Gujarat High Court
Parmar Manjulaben vs Parmar Ganpatbhai Alias on 11 September, 2013
Author: S.G.Shah
Bench: S.G.Shah
PARMAR MANJULABEN GIRISHBHAIV/SPARMAR GANPATBHAI ALIAS GIRISHBHAI KHODABHAI PARMAR R/CR.RA/425/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 425 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?
No 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ================================================================ PARMAR MANJULABEN GIRISHBHAI & 2....Applicant(s) Versus PARMAR GANPATBHAI ALIAS GIRISHBHAI KHODABHAI PARMAR & 2....Respondent(s) ================================================================ Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Applicant(s) No. 1 - 3 MR BHAVIK J PANDYA, ADVOCATE for the Respondent(s) No. 1 MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 MS.MOXA THAKKAR, APP for the Respondent(s) No. 3
SHRIKAR H BHATT, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date :11/09/2013 CAV JUDGEMNT
1. The petitioners herein are the original applicants in the first order dated 27.12.2012 passed by the 3rd Additional Chief Judicial Magistrate, Bhuj-Kutch, in Criminal Misc. Application No.792 of 2010. In such application, the petitioners have claimed Rs.26,000/- as maintenance for all of them from respondent No.1 being husband of petitioner No.1 and father of petitioner Nos. 2 and 3. It is also prayed to direct the District Primary Education Officer, respondent No.2 herein, being employer of the respondent No.1, to deduct such amount from the salary of respondent No.1 and to pay it directly to the petitioners towards maintenance. The 3rd Additional Chief Judicial Magistrate, Bhuj-Kutch, has, vide order dated 27.12.2012, awarded the amount of maintenance to all the petitioners with a direction to respondent No.2 to deduct the amount of maintenance and arrears from the salary of respondent No.1 and credit the same directly in the saving account of the petitioners.
Sofas as petitioner Nos.2 and 3 were concerned, they being minor when the application was preferred, the application was preferred by the petitioner No.1 as mother and guardian of the petitioner Nos.2 and 3. However, now, the petitioner Nos.2 and 3 are major. By such order, the Trial Court awarded Rs.5,000/- to petitioner No.1 wife and Rs.2500/- each to both the daughters i.e. petitioner Nos.2 and 3 towards maintenance and thereby, the total amount of maintenance was Rs.10,000/- per month.
2. Such order of maintenance was challenged by the respondent No.1 before the Sessions Court in Criminal Revision Application No.7 of 2013. In such revision before the Sessions Court, the respondent No.1 has taken several grounds, but most of them are with reference to internal disputes between the parties. So far as quantum of maintenance is concerned, it is contended that their son-Dipak is serving in private Bank and earning more than Rs.10,000/- per month who was also petitioner when the main application was filed in September, 2010. The said amount is paid to his mother i.e. petitioner No.1 herein by him. So far as maintenance of petitioner Nos.2 and 3 is concerned, it is contended that now, they are major and are not entitled to claim compensation from him. Such Revision Application was decided by the 4th Additional Sessions Judge, Bhuj-Kutch, on 08.05.2013.
3. Such order is challenged before this Court in Revision Application. In the said impugned order dated 08.05.2013, the Sessions Court has modified the order dated 27.12.2012 passed by the 3rd Additional Chief Judicial Magistrate, Bhuj-Kutch and thereby, amount of maintenance to petitioner No.1 was not disturbed. However, so far as maintenance of petitioner No.2 is concerned, the same was set aside, whereas, maintenance in favour of petitioner No.3 is concerned, it was restricted till she attains the age of majority with a direction that the amount, if any, paid in excess of amount, shall be given set off. Though there is no clarification regarding direction to the District Primary Education Officer in the original order dated 27.12.2012 is concerned, there is no reference or any direction in the order and therefore, it can be believed that it is not altered or modified. It is only recorded in the impugned order that information of such orders be forwarded to respondent No.4 i.e. District Primary Education Officer. Therefore, practically, such direction has not been modified.
4. Being aggrieved by the said impugned judgment and order dated 08.05.2013 passed by the 4th Additional Sessions Judge, Bhuj-Kutch, the petitioners have challenged the said order praying to revive the order dated 27.12.2012 passed by the 3rd Additional Chief Judicial Magistrate in Criminal Misc. Application No.792 of 2010.
