that there Page 35 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined should be an application/suit under Section 20 of the Act, 1956.

33. In view of above discussion and reasons, as observed in the case of Abhilasha vs. Parkash (supra), the unmarried Hindu daughter on attaining majority is entitled to get maintenance under Section 20 of HAM Act till she marries, but she has to plead her case by filing her application/suit proving to fall under the Section for the entitlement.

34. The contention raised by Mr. Sheth, learned advocate is to be now dealt with, where advocate Mr. Sheth was of opinion that since the matter was before the family court and when family court has the jurisdiction to entertain suits and proceedings for maintenance and also has been entrusted with the jurisdiction to exercise the power under Chapter-IX of CrPC ., Mr.Sheth, learned advocate submitted that learned Family Court would have to exercise the power under Chapter-IX as well as under Section 20 of the HAM Act and, submitted that learned Family Court, thus, can consider the proceeding under Section 125 of CrPC filed as of by the Page 36 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined daughter on attaining majority as the proceedings under Section 20 of the HAM Act.

35. Though there is no specific provision in code to amend complaint or petition, amendment sought to correct curable infirmities that would not change nature or character of proceedings, can be allowed. The order passed in an application filed under Section 125 of CrPC is in a proceeding summary in nature which does not finally determine the right and obligation of the parties thereto. For example, the decision of the criminal court that there was a marriage between the parties concerned and that it was a valid marriage will not operate as decisive in any civil proceedings between the parties for determining those questions.

36. The proceeding under Section 125 to 128 of CrPC is criminal proceedings within the meaning of Article 134 of the Constitution of India.

37. The two proceedings, under Section 125 of CrPC and the other under the respective personal laws operates in different Page 37 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined spheres though in very limited scope, they do overlap. Generally they intend to serve different purposes, the remedy under Section 125 of CrPC is a purely discretionary one. It is not so, to that extent, under the personal law. The fact that the proceedings are essentially civil in nature does not mean that the provision of the code of civil procedure would apply to the proceedings summarily tried.

38. It has been considered in the case of Pendiyala Sureshkumar Ramaro vs. Sompally Arunabindu w/o. Sureshkumar reported in 2005 CrLJ 1455 (Guj.) that maintenance proceedings are quasi-civil proceedings.

39. The issue for consideration is whether the Family Court Judge can suo motu convert the proceedings under sub- section (2) of Section 7 to sub-section (1) of Section 7 of the Family Court Act, 1984 with the jurisdiction to try the matters.

40. " Section 7 of the Family Court Act, 1984 is reproduced hereunder Page 38 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined

7. Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall--

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

and Page 39 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined

(b) such other jurisdiction as may be conferred on it by any other enactment."

41. The Family Court's jurisdiction exercisable in respect of suits and proceedings are referred in the explanation. Explanation in Section 7 delineates the nature of the suits and proceedings from (a) to (g). Under clause (f), suits or proceedings for maintenance falls under the jurisdiction of the family court such may be under personal law of Hindu, Muslim, Christian. It requires a special mention that jurisdiction under the Parsi Marriage and Divorce Act, 1936 is excluded from the family court, by way of provision under Section 18 laying for constitution of special courts under the Act.

42. That the family court thereafter under Sub-Section (2) of the Section is entrusted the jurisdiction under Chapter-IX of CrPC using the expression in sub-section as "shall also have and exercise". The expression, thus, would mean that the primary jurisdiction is with regard to the suits and proceedings as noted in sub-section (1) of Section 7 and the power to be exercised under Chapter-IX, as cannot be exercisable by the magistrate first class, is an added power Page 40 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined over and above the powers to be exercised under sub-section (1).

