ORDER
P.K. Tripathy, J.
1. Petitioner, in this revision, has challenged order of interim maintenance granted in favour of opposite party Nos. 2 and 3 vide the impugned order dated 23-1-1995 in Misc. Case No. 3 of 1994 by the learned Judge, Family Court, Rourkela.
2. Shorn of all details relevant and material facts are noted herewith for the sake of reference and convenience. Opposite party No. 1 is the legally married wife of the petitioner. Their marriage was solemnised in 1968. Opposite party Nos. 2 and 3 are the unmarried daughters and opposite party Nos. 4 and 5 are sons of the petitioner and opposite party No. 1. Admittedly, the opposite party members are living separately since 1979-80.
3. Opposite party members filed the aforesaid proceeding claiming for maintenance under Section 125 of the Code alleging therein that in December, 1979 petitioner drove them out and has refused to maintain them though he has sufficient means being an employee in the railway department. Petitioner denied to the allegation and stated that opposite party No. 1 leading an adulterous life voluntarily deserted him and went away with the children. He further contended that opposite party Nos. 4 and 5 (petitioners 2 and 3 in the lower Court) being major sons and opposite party Nos. 2 and 3 (petitioners 4 and 5 in the lower Court) being the daughters having attained majority are legally not entitled to maintenance under Section 125 of the Code. He also refused to pay maintenance to opposite party No. 1 on the aforesaid ground of adultery.
4. While admitting the case, learned Judge, Family Court on 12-1-1994 did not accept the petition under Section 125 so far as opposite party Nos. 4 and 5 are concerned on the ground that they are sons and have already attained majority. However, he admitted the petition with respect to opposite parties 1 to 3. After filing of show-cause by the petitioner, learned Judge, Family Court took up the matter for conciliation and also for an amicable settlement relating to payment of interim maintenance. On 29-4-1994 petitioner agreed to pay a consolidated sum of Rs. 500/-towards interim maintenance to opposite parties 2 and 3. Keeping the petition for interim maintenance pending, learned Judge, Family Court directed the petitioner to make payment at that rate and in that connection some amount out of that was paid. On 27-6-1994 petitioner agreed to pay interim maintenance at the rate of Rs. 300/- per month to each of the opposite parties 2 and 3 and an order on consent was passed accordingly. Thereafter, the case was not taken up till 23-1-1995 because the Presiding Officer was transferred, in the meantime. However, on 23-1-1995 the Presiding Officer, who had joined in the meantime, passed the impugned order directing for payment of interim maintenance to each of the opposite parties 2 and 3 at the rate of Rs. 500/- per month. In this revision, petitioner has challenged that order.
5. None of the opposite parties 1 to 3 appeared after notice. Notice to opposite party Nos. 4 and 5 was dispensed with as they are not connected with the dispute.
6. In the revision application while challenging the impugned order petitioner has set forth the grounds and has stated that impugned order is illegal, unjust and arbitrary. He has also stated that in the absence of increase in the income of the petitioner, lower Court should not have enhanced the rate of interim maintenance. Thus, so far as the fact-situation exists, in the revision application, petitioner has not challenged the consent order for interim maintenance granted in favour of opposite parties 2 and 3 at the rate of Rs. 300/- per month to each of them vide order dated 27-6-1994.
7. Learned counsel for the petitioner argued that in view of the provisions in Clauses (b) and (c) of Sub-section (1) of Section 125 of the Code when opposite parties 2 and 3 are the major unmarried daughters having no physical or mental abnormality or injury they are not entitled for maintenance, therefore, grant of interim maintenance in their favour by the Judge, Family Court is void ab initio. His further argument is that enhancement of the interim maintenance in the impugned manner is illegal and not sustainable.
8. So far as the aforesaid first contention of the petitioner is concerned, the same is not entertainable in this revision inasmuch as order for interim maintenance at the rate of Rs. 300/- to each of the opposite party Nos. 2 and 3 was granted on the consent of the petitioner. That order was not challenged by the petitioner in any of the appropriate forums at any point of time. It appears that, as noted earlier, in pursuance with that consent order, petitioner made payment of interim maintenance for certain period and above all even in the present revision application petitioner has not raised such a ground to challenge the consent order for interim maintenance. Apart from that, the right to claim for maintenance by an unmarried daughter, who is unable to maintain herself because of no source of income available to her prima facie appears to be sustainable in view of the provision in Clause (c) of Sub-section (1) of Section 125 of the Code. In that category legitimate or illegitimate child, not being a married daughter, who has attained majority, where such child is by reason of any physical abnormality or injury, or mental abnormality or injury is unable to maintain itself has the right to claim for maintenance. Admittedly, in this case opposite party Nos. 2 and 3 do not suffer from any physical or mental abnormality. So far as the provision relating to ‘injury’ is concerned, that term has not been defined in the Code. According to Section 2(y) of the Code “words and expression used herein and not defined, but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code”. In that context, Section 44 of the Indian Penal Code defines the term ‘injury’ in the following manner.
Section 44. ‘Injury’ — The word ‘injury’ denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
9. The provision in Section 125 of the Code as per the settled principle of law, is a beneficial provision to save the weaker section in the family, such as, the wife, legitimate and illegitimate minor children, legitimate or illegitimate children excepting major married daughter, who has attained majority but suffers from physical or mental abnormality or injury and the parents who are unable to maintain himself/themselves have been provided the right to claim for maintenance under the Code notwithstanding availability of adequate remedies in their personal law or the supporting law. Therefore, the most crucial qualifying term is “unable to maintain” thereby meaning such dependents having no source of independent livelihood. According to the scheme of that section, persons of the aforesaid category should be protected by grant of maintenance to save them from destitution and vagrancy. A major unmarried daughter ipso facto may not be entitled to maintenance in view of the provision of Section 125(1)(c) of the Code if it is proved in record that she has a source of income to maintain herself. In other words, when she claims to be not being able to maintain herself, unless the contrary in pleaded and proved, even if she is a major, she is bound to be maintained by her father or the mother as the case may be, and at that time, the definition of term ‘injury’ comes to her aid to protect her from the harm to body and mind. Of course this is accepted as a prima facie, view and is left open to be decided in appropriate case where such points can be validly raised for adjudication. So far the present case is concerned, for the reasons indicated in the preceding paragraphs, legality and correctness of the consented and implemented order dt. 27-6-1994 for payment of interim maintenance is not opened to be revised or reviewed in this case.
10. Coming to the second and the last submissions of the learned counsel for the petitioner, which is confined to the impugned order dt. 23-1 -1995, this Court finds full force in the criticism levelled by the petitioner against that order. When the application for interim maintenance was disposed of on consent on 27-6-1994, thereafter that application was no more existing to be adjudicated. It does not appear from the record or the impugned order if any application had been filed by any of the opposite parties to reconsider the order dt. 27-6-1994 or to reconsider the petition for interim maintenance or to enhance the rate of interim maintenance from Rs. 300/- to Rs. 500/-. In the absence of any such prayer or petition, it was not open to the learned Judge, Family Court to suo motu consider a disposed of petition and to enhance the order of interim maintenance from Rs. 300/- to Rs. 500/- and that too without affording an opportunity of hearing to the petitioner. It may be stated that for the aforesaid reasons, the impugned order dt. 23-1-1995 is bad in both facts and law and, therefore, the same is legally not sustainable.
11. In view of the foregoing discussions and the findings, it is held that —
(a) The petitioner is not eligible to raise the point relating to grant of interim maintenance to the unmarried major daughters in view of the order passed on consent and apart from that in view of such an application being prima facie maintainable. However, the legal question relating to such entitlement is left open.
(b) So far as the impugned order dt. 23-1-1995 is concerned, in which the interim maintenance was enhanced from Rs. 300/- to Rs. 500/-, that order is devoid of merit and is illegal and accordingly set aside.
The revision is accordingly allowed.