Karnataka High Court
Bhagamma @ Bhagyashree D/O Bhimraya ... vs Bhimraya S/O Siddramappa Murganor on 30 March, 2017
Equivalent citations: 2017 (3) AKR 408
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1 R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
R.P.F.C.No.200059/2016
Between:
Bhagamma @ Bhagyashree
D/o Bhimraya Muraganor
Aged about 19 years,
Occ. Student
R/o Khandal, Tq. & Dist. Kalburagi
...Petitioner
(By Sri.Sharannu S Saradagi Advocate)
And:
Bhimraya S/o Siddaramappa Murganor
Aged about 47 years, Occ. Agriculture
R/o Martur, Tq. Chittapur,
Dist. Kalaburagi - 585 228.
...Respondent
(By Sri Sanjeev Patil Advocate)
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This RPFC is filed under Section 19(4) of the
Family Courts Act, by the revision petitioner praying
to set-aside the order passed by District Judge, Family
Court, Kalaburagi in Crl.Misc.No.80/2014 dated
06.08.2016 and respondent may kindly be directed to
pay maintenance of Rs.5,000/- per month to the
petitioner.
This appeal coming on for admission this day,
Court made the following:
ORDER
Though this revision petition is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The petitioner herein has filed this revision petition being aggrieved by the dismissal of Criminal Miscellaneous No.80/2014, by the Family Court at Gulbarga, by order dated 06.08.2016. The same was filed under Section 125 of Criminal Procedure Code 1973, (Cr.P.C.).
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3. Briefly stated, the facts are that respondent herein is stated to be the father of the petitioner herein. According to the petitioner, the respondent was married to her mother Kallamma about 19 years ago. Out of the said wedlock the petitioner was born on 12.10.1997. That petitioner's parents are residing separately for last decade or so. The petitioner is staying along with her mother's sister, Gouramma in Khandal Village, she has studied upto 10th standard. Being a minor, the petition was presented through her aunt, Gouramma. Petitioner sought maintenance from the respondent her father, as according to the petitioner she has been deserted by both her parents as they have married or living with some other person and she is residing with her aunt and is having no source of maintenance. She has contended that the respondent is an agriculturist residing at Marthur 4 village in Chincholi Taluk. He has about 3 acres 6 guntas of land and also has other income. That, the respondent is living with a lady by name Shabamma. It is not know whether the respondent has married her. In the circumstances, petitioner has sought maintenance of Rs.5,000/- per month.
4. In response to the petition filed by the petitioner herein before the family court, the respondent appeared and filed objections. Respondent did not admit that he was married to the mother of the petitioner or that the petitioner was born on 12.10.1997. While denying the other averments of the petition, respondent contended that he has married Kallavva on 01.06.1997, at Sri Kashi Viswanath Temple at Marthur village. The petitioner was born on 12.10.1997. The petitioner was not born to the respondent out of wedlock of the respondent with petitioner's mother as she was born only four 5 months after the marriage. Shortly thereafter, Kallavva left for Bangalore without informing the respondent. He went in search of her and found Kallavva was married one Kitty of Bangalore and she had begotten two children. That, Kallavva is not the wife of respondent and petitioner is not born to the respondent. Hence, according to the respondent, the question of paying maintenance does not arise. It is further averred that the respondent is uneducated and he is eking out his livelihood by doing coolie work at the rate of Rs.150/- to Rs.200/- per day. That he does not have any landed or house property. That the petition is not maintainable and the same has been filed to harass the respondent. Therefore, respondent sought dismissal of the petition.
5. In support of her case, petitioner examined her guardian as PW.1 and produced eight documents, which were marked as Exs.P-1 to P-8. Respondent 6 examined himself as DW.1 and one more witness was examined as DW.2 and respondent produced one document marked as Ex.D-1.
6. On the basis of evidence on record, the family court raised the following points for its consideration:
1. Whether petitioner proves that respondent has neglected to maintain the petitioner inspite of having sufficient means?
2. Whether petitioner is entitled for maintenance? If so, what is the quantum?
7. The family court answered both the points in negative and dismissed the petition filed under Section 125 of Cr.P.C. reserving liberty to the petitioner to seek her remedy of maintenance after she attains majority. Being aggrieved by the 7 dismissal of the petition, petitioner before the family court has preferred this revision petition.
8. I have heard learned counsel for petitioner and learned counsel for respondent and perused the material on record.
9. Petitioner's counsel submitted that the family court could not have dismissed the petition without ascertaining as to whether the petitioner was entitled to maintenance under Section 125 of Cr.P.C. He drew my attention to the said provision to contend that even an illegitimate child of a person particularly a daughter, if not married, is entitled to maintenance even after attaining majority, if she is unable to maintain herself on account of any physical or mental abnormality or injury. He contended that the case of the petitioner herein, comes within the scope of expression 'injury'. He would submit that the 8 petitioner has let in evidence to establish she is the daughter of the respondent and therefore, the family court could not have held that her paternity was in doubt. Even otherwise, according to petitioner's counsel, an illegitimate child, not being a married daughter, is entitled to maintenance even after attaining majority, if she suffers any injury and is unable to maintain herself. Petitioner's counsel contended that, in the instant case, the petitioner was born after the respondent married her mother Kallavva and that the documents produced by the petitioner would establish that the respondent is her father. Learned counsel submitted that the respondent did not let-in any evidence to contradict the evidence let-in by the petitioner, the petitioner is deserted by both her father and mother Kallavva. She is residing with her aunt, Gouramma. In the circumstances, she was and is entitled to seek maintenance. Petitioner's 9 counsel submitted that the expression "injury" should be interpreted in a manner so as to bring the circumstances in which the petitioner is placed in, within the said expression, so that the family court could proceed to grant her maintenance after recording evidence in that regard on remand of the matter.
10. Per contra, learned counsel for respondent submitted that the impugned order would not call for any interference as the petitioner is not the daughter of the respondent. That the respondent is not liable to maintain strangers and that the family court was right in dismissing the petition filed under Section 125 of Cr.P.C. When such a petition was dismissed, he contended that, liberty could not have been reserved to the petitioner to file any petition by the respondent on her attaining majority.
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11. Having heard learned counsel for both parties and on perusal of the material on record, it is noted that the petitioner has established that she is neither residing with the respondent nor with her mother, Kallavva. However, the petitioner has been able to establish that she is the daughter of respondent. This is evident from the oral and documentary evidence produced by her in the form of Exs.P-1 to P-7. In fact, the family court, on the one hand has observed that the petitioner has not proved that she is the daughter of respondent, but at the same time the family court has also granted her liberty to seek maintenance after she attains the age of majority. Obviously the said liberty has been granted to seek maintenance only from the respondent and not anyone else. Therefore, on that aspect, the family court has misdirected itself by on one hand holding that she is not the daughter of the 11 respondent and at the same time reserving liberty to the petitioner to seek remedy after she attains age of majority, which would be as against the respondent only.
12. Further, a reading of Section 125 Cr.P.C. would make it clear that, the same is comprehensive to include not only wife, unable to maintain herself, or a person's legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 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 itself; or a person's father or mother, unable to maintain himself or herself. All these persons are, in a way, considered to be dependants of a person. It is significant to note that under Section 125 (1) Cr.P.C., it is only the wife who can seek maintenance as against her husband 12 and not vice a versa. For immediate reference, Section 125(1)(c) of the Cr.P.C. is extracted as under:
"125. Order for maintenance of wives, children and parents.--(1) If any person having sufficient means neglects or refuses to maintain--
x x x
(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 itself, or
13. The point to be considered in this case is, whether, the petitioner herein irrespective of being a legitimate or illegitimate child of the respondent and not being a married daughter, is entitled to maintenance, not only during the period when she is a minor, but also after she attains majority, till she gets married, on account of injury being unable to 13 maintain herself. It is noted that the petitioner herein was already seventeen years of age when the petition was filed in the year 2014 and when the petition is disposed of, she was almost eighteen years of age. The family court has held that the petitioner could seek maintenance after she attains majority. The family court in my view has erred on two counts:
firstly, by not awarding any maintenance to the petitioner herein during the minority of the petitioner under Section 125 (1)(b) of Cr.P.C., and secondly, for the period after the petitioner attains majority, by not applying Section 125 (1) (c) of Cr.P.C.
14. The expression "not being a married daughter" would clearly indicate that a legitimate or illegitimate daughter even if she has attained majority, would be entitled to maintenance till she gets married. But her entitlement is by reason of or due to any physical or mental abnormality or injury 14 caused to her, as a result of which, the daughter is unable to maintain herself although she has attained majority. In such an event, all that the daughter, who has attained majority has to prove is that on account of any physical or mental abnormality or injury she is unable to maintain herself and there is neglect or refusal by her father to maintain her.
15. According to Black's Law Dictionary, Ninth Edition, the expression "injury" means a wrong or the violation of another's legal right, for which the law provides a remedy. A wrong may be described, in a larger sense, as anything done or omitted, contrary to legal duty, insofar as it gives rise to liability. Thus, a wrong is simply an act contrary to the rule of right and justice. A synonym of it is injury, in its true and primary sense of injuria (that which is contrary to Jus). Thus, injury must be understood to mean a 15 legal injury or violation of a legal right leading to an unjust state of affairs.
16. In the instant case, the petitioner does not suffer from any physical or mental abnormality, but the petitioner definitely suffers from an injury as a result of which, she is unable to maintain herself. The expression "injury" in my view cannot be limited by the expression physical or mental abnormality. The Parliament has deliberately used the expression injury to mean something other than physical or mental abnormality. The expression injury must be interpreted in a wide sense so as to enhance the object and intent of the same and not in a narrow and pedantic manner. The term injury must be construed in the legal sense and not in the physical sense of the term, which would include deprivation of every nature not only a mental or physical deprivation. It would also include an economic or financial deprivation. 16
17. The fact that the petitioner herein has been deserted by both her parents is an instance of an injury caused to the petitioner. Further, their desertion has resulted in financial deprivation and loss of a secured life. In the instant case, the fact that petitioner herself is seeking maintenance would mean that on account of economical or financial deprivation she has approached the court for maintenance, which is an injury in the legal sense. The fact that she is not being maintained by her father/respondent herein has caused her financial stringency and insecurity therefore, an injury has been caused to her.
18. In the circumstances, the family court was not right in dismissing the petition filed by the petitioner herein under Section 125 of Cr.P.C. Further, the family court was not right in reserving liberty to petitioner herein to seek remedy after she 17 attains majority. When Section 125(1) Cr.P.C. itself takes care of a situation where even a daughter who has attained majority is entitled to be maintained by her father till she gets married under certain contingencies, it was unnecessary for the family court to have directed the petitioner herein to file a petition after she attained majority. Section 125 (1) (c) Cr.P.C. clearly entitles a legitimate or illegitimate child including a daughter who is not married and who has attained majority to be maintained if she proves that she is suffering from any physical or mental abnormality or an injury as explained above.
19. Therefore, the impugned order passed by the family court Gulbarga is set aside, the matter is remanded to the family court at Gulbarga for considering the case of the petitioner on merits having regard to the observations made above. As the parties are represented by their respective counsel, 18 they shall appear before the family court on 24.04.2017 without expecting any separate notice from that court.
20. The family court is directed to record evidence to be let-in both by petitioner as well as respondent with regard to only quantum of maintenance that the petitioner would be entitled to and to dispose of the petition in accordance with law.
21. As the petition is of the year 2014, the family court to dispose of the petition in an expeditious manner.
Sd/-
JUDGE RSP