It has to be acknowledged right at the outset that in a latest, landmark and laudable judgment titled R Kiruba Kanmani Vs L Rajan in Crl. O.P. No. 15336 of 2019 delivered on June 17, 2019, the Madras High Court has very rightly held that unmarried daughter can claim maintenance from her father by filing petition under Section 125 of Code of Criminal Procedure. It must be informed here that the Criminal Original petition was filed under Section 482 of Code of Criminal Procedure by petitioner to set aside the order dated 02.04.2019 passed in MC SR. No. 185 of 2019 on the file of Principal Judge, Family Court, Chennai. The father is bound to maintain his unmarried daughter and this is what the Madras High Court has minced no words in making it absolutely clear.
To start with, it is first and foremost pointed out in this noteworthy judgment authored by Justice N Anand Venkatesh of Madras High Court that, “This petition has been filed challenging the order of the Court below rejecting the petition filed by the petitioner under Section 125 of Cr PC seeking for monthly maintenance from the respondent, who is the father of the petitioner.” Para 2 then spells out that, “The petitioner who is aged about 18 years is the unmarried daughter of the respondent and she has sought for maintenance from the respondent father on the ground that she is not in a position to take care of the expenses incurred by her towards her education.” So it is certainly the duty of the father to maintain her unmarried daughter who is unable to sustain herself.
To be sure, it is then revealed in para 3 that, “The Court below has rejected the petition mainly on the ground that the petitioner is a major and that in terms of Section 125 (1) (b) and (c) of Cr PC, the petitioner is not entitled for any maintenance and that she does not suffer from any physical or mental disablement.”
As it turned out, it is then pointed out in para 4 that, “Mr. Sharath Chandran, learned counsel for the petitioner submitted that the Court below has completely misdirected itself in rejecting the petition and that the order of the Court below is opposed to settled principles of law. The learned counsel for the petitioner further submitted that a combined reading of Section 125 of Cr PC and Section 20(3) of the Hindu Adoption and Maintenance Act makes it very clear that a father is under an obligation to maintain his unmarried daughter even if she has attained majority.”
More to the point, the learned counsel for the petitioner then in order to substantiate his arguments cited many relevant portions of different judgments which are enumerated in detail in para 5. Let us discuss some of them in brief here.
i [Noor Saba Khatoon Vs. Mohammed Quasim] reported in 1997 6 SCC 323
10. Thus, both under the personal law and the statutory law (Section 125 Cr PC) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.
11. Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125 Cr PC for the period till they attain majority or are able to maintain themselves, whichever is earlier and in case of females, till they get married, and this right is not restricted, affected or controlled by the divorced wife’s right to claim maintenance for maintaining the infant child/children in her custody for a period of two years from the date of birth of the child of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125 Cr PC till they attain majority or are able to maintain themselves, or in the case of females, till they are married.
12. It, therefore, follows that the learned trial court was perfectly right in directing the payment of amount of maintenance to each of the three children as per the order dated 19-1-1993 and the learned 2nd Additional Sessions Judge also committed no error in dismissing the revision petition filed by the respondent. The High Court, on the other hand, fell in complete error in holding that the right to claim maintenance of the children under Section 125 Cr PC was taken away and superseded by Section 3(1)(b) of the 1986 Act and that maintenance was payable to the minor children of Muslim parents only for a period of two years from the date of the birth of the child concerned notwithstanding the provisions of Section 125 Cr PC. The order of the High Court cannot, therefore, be sustained. It is accordingly set aside. The order of the trial court and the revisional court is restored. This appeal succeeds and is allowed but without any orders as to cost.
ii [Jagdish Jugtawat Vs. Manju Lata and others] reported in 2002 5 SCC 422
4. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Cr PC and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons afore-stated we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for.
iii. [Mansi Vohra Vs Ramesh Vohra] reported in 2012 SCC online Del 5835
6. This Court is also of the opinion that even in Jagdish Jugtawat (supra), the Supreme Court has held that maintenance petition filed by the major daughter even if she does not fall in one of the exceptions mentioned in Section 125(1)(c) Cr PC, would be still maintainable on a combined reading of both Sections 125 Cr PC and Section 20(3) of Hindu Adoptions and Maintenance Act, 1956.
