Madras High Court
Dr.N.Rajakumar vs R.Samyuktha on 26 July, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.OP.No.25751 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.07.2022
Pronounced on : 26.07.2022
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.OP.No.25751 of 2021 and
Crl.MP.No.14284 of 2021
Dr.N.Rajakumar ..Petitioner
Vs.
1.R.Samyuktha
2.K.Latha ..Respondents
PRAYER:
Criminal Original Petition is filed under Section 482 of Cr.P.C. to
call for the records pertaining to the Order dated 24.11.2021 made in
MP.No.673 of 2021 in M.C.No.223 of 2021 on the file of the V
Additional Family Court, Chennai, set aside the same.
For Petitioner : Mr.A.K.Sriram
for Mr.V.Rajesh
For Respondents : Mr.P.Srinivasan
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Crl.OP.No.25751 of 2021
ORDER
This criminal original petition has been filed praying to set aside the order dated 24.11.2021 made in MP.No.673 of 2021 in M.C.No.223 of 2021 on the file of the V Additional Family Court, Chennai.
2. The petitioner got married to the second respondent on 13.01.1991. Due to their wedlock, they gave birth to a female child, the first respondent herein on 25.01.1993. The petitioner is a doctor by profession and he is holding the post of Head of the Department of Transfusion Medicine, Government Stanley Hospital, Chennai. Due to misunderstanding between the petitioner and the second respondent, they got separated. The second respondent initiated criminal proceedings in CC.No.3521 of 2012 for the offence under Section 498A, 406 and 506(ii) of IPC and the same ended in acquittal by the judgment dated 27.05.2013 on the file of the learned X Judicial Magistrate, Egmore, Chennai. Thereafter, they again reunited to protect the interest of their children. After birth of the first respondent, they also gave birth to one son. Now he is employed in a private concern at Chennai. The petitioner only Page 2 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 admitted the first respondent for MBBS course in Saveetha Medical College in Chennai under self financing scheme. The tuition fees along with her transportation charges comes to Rs.22,47,500/- per year. The petitioner has paid her fees for the past three years. Now she is doing her fourth year MBBS course. Due to harassment, the second respondent filed complaint under Domestic Violence Act in DVC.No.82 of 2021 and it is pending on the file of the Additional Mahila Court, Egmore, Chennai. In the meanwhile, the petitioner filed petition for divorce on the ground of cruelty in OP.No.1927 of 2021 on the file of the V Additional Family Court, Chennai and it is pending.
2.1 Thereafter, the second respondent also lodged another complaint on the file of the Inspector of Police, W9 All Women Police Station, Villivakkam, Chennai and the same was registered in crime No.6 of 2021 for the offence under Section 498A, 294(b), 506(i) of IPC as against the petitioner and other relatives. While being so, the respondents filed petition for maintenance in MC.No.223 of 2021 on the file of the V Additional Family Court, Chennai for maintenance under Section 125 of Page 3 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 Cr.P.C. They also filed petition in MP.No.673 of 2021 for interim maintenance and prayed to pay a sum of Rs.22,47,500/- being college fees of the first respondent herein for the academic year 2021-22. It was allowed by order dated 24.11.2021 and directed the petitioner to pay the said sum being college fees to the first respondent herein.
3. The learned counsel for the petitioner would submit that the first respondent is not at all eligible to seek maintenance under Section 125 of Cr.P.C., since already she attained majority and as such she is not entitled for any maintenance under Section 125 of Cr.P.C. Though the first respondent is entitled for maintenance under Section 20 (3) of the Hindu Adoption and Maintenance Act, 1956, the maintenance petition filed under Section 125 of Cr.P.C. is not at all maintainable. The court below failed to give any opportunity to the petitioner when the court below passed order by invoking provision under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. The court below while exercising power under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956, the petitioner has been devoid of an opportunity Page 4 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 would resist the claim made by the first respondent herein without benefit of trial and examination of witnesses passed order.
