Delhi District Court
Aastha Jain vs Sanjay Jain on 19 November, 2020
IN THE COURT OF NAVEEN GUPTA
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS, DELHI
Crl. Appeal No. 15/20
ID No. 82/20
PS Anand Vihar
In the matter of:
Aastha Jain,
D/o Sanjay Jain
R/o B-23, Top Floor,
Baldev Park, Near Preet Vihar,
Delhi. .......... Appellant
Versus
Sanjay Jain,
S/o Late Sh. D.K. Jain,
R/o A-47, 3rd Floor,
Vivek Vihar, Phase-1,
Delhi - 110092.
Also at:
3554, Dariba Pan, Paharganj,
New Delhi.
Also at:
8707/4, Roshanara Mansion,
Roshanara Road,
Delhi - 110007. .......... Respondent
Date of institution : 20.10.2020
Date of reserving the judgment : 17.11.2020
Date of judgment : 19.11.2020
Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 1 of 8
PS Anand Vihar
Digitally signed by NAVEEN GUPTA
Date: 2020.11.19 12:04:02 +05'30'
JUDGMENT
1. Vide this judgment, the Court shall decide the appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (in short 'PWDV Act'), filed by the appellant Aastha Jain against the respondent, challenging the order dated 24.09.2020, passed by the Court of Ld. MM (Mahila Court-02), Shahdara, Karkardooma Courts, Delhi, whereby Ld. Court has stopped the maintenance awarded to the appellant herein.
2. Brief facts leading to filing the present appeal are that vide order dated 28.06.2017, in case titled as 'Reema Jain v. Sanjay Jain', Ld. MM (Mahila Court-02), Shahdara, Karkardooma Courts, Delhi, decided the application moved on behalf of mother of the appellant herein against the respondent herein seeking interim maintenance for herself and her two minor daughters. Ld. Trial Court held that 'in the totality of facts and circumstances, considering the status of the parties, I hereby direct respondent/husband to pay a sum of Rs.60,000/- per month towards interim maintenance to petitioner and children from the date of filing of application till further orders/till they are legally entitled to receive the same to avoid any hardship to them.' Subsequently, mother of appellant filed an execution petition for enforcement of the abovesaid order.
3. The proceedings in the said execution petition were going on since 25.11.2017. On 24.09.2020, Ld. Counsel for DH made a request that let tuition fee of Rs.2 Lakhs of the daughter of the parties be made by JD, who is pursuing B.A. LL.B. from Indraprastha University. Ld. Executing Court observed that 'on inquiry, the age of the daughter is revealed to be 22 years. Accordingly, as per Section 2(c) of D.V. Act, this court cannot pass any order for the maintenance of the major child, who has attained the age of 18 Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 2 of 8 PS Anand Vihar Digitally signed by NAVEEN GUPTA Date: 2020.11.19 12:04:25 +05'30' years. Hence, the prayer of Ld. Counsel for DH is not tenable as per law.' Thus, this appeal has been filed by the appellant challenging the said order with request to set aside the order dated 24.09.2020 whereby the maintenance awarded to unmarried daughter, aged 20 years, was stopped by the Court.
4. Ld. Counsel for the appellant has argued that as per document placed on record, date of birth of the appellant is 01.09.2000 and thus, she is 20 years of age and not 22 years as observed by Ld. Executing Court. Further, the appellant is unmarried and is not working and earning, thus, she is entitled to be maintained by her father/respondent. He has further argued that Ld. Court has erred in not appreciating Section 36 of PWDV Act, which clearly says that the Act is not in derogation of the provisions of any other law, for the time being in force. Accordingly, the court should have awarded maintenance to the appellant pursuant to provision provided under Section 125 Cr.P.C. Ld. Counsel for the appellant has further argued that with the combined reading of Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 (in short 'HAMA') and Section 125(1)(c) Cr.P.C., unmarried major daughter is entitled to claim maintenance from her father. He has relied upon three precedents in support of his arguments i.e. Mansi Vohra v. Ramesh Vohra, decided by the Hon'ble Delhi High Court in Crl. M.C. 2474/2012 on 22.11.2012, R. Kiruba Kanmani v. L. Rajan, decided by the Hon'ble Madras High Court in Crl. O.P. No. 15336/2019 on 17.06.2019 and Abhilasha v. Prakash, decided by the Hon'ble Supreme Court in Crl. Appeal No. 615/2020 on 15.09.2020.
