Delhi District Court
Bhagirath Lal Sharma vs Baby Taruna on 15 December, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS
JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No. 114/12
Unique Case I.D. No.02402R0276592012
Date of Institution : 26.09.2012
Date of Arguments : 12.12.2012
Date of Order : 15.12.2012
Bhagirath Lal Sharma ....... Revisionist
Versus
Baby Taruna ....... Respondent
ORDER
This order will dispose of a criminal revision against the order dated 13.7.2012 passed by Ms. Vandana Jain, M.M. Mahila Court, Karkardooma Courts, Delhi.
2. I have heard arguments of Ld. Counsels for the parties and perused the file and Trial Court Record.
3. On perusal of Trial Court Record, I find that Ld. M.M. vide impugned order considered the pleadings and arguments of the parties and formed an opinion that income of the respondent/appellant was Rs.43,000/- p.m. and accordingly CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 1/8 enhanced maintenance @ Rs.14,000/- p.m. from Rs.400/- p.m. which was granted vide order dated 30.9.1996 u/s 125 of the Code of Criminal Procedure (here in after referred to as the Code) in favour of the daughter of appellant/petitioner on an application u/s 127 of the Code. Having aggrieved of that order respondent/appellant preferred present appeal.
4. The impugned order has been assailed on the grounds, inter-alia, that impugned order is against law and facts as material facts have been ignored by Ld. M.M.; Ld. Trial Court did not consider that maintenance cannot be awarded to major daughter u/s 125 of the Code; Ms. Taruna has become major on 31.12.2009 and thereafter she did not have any right to get maintenance; Ld. Trial Court has failed to take into consideration the income of the mother and also failed to consider the written arguments and that both the spouses were equally liable to maintain the child. Appellant prayed for dismissal of the impugned order.
5. In support of his arguments Ld. Counsel for appellant relied on a case Amrinder Kumar Paul vs. Maya Paul and Ors., 2010 Crl.L.J. 395, wherein the Apex Court observed that:
"11. An application for grant of maintenance, therefore, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 2/8 refuses to maintain his legitimate or illegitimate minor child unable to maintain itself. Once, therefore, the children attained majority, the said provision would cease to apply to their cases."
6. Ld. Counsel for appellant further relied on a case Amod Kumar Srivastava and Ors. vs. State of UP and Ors., 2009 (3) Crimes 583 (All), wherein Allahabad High Court observed that:
"10. The matter of granting maintenance allowance under the provisions of Section 125 Cr.P.C., to the unmarried daughter who attained majority came up for consideration before Madras High Court in the case of TPSH Selva Saroja vs. TPSH Sasinathana (supra). After considering the provisions of Section 488 of old Cr.P.C.
and Section 125 of new Cr.P.C., it is observed as under in Para 10 of the judgment at page 2035:
"It is, therefore, seen that the Act makes it clear that any child, who has attained majority, is not automatically entitled to claim maintenance, even if he is unable to maintain himself, as was the case in the old Code but in ability to maintain should arise out of physical or mental abnormality or injury. In the past as well as in the present, the limitation is the inability to maintain itself. This inability to maintain in the case of a major must be by reason of any physical or mental abnormality or injury. A mere physical or mental abnormality or a mere injury, which does not make the child unable to maintain itself will not be covered under Section 125(1)(c) of the Code.
11. This matter was considered by Karnataka High Court also in the case of Kum L. Usharani and Others vs. D.S. Lakshmaiah (supra). In that case also, provisions of Sections 488 and 125 of the old and new Cr.P.C. were considered and it was held that "it may be noticed that the Parliament in its wisdom has enabled only a minor child whether legitimate or illegitimate to claim maintenance under Section 125(1)
(b) and only one exception has been made by enacting Sub-section
(c) which enables the child which has attained majority to claim maintenance. That is a case where the child by reason of any physical or mental abnormality or injury is unable to maintain itself."
12. In the case of Moideen Kutty v. Pathumma and Others (supra), Kerala High Court has also taken the similar view. The following observations made in Para 5 and 6 of the judgment at page 356 of the report are worth mentioning:
CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 3/8"5. The liability to maintain a child who has attained majority arises only (a) if that child is not a married daughter and (b) if it is unable to maintain itself on account of (1) physical or mental abnormality or (ii) injury.
6. The Act, therefore, makes it clear that any child who has attained majority is not automatically entitled to claim maintenance even if he is unable to maintain himself as was the case under the old Code. The inability to maintain himself should arise out of physical or mental abnormality or injury".
13. Keeping in view the law laid down in above mentioned cases, the impugned judgment granting maintenance allowance to Km. Bhavya and Km. Divya even after their attaining majority cannot be sustained, because as stated earlier also, both these daughters had attained majority much prior to the date of passing the impugned order and since their inability to maintain themselves cannot be attributed to any physical or mental abnormality or injury within the meaning of Section 125(1)(c), Cr.P.C., hence, they had become disentitled to get maintenance allowance from their father after attaining majority under the provisions of Section 125, Cr.P.C. If they want to claim maintenance allowance from their father even after attaining majority, then they can approach Civil Court for this purpose."