3.1 The learned counsel for the petitioner also relied upon the judgment in the case of Abhilasha Vs. Parkash & Others reported in 2020 AIR (SC) 4355, in which it is held as follows:
24. In the above case, an order was passed by the Family Court by granting maintenance which was based on combined reading of Section 125 Cr.P.C. and Section 20 of Act, 1956. Although, the High Court and this Court had declined to interfere with the order of the Family Court taking the cue from Section 20(3) of the Act, 1956 under which the right of maintenance is given to a minor daughter till her marriage, but the judgment of this Court in Jagdish Jugtawat (supra) cannot be read to laying down the ratio that in proceedings under Section 125 Cr.P.C. filed by the daughter against her father, she is entitled to maintenance relying on the liability of the father to maintain her unmarried daughter as contained in Section 20(3) of the Act, 1956. The High Court in Page 5 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 exercise of Criminal Revisional jurisdiction can very well refuse to interfere with the judgment of Courts below by which maintenance was granted to unmarried daughter.
This Court while hearing criminal appeal against the above judgment of High Court was exercising jurisdiction under Article 136 of the Constitution of India, and in the facts of that case, this Court refused to interfere with the judgment of High Court but in refusal to interfere by this Court, no ratio can be read in the judgment of Jagdish Jugtawat (supra) as contended by learned counsel for the appellant.
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 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is 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 Page 6 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 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 underSection 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court.
33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125Cr.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 Page 7 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order.
4. Per contra, the learned counsel for the respondents contended that the duty of the father is to protect his daughter. The petitioner is willfully neglecting to protect the respondents herein and as such, they filed petition for maintenance under Section 125 of Cr.P.C. In the divorce petition filed by the petitioner, he categorically admitted that he is willing to undertake the first respondent’s complete education expenditure till the completion of her course. Now he is deliberately neglecting to pay the college annual fees of Rs.22,47,500/-. It is the duty of the petitioner to give a good education to his daughter. In fact, the petitioner only admitted the first respondent in Saveetha Medical College and also paid college fees for three annual years. Admittedly the second respondent is house wife and she has no income. As such, they filed maintenance as against the petitioner and while pending main maintenance case, they filed petition for interim maintenance to meet out the educational expenditure of the first respondent herein. He further Page 8 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 contended that though the first respondent attained majority she is entitled for maintenance from her father till her marriage. Inadvertently, the respondents filed petition for maintenance under Section 125 of Cr.P.C. instead of filing petition for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. However, the court below rightly exercised its power since the court below has jurisdiction to try the cases under the Hindu Adoption and Maintenance Act, 1956 and ordered college fees payable by the petitioner herein for the academic year 2021-22. Further, the court below passed order in order to avoid multiplicity of litigations and effect of beneficial legislations under Section 125 of Cr.P.C. cannot be allowed to be defeated.
5. Heard, Mr.A.K.Sriram, the learned counsel appearing for the petitioner and Mr.P.Srinivasan, the learned counsel appearing for the respondents.
6. The petitioner is the father and the respondents are daughter and wife. Due to misunderstanding, they got separated and now the divorce petition filed by the petitioner is pending in HMOP.No.1927 of Page 9 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 2021 on the file of the V Additional Family Court, Chennai. The criminal complaint lodged by the second respondent is also pending in crime No.6 of 2021 registered for the offences under Section 498A, 294(b), 506(i) of IPC on the file of the Inspector of Police, W9 All Women Police Station, Villivakkam, Chennai for investigation. In the meanwhile, the respondents filed petition for maintenance in MC.No.223 of 2021 under Section 125 of Cr.P.C. They also filed petition for interim maintenance in MP.No.673 of 2021 seeking interim direction directing the petitioner to pay a sum of Rs.22,47,500/- being college fees of the first respondent herein for the academic year 2021-22. The first respondent is doing her MBBS degree in the private medical college. The yearly college fees comes to Rs.22,47,500/-. Since the petitioner after payment of first 3 years fees, failed to pay fourth year MBBS course fees for the year 2021-22 i.e. Rs.22,47,500/-, the respondents filed petition for interim maintenance.
7. The learned counsel for the petitioner raised ground that the first respondent even at the time of filing the maintenance case, she attained majority and as such, she is not entitled for maintenance under Page 10 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 Section 125 of Cr.P.C. Though she is entitled for maintenance till her marriage, she can claim maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In this regard, he relied upon the judgment of the Hon’ble Supreme Court of India in the case of Abhilasha Vs. Parkash & Others reported in 2020 AIR (SC) 4355, in which the Hon’ble Supreme Court of India held that when the major daughter is unable to maintain herself, the right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b) of Act, 1956 contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956.