5. On the contrary, Ld. Counsel for the respondent has argued that Section 2(b) of PWDV Act categorically defines the child as a person below the age Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 3 of 8 PS Anand Vihar Digitally signed by NAVEEN GUPTA Date: 2020.11.19 12:04:40 +05'30' of 18 years. The order dated 28.06.2017 of Ld. Trial Court clearly mandates that the interim maintenance shall be payable till the petitioner and children are legally entitled to receive the same. Thus, the appellant herein after attaining the age of majority was disentitled to get maintenance under the PWDV Act. Furthermore, under Section 125(1)(c) Cr.P.C., a child, who has attained majority is entitled to get maintenance only if such child is, by reason of any physical or mental abnormality or injury unable to maintain itself. The appellant herein has failed to show any abnormality or injury, which is a pre-requisite for a major child to claim maintenance under Section 125 Cr.P.C. Thus, Ld. Executing Court has rightly passed the impugned order.
6. First of all, it is pertinent to note that the appellant has prayed for setting aside the order dated 24.09.2020, whereby the maintenance awarded to the appellant was stopped by the Court. Thus, it is clarified here itself that this court has not taken up all other aspects touched upon by the appellant in the contents of the present appeal.
7. The impugned order has been passed in an execution petition filed for execution of the order passed by Ld. Trial Court vide order dated 28.06.2017. Ld. Trial Court has held that 'in the totality of facts and circumstances, considering the status of the parties, I hereby direct respondent/husband to pay a sum of Rs.60,000/- per month towards interim maintenance to petitioner and children from the date of filing of application till further orders/till they are legally entitled to receive the same to avoid any hardship to them.' It is worth mentioning that the abovesaid order dated 28.06.2017 was passed in a complaint filed under the PWDV Act. Ld. Trial Court had clarified that the respondent shall pay maintenance till petitioner Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 4 of 8 PS Anand Vihar Digitally signed by NAVEEN GUPTA Date: 2020.11.19 12:04:55 +05'30' and her children are legally entitled to receive the same. As per Section 2(b) of the Act, 'child' means any person below the age of 18 years. It is not in dispute that the appellant herein has attained the age of majority. The Executing Court is supposed to follow the mandate of Ld. Trial Court, whose order is to be executed by it. Accordingly, following the mandate of order dated 28.06.2017 of Ld. Trial Court vis-à-vis Section 2(b) of the Act, the appellant is not entitled to get maintenance from the respondent/her father.
8. Ld. Counsel for the appellant has mentioned in the present appeal that the appellant is entitled to get maintenance under Section 125(1)(c) Cr.P.C. The Section 125(1)(c) Cr.P.C. mandates that legitimate or illegitimate child (not being a married daughter) who has attained majority, is entitled to get maintenance where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself. The Court is in agreement with the submission made by Ld. Counsel for the respondent that the appellant has not shown any abnormality or injury as mandated by Section 125(1)(c) Cr.P.C. Thus, the appellant, after having attained the age of majority and not suffering from any abnormality or injury, is not entitled to claim maintenance under Section 125(1)(c) Cr.P.C..
9. Ld. Counsel for the appellant has further argued that the appellant is entitled to claim maintenance Section 20(3) of HAMA. Section 20(3) of HAMA states that '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.' It is reiterated that the order dated 28.06.2017, which is under execution before Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 5 of 8 PS Anand Vihar Digitally signed by NAVEEN GUPTA Date: 2020.11.19 12:05:07 +05'30' the Court, has been passed in a complaint filed under PWDV Act and not under HAMA. The said order dated 28.06.2017 has been passed by the Court of Ld. Metropolitan Magistrate.