7. Moreover, to ask the petitioner to now file an independent petition before the Family Court under Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 would not only cause her inconvenience but would also defeat her right to claim maintenance for the period Section 125 Cr PC proceeding was pending before the Metropolitan Magistrate. Such an interpretation would, in certain cases where both sections clearly overlap, create multiplicity of litigation.
iv. [T. Vimala and others Vs. S Ramakrishnan] reported in 2016 SCC Online Mad 12324
10. No doubt, Section 125 Cr PC is not happily worded, since it has prescribed certain riders for a daughter or son who has attained majority to claim maintenance from their father. They must establish that they are under physical disability or they are suffering out of injury. There may be cases, where a daughter or a son, even after having attained majority, may not have sufficient financial capacity to maintain themselves and they continue to need the support of their father. This is a reality of the situation. But, the Court cannot simply put the blame on the draftsman. Court must interpret the law. It should advance the cause of justice. That will be march of law.
11. In Jagdish Jugtawat v. Manju Lata [(2002) 5 SCC 422] exactly, as in our case, it was argued before the Hon’ble Supreme Court that the daughter having attained majority and as it has not been established that she is suffering out of any physical disability or injury, she is not entitled to maintenance from her father. The Hon’ble Supreme Court noticing the phraseology employed in Section 125 Cr PC encountered a difficult situation. However, in its zeal to advance the scheme of social justice incorporated in Section 125 Cr PC and to protect a daughter, who has attained majority, but who does not suffer any physical disability, the Hon’ble Supreme Court called in aid Section 20 of the Hindu Adoption and Maintenance Act and held that although in view of the rider attached to a daughter, who attained majority, she may not be eligible for maintenance under Section 20 of the Hindu Adoption and Maintenance Act from her father and thus maintained the maintenance order passed in her favour under Section 125 Cr PC.
12. Exactly, similar is the situation before us. The said Apex decision was not brought to the notice of the learned Principal Sessions Judge, Dindigul. Had it was produced, the thinking of the learned Principal Sessions Judge, Dindigul would have been different. So, in such view of the matter, scraping of maintenance granted to the second daughter on account of her attaining majority and her inability to establish physical disability is to be set aside.
v. [Agnes Lily Irudaya Vs. Irudaya Kani Arasan] reported in 2018 SCC Online Bom 617
12. From the afore-stated position, it is clear that the unmarried daughter though attained majority is entitled to claim maintenance from the father.
In hindsight, it is then held in para 6 of this judgment after considering all these relevant judgments that, “It is very clear from the above judgments that even though Section 125 restricts the payment of maintenance to the children till they attain majority, when it comes to the daughter, Courts have taken a consistent stand that even though the daughter has attained majority, she will be entitled for maintenance till she remains unmarried by virtue of Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In order to avoid multiplicity of proceedings, the Courts have taken a consistent stand that the petition under Section 125 of Cr PC can be entertained without pushing her to file an independent petition seeking for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956.”
While continuing in the same vein, it is then held in para 7 that, “That apart, the Hon’ble Supreme Court has also held that mental injury is nothing but malice in law which can be gathered on the basis of violation of a legal right to claim maintenance vested under any law for the time being in force including Section 125 of Cr PC. If the right to claim maintenance of the daughter is infringed, definitely it can be called as a injury which can very well be fit into the definition of mental injury.”
More crucially, it is then held in para 8 that, “The Court below has not taken into consideration the march of law that has taken place by virtue of the above judgments and had committed an error by rejecting the petition at the threshold on the ground of maintainability and the same requires interference by this Court in exercise of its jurisdiction under Section 482 of Cr PC.”
Finally and perhaps most crucially, it is then held in the last para 9 that, “This Criminal Original Petition is allowed and the order passed by the Court below dated 02.04.2019 is hereby set aside. The petitioner is directed to represent the petition before the Court below and the Court below shall proceed to number the petition and thereafter deal with the same in accordance with law. The Registry is directed to handover the original maintenance petition filed before this Court to the learned counsel for the petitioner by retaining the copy of the same in order to enable the petitioner to represent the petition before the Court below.”
In conclusion, it can well be said that the Madras High Court has minced just no words in making it absolutely clear that unmarried daughter can certainly claim maintenance from her father under Section 125 of Cr PC. The Court has also elegantly and aptly cited relevant judgments of the Apex Court and different High Courts to substantiate this. All such relevant judgments do underscore clearly that a daughter who is unmarried can claim maintenance by virtue of Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. There can be no denying or disputing it. Even Muslims are bound to maintain their unmarried daughter as already stated earlier. All the courts must always adhere to what has been stated so appropriately and rightly by the Madras High Court. This will certainly ensure that the right of the unmarried daughter to claim maintenance is always protected from being violated with impunity by her father!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.