Patna High Court
Yugeshwar Nath Mishra vs Arpana Kumari And Anr. on 20 March, 2002
Equivalent citations: 2003CRILJ2625
Author: P.K. Sinha
Bench: P.K. Sinha
ORDER P.K. Sinha, J.
1. This is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing order dated 5-10-1999 in Case No. Misc. 122 of 1996 corresponding to Trial No. 387 of 1999 recorded by Sri. Rajendra Kumar Singh, Judicial Magistrate, first class, Ara as well order dated 5-8-2000 recorded in Cr. Rev. No. 288 of 1999 by the First Additional Sessions Judge, Ara. In this case learned counsels for the petitioner, for opposite party No. 1, Arpana Kumari, and learned Additional Public Prosecutor on behalf of the State have been heard. This application, therefore, is being disposed of at this stage.
2. One Vidyawati Devi, who had expired in course of the proceeding and Arpana Kumari, her daughter, had filed a petition under Section 125 of the Code for their maintenance. On death of her mother the daughter continued to prosecute the case. Arpana Kumari was unmarried who had stated her age to be eighteen years on the date of her deposition, on 31-5-1999. The case was contested and in the final order the learned Magistrate directed payment of maintenance at the rate of rupees five hundred per month to Arpana Kumari till she got married or was able to maintain herself, whichever was earlier. This order was passed in view of a decision of the Apex Court in the case of Noor Saba Khatoon v. Mohd. Quasim, 1997 (1) PLJR 111 : (1997 Cri LJ 3972). That order was challenged in Cr. Rev. No. 288 of 1999 which was disposed of by the learned First Additional Sessions Judge, Bhojpur at Ara on 5-8-2000 by which, rejecting the argument of the learned counsel for the petitioner that the aforesaid decision of the Apex Court was applicable only in the case of a Muslim female child, the Court upheld the order of the lower Court.
3. In this case the only point that has been argued before me was that maintenance under Section 125 of the Code could not have been granted to a major female child born to a Hindu parent, hence to that extent the orders of the lower Courts could not be upheld. On the other hand, learned counsel for the opposite party No. 1, Arpana Kumari, argued that apart from the decision of the Apex Court in the case of Noor Saba Khatoon, a Hindu father was also liable to maintain his unmarried daughter under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the "Maintenance Act" in short), hence on the same analogy as in the decision of the Supreme Court in the aforesaid case, the orders of the learned lower Courts must be held to be valid and legal. The relevant portion of Section 125 of the Code is reproduced below :
"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
(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 in-Jury 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 purpose of this Chapter,-- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed to have attained his majority .........."
4. From a plain reading of the aforesaid provision it will appear that any person having sufficient means neglect of refuses to maintain his legitimate or illegitimate minor child or such a child, not being a married daughter, who has attained majority when such child is by reason of any physical or mental abnormality or injury unable to maintain himself, can be granted such a monthly allowance for his/her maintenance as the Magistrate may deem fit. From a plain reading of this provision it will appear that a father having sufficient means is bound to maintain a normal minor child, male or female irrespective of the fact whether such child is married.
5. In the beginning the argument of the learned counsel for opposite party No. 1 was that the decision in the case of Noor Saba Khatoon (supra) applied equally to Hindu parents.
6. It will appear that in that case while deciding the maintenance of a Muslim female child their Lordships had referred to a book authored by Prof. Tahir Mahood "Statute-Law relating to Muslims in India" (1995 Edition) and insofar as a Muslim child was concerned, had quoted as follows-- "by Muslim Law maintenance (Nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden) or till they get re-married if they are thayiba (divorce/widow) . . .". Noting this their Lordship further observed that both under personal law and statutory law (Section 125 of the Code) 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 female child till they get married, was absolute. Thus, their Lordships allowed the female child of Muslim parents (paragraph 10) to claim maintenance under Section 125 of the Code for the period till they attained majority or were able to maintain themselves, whichever was earlier, and in case of a female, till they got man-led holding that this right was not restricted, effected or controlled by divorced wife's right to claim maintenance, for the infant child or children under her custody till two years from the date of birth of child concerned under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce Act, 1986.