5. Therefore, the present Revision Application is preferred solely on law point whether major daughters are entitled to maintenance even after attaining the age of majority and not since quantum of maintenance is not under challenge. Thereby, I do not think it proper to enter into factual details and to discuss the same herein as this being a revisional jurisdiction where only irregularity or illegality is to be checked for interfering with the impugned order.
6. Since the amount of maintenance was claimed mainly on the ground of ongoing studies of petitioner Nos.2 and 3, the petitioner No.1 was called upon to disclose necessary details and place on record the same with supporting documents. In compliance of such direction, the petitioners have filed an affidavit dated 19.08.2013 which is produced on record with relevant photocopies of payment of fees, mark sheets, bona fide certificates etc. of both the petitioner Nos.2 and 3 at Annexure-1 i.e. at Page-56 to 61 of the petition. The respondent No.1 has also filed affidavit-in-reply on record.
7. Perused the record, impugned order as well as affidavits filed by both the parties.
8. The petitioners have mainly relied upon few decisions so as to press that the daughters are entitled to maintenance not only till the date they attain the age of majority but even thereafter.
9. The petitioners have relied upon the decision of the Apex Court in case of Jagdish Jagtawat vs. Manju Lata reported in 2002(5) SCC 422. In the said judgment, the Bench of three Judges of the Apex Court has relied upon the previous judgment in case of Noor Suba Khatoon vs. Mohd. Quasim reported in 1997 6 SCC 233, deciding not to interfere with the order of the Family Court granting maintenance to the daughter even after she becomes major considering that the order passed by the Family Court was based on combined reading of Section-125 of Code of Criminal Procedure and Section-20(3) of the Hindu Adoptions and Maintenance Act. Thereby, it is argued that the benefit of personal law or maintenance can be given to the applicant but it is otherwise ineligible under Section-125 to avoid multiplicity of the proceedings. Thereby, it is further submitted that on combined reading of the provisions of two sections i.e. Section-125 of the Code of Criminal Procedure and Section-20(3) of the Hindu Adoptions and Maintenance Act, since both the sections are related to award maintenance to wife and children, maintenance can be awarded to the daughter even after her attaining the age of majority but till her marriage, considering the fact that otherwise also, she would be forced to file another petition under Section-20(3) for maintenance.
10. The petitioners have also relied upon the decision of the Apex Court in case of S.Jayalasmi vs. T.Prakash Rao reported in (1996) 8 SCC 501, wherein the amount of maintenance was enhanced from Rs.50/- to Rs.1000/- per month where two daughters were studying in Engineering and 12th Class, with further direction to pay Rs.1 Lacs to be paid on marriage of each of them and to deposit Rs.30,000/- in the name of each daughter in fixed deposit for two years.
11. All such orders were under the provisions of Hindu Adoptions and Maintenance Act as well as Section-125 of the Code of Criminal Procedure in matrimonial proceedings for divorce between parents. However, there is no confirmation or clarity about application of daughter in whose favour, order of maintenance, as aforesaid, was passed and more particularly in the proceedings under Hindu Marriage Act regarding dissolution of marriage i.e. divorce. Though in head note, reference of Section-125 is made, practically, in the text of judgment, there is neither reference nor consideration of the provisions of Section-125 of the Code of Criminal Procedure.