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8. Whereas in the case on hand, though the respondents filed petition seeking maintenance under Section 125 Cr.P.C., they filed this petition before the Family Court which has got jurisdiction to try the issue under the Hindu Adoption and Maintenance Act, 1956. Therefore, the court below exercised its power under Section 125 of Cr.P.C. as well as Section 20(3) of the Hindu Adoption and Maintenance Act, 1956 and directed the petitioner to pay college fees of Rs.22,47,500/- of the first respondent herein for the academic year 2021-2022. In the very same judgment, the Hon’ble Supreme Court of India also held that there may be a case where the Family Court has jurisdiction to decide a case under Section 125Cr.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 the Hon'ble Supreme Court of India in the case of Jagdish Jugtawat Vs. Manju Lata and Others reported in (2002) 5 SCC 422. In fact, the Hon’ble Supreme Court of India held in the case seeking maintenance under Section 125 of Cr.P.C before the Judicial Page 12 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 Magistrate. Therefore, the Hon’ble Supreme Court of India held that the major daughter cannot claim maintenance under Section 125 of Cr.P.C. before the learned Magistrate. Whereas in the case on hand, the respondents filed maintenance case before the family court which has got jurisdiction to decide the case under Section 125 of Cr.P.C. as well as under Section 20 of the Hindu Adoption and Maintenance Act, 1956.
9. That apart, the petitioner is being the dutiful father, is liable to maintain his daughter till her marriage. The petitioner only admitted the first respondent in her college to do her medical course. He also paid yearly fees for the past three years and only for the academic year 2021-22, he failed to pay her college fees. Therefore, the respondents were constrained to file petition for interim maintenance, that too, only for college fees alone.
10. The learned counsel for the petitioner also relied upon the order of this Court in the case of S.James Francis Vs. Silvester Ramani and another in Crl.RC(MD).No.481 of 2020 dated 01.04.2022, in which Page 13 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 this Court held that the minor daughter is entitled for maintenance for arrears of maintenance only till her attainment of majority as awarded by the court below. After attainment of majority, the daughter is at liberty to file an appropriate petition for maintenance as against her father under Section 20 of the Hindu Adoption and Maintenance 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 Hindu Adoption and Maintenance Act, 1956. This Court held in the said case where only monthly maintenance was awarded while she was minor. Thereafter they claim arrears of maintenance and when they are claiming arrears of maintenance, the minor daughter becomes major. Therefore, this Court held that minor daughter is entitled for arrears of maintenance only till her attainment of majority and she is not entitled for maintenance after attainment of her majority.
11. Thus it is clear that in order to avoid multiplicity of proceedings, the court have taken consistent stand that the petition under Section 125 of Cr.P.C. can be entertained without pushing the major Page 14 of 18 https://www.mhc.tn.gov.in/judis Crl.OP.No.25751 of 2021 daughter to file an independent petition seeking maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956 by the Family Court. The family court got jurisdiction to decide the case under Section 125 of Cr.P.C. as well as the suit under Section 20 of the Hindu Adoption and Maintenance Act, 1956. Therefore, the Family Court can exercise jurisdiction under both the Acts and in appropriate case can grant maintenance to unmarried daughter, even though she has become major enforcing her right under Section 20 of the Hindu Adoption and Maintenance Act, 1956 so as to avoid multiplicity of proceedings.
12. In the case on hand, the court below rightly exercised jurisdiction and awarded interim maintenance, that too college fees to the tune of Rs.22,47,500/- for the academic year 2021-22. In fact, the petitioner himself categorically admitted in his divorce petition filed on the ground of cruelty as against the second respondent herein in HMOP.No.1927 of 2021 that he is willing to undertake the first respondent's complete education expenditure till her completion of medical course. Therefore, this Court finds no infirmity or illegality in the order passed by the court below.
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13. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petition is closed.
26.07.2022
Speaking order
Index : Yes
Internet : Yes
lok
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Crl.OP.No.25751 of 2021
To
The V Additional Family Court,
Chennai
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Crl.OP.No.25751 of 2021
G.K.ILANTHIRAIYAN, J.
lok
Crl.OP.No.25751 of 2021
26.07.2022
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