7. Notwithstanding the fact that Section 125 of the Code is applicable to grant maintenance only to a child, male or female, who is a normal child till he attains majority under the provisions of Indian Majority Act, 1875, a Muslim father was held bound to maintain a female child till she was married, under Section 125 of the Code read with Muslim Personal law in that regard.
8. The Maintenance Act is applicable to a person who is a Hindu by religion as defined under Section 2 of that Act. Petitioner here is a Hindu. Section 20 of the Maintenance Act is reproduced below.
"Maintenance of children and aged parents.--
"(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 insofar 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."
9. Under Sub-section (2) of Section 20 a legitimate or illegitimate child may claim maintenance from his father or mother so long as the child is minor but Sub-section (3) defines the extent of the liability of a person for maintaining such dependent including a daughter who is unmarried providing that he would be liable to maintain them so long such person, including unmarried daughter, is unable to maintain himself or herself out of his/her own earning or other property. A question here may arise as to whether the scope of Sub-section (3) which also speaks of maintaining unmarried daughter without providing for her age could be limited by Sub-section (2) of Section 20.
10. To answer this question Sections 21 and 22 of the Maintenance Act may also be taken into account. Section 21 defines the dependents and Section 22 deals with the maintenance of dependants. Insofar as son and daughter are concerned as dependants, the relevant portions of Section 21 is reproduced below :
"21. Dependents defined,-- For the purpose of this chapter "dependants" means the following relatives of the deceased :
(iv) his or her son or the son of his predeceased son or the son of a predeceased son of his predeceased son, so long as he is a minor : provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate, and in the case of a great-grandson, from the estate of his father or mother or father's father or father's mother;
(v) his or her unmarried daughter, or the unmarried daughter of his pre-deceased son or the unmarried daughter of a pre-deceased son of his pre-deceased son, so long as she remains unmarried; provided and to the extent that she is unable to obtain maintenance in the case of a grand-daughter from her father's or mother's estate and in the case of a great-grand-daughter from the estate of her father or mother or father's father or father's mother :
. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .
(viii) his or her minor illegitimate son, so long as he remains a minor;
(ix) his or her illegitimate daughter, so long as she remains unmarried."
11. From a reading of aforesaid provision it is manifest that the son legitimate or illegitimate is considered to be a dependent so long as he remains minor, but a daughter is a dependent so long she remains unmarried irrespective of the fact whether or not she is a minor.
12. The relevant portion of Section 22 of the Maintenance Act is also reproduced :
"22. Maintenance of dependents.--
(1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased.
(2) Where a dependent has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate."
13. A dependent, who may be unmarried daughter is, under the given circumstances, entitled to maintenance even out of the estate of the deceased. Therefore, it has to be held that an unmarried daughter, whether minor or major, is entitled to maintenance.
14. If two statutes grant the same relief then both the provisions have to be read in harmony, not in contradiction. That is to say, that it would not be a proper construction of law to hold that under one statute a dependent (read unmarried daughter, minor or major) would be entitled to maintenance but, in other statute providing for the same relief, that dependent would be denied the relief of maintenance on the ground that she was a major. On similar premises their Lordships of the Supreme Court in the case of Noor Saba Khatoon (supra) had held that an unmarried Muslim female child would be entitled to maintenance though application was filed under Section 125 of the Code.
15. A law reflects the ground realities prevailing in the society to which it is applicable and while interpreting law such ground realities are also to be taken into account, particularly when it is a piece of beneficial legislation. By and large unmarried daughters, having no property or personal income, have to be dependent for their maintenance upon their parents as without that protection most of them could be exposed to the dangers that stalk a female child in the society.
16. However, situation would be different if a female child, though a minor, is married because in that situation it would be the lawful responsibility of her husband to maintain her. But otherwise, till she is unmarried, it will be the legal responsibility of her parents to maintain her till she marries.
17. This being so, I find no scope for interfering with the impugned orders. The petition, therefore, stands dismissed.