Karnataka High Court
Smt. Fousia Banu, vs Mohammed Saleem on 14 June, 2013
Author: H.G.Ramesh
Bench: H.G.Ramesh
R.P.F.C. No.21 of 2011
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2013
BEFORE R
THE HON'BLE MR. JUSTICE H.G.RAMESH
R.P.F.C.No.21 OF 2011
BETWEEN:
1. SMT.FOUSIA BANU, W/O MOHAMMED SALEEM
AGE: 42 YEARS
2. SALMA BANU ALIAS MUMTAZ ARSHIYA SAWAR
AGE: 24 YEARS
D/O MOHAMMED SALEEM
3. MOHAMMED SHABAZ, AGE: 16 YEARS
PETITIONER 3 BEING MINOR
REP BY NATURAL GUARDIAN
MOTHER, THE 1ST PETITIONER
ALL ARE R/A D.NO.629, 14TH CROSS
B.M.SRINAGAR, METAGALLI
MYSORE-570 004 ... PETITIONERS
(BY SRI.P.NATARAJU, ADVOCATE FOR
M/s. P.NATARAJU ASSTS., ADVS.)
AND:
MOHAMMED SALEEM
AGE: 52 YEARS, S/O JAINULLA BUDDIN
No.40-D, 8TH CROSS, RAJENDRANAGAR, KESARE
MYSORE - 570 005 ... RESPONDENT
(BY SRI.S.K.MANJUNATH, ADVOCATE)
RPFC IS FILED UNDER SECTION 19(4) OF FAMILY COURTS
ACT, 1984 AGAINST THE JUDGMENT AND ORDER DATED
30.9.2010 PASSED IN C.MIS.NO.319/2008 ON THE FILE OF THE
JUDGE, FAMILY COURT, MYSORE, PARTLY ALLOWING THE
PETITION FILED UNDER SEC. 125 OF Cr.P.C.
R.P.F.C. No.21 of 2011
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RPFC COMING ON FOR ADMISSION THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
H.G.RAMESH, J. (Oral):
The question that arises for determination in this revision petition is as to whether an unmarried daughter, who is unable to maintain herself but has attained the age of majority, is entitled to claim maintenance in a proceeding under Section 125 of the Code of Criminal Procedure, 1973?
2. This revision petition is by the wife, daughter and minor son and is directed against the order dated 30.9.2010 passed by the Family Court at Mysore in C.Mis.319/2008. By the impugned order, the Family Court has dismissed an unmarried daughter's (petitioner No.2 herein) claim for maintenance made under Section 125 of the Cr.P.C on the sole ground that she had attained the age of majority. The reasoning of the Family Court reads as follows: R.P.F.C. No.21 of 2011 -3-
"32. Since the 2nd petitioner is a major unmarried daughter and she is not suffering from any physical or mental deformity, her prayer for maintenance in Section 125 Cr.P.C. cannot be considered and her prayer is hereby rejected."
3. Learned counsel for the petitioners submitted that a daughter is entitled for maintenance from her father till she gets married, notwithstanding her attaining the age of majority. In support of his submission, he relied on a judgment of the Supreme Court in Noor Saba Khatoon vs. Mohd. Quasim [(1997) 6 SCC 233] and specifically referred to paras 10 & 11 thereof, which read as follows:
"10. Thus, both under the personal law and the statutory law (Section 125 CrPC) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, 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 R.P.F.C. No.21 of 2011 -4- children of Muslim parents are entitled to claim maintenance under Section 125 CrPC 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)(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 CrPC till they attain majority or are able to maintain themselves, or in the case of females, till they are married."
4. The following observations made by a three judge Bench of the Supreme Court in Jagdish Jugtawat v. Manju lata [(2002) 5 SCC 422] also needs to be noticed:
"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 R.P.F.C. No.21 of 2011 -5- Khatoon v. Mohd. Quasim 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 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."
(Underlining supplied) R.P.F.C. No.21 of 2011 -6- In both Noor Saba Khatoon and Jagdish Jugtawat referred to above, the Supreme Court has affirmed the order of maintenance awarded in a proceeding under Section 125 of the Cr.P.C to an unmarried daughter who had attained the age of majority.
5. In the light of the three judge Bench judgment of the Supreme Court in Jagdish Jugtawat, I am of opinion that, an unmarried daughter who is unable to maintain herself, is entitled to claim maintenance in a proceeding under Section 125 of the Cr.P.C, notwithstanding her attaining the age of majority. And in such a proceeding, the Court has the power to grant maintenance to her irrespective of whether she is a Hindu or a Muslim or of any other religion, provided she is otherwise entitled for maintenance under any other law including personal law governing the parties. In other words, if an applicant is not entitled for maintenance under Section 125 of the Cr.P.C but is entitled under any other law, the benefit of R.P.F.C. No.21 of 2011 -7- maintenance under the other law can be given to such an applicant in a proceeding under Section 125 of the Cr.P.C.
6. Coming to the facts of the present case, admittedly petitioner No.2 is an unmarried major daughter and is unable to maintain herself. Accordingly, as held by the Supreme Court in Noor Saba Khatoon, she is entitled for maintenance from her father, as under Muslim Law, father's liability to provide maintenance to his unmarried daughter extends beyond her age of majority but till she gets married. Therefore, she could be awarded maintenance in a proceeding under Section 125 of the Cr.P.C. The next question is as to the amount of maintenance to be awarded? It is stated that the respondent-father owns a workshop in Mysore city. This is evidenced by Ex.P9- the licence issued to him by the Mysore city Corporation to run a fabrication workshop. Petitioner no.2 is about 25 years old and is residing in Mysore R.P.F.C. No.21 of 2011 -8- city. On the facts of the case, it is appropriate to award a maintenance of Rs.4,000/- per month to petitioner No.2. Accordingly, the respondent-father shall pay the said maintenance to her from the date of the petition in C.Mis.No.319/2008 till she gets married. The revision petition stands disposed of in the above terms in modification of the order impugned herein.
Petition disposed of.
Sd/-
JUDGE RV