ABHILASHA versus PARKASH & ORS.

[2020] 11 S.C.R. 244

[2020] 11 S.C.R.

ABHILASHA

PARKASH & ORS.

(Criminal Appeal No. 615 of 2020)

BSEPTEMBER 15, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Code of Criminal Procedure, 1973: s.125 – Whether Hinduunmarried daughter is entitled to claim maintenance from her fatherCunder s.125 Cr.P.C. only till she attains majority or she can claimmaintenance till she remains unmarried – Held: The Scheme unders.125(1) Cr.P.C. contemplate that claim of maintenance by anunmarried daughter, who has attained majority is admissible onlywhen by reason of any physical or mental abnormality or injury,Dshe is unable to maintain herself – However, an unmarried Hindudaughter can claim maintenance from her father till she is marriedin terms of s.20(3) of the Act, 1956, provided she pleads and provesthat she is unable to maintain herself, for enforcement of whichright her application/suit has to be under s.20 of Act, 1956 – HinduAdoptions and Maintenance Act, 1956 – s.20 – Code of CriminalEProcedure, 1898 – s.488.

Code of Criminal Procedure, 1973: s.125 – Nature, extentand scope of – Discussed.

Code of Criminal Procedure, 1973: s.125 – Hindu AdoptionsFand Maintenance Act, 1956 – Distinction between – Held: Thepurpose and object of s.125 is to provide immediate relief toapplicant in summary proceedings, whereas right under s.20 readwith s.3(b) of Act, 1956 contains larger right, which needsdetermination by Civil Court, hence for the larger claims asenshrined under s.20, the proceedings need to be initiated underGs.20 of the Act and the legislature never contemplated to burden theMagistrate while exercising jurisdiction under s.125 Cr.P.C. todetermine the claims contemplated by Act, 1956.

Family Courts Act, 1984: Jurisdiction of Family Court – FamilyCourts shall have the jurisdiction only with respect to city or townH

whose population exceeds one million and where there is no FamilyCourts, proceedings under s.125 Cr.P.C. shall have to be beforethe Magistrate of the First Class – In an area where the FamilyCourt is not established, suit or proceedings for maintenanceincluding the proceedings under s.20 of the Act, 1956 shall only bebefore the District Court or any subordinate Civil Court – Theremay be case where the Family Court has jurisdiction to decide acase under s.125 Cr.P.C. as well as the suit under s.20 of Act, 1956,in such eventuality, Family Court can exercise jurisdiction underboth the Acts and in an appropriate case can grant maintenance tounmarried daughter even though she has become major enforcingher right under s.20 of Act, 1956 so as to avoid multiplicity ofproceedings – Hindu Adoptions and Maintenance Act, 1956 – s.20– Code of Criminal Procedure, 1973 – s.125.

Dismissing the appeal, the Court

HELD: 1. bare perusal of Section 125(1) Cr.P.C. as wellas Section 20 of the Hindu Adoptions and Maintenance Act, 1956indicates that Section 125 Cr.P.C. limits the claim of maintenanceof child until he or she attains majority. By virtue of Section125(1)(c), an unmarried daughter even though she has attainedmajority is entitled for maintenance, where such unmarrieddaughter is by reason of any physical or mental abnormality orinjury is unable to maintain itself. In the present case, theRevisional Court returned finding that appellant is not sufferingfrom any physical or mental abnormality or injury due to whichshe is unable to maintain herself. The above findings are noteven questioned before this court. What is contended that evenif she is not suffering from any physical or mental abnormality orinjury, by virtue of Section 20 of Act, 1956, she is entitled to claimmaintenance till she is unmarried. [Para 12][253-B-E]2. In the Code of Criminal Procedure, 1898, Section 488was the provision governing the maintenance of wife or legitimateor illegitimate child of any person. Section 488 sought to inhibitnegligence of woman and children with intent to serve socialpurpose. The provision provided for summary proceeding to

Aenable deserted wife or helpless child, legitimate or illegitimate,to get urgent relief. The laws are nothing but collectiveconsciousness of community. It is in the interest of the communityand social order that woman and child who are neglected bemaintained and should be provided forum to obtain urgent reliefto enable them to sustain. [Paras 13, 14][253-F; 254-A-B]

Mulla – Hindu Law 22[nd] Edition – referred to.

