Abhilasha v. Parkash & ORS

By: Sweety Kumari

In the Supreme Court of India

NAME OF THE CASEAbhilasha v. Parkash
CITATIONCriminal Appellate Jurisdiction Criminal Appeal No. 615    Of 2020 (Arising Out of Slp (Crl.) No.8260/2018)  
DATE OF THE CASESeptember 15, 2020
APPELLANTAbhilasha
RESPONDENTParkash & Others
BENCH/JUDGEASHOK BHUSHAN, R. SUBHASH REDDY, M.R. SHAH  
STATUTES/CONSTITUTION INVOLVESCode of Criminal Procedure,1973; The Hindu Adoptions and Maintenance Act, 1956  
IMPORTANT SECTIONSCode of Criminal Procedure,1973 —- Section 125(1) The Hindu Adoptions and Maintenance Act, 1956 —- Section 20  

ABSTRACT

In the present case an appeal was filed by a woman against the decision of the High Court against her husband for maintenance under section 125 of the CrPc to herself and her three children, two sons and a daughter. Her youngest daughter, named Abhilasha is the appellant in the present case. Her application for maintenance was rejected by the Judicial Magistrate to her two children but her daughter’s claim for maintenance was allowed because she was a minor but she was entitled to maintenance only upon the time she attained majority as per section 125 CrPC. The four applicants then moved to the session court which stated that the appellant i.e., Abhilasha is entitled to maintenance only up to the time when she attains majority and not after that. Then she moved to the High Court where her application was rejected. She filed an appeal to the Supreme Court which was  dismissed

INTRODUCTION

In the present case an appeal to the Supreme Court was filed by a woman against her husband claiming maintenance for herself and her three children under section 125 of the CrPC. The Supreme Court was entrusted with the question whether to grant maintenance to the appellant (the daughter) or not. According to the law of maintenance a man is entrusted with the duty to maintain his dependent wife, children or his parents for their living. Law of maintenance is not only discussed in personal laws but also by the Criminal Procedure Code, 1973.

Personal laws are applicable to people on the basis of their religion but Criminal Procedure Code has a uniform applicability to all the citizens. In this case the court held that an unmarried Hindu daughter who has attained majority is entitled to claim maintenance from her father under Section 20(3), Hindu Adoption and Maintenance Act, 1956 provided that she is unable to maintain herself but under Section 125 CrPC she can claim maintenance only in the case where on attaining majority she is unable to maintain herself due to any physical or mental infirmity and not in the case where she is not suffering from any such infirmity.

FACTS OF THE CASE

In this case an application was filed by the mother of the appellant on October 17, 2002 under Section 125 CrPC against her husband (the respondent) for herself and her three children. Her youngest daughter is the appellant in the present appeal. On February 16, 2011 the Judicial Magistrate of First Class dismissed her application for maintenance for all but allowed the grant for maintenance for the appellant until she attains the age of majority. Then all four of them filed an application before the Sessions Judge Court, Rewari for criminal revision but their application was also rejected by the Additional Sessions Judge by the judgement delivered on February 17, 2014.

The Respected judge held that under Section 125 of the Criminal Procedure Code the appellant is entitled to maintenance only up to the time when she has attained majority and not after that because according to the provisions of Section 125 of CrPC only those children who are major can be granted maintenance who by any physical or mental infirmity or any injury caused to them are not able to maintain themselves. Here the appellant had no such situation so she is entitled to maintenance till April 26, 2005 till she attains the age of majority and not after that. Then an appeal was filed to High Court against the judgement of the Additional Sessions Judge which was dismissed on February 16, 2018 by the High Court. Then they filed an appeal to the Supreme Court.

ISSUES RAISED BEFORE THE COURT

  • Whether the appellant who has attained majority and is unmarried is entitled to maintenance from the respondent under the provisions of Section 125 of the CrPC in spite of the fact she is not suffering from any physical/ mental infirmity or injury?
  • Whether the orders which were passed by the Judicial Magistrate and Additional Sessions Court Judge which limited the right of appellant to claim maintenance until she attains the age of majority i.e., till April 26, 2005 can be set aside making the respondent liable to pay maintenance to his daughter even after she attains majority i.e., after April 26, 2005 and is unmarried?

ARGUMENTS FROM THE APPELLANT SIDE

  • Learned Counsel for the appellant argued that the appellant was entitled to claim maintenance from her father, the respondent because she was unable to maintain herself.
  • She further argues that the High Court has made an error by dismissing the application of the applicant and not granting her the right to claim maintenance on the basis that she has attained the age of majority and was not suffering from any physical or mental infirmity or injury.
  • She contended that according to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 the respondent is liable to maintain his daughter who is unable to maintain herself until she gets married. She supported her argument through the case of Jagdish Jugtawat v. Manju Lata and Others.
  • She submits that since the appellant is unemployed and is unable to maintain herself, she is entitled to claim maintenance from the respondent i.e., her father.

ARGUMENTS FROM THE RESPONDENT SIDE

  • Learned counsel for the respondent argued that according to Section 125 of CrPC a daughter is entitled to claim maintenance after the age of majority only when she us suffering from any physical or mental infirmity or any injury and hence is not able to maintain herself.
  • He submitted the finding of the Revisional Court which nowhere showed that the appellant is suffering from any abnormality, physical or mental or any injury and due to which she is not able to maintain herself.

RELATED PROVISIONS

Code of Criminal Procedure, 1973

Section 125 – Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

1. Subs. by Act 45 of 1978, s. 12, for” Chief Judicial Magistrate” (w. e. f, 18- 12- 1978).

(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 not exceeding five hundred rupees in the whole, 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. Explanation. – For the purposes of this Chapter, –

(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;

(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.[1]

The Hindu Adoptions and Maintenance Act, 1956

Section 20 – Maintenance of children and aged parents.

  • 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].

(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. Explanation. —In this section “parent” includes a childless step-mother[4].

JUDGEMENT

The Supreme Court stated that a Hindu daughter who is unmarried is entitled to get maintenance from her father until the time she gets married according to the Section 20(3) of the Hindu Adoption and Maintenance Act, 1956 but to get the maintenance she must prove that she is not able to maintain herself. She must file an application under Section 20 of the Hindu Adoption and Maintenance Act to enforce her rights, but in this case since the application was filed under Section 125 of the CrPC and not under the Section 20 of the Hindu Adoption and Maintenance Act the case was not maintainable. Under Section 125 CrPC only those children who are major are entitled to maintenance who cannot maintain themselves due to any physical or mental abnormality or injury and this was not the case with the appellant so she is not entitled to maintenance.

The Supreme Court later discussed and stated the distinction between Section 20 of the Section 20 of the Hindu Adoption and Maintenance Act and Section 125 of the CrPC in detail. Section 125 CrPC provides immediate relief to an applicant in a summary proceeding whereas Section 20 of the Hindu Adoption and Maintenance Act has a larger scope, larger right which needs to determined by a Civil Court.

In the case of Lnanak Chand v. Chandra Kishore Aggarwal & Ors.[5], it was held by the court that the Section 488 CrPC, 1898 – the Maintenance Provision and Hindu Adoption and Maintenance Act were not inconsistent with each other. Section 488 CrPC 1898 grants summary remedy and has a uniform applicable upon all the citizens irrespective of the religion they follow and personal law applicable to them.

In the case of Nalini Ranjan v. Kiran Rani[6], the High Court of Patna has held that the purpose of section 488 of the CrPC, 1898 was to provide a separate remedy.

In the case of Jagdish Jugtawat v. Manju Lata & Ors.[7] it was held by the High Court that under section 125 of the CrPC, a minor daughter has the legal right to get maintenance from her parents till she attains the age of majority but it did not interfere with the orders which were passed by the family court taking into account Section 20 of the Hindu Adoption and Maintenance Act. The Court held that according to section 125 CrPC a daughter is entitled of maintenance till she attains majority and not after that but under personal law she can claim maintenance. But the Supreme Court rejected this decision and held that a major unmarried daughter is not entitled to maintenance as per section 20 of the HAMA, 1956 if she had filed the proceedings against her father under section 125 of the CrPC.

The Supreme Court then stated that according to Family Courts Act, 1984 Family Courts have the jurisdiction only in the town or city which have a population more than 1 million and an area where there is no family court then the proceedings under section 125 CrPC shall be held before the First-Class Magistrate and proceedings under Section 20 of the Hindu Adoption and Maintenance Act and other suits for maintenance shall be held before the District Court or a subordinate Civil Court. A Magistrate while exercising powers under section 125 CrPC cannot determine the claim under section 20 of the Hindu Adoption and Maintenance Act.

In this case application was filed before Judicial Magistrate First Class, Rewari District under the provisions of Section 125 CrPC. The Magistrate while exercising jurisdiction under section 125 CrPC did not had jurisdiction under section 20 of the Hindu Adoption and Maintenance Act. Since application was not filed under Hindu Adoption and Maintenance Act so the case was held not to be maintainable and was hence dismissed.

CONCLUSION

Through this case the Supreme Court ruled out that Section 125 of the CrPC provides immediate relief to an applicant in a summary proceeding whereas Section 20 of the Hindu Adoption and Maintenance Act has a larger scope right which needs to determined by a Civil Court.  Also, there should not be overlapping of powers between the Courts. The Judicial Magistrate has rightly decided not to grant maintenance under Hindu Adoption and Maintenance Act as the appellant has not filed the suit under the same.

[1]  The Code of Criminal Procedure, 1973, Section 125(1)

[2] The Hindu Adoptions and Maintenance Act, 1956, Section 20(1)

[3] The Hindu Adoptions and Maintenance Act, 1956, Section 20(2)

[4] The Hindu Adoptions and Maintenance Act, 1956, Section 20(3)

[5]  1969 SCC (3) 802

[6] AIR 1965 Pat 442

[7] AIR 2002 5 SCC 422

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