Delhi High Court
Shyam Sunder Malik vs Ms. Geetika Malik And Anr. on 29 August, 2005
JUDGMENT S.K. Agarwal, J.
1. This petition under Section 482 of the Code of Criminal Procedure (for short, 'the Code') is directed against the order dated 7.5.2005 passed by the Court of Addl. Sessions Judge, Delhi dismissing petitioner's revision petition against the order dated 2.11.2004 passed by the Metropolitan Magistrate, Delhi awarding maintenance @ Rs. 3,500/- and Rs. 2,000/- respectively to the respondent Nos. 1 and 2 from the date of the application.
2. Facts in brief are as follows: Respondents are the daughters of petitioner and are living with their mother. They filed an application under Section 125 of the Code, praying for maintenance, pleading that petitioner was married to Smt. Neeraj Malik, and out of the wedlock they were born on 15.1.1983 and 30.8.1987 respectively. Petitioner did not look after them and their mother and stopped paying any maintenance. The respondent No. 1 is 1st year student of Engineering College, Bhatinda, (Punjab), living in the hostel; her admission expenses of Rs. 55,000/- and other fee charges were arranged by her mother. She has to pay besides fee, monthly hostel charges and for the books, etc. The respondent No. 2 is studying in XI Class in a public school and her expenses for education are also being borne by her mother. The respondents have no means for their maintenance, education and their mother is unable to bear the expenses, which are increasing day-by-day. Petitioner was employed as a Manager in the Bank of Baroda, Delhi and was getting Rs. 20,000/- p.m. He took retirement and received a lumpsum amount of Rs. 15.0 lacs, towards arrears of salary, GPF, bonus, retirement benefits etc.; he is now working in a Banquet Hall, and has income also from the bank deposits, FDRs and other investments. The respondents claimed Rs. 10,000/- and Rs. 5,000/- respectively, towards maintenance. Petitioner filed a reply stating that respondents' mother was employed as a teacher in a public school and they are not entitled to claim maintenance. Learned Trial Court vide order dated 2.11.2004 awarded Rs. 3,500/- to the first respondent and Rs. 2,000/- to the second respondent with effect from the date of application till the disposal of the main petition. Learned Trial Court assessed the income of the petitioner at Rs. 10,000/- per month. Petitioner filed a revision petitioner before the Court of Session, which was dismissed on 7.5.2005. These orders are under challenge. Learned Counsel for the petitioner argued that a female unmarried child, who attained the age of majority is not entitled to claim maintenance from her father. The issue raised being purely legal, notice was issued only to the State.
3. Learned Counsel for the petitioner argued that under Section 125 of the Code the child cannot be granted maintenance after he/she has attained the age of majority in the absence of any physical or mental infirmity, even if he or she is unable to maintain herself, in terms of Clause (c) of Sub-section (1) of Section 125 of the Code. In support of this submission, reliance is placed on the observations made in K. Shivaram v. K. Mangalamba and Ors., II (1989) DMC 452 : 4990 Crl.L.J. 1880 (Andhra Pradesh) and Moideenkuttyv. Pathumma and Ors., 1984 (2) Crimes 355. Learned APP for the State argued to the contrary submitting that Section 125 of the Code is a special provision to protect women and children who are unable to maintain themselves and the provision should be liberally construed.
4. The object of Section 125 of the Code is to provide speedy remedy to women and children who are unable to support themselves and are in distress. It is intended to achieve a social purpose. The maintenance cannot be denied to the children on the premise that their mother is employed or has enough money to maintain them or that they are in the custody of their mother. Maintenance would include provision for food, clothing, residence, education and medical treatment whenever necessary, of course, as per parents financial status. The Supreme Court in Noor Saba Khatoon v. Mohd. Quasin., II (1997) DMC 356 (SC) : 1997 Cr.LJ 3972, considered the scope and ambit of Section 125, Cr.P.C. and held that Muslim father having sufficient means has the obligation to maintain his minor children who are unable to maintain themselves till they attain majority and in case of females till they get married. It was held:
"A careful reading of the provisions of Section 125, Cr.P.C. and Section 3(1)(b) of the 1986 Act makes it clear that the two provisions apply and cover different situations and there is no conflict, much less a real one, between the two. Whereas the 1986 Act deals with the obligation of a Muslim husband vis-a-vis his divorced wife including the payment of maintenance to her for a period of two years of fosterage for maintaining the infant/infants, where they are in the custody of the mother, the obligation of a Muslim father to maintain the minor children is governed by Section 125, Cr.P.C. and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children, this obligation extends till their marriage."
5. The law laid down by the Supreme Court while dealing with entitlement of the children to claim maintenance from the Muslim parents under Section 125 of the Code till they attain majority or in case of females till they get married, is fully applicable to the facts at hand. It may be noted here that under Sub-section (3) of Section 20 of the Hindu Adoption and Maintenance Act, 1956, obligation of a Hindu father includes the obligation to maintain his unmarried daughter not only for the purposes of her day-to-day expenses, but also in respect of the reasonable expenses of her marriage. It arises from the very existence of relationship.
6. The above view finds support from the observations made by the Calcutta High Court in Bankim Ch. Banerjee v. Chinmoyee Banerjee, 2003 (1) Crimes 215. The ratio of the two decisions cited by the learned Counsel for the petitioner are not applicable to the facts at hand in view of the law laid down by the Supreme Court in Noor Saba Khatoon (supra).
7. For the foregoing reasons, I find no illegality or impropriety in the impugned order to warrant interference. Any observation made herein would not affect merits of the case during the trial. Petition is dismissed.