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Judgment
The applicants are aggrieved of the order dated 19.03.2016 passed in Criminal M.J.C.No.171/2014 by the Additional Principal Judge, Family Court, Gwalior, whereby, the application preferred by the applicant No.1 under Section 125 of Cr.P.C. has been allowed, however, the application to the extent relating to the applicants No.2 and 3 has been dismissed.
The facts relevant for adjudication of the case in short are that it is undisputed that on 08.03.1985 the present applicant No.1 and the respondent got married and the applicants No.2 and 3 are children born out of their wedlock. Apparently, the dispute arose between them on account of inability of applicant No.1 to give birth to a male child due to which in the month of June, 2007, the respondent forced the applicant No.1 to leave his house alongwith
the applicants No.2 and 3, whereafter, she is residing with her brother. Although it is difficult for all the three applicants to maintain themselves and considering the fact that they are approaching proper age for marriage, there is urgent need of fund for making arrangement for the same. Consequently, an application under Section 125 of Cr.P.C. was filed by all the applicants against respondent. The present respondent marked his presence before the Court, however, subsequently, he did not appear before the Court leading no option to the Court to proceed ex-parte against him.
The present applicants produced her brother as witness and also recorded the evidence in support of the application. The learned court below after examining the contents of the application as also the evidence led by the present applicants and after taking into consideration the fact that in the year 2008 both the parties entered into a settlement and it was agreed between them that the respondent will part with 50% of salary for the maintenance of the applicant, however, later on he retracted back from his commitment. The learned court below partly allowed the application to the extent it related to claim by the applicant No.1 and awarded maintenance of Rs.5000/- per month. However, with respect to the applicants No.2 and 3, learned court below recorded the finding that as they have attained the age of majority and therefore, they are not entitled for any maintenance under Section 125 of Cr.P.C..
Learned counsel for the applicants has putforth a similar contentions with respect to legal position about right of major children to seek maintenance from the father. In this regard, the learned counsel for the applicants has placed reliance on the decision of the Apex Court in the case of Jagdish Jugtawat Vs. Maju Lata & Others, 2002 (5) SCC 422. By placing reliance on this judgment, learned counsel for the applicants submits that the finding recorded by the court below is clearly unsustainable in the light of the law laid down by the Supreme Court.
Per contra, learned counsel for the respondent submits that the Family Court in any case acceded its jurisdiction by awarding maintenance in favour of the applicant No.1 and such illegal act cannot be given stamp approval and also no direction can be issued to the respondent for bearing cost of maintenance of applicants No.2 and 3 who are major in terms of age.
Considering the rival contentions of the parties, I am of the view that the Family Court erred in arriving at a finding that the application for seeking maintenance under Section 125 of Cr.P.C. is not maintainable at the instance of the applicants No.2 and 3. In order to arrive at above opinion, this Court has given consideration to law laid down by the Supreme Court in Jagdish''s case (supra) and the perusal of the same leaves no iota of doubt that the application at the instance of the applicants No. 2 and 3 was maintainable for ground of maintenance as it is born out from the record that the applicants No.2 and
3 are not yet married. In order to fortify this observation, it will be appropriate to reproduce the relevant portion of case of Jagdish''s case (supra) :-
In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference. A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Quasim relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 Cr.P.C. does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl. 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.P.C and Section 20(3) of the Hindu Adoption and Maintenance Act . For the reasons aforestated 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.
The ratio of the judgment mention hereinabove is squarely applicable to the facts of the present case and therefore, the present application is allowed and order dated 19.03.2016 to the extent it relates to rejection of the application moved by the applicants No.2 and 3 is set-aside and the matter is remanded back to the Family Court for taking decision about the quantum of maintenance and entitlement of applicants No.2 and 3 for lump sum amount for the purpose of marriage. It is observed that this Court has only recorded its opinion with respect to maintainability of the application under Section 125 of Cr.P.C. at the instance of major children/daughter and have not ventured into the merits of the case in relation to the quantum of maintenance which was to be decided by the court below by exercising its own wisdom. Before parting, it is also observed that there is a case for rejecting the present application and directing the applicant to take resource to the remedy available under Hindu Adoptions and Maintenance Act, however, considering the fact that in the application moved before the Family Court the applicant reflected urgency for payment of maintenance, therefore, relegating the applicant to take remedy under different statute would further delay the matter and will result in multiplicity of the proceedings, therefore, in the light of the exceptional circumstances the present application has been allowed and the matter is remanded back to the Family Court for fresh decision to the extent of application preferred by the applicants
No.2 and 3.
It is also observed that the prayer made by the applicant No.1 for enhancement of amount of maintenance awarded by the Family Court is not acceded to for the reason that in the opinion of the Court Exp. P-2 which is salary slip of the respondent reveals monthly salary Rs.12,700/- per month, the quantum fixed by the Family Court with respect to the applicant No.1 i.e. Rs.5000/- per month is just and proper and does not suffer from any illegality.
With these aforesaid discussions, the criminal revision is partly allowed to the extent above.