Calcutta High Court
Bankim Ch. Banerjee vs Chinmoyee Banerjee on 4 March, 2002
Equivalent citations: (2002)2CALLT214(HC), 2002(2)CHN340, II(2002)DMC652
JUDGMENT A. Barua, J.
1. This revislonal application is directed against an order dated 8-8-2000 passed by the learned Sub-Divisional Judicial Magistrate, Howrah, in Misc. Case No. 92 of 1987.
2. The petitioner, Bankim Ch. Banerjee and O.P. No. 1, Chlnmoyee Banerjee, were married way back on 31-1-78 and a female child was born to them on 12-12-78. The female child has since attained majority. Earlier, in C.R,R. 2462 of 1997 a single Bench of this Court, Malay Kumar Basu, J., was deciding a revlslonal application filed by the husband, Bankim Ch. Banerjee against the wife, Chinmoye.e Banerjee challenging an order date 3-6-97 passed by the learned Chief Judicial Magistrate, Howrah in Misc. Case No. 92 of 1997 under Section 127 of the Code of Criminal Procedure under which a petition filed by the wife under Section 127 Cr.PC was allowed and the amount of maintenance already granted earlier was enhanced to Rs. 600/- for the maintenance of the wife and Rs. 400/- towards maintenance of the minor daughter, it might be mentioned that originally, the husband was directed to pay a sum of Rs. 375 for wife and the child by virtue of an order of the learned Magistrate under Section 125 of the Code of Criminal Procedure, in addition to that he was also under an obligation to pay a sum of Rs. 250/- under Section 24 of the Hindu Marriage Act as per orders of the Civil Court. Being aggrieved, he preferred a revisional application before this Court on the ground that he was not liable to pay towards maintenance under both the Acts. Thereafter, a single Bench of this Court passed an order making an adjustment of the amount payable by him on both counts and the total amount was reduced to Rs. 500/- on account of both the wife and the child. Accordingly, the petitioner was making payments of that amount to the opposite party. But the wife filed a petition under Section 127 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Howrah, for enhancing the amount of maintenance and the learned Chief Judicial Magistrate passed the Order enhancing the amount of maintenance to a total sum of Rs. 1,000/- in place of Rs. 500/-. This amount of Rs. 1,000/- was towards maintenance of the wife to the tune of Rs. 600/- and maintenance of the minor daughter to the extent of Rs. 400/-. By filing the said revislonal application before the single Bench of this Court (M.K. Basu, J.) the petitioner-husband contended that the daughter who was minor at the time of passing of the impugned order had, by that time, attained majority and that on that ground she could not be allowed maintenance any longer in view of the clear provisions of Section 125 Cr.PC which provided maintenance for minor children only. It was not disputed by the learned Advocate for the wife O.P. that the daughter had attained majority after the impugned order was passed. But the question was raised whether the petitioner-husband should go on making payment of the amount of maintenance for the daughter even after she had become a major. The learned single Judge held that so far as the question of paymept of the maintenance for the wife to the tune of Rs. 600/- was concerned, he found no justification in ordering a fresh hearing departing from what had been awarded by the learned Magistrate. In other words, the husband-petitioner was to go on making payment as per the order of the learned Court below towards maintenance to the wife. But, as regards the question whether the petitioner-husband was then liable to pay maintenance for the daughter also who had admittedly attained majority, the matter was to be heard and decided by the learned SDJM and the revislonal application by the learned single Judge (M. K. Basu, J.) was accordingly disposed of.
3. In obedience to the order of the said single Bench of this Court in CRR No. 2462 of 1997 date 17.12.99 the learned SDJM, Howrah made the Impugned order date 8.8.2000 which is assailed in this revlslonal application before me. The learned SDJM, by that order date 8.8.2000 relied upon a decision of the Hon'ble Supreme Court in 1997 Cri.LJ 3972. and had held that the daughter, who had attained majority, was still entitled to get the maintenance from her father and that the opposite party was liable to pay maintenance to his daughter who had attained majority and accordingly disposed the matter.
4. The only point for determination before us fs whether the daughter, or, for that matter, the female child, a Hindu, who has attained majority is entitled to claim maintenance from her father, that is the revfslonal applicant, Bankim Ch. Banerjee.
5. The learned Advocate for the petitioner has submitted that the learned Magistrate was erred in law in making the impugned order date 8.8.2000 with the finding that a father is supposed to maintain a major daughter that the learned Magistrate had made an erroneous interpretation of the Supreme Court decision in 1997 Cri, LJ 3972, which has dealt with the obligation of a Muslim father only in terms of his personal law and that under Section 125 Cr.PC and that the said Judgment of the Supreme Court had nothing to do with Hindu Law and a father who was a Hindu. According to the learned Advocate for the petitioner, Section 125 of the Code of Criminal Procedure enjoins that only minor children would be entitled to get maintenance from their father and maintenance to major children can only be awarded in special circumstances only where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself.
6. The learned Advocate for the O.P. wife has submitted that in view of the Supreme Court decision cited above, the female child even if she has since attained majority is entitled to get maintenance from her father untill she gets married.
7. Now, we have to decide the short point in the light of the said judgment of the Hon'ble Supreme Court in the case of Noor Saba Khatoori v. Modh Quasim, 1997 Cri. LJ 3972. It is true that the Hon'ble Supreme Court in that particular case was dealing with a short but interesting question whether the children of Muslim parents were entitled to get maintenance under Section 125 Cr.PC for the period till they attained majority or were able to maintain themselves, whichever date was earlier, and in case of female children till they got married or was their right restricted to the grant of maintenance only for a period of two years prescribed under Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 notwithstanding Section 125 Cr.PC. The Hon'ble Supreme Court held :
The children of Muslim Parents are entitled to claim maintenance under Section 125 Cr.PC for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married. This right is absolute, notwithstanding the fact that minor children are living with divorced wife. Further the right is not restricted, affected or controlled by divorcee wife's right to claim maintenance for maintaining the Infant children in her custody for a period of two years from the date of birth of the child concerned under Section 3(1)(b) of the Act. In other words, Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125 Cr.PC till they attain majority or are able to maintain themselves or in the case of female till they are married.
8. To my mind, a close reading of the Judgment of the Hon'ble Supreme Court cited above is indeed the key to the right answer to the issue we are seized of, I might profitably highlight some of the extracts from the said judgment of the Supreme Court which would probably help us out deciding this particular issue, namely whether the major daughter or the female child of a Hindu can still claim maintenance from her father until she is married. The Hon'ble Supreme Court has said thus in para 7 of the judgment :--
"Under Section 125 Cr.PC the maintenance of the children is obligatory on the father (Irrespective of his religion) emphasis mine and as long as he is in a position to do so and the children have no Independent means of their own, it remains his absolute obligation to provide for them ..... These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and Indeed it would be unreasonable, unfair, Inequitable and even preposterous to deny the benefit of Section 125 Cr.PC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial Legislation like Section 125 Cr.PC cannot be allowed to be defeated except through clear provisions of a statute. We find manifestation of any Intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 Cr.PC where they are minor and are unable to maintain themselves. Muslim father's obligation like that of a Hindu father (emphasis mine) to maintain his minor children as contained in Section 125 Cr.PC is absolute and is not at all affected by Section 3(1)(b) of the 1986 Act. In para 8 of the judgment, the Supreme Court has said that the obligation of a Muslim father to maintain the minor children is governed by Section 125 Cr.PC and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier."
9. Thus, it appears that though in that particular case the Hon'ble Supreme Court was dealing with the entitlement of the children of Muslim parents under Section 125 Cr.PC it has unmistakably focussed on the obligation of the father, whether he was a Muslim father or a Hindu father or a father (Irrespective of religion) to maintain his minor children under Section 125 Cr.PC. Equally emphasised was the Independent rights of the children who claim maintenance under Section 125 Cr.PC. In that context and on a modest exercise of the Interpretation of the words of the Hon'ble Supreme Court and the meaning they had conveyed. I am of the opinion that when the Supreme Court had finally pronounced "in case of a female children this obligation extends till their marriage", it had certainly meant the obligation of a father (Irrespective of his religion), to maintain his female children till their marriage. The consideration of the Supreme Court when such children are 'female', to my mind, is distinct and separate and is neither restricted by her age, nor by the fact that she belongs to a particular religion and this is certainly in the context of Section 125 of the Code of Criminal Procedure which Indeed transcends the barriers of religion being a secular Act and a product of socialistic legislation. In fine, in view of the said Judgment of the Hon'ble Supreme Court it must be held that the petitioner-father, though a Hindu, is under an obligation to maintain his daughter in question, though a major, till she gets married.
10. In view of what is thus stated above, 1 am to hold that the impugned order of the learned SDJM, Howrah date 8.8.2000 calls for no interference and is hereby affirmed.
Thus revlstonal application is barren of merits and hence dismissed.
Urgent xerox certified copy of this order, if applied for, be given to the parties.