10. The Hon'ble Supreme Court has explained the legal position, in such circumstances as presented in the present appeal, in categorical terms in Abhilasha v. Parkash, in Criminal Appeal No. 615/2020 decided on 15.09.2020, and has held that:
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 Cr.P.C. cannot pass such order.
34. In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major.
[Emphasis supplied]
11. The Hon'ble Supreme Court in Rajnesh v. Neha, in Criminal Appeal no. 730/2020 decided on 04.11.2020, has reiterated that:
Section 20 of HAMA provides for maintenance of children and aged parents. Section 20 casts a statutory obligation on a Hindu Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 6 of 8 PS Anand Vihar Digitally signed by NAVEEN GUPTA Date: 2020.11.19 12:05:20 +05'30' male to maintain an unmarried daughter, who is unable to maintain herself out of her own earnings, or other property. In Abhilasha v Parkash & Ors., a three-judge bench of this Court held that Section 20(3) is a recognition of the principles of Hindu law, particularly the obligation of the father to maintain an unmarried daughter. The right is absolute under personal law, which has been given statutory recognition by this Act. The Court noted the distinction between the award of maintenance to children u/S. 125 Cr.P.C., which limits the claim of maintenance to a child, until he or she attains majority. However, if an unmarried daughter is by reason of any physical or mental abnormality or injury, unable to maintain herself, under Section 125(1)(c), the father would be obligated to maintain her even after she has attained majority. The maintenance contemplated under HAMA is a wider concept. Section 3(b) contains an inclusive definition of maintenance including marriage expenses. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to the wife and children in a summary proceeding, whereas under Section 20 read with Section 3(b) of HAMA, a much larger right is contemplated, which requires determination by a civil court.
[Emphasis supplied]
12. The record of Ld. Executing Court as well as the documents annexed with the present appeal show that the appellant herein had earlier filed a petition under Section 125 Cr.P.C., which was disposed of vide order dated 27.07.2009 and execution petition related to the said order had been dealt with by the Court of Ld. Family Court. Thus, applying the abovesaid precedents laid down by the Hon'ble Supreme Court in the cases of Abhilasha (supra) and Rajnesh (supra), the Executing Court did not have any jurisdiction to grant maintenance to the appellant after her attaining the age of majority. She has to approach the Court of appropriate jurisdiction for claiming maintenance under Section 20(c) of HAMA. The argument that maintenance shall be allowed in the pending execution petition itself to avoid multiplicity of proceedings does not hold water in the backdrop of Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 7 of 8 PS Anand Vihar Digitally signed by NAVEEN GUPTA Date: 2020.11.19 12:05:35 +05'30' the abovesaid precedents laid down by the Hon'ble Supreme Court. With utmost respect, the Court is of the view that the precedents relied upon by Ld. Counsel for the appellant i.e. Mansi Vohra (supra) and R. Kiruba Kanmani (supra) are not applicable in the present facts and circumstances.
13. It is clarified herein that the appellant would remain entitled to claim arrears of maintenance, if any, from the respondent in terms of order of Ld. Trial Court dated 28.06.2017. Ld. Executing Court can take appropriate action in accordance with the applicable provisions of law for recovery of the said arrears of maintenance.
14. This Court does not find any illegality or incorrectness in the order dated 24.09.2020, passed by the Court of Ld. MM (Mahila Court-02), Shahdara, Karkardooma Courts, Delhi. Hence, the present appeal is dismissed. The Criminal Appeal be consigned to record room. TCR be sent back to the Ld. Executing Court along with copy of this Order.
Digitally signed by NAVEEN GUPTA
Date: 2020.11.19 12:06:01 +05'30'
Announced through CISCO NAVEEN GUPTA
Webex video conferencing Addl. Sessions Judge - 05
on 19th day of November, 2020 Shahdara District,
Karkardooma Courts, Delhi
Criminal Appeal No.15/20 (I.D. No. 82/20) Aastha Jain v. Sanjay Jain Page No. 8 of 8
PS Anand Vihar