43. Section 8 of the Family Court Act, 1984 deals with the pending proceedings and exclusion of jurisdiction. The same is reproduced as under:

44. In view of establishment of the family court in any area, no magistrate in relation to such area will have jurisdiction to the matter under Chapter-IX of the CrPC . Thus, exclusively in that particular area, the powers under Chapter-IX has to be exercised by the family court. In the same way, after the establishment of family court, no district court or subordinate civil court would have a power which are exerciseable to every suit or proceeding of the nature referred to in the explanation to sub-section (1) of Section 7 in that particular area. Thus, by way of Section 8 , the magistrate and the district court or any subordinate civil courts are restrained from exercising the powers as laid down in Sub-Section (1) and Sub-Section (2) of Section 7 . In view of the provision, the Family Court would then have power to try suits or proceedings for maintenance, as well as petition filed under Chapter-IX of the CrPC . Section 125 of CrPC as referred herein above will permit a minor whether male or female to claim for maintenance from father. On having attained Page 42 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined majority under Section 125 of CrPC, the father would have no obligation to maintain son and a daughter, except when the claim falls under S.125(1)(c) .

45. However, as noted in the case of Nitaben (supra), Abhilasha vs. Parkash (supra), the daughter after attaining majority if she proves to be unable to maintain herself out of her own earnings or other properties, she may by filing a suit for maintenance can claim the maintenance amount from a father. The maintenance amount in such suit, before the family court, in the ultimate analysis, would be followed by a 'decree', so a suit filed under the HAM Act would end in decree of the court. Under the proceedings of Section 125 (c) of CrPC summarily would end up as an order of the court. Thus, filing of a separate suit in the family court is the only remedy available to a person seeking the enforcement of right under Section 20 of the HAM Act. The Family Court Act does not statutorily provide for any conversion of the proceedings under Section 125 of CrPC to one under Section 20 of the HAM Act for the major daughter, further under Suo Motu discretion of the court, too, such conversation cannot be Page 43 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined ordered considering the variation in the nature of proceedings.

46. Mr. Sheth, learned advocate has relied upon the judgment of Jagdish Jugtawat (supra) to submit that to avoid multiplicity of proceedings, the learned Judge should convert the proceedings under Section 125 of CrPC to that of Section 20 of HAM Act. Since as observed herein above, proceedings under Section 125 of the CrPC though quasi-civil in nature, has to be summarily decided and would end up as an order of the court. While the proceedings as under Section 20 of HAM Act would be in a form of civil suit which would have to deal with the issues framed on the pleadings raised. The proceedings under Section 20 of HAM Act would be under the Civil Procedure Code, while proceedings under Section 125 of CrPC would be as per the Criminal Procedure Code . The learned Judge, cannot, therefore, on its own, convert the proceedings under Criminal Procedure Code to Civil Procedure Code

47. Section 20(3) of the HAM Act is only a proviso to Section 20(1) and Section 2(2) of the HAM Act and cannot enlarge the Page 44 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024 NEUTRAL CITATION R/CR.RA/80/2023 JUDGMENT DATED: 22/08/2024 undefined scope of Section 20(1) and Section 20(2) . There is nothing in Section 20(2) of the HAM Act to show that a female child would be entitled to claim maintenance even after she attains majority. Therefore, Section 20(3) of the Act restrict the application of Section 20(1) and Section 20(2) in so far as minor female child is concerned. It does not enlarge the scope even after she attains majority. The right of the minor girl for maintenance from parents after attaining majority till her marriage, is recognized in Section 20(3) of the HAM Act, provided she pleads and proves that she is unable to maintain herself from her own earnings or from other property. Thus, Section 20 (3) of the HAM Act provides inter alia, so far as unmarried daughter is concerned, to claim maintenance only if she is unable to maintain herself within her own earning or other properties. While expression "unable to maintain itself"

48. The minor's petition under Section 125 of CrPC would generally be filed by mother or guardian of the minor. On attaining majority the major person would be required to move the court. Thus, the minor daughter on attaining majority if she would want to claim maintenance from her father would have to file a separate suit/petition.

49. In the result, the present Criminal Revision Application is partly allowed. The order of the family court is ordered to be modified to the extent that the applicant no.2, daughter would be entitled for the maintenance amount under Section 127 read with Section 125 of CrPC till the date of attaining majority. Rule is made absolute to the aforesaid extent.

50. It is kept open for the daughter of the present matter to file a separate suit/application before the family court under the HAM Act in case she wants to invoke her right.

(GITA GOPI,J) ILA Page 46 of 46 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 22:18:47 IST 2024