3. Section 20(3) of the Act, 1956 is nothing but recognitionof principles of Hindu Law regarding maintenance of children andaged parents. Section 20(3) now makes it statutory obligation ofCa Hindu to maintain his or her daughter, who is unmarried and isunable to maintain herself out of her own earnings or otherproperty. The right of unmarried daughter under Section 20 toclaim maintenance from her father when she is unable to maintainherself is absolute and the right given to unmarried daughterunder Section 20 is right granted under personal law, which canDvery well be enforced by her against her father. [Paras 27, 31][262-E-F; 264-C-D]

Noor Saba Khatoon v. Mohd. Quasim (1997) 6 SCC233 : [1997] 6 SCC 182 – relied on.

E4. After enactment of Family Courts Act, 1984, FamilyCourt shall also have the jurisdiction exercisable by Magistrateof the First Class under Chapter IX of Cr.P.C. relating to orderfor maintenance of wife, children and parents. Family Courts shallhave the jurisdiction only with respect to city or town whosepopulation exceeds one million, where there is no Family Courts,Fproceedings under Section 125 Cr.P.C. shall have to be beforethe Magistrate of the First Class. In an area where the FamilyCourt is not established, suit or proceedings for maintenanceincluding the proceedings under Section 20 of the Act, 1956 shallonly be before the District Court or any subordinate Civil Court.GThere may be case where the Family Court has jurisdiction todecide case under Section 125 Cr.P.C. as well as the suit underSection 20 of Act, 1956, in such eventuality, Family Court canexercise jurisdiction under both the Acts and in an appropriatecase can grant maintenance to unmarried daughter even though

she has become major enforcing her right under Section 20 ofAct, 1956 so as to avoid multiplicity of proceedings. Howeverthe Magistrate in exercise of powers under Section 125 Cr.P.C.cannot pass such order. [Paras 32, 33][264-E-H; 265-A]

Jagdish Jugtawat v. Manju Lata and Others (2002) 5SCC 422 – relied on.

5. The maintenance as contemplated under Act, 1956 is alarger concept as compared to concept of maintenance underSection 125 Cr.P.C. Section 3(b) while defining maintenance givesan inclusive definition including marriage expenses. The purposeand object of Section 125 Cr.P.C. is to provide immediate reliefto applicant in summary proceedings, whereas right underSection 20 read with Section 3(b) of Act, 1956 contains largerright, which needs determination by Civil Court, hence for thelarger claims as enshrined under Section 20, the proceedings needto be initiated under Section 20 of the Act and the legislaturenever contemplated to burden the Magistrate while exercisingjurisdiction under Section 125 Cr.P.C. to determine the claimscontemplated by Act, 1956. [Paras 35, 36][265-D, G]6. An unmarried Hindu daughter can claim maintenancefrom her father till she is married relying on Section 20(3) of theAct, 1956, provided she pleads and proves that she is unable tomaintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956. In facts of the presentcase the ends of justice be served by giving liberty to the appellantto take recourse to Section 20(3) of the Act, 1956, if so advised,for claiming any maintenance against her father. [Paras 38, 39][267-B, C-D]

Nanak Chand v. Chandra Kishore Aggarwal and Others(1969) 3 SCC 802 : [1970] 1 SCR 565; Ram Singh v.State AIR 1963 All 355; Nalini Ranjan v. Kiran RaniAIR 1965 Pat. 442; Mahabir Agarwalla v. Gita Roy[1962] 2 Cr. L.J.528; Mst. Zohara Khatoon v. Mohd.Ibrahim (1981) 2 SCC 509 : [1981] 2 SCR 910;Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav

Aand Another (1988) 1 SCC 530; Kirtikant D. Vadodariav. State of Gujarat and Another (1996) 4 SCC 479 :[1996] 2 Suppl. SCR 45; State of Haryana and Othersv. Santra (Smt.) (2000) 5 SCC 182 : [2000] 3 SCR 195–referred to.

CaseLawReference

DCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.615 of 2020.

From the Judgment and Order dated 16.08.2018 of the High Courtof Punjab and Haryana at Chandigarh in CRM-M-16328 of 2014 (O&M).

EMs. Vibha Datta Makhija, Sr. Adv., Aditya Singh, Shubham Singh,Ajay Ravish, Deepkaran Dalal and Karan Dalal, Advs., for the appearingparties.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J.

1. Leave granted.

2. This appeal has been filed by the appellant, daughter ofrespondent Nos. 1 and 2, challenging the order of the High Court ofPunjab and Haryana at Chandigarh dated 16.08.2018 by which orderthe High Court dismissed the application under Section 482 Cr.P.C. filedGby the appellant praying for setting aside the order of the JudicialMagistrate First Class, Rewari dated 16.02.2011 as well as the orderdated 17.02.2014 passed by the Additional Sessions Judge, Rewari.

3. The brief facts necessary to be noticed for deciding this appealare:-

3.1 The respondent No.2, mother of the appellant, on her behalf,as well as on behalf of her two sons and the appellant daughter,filed an application under Section 125 Cr.P.C. against herhusband, the respondent No.1, Parkash, claiming maintenancefor herself and her three children. The learned JudicialMagistrate vide its judgment dated 16.02.2011 dismissed theapplication under Section 125 Cr.P.C. of the applicant Nos. 1,2 and 3 and allowed the same for applicant No.4 (appellantbefore us) for grant of maintenance till she attains majority.

3.2 Aggrieved against the judgment dated 16.02.2011, all the fourapplicants filed criminal revision before the Court of SessionsJudge, which criminal revision was dismissed by learnedAdditional Sessions Judge by order dated 17.02.2014 with theonly modification that revisionist No.4 (appellant before us)shall be entitled to maintenance till 26.04.2005 when she attainsmajority. Learned Additional Sessions Judge held that as perprovision of Section 125 Cr.P.C., the children, who had attainedmajority are entitled to maintenance, if by reason of anyphysical or mental abnormality or injury, they are unable tomaintain themselves. Learned Additional Sessions Judge alsoheld that the revisionist No.4 (i.e. appellant) is not sufferingfrom any physical, mental abnormality or injury, therefore,she is entitled to maintenance only till 26.04.2005 i.e., till sheattains majority.

3.3 Challenging the order of Sessions Judge as well as the JudicialMagistrate, an application under Section 482 Cr.P.C. was filedbefore the High court by all the applicants including theappellant. High Court by the impugned judgment dated16.02.2018 dismissed the application filed under Section 482Cr.P.C. by making following observations:-

“Both the Courts are consistent with regard to decliningmaintenance to petitioners No. 1 to 3. As regards grant ofmaintenance to Abhilasha by the trial Court, the order regardingit was modified by learned Additional Sessions Judge, Rewariobserving that she was entitled to get maintenance till attainingmajority and not thereafter since she is not suffering from anyphysical or mental abnormality or injury, in those eventualities

child, who though has attained majority but is unable tomaintain itself is entitled to get maintenance.

I do not find any illegality or infirmity in the judgmentpassed by learned Additional Sessions Judge, Rewari, whichmight have called for interference by this Court while exercisingBjurisdiction under Section 482 Cr.P.C.

Therefore, the petition stands dismissed.”

3.4 This appeal has been filed challenging the judgment of theHigh Court.

C4. Ms. Vibha Datta Makhija, learned senior counsel appearing forthe appellant submits that even though the appellant had attained majorityon 26.04.2005 but since she is unmarried, she is entitled to claimmaintenance from her father. Learned senior counsel contends that HighCourt committed error in dismissing the application filed under Section482 Cr.P.C. of the appellant on wrong premise that since appellant hasDattained majority and is not suffering from any physical or mentalabnormality, she is not entitled for any maintenance. Ms. Makhija hasrelied on provisions of Section 20 of the Hindu Adoptions & MaintenanceAct, 1956 (hereinafter referred to as “Act, 1956”) and submits that asper Section 20 obligation of person to maintain his daughter, who isEunmarried, extends till she is married. Ms. Makhija relies on judgment ofthis Court in Jagdish Jugtawat Vs. Manju Lata and Others, (2002)5 SCC 422 in support of her submission. She submits that High Courtcommitted error in taking contrary view to the above judgment of thisCourt. Ms. Makhija submits that appellant is still unemployed, hence,she is entitled to claim maintenance from her father.

5. Learned counsel for the respondent refuting the submission ofthe learned senior counsel for the appellant contends that Courts belowhave rightly confined the claim of the maintenance of the appellant tillshe attains majority on 26.04.2005. It is submitted that as per Section125 Cr.P.C. entitlement to claim maintenance by daughter, who hasGattained majority is confined to case where the person by reason of anyphysical or mental abnormality or injury unable to maintain herself.Revisional Court has returned finding that there is no case that appellantis by reason of any physical or mental abnormality or injury is unable tomaintain herself. It is submitted that High Court has rightly dismissedthe application filed under Section 482 Cr.P.C. of the appellant since noH

case was made out to interfere in orders passed by the Judicial Magistrateand learned Revisional Court in exercise of jurisdiction under Section482 Cr.P.C.

6. We have considered the submissions of the learned counsel forthe parties and have perused the records.

7. From the submissions of the learned counsel for the parties,following two questions arise for consideration in this appeal:-

(i)Whether the appellant, who although had attained majorityand is still unmarried is entitled to claim maintenance fromher father in proceedings under Section 125 Cr.P.C. althoughshe is not suffering from any physical or mental abnormality/injury?

(ii) Whether the orders passed by learned Judicial Magistrate aswell as learned Revisional Court limiting the claim of theappellant to claim maintenance till she attains majority on26.04.2005 deserves to be set aside with direction to therespondent No.1 to continue to give maintenance even after26.04.2005 till the appellant remains unmarried?

8. Both the questions being interconnected, we proceed to takethem together. Application under Section 125 Cr.P.C. was filed on17.10.2002 by the applicants including the appellant as applicant No.4against Parkash, father of the appellant. The date of birth of the appellantbeing 26.04.1987, she was minor at the time when the application wasfiled. Learned Judicial Magistrate allowed the application of the appellantfor maintenance till she attains majority. Learned Revisional Court hasalso affirmed the judgment with modification that appellant was entitledto receive maintenance till 26.04.2005 instead of 07.02.2005, which isdate when she attains majority. In support of application under Section125 Cr.P.C., applicant had examined Surya Dev Pandey as PW1, ChunniLal Saini as PW2, Vikas Saini as PW3 and Dr. Raj Saini as PW4. Theclaim of the applicant Nos. 1, 2 and 3 was rejected, which was alsoaffirmed by Courts below and is not subject matter of this appeal.

9. The question to be answered in the present case is as to whethera Hindu unmarried daughter is entitled to claim maintenance from herfather under Section 125 Cr.P.C. only till she attains majority or she canclaim maintenance till she remains unmarried. Section 125(1) Cr.P.C.,which is relevant for the present case is as follows:-

A“125. Order for maintenance of wives, children andparents.—(1) If any person having sufficient means neglects orrefuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether marriedBor not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being marrieddaughter) who has attained majority, where such child is, byreason of any physical or mental abnormality or injury unableto maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

XXXXXXXXXXXXXXXXXXXXXXXX”

10. The claim of maintenance of applicant No.4 was filed at theDtime when she was minor. During pendency of the application, shebecame major on 26.04.2005. The learned Judicial Magistrate, therefore,allowed the application of the appellant for maintenance till she attainsmajority on 26.04.2005.

11. Learned counsel for the appellant contends that the appellantEis entitled to receive maintenance till she remains unmarried but saidargument was rejected only on the ground that appellant is not sufferingfrom any physical or mental abnormality or injury, therefore, she is notentitled for maintenance. The provision on which learned counsel forthe appellant has placed reliance, i.e., Section 20 of the Hindu AdoptionsFand Maintenance Act, 1956, needs to be noted, which provides formaintenance of children and aged parents, which is as follows:-

“20. Maintenance of children and aged parents.— (1) Subjectto the provisions of this section Hindu is bound, during his or herlifetime, to maintain his or her legitimate or illegitimate childