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wp-2872-17.doc 2 wp-2872-17.doc 2 A brief in sight into the facts would reveal that the petitioner, a Roman Catholics, was married to respondent no.1 in the year 1988 and three children were born from the wedlock. At present, two sons are aged 25 and 24 years respectively and daughter Alcina Judy is presently 19 years. It is the claim of the petitioner that all the major children are residing with her. It is the specific case of the petitioner that the respondent had deserted her in the year 1997 and she was living with her minor children and on the contrary the respondent is living an adulterous life. The petitioner had filed proceedings under section 125 of Cr.P.C. bearing petition No. E- 24/2003 in the Family Court, Mumbai seeking maintenance for her three children who were then minors. The said petition resulted into consent terms being signed by the parties on 25 April 2003 where the respondent no.1 agreed to pay maintenance @ Rs.1000/- per month towards each minor child. Subsequently on account of change in circumstances the petitioner moved an application for enhancement of maintenance for her three children and by judgment dated 30/12/2009, the respondent was directed to pay an amount of wp-2872-17.doc 3 wp-2872-17.doc Rs.5000/- per month towards maintenance of the second son till he attained majority and an amount of Rs.3000 per month was awarded for maintenance of minor daughter Alcina Judy, attained age of majority on 21st August 2015. It is the case of the petitioner that though the daughter has attained the age of majority and she is financially depending on the petitioner, since she is persuading her higher education and considerable amount is required to meet her day to day expenses which the petitioner is not able to arrange for. According to the petitioner, she is not getting any financial assistance from her elder son who had already obtained an educational loan for graduation and he is repaying said loan. As far as second son is concerned, according to the petitioner, he has graduated but is without any job opportunity.

3 The petitioner moved an application under section 125 of the Cr.P.C. before the Family Court at Bandra and in the said application she claimed maintenance to the tune of Rs.25000 per month for herself. In the said application, the petitioner stated that though her major sons are residing with her, but they are not wp-2872-17.doc 4 wp-2872-17.doc contributing towards her maintenance. She has stated that the daughter is prosecuting her studies and in the academic year 2015-16 she had to pay amount of Rs.1,02,834 as college admission fee of the Xavier's Institute of Engineering, Mahim and she has also paid an amount of Rs.60,000/- as contribution towards development of educational infrastructure of the institute. The petitioner stated in the application that in the next two academic years there is likely to be increase in the educational fees of the daughter Alcina Judy and she also has to bear the expenses for books and stationery, travelling expenses, her mobile bill, Internet expenses, clothing, medical expenses and she is also required to keep some amount for her marriage expenses. The petitioner specifically claim that she had borne the major financial burden of maintenance of three children and she is left with no savings, resultantly she is forced to approach the court seeking maintenance for herself so that she can pay for the daughter's higher education and repay the loans. She therefore claimed an amount of Rs.15000/- per month from the date of application as an interim maintenance.

6 In support of the petition, I have heard Ms Sumangala Biradar and Ms. Suvarna Joshi appearing for respondent No.1. The learned Counsel for the petitioner would place reliance on the judgment of the Hon'ble Apex Court in the case of Noor Saba Kahtoon vs. Mohd. Quasim 1997 (5) SCALE 248 and the Division Bench of this Court in Vijaykumar Jagdishrai Chawla vs. Reeta Vijaykumar Chawla, reported in III (2011) DMC 687 (DB) to support her submission that though the daughter has attained majority, as per wp-2872-17.doc 7 wp-2872-17.doc the Family Law an unmarried daughter is entitled to claim maintenance from her parents till she attains majority. The learned counsel would submit that the statutory obligation to maintain the daughter who is unmarried, though she has attained majority, would entitled the mother to claim maintenance for her daughter. 7 Per contra, the learned counsel for the respondent would submit that the wife had initially sought maintenance for her minor children which was granted by the competent court and which was subsequently modified taking into consideration need of the children. According to the learned counsel, the application claiming maintenance was filed by the mother and the daughter was not impleaded as an applicant in the said application and the mother was claiming amount towards maintenance of the daughter which is not permissible since it is for the daughter has attained majority and is conferred with several rights being major and is the competent person to invoke jurisdiction of the Court and to lead evidence to demonstrate that she is unable to maintain herself and her father has wp-2872-17.doc 8 wp-2872-17.doc neglected to maintain her. The learned counsel for the respondent would concede to the position of law that the major daughter, till she is married is entitled for maintenance but her objection is to the application preferred by the mother on behalf of daughter which did not fit into the parameters of Section 125 of Cr.P.C. She therefore submits that the order passed by the Family Court is just and proper and needs to be upheld and the present petition deserves to be dismissed.

wp-2872-17.doc 15 wp-2872-17.doc As per section 126 of the Cr.P.C., the evidence is required to be tendered and is to be recorded in the manner prescribed for summons cases and it then contemplates followance of the procedure prescribed in Chapter XX of the Cr.P.C. The party who claim maintenance is duty bound to tender proof about neglect or refusal to maintain and also the factum that the person claiming maintenance is unable to maintain herself. Undisputedly, it is the person claiming maintenance would be required to discharge the burden of proving such neglect or refusal. The learned counsel for the respondent had vehemently argued that on attaining majority the daughter can herself file proceeding and would step into the witness box to discharge the said burden and the mother is not competent to do so on behalf of the daughter. The said argument appears to be misconceived as in the present case the mother who moved an interim application claiming maintenance has prayed that an amount of Rs.15000/- per month be granted to her as an interim maintenance so as to enable her to meet the expenses of the daughter's education. She has made it clear in the application that wp-2872-17.doc 16 wp-2872-17.doc her income is insufficient to meet her personal medical and other expenses as well as the daughter's expenses and she has approached the Court seeking maintenance for herself so that she can arrange for daughter's higher education and repaying loans. Once the learned counsel for the respondent has conceded to the position of law that major unmarried daughter is entitled to claim maintenance from the father, then, hyper technical objection that it is she, who should enter the witness box and discharge the burden of proving neglect or refusal to maintain and to prove her dependency is to be discharged by her cannot be sustained. Even if the daughter would have filed the proceedings, the parameters for deciding her entitlement would have been the neglect and refusal of the father to pay for the educational expenses and other expenses of the daughter. The daughter can be a competent person to file her own application claiming maintenance. However, in order to avoid multiplicity of the proceeding, no fault can be found in the application preferred by the mother claiming maintenance with a view to meet the expenses of the daughter, since wife has not claimed maintenance for herself and she has not denied wp-2872-17.doc 17 wp-2872-17.doc the factum of her employment. In such circumstances, it appears that the stand taken by the respondent is a hyper technical plea and the respondent cannot be absolved of his liability to meet the necessary expenses of his major unmarried daughter who is persuading her education and she needs cannot be met by the petitioner wife who has her limited source of earning. Once this principle is clear, then, the technical objection cannot come in the way of granting substantive relief in favour of the petitioner to claim an amount of maintenance for meeting the expenses of her daughter's education.