12. Whereas, the Single Judge of Patna High Court in case of Subhas Roy Choudhary vs. State of Bihar reported in 2004 Cri.L.J. 573, relying upon the cases of Jagdish Jagtawat(supra) and Noor Suba Khatoon(supra), and after reproducing Section-125 of Code of Criminal Procedure and Section-20(3) of the Hindu Adoptions and Maintenance Act as also relying upon the decision in case of Yugeshwar Nath Mishra vs. Arpana Kumari reported in 2003 Cri.L.J 2625, held that the principle and the precedent recognize the right of a major unmarried daughter to get maintenance and the same cannot be denied only on the ground that the daughter had attained majority and ultimately, held that the major unmarried daughter is entitled to claim maintenance. As against that, respondent No.1 has relied upon mainly the provisions of Section-125 of the Code of Criminal Procedure by producing affidavit-in-reply, where relevant portion specifically reads to the effect that if any person leaving sufficient means neglects or refuses to maintain his legitimate or illegitimate child (not being a married daughter) who has attained majority where such child is, by reason or any physical or mental abnormality or injury unable to maintain itself, the Magistrate, upon proof of such neglect or refusal, may order such person to make monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct. Whereas, so far as normal child is concerned, such responsibility is absolute since it is provided that maintenance is possible to legitimate or illegitimate minor child, whether married or unable to maintain itself. Therefore, on combined reading of Sub-section (1) of Section-125, it becomes clear that all children whether married or not are entitled to maintenance and/or are entitled to be maintained by their father or mother who is having sufficient means and neglects or refuses to maintain such children. Whereas major child is concerned, the contention is to the effect that he is entitled to maintenance only by reason of any physical or mental abnormality or injury, so as to enable him to maintain himself. Therefore, the plain reading of such sections would give an expression that except the persons enumerated in Clauses (a) to (d) in Sub-section (1) of Section-125, other persons are not entitled to maintenance. The respondent No.1, therefore, submitted that considering the date of birth of petitioner No.2-Dipika being 05.04.1992, since she has become major in the year 2010, now, she is not entitled to maintenance and similarly, the petitioner No.3 would not be entitled to maintenance after attaining the age of majority. He submitted that the petitioner No.3 is not entitled to be maintained from 01.06.2012 when she attained majority.
13. The learned Trial Judge relied upon the cases referred by the respondent No.1 i.e. Amrendrakumar Paul vs. Maya Paul reported in AIR 2009(Sup.)2869, and Devnarayan Haldar vs. Anushree reported in 2004 SC(Cri.)164.
The learned Judge, relying upon the date of birth of petitioner Nos.2 and 3 herein being 05.04.1992 and 01.06.1994 respectively and the provisions of Section-125 of the Code of Criminal Procedure, held that since petitioner No.2 herein is major on the date of such order, she is not entitled to maintenance and for petitioner No.3, it was directed that the order of maintenance would be in force till she becomes major. Whereas, before this Court, respondent No.1 has relied upon the judgment of the Single Judge, Orissa High Court in case of Satyanarayan Chandra Deo vs. Kumari Rajamani Deo, wherein it was held that according to the provisions of Section-125 of the Code of Criminal Procedure, a daughter is not entitled to be maintained by her father after her marriage, whereas in case of Dr (Mrs) Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai and another reported in (1987)2 SCC 278, the Supreme Court has held that the daughter either married or unmarried is liable to be maintained by her parents, however, but other conditions as mentioned in Section-125 are satisfied. It is, therefore, submitted that major daughters are not entitled to claim maintenance. However, at present, we are not concerned with the entitlement of parents and liability of daughter and therefore, this judgment is not relevant at all. Whereas in case of Kirtikant D. Vadodara vs. State of Gujarat reported in (1996) 4 SCC 479, the issue was regarding maintenance of mother and therefore, though there is a reference of obligation under Section-20 of Hindu Adoptions and Maintenance Act, at present, this judgment has no relevance to the present case. In such reported cases, ultimately, application for maintenance by step mother which was allowed by three Courts (Magistrate, Sessions Court and High Court), was set aside by the Apex Court after referring all relevant enactments and as many as 7 judgments. However, since the issue before the Apex Court was with reference to entitlement to maintenance by step mother, the judgment cited by the petitioners has not been referred.
14. In view of above facts and circumstances of the case, now, we have to decide entitlement of petitioners Nos.2 and 3 to get maintenance from respondent No.1. Other issues raised are regarding direction to employer regarding direct recovery from the salary and payment to the petitioners.