7. Ld. Counsel for appellant further relied on a case Samaydin. vs. State of UP and Anr., 2001 Cri.L.J. 2064, wherein Allahabad High Court observed that:
"It is only urged that maintenance amount should be fixed from the date of the order as the law normally requires. If the Court intends to grant maintenance from the date of application Court must record its reasons for doing so. The contention has some force. Sub-sec. (2) of S. 125, Cr.P.C. spells as under:
"(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance."
4. From an examination of the language of this sub-section it clearly follows that in normal circumstances the maintenance must be granted from the date of the order. In only extraordinary circumstances, it may also be ordered to be paid from the date of application for maintenance. It is thus clear that there must be a discussion of such circumstances which warrant the Court to allow it from the date of application. No other inference is permissible from the language of sub-sec. (2). One such extraordinary circumstance CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 4/8 may be dilatory tactics adhered to by the husband in the disposal of the proceeding. The other one may be untold cruelty practised against his wife. No extensive ground can be formulated for doing so. The learned Magistrate has not given any reason for allowing maintenance from the date of the application. Nowhere in the judgment before delivering the operative portion he had shown any such inclination. As a matter of fact the Court has taken the husband by surprise by making such a direction for the first time in the operative portion of the judgment. I am, under the circumstances, inclined to accept this contention and modify the order and make it payable from the date of order. The maintenance allowance shall be payable from the date of the order."
[Emphasis supplied]
8. Ld. Counsel for appellant further relied on a case Bansi Lal v. Pushpa Devi, 1982 Cri.L.J. 1081, wherein Jammu & Kashmir High Court observed that:
"4. This section, on its plain reading, furnishes the ground on which the court passing an order under S. 488 Cr.P.C. can modify the said order. Before such an order can be passed, the court has to be satisfied about the changed circumstances. The changed circumstances envisaged in the section are a change in the pecuniary or other circumstance of the party paying or receiving the allowance, which justify the alteration of the order of maintenance. Such an order for alteration of the allowance can be made therefore, only from the date of the order under Sec. 489 Cr.P.C. and not from the date of the application seeking alteration."
9. Ld. Counsel for appellant further relied on a case Raj Kumar v. Mst. Shanta Bai, 2002 Cri.L.J. 2894, wherein Rajasthan High Court observed that:
"However for academic point of view, it can be answered here by observing that alteration of allowance can be made from the date of order and not from the date of application. The similar view has been taken by Andhra Pradesh High Court in the case of Pilli Venkanna vs. Pilli Nookamma reported in 1998 Cri.L.J. 1922."CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 5/8
10. It has been argued on behalf of Ld. Counsel for revisionist that order of Ld. M.M. is not legal as he has granted the maintenance to the petitioner from the date of order till her marriage as this order is not consonance of provisions of Section 125 (c) of the Code.
11. On the other hand it has been argued on behalf of respondent that order of Ld. M.M. was legal and justified and there is no merit in the arguments and grounds of appeal. Ld. Counsel for respondent prayed for dismissal of appeal. It was also submitted that till date mother of Taruna has been maintaining Taruna and father has not paid any amount of the maintenance so far.
12. It would be appropriate to reproduce provisions of Section 125 (c) of the Code which runs as under:
125. Order for maintenance of wives, children and parents. - (1) If any person having sufficient means neglects or refuses to maintain-
***
(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 himself or herself, ***"
13. On considering rival contentions of Ld. Counsels for parties and on perusal of record, I come to the conclusion that order of Ld. M.M. is not beyond any illegality, infirmity, inaccuracy and impropriety. The reasons which support my decision are CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 6/8 firstly that Ld. M.M. has directed the revisionist to pay maintenance @ Rs.14,000/- to the petitioner from the date of order till her marriage. As per provisions of Section 125(c) of the Code, the maintenance can be granted till a child attains majority or marry, whichever is earlier. Thus, on this aspect, I find illegality in the impugned order.
14. Secondly, as per principles of law laid down in case Samaydin. vs. State of UP and Anr., (Supra), in extraordinary circumstances the maintenance can be awarded from the date of application. The Ld. M.M. has not also considered whether there were extraordinary circumstances in the present case to entitle the petitioner to get maintenance from the date of application till she gets marriage or attains majority whichever is earlier as in the present case the date of application is 26.7.2002 and the date of order was 13.7.2012. As per argument or petitioner/respondent petitioner is unmarried but she attained majority before passing of order. If the extraordinary circumstances are not considered in granting the maintenance to the petitioner/respondent from the date of application, this may lead to injustice as practically she will not be able to get any amount if order of maintenance is enforced since the date of order.
15. In view of above reasons and discussion I find merit in the revision and consequently impugned order is set aside. The CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 7/8 matter is remanded back for fresh decision as per law.
16. Parties are directed to appear before Ms. Vandana Jain, M.M. Mahila Court, Karkardooma Courts, Delhi/Successor Court on 19.12.2012 for further orders.
17. Trial Court Record be returned with copy of this order.
18. Revision file be consigned to record room.
Announced in the Open Court on 15.12.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02, East, Karkardooma Courts, Delhi CR No.124/12 Bhagirath Lal Sharma Vs. Baby Taruna Page No. 8/8