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C. Byraiah vs B. Ansuya And Another on 26 August, 1998

Karnataka High Court
C. Byraiah vs B. Ansuya And Another on 26 August, 1998
Equivalent citations: 1999 (1) ALT Cri 678, 1999 CriLJ 368, 1999 (5) KarLJ 181
Bench: M Chinnappa


ORDER

1. Though notices were served on the respondents, they remained absent. Heard the learned Counsel for the petitioner.

2. The short but important question involved in this petition is as to whether the major unmarried daughters are entitled for maintenance from the father under Section 125 of the Cr. P.C.

3. The learned Counsel for the petitioner submitted that the respondents are daughters of the petitioner and they have attained majority even before filing of the petition. Further, they are gainfully employed. Hence, they are not entitled for maintenance. He also submitted that these respondents are not physically or mentally handicapped to claim maintenance under Section 125(2) of the Cr. P.C. and in support of his argument, he placed reliance on a decision in K. Sivaram v K. Mangalamba and Others, wherein the Andhra Pradesh High Court has held that the maintenance to children cannot be granted beyond the age of their attaining majority in the absence of any physical or mental abnormality and injury.

4. The brief facts of the case are:

The respondents made an application for claiming maintenance from this petitioner on the ground that the petitioner is not maintaining these respondents notwithstanding the fact that he is a substantial person. During the pendency of that petition, the learned JMFC, passed an order awarding interim maintenance of Rs. 300/- p.m. to each of the respondents herein till the disposal of the interim maintenance application. As against that order, the petitioner approached the Additional Sessions Judge, Tumkur, in Cr. R.P. No. 168 of 1993. The learned Sessions Judge, dismissed the petition on the ground that the JMFC had awarded interim maintenance to the petitioner, which was not conclusive and the revision petitioner is at liberty to contest the interim application during the course of original proceedings. That order is questioned in this petition.

5. As stated above, the main contention of the petitioners is that the respondents are not at all entitled for maintenance. Therefore, a substantial question will have to be answered by the learned Magistrate. It appears that this substantial question was not raised either before the Magistrate or before the learned Sessions Judge. But the fact remains that the respondents are children of the petitioner and both of them had attained majority as on 1993 as could be seen from the age mentioned in
the cause title which has not been denied by the respondents. In view of the fact that the respondents have not made out a prima fade case to grant maintenance, the question of awarding interim maintenance does not arise. As indicated above, a substantial question will have to be answered by the Magistrate as to whether the respondents who had attained majority are entitled for maintenance from the petitioner. Unless that question is established, the granting of interim maintenance is contrary to the provisions of law. The respondents have not denied the allegation that they had attained majority as in the year 1993. Therefore, the interim order awarded by the learned Magistrate is liable to be set aside. It is for the Court to decide whether the respondents are entitled for maintenance under Section 125 of the Cr. P.C. after considering the evidence, if any let in by the parties. However, prima facie on the allegations of the petitioner against both the respondents, they are not entitled to interim maintenance.

6. Accordingly, the petition is allowed. The impugned orders are set aside directing the learned Magistrate to hold an enquiry if necessary and decide as to whether the respondents are entitled for maintenance as claimed in their petition.

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