Jayashree and Others vs N. Devendra

B. Veerappa, J—The petitioners who are wife and daughters of the respondent have filed the above revision petition against the order dated 20.9.2013 made in Criminal Misc. No. 62/2013 on the file of the Principal Judge, Family Court at Bellary allowing the petition in part and rejecting the maintenance to the 2nd petitioner/daughter on the ground that she has attained majority and granting maintenance of Rs. 3,000/- each to the wife/1st petitioner and daughters/petitioner Nos. 3 and 4 from the date of petition till the date of their attaining majority.

It is the case of the petitioners that they are the wife and children and the marriage between the 1st petitioner and the respondent was performed on 20.4.1988. Out of their wedlock three children were born. After the marriage, the respondent started ill-treating petitioner No. 1/wife to bring more dowry and gold jewels from her parental house and hence, she along with children were sent out of his house. Thereafter a panchayath was held and they were taken back to his house. Later respondent once again started ill-treating her and refused to maintain the petitioners. As such, they filed a petition claiming maintenance in Crl. Misc. No. 37/2006 before the JMFC., Molakalmur. The said case was later closed by way of a compromise and the respondent assured that he will take care of the petitioners and he brought back all the petitioners to Bellary. Once again he started to ill-treat petitioner No. 1 and driven her out of his house along with children. As such, the petitioners were having no income and were unable to maintain themselves. The respondent is a railway employee and getting the salary of more than 20,000/- per month and now the petitioners are in need of Rs. 3,000/- per month to each of the petitioners for their maintenance, etc.

In response to the summons issued by the Family Court, the respondent filed objections denying all the allegations made in the petition and admitting the relationship between the petitioners and himself and also admitted that the petitioners at present are living separately. He also admitted with regard to the previous criminal proceedings in Crl. Misc. No. 37/2006, which was ended in a compromise. Further he contended that the 1st petitioner is not co-operating and not adjusting with him for one or the other reasons and she is acting at the instructions of her mother and he is still intending to look after and meet the educational expenses of his children. However, petitioner No. 1 is not allowing for the same, etc., and hence, he sought for dismissal of the petition.

In order to establish the case of the petitioners, petitioner No. 1 examined herself as P.W. 1 and marked the documents Exs. P. 1 to 6. Respondent examined himself as R.W. 1 got marked documents Exs. R1 to 3.

After considering the entire material on record, the Family Court passed the impugned order rejecting the claim of the 2nd petitioner and granted maintenance to petitioner Nos. 3 and 4 from the date of filing of the petition till the date of attaining majority against which the present revision petition is filed.

I have heard the learned Counsel for the parties to the lis.

Smt. Vidya Iyer, learned Counsel for the petitioners contended that while granting the maintenance, the Family Court committed an error in rejecting the claim of the 2nd petitioner mainly on the ground that she has attained majority which is contrary to the provisions of Section 125(c) of the Code of Criminal Procedure, 1973. She also contended that Family Court committed an error in granting maintenance to petitioner Nos. 3 and 4 from the date of petition till the date of attaining majority since they being the daughters of the respondent are entitled for maintenance but till they get married. Therefore, she sought modification of the order passed by the Family Court.

Learned Counsel for the respondent/husband fairly submitted that the 2nd petitioner and petitioner Nos. 3 and 4 are entitled for claiming maintenance as prayed for from the respondent till the date of their marriage and he also contended that if the petitioners are aggrieved by the impugned order of the Family Court in granting maintenance, it is always open for them to file separate petition under the provisions of Section 127 of the Code of Criminal Procedure for enhancement, if any.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is an admitted fact that marriage between the 1st petitioner and respondent was performed on 20.4.1988 and it is also admitted by the respondent that out of their wedlock, petitioner Nos. 2 to 4 were born and they are studying in various colleges. When a claim is made, the respondent has not disputed the relationship and also the quantum of maintenance claimed by the petitioners. The Family Court while granting maintenance has ignored the provisions of Section 125(c) of the Code of Criminal Procedure, which reads as under:

"125. Order for maintenance of wives, children and parents.----(1) If any person having sufficient means neglects or refused to maintain--

(a)........

(b)........

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself."

By a plain reading of the said provision, makes it clear that the daughters are entitled for maintenance till their marriage. Therefore, the Family Court erred in rejecting the claim of the 2nd petitioner and restricting maintenance till they attaining the age of majority to petitioner Nos. 3 and 4 which is contrary to the provisions of Section 125(c) of Code of Criminal Procedure. Therefore, all the daughters are entitled for maintenance from the date of petition till the date of their marriage as contemplated.

The Hon''ble Supreme Court while considering the provisions of Section 125 of the Code of Criminal Procedure in the case of Jagdish Jugtawat Vs. Manju Lata and Others, (2002) 5 SCC 422 , has held as under:

"3. 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 Vs. Mohd. Quasim, AIR 1997 SC 3280 : (1997) CriLJ 3972 : (1997) 3 Crimes 106 : (1997) 2 DMC 356 : (1997) 7 JT 104 : (1997) 5 SCALE 248 : (1997) 6 SCC 233 : (1997) 3 SCR 129 Supp : (1997) AIRSCW 3343 : (1997) 6 Supreme 523 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.

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 Adoptions 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 special leave petition is accordingly dismissed."

In view of the aforesaid reasons, revision petition is allowed in part. The impugned order passed by the Family Court is modified holding that petitioner Nos. 2 to 4 are entitled for maintenance of Rs. 3,000/-per month each from the date of petition till the date of their marriage.

At this stage, learned Counsel for the petitioners contended that in view of the price rise of all the grocery items and cost of living, petitioners are entitled for enhancement of maintenance. If it is so, it is always open for the petitioners to approach the concerned Family Court under the provisions of Section 127 of the Code of Criminal Procedure and in accordance with law.

Ordered accordingly.