15. Though it can be argued that the judgment by the equivalent Bench is not binding to every Bench, it would be necessary to recollect here the following cases where different High Courts have taken a similar view which is taken by the Apex Court in the case of Jagdish Jagtawat(supra). These cases are as under:-
15.1 Bahadur Ali Babubhai Charania vs. State of Gujarat & Anr.
reported in 2001(4) GLR 3161, where this Court held that the daughter is entitled to maintenance if she is unable to maintain herself till she marries and even after her attaining majority. For arriving at such conclusion, the Court has relied upon the decision of the Apex Court reported in AIR 1997 SC 3280, wherein while interpreting the provisions of Section-125 of the Code of Criminal Procedure, the Apex Court has said that the obligation of father, having sufficient means to maintain his minor children, unable to maintain themselves, till they attain majority and in case of female, till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.
In Criminal Misc. Petition No.242 of 2007 in case of Smt. Sushila Bavi vs. Bisauharam, decided on 01.09.2009, the Single Judge of the Chhattisgarh High Court also, relying upon the cases of Jagdish Jagtawat(supra) and Noor Suba Khatoon(supra), held that the provisions of Section-125 of the Code of Criminal Procedure are beneficial legislation to protect the dependent from vagrancy and destitution and to provide reasonable amount of maintenance for their livelihood. If a minor daughter is unable to maintain herself till the age of her majority and after attainment of majority she does not able to maintain herself, then her inability to maintain herself does not cease automatically and such inability to maintain herself makes her entitle for maintenance from her parents even after the attainment of her age of majority. At the most, she is required to prove her inability to maintain herself and in spite of having sufficient means, her father is not maintaining her.
15.3 Whereas in case of Smt. Raj Kumari Awasthi and anr. vs. State of U.P., in the order dated 31.01.2008, the Allahabad High Court, again relying upon the judgment of Jagdish Jagtawat(supra), inclined to interfere with the order of maintenance to the major daughter, stating that the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to respondent No.3 as she would be forced to file another petition under Sub-section(3) of Section 20 of the Act of 1956 for further maintenance and therefore, in order to avoid multiplicity of litigation, the order impugned does not warrant interference. For arriving at such decision, the Single Judge has taken care of several other aspects on the subject including reference to the recourse by Law Commission of India and also referred the case of Nanak Chand vs. Chandra Kishore Aggarwal reported in AIR 1970 SC 446, wherein the Apex Court has reiterated that there should not be limitation of age in the definition of the word child and that a child of any age should be entitled to maintenance if it is unable to maintain itself and when parent possesses sufficient means. The Court has has further observed with reference to the provisions of Section-125 of the Code that but to except that an unmarried daughter who is still going to college or staying at home awaiting her marriage, and has no source of independent income to maintain herself can be denied maintenance from her father, who possesses sufficient means only because her inability to maintain herself is not due to any physical or mental abnormality as required in Section-125(1)(c) of the Code would be extremely harsh and oppressive and in all likelihood violative of Articles 14 and 21 of the Constitution of India.
15.4 Whereas in the judgment dated 21.04.2009 in C.R.R. No.4115 of 2008 in case of Shri Krishna Kanta Bhattachary vs. Smt. Shyamali Bhattacharya, the Single Judge of Koklata High Court considered the said issue and relying upon the case of Jagdish Jagtawat(supra) and Noor Suba Khatoon(supra), held that father is under an obligation to maintain her daughter even after her attaining majority but till her marriage.
16. In view of such legal position, I have no hesitation to hold that the petitioners herein are also entitled to maintenance till petitioner Nos.2 and 3 get married or start earning activity so as to maintain themselves. Therefore, the judgment and order dated 08.05.2013 passed by the 4th Additional Sessions Judge, Bhuj-Kutch in Criminal Revision Application No.7 of 2013, modifying the judgment and order dated 27.12.2012 passed by the 3rd Additional Chief Judicial Magistrate, Bhuj-Kutch, in Criminal Misc. Application No.792 of 2010 needs to be interfered by quashing and setting aside the same and thereby, restoring the judgment and order dated 27.12.2012 passed in Criminal Misc. Application No.792 of 2010. Thereby, it is held that the petitioners are entitled to maintenance as awarded by such impugned judgment.
17. So far as order regarding recovery is not interfered by the Sessions Judge, the same shall remain in force when the original order is restored.
18. In view of above, Criminal Revision Application is allowed in the above terms. Rule is made absolute to the above extent.
(S.G.SHAH, J.) Chandrashekhar Page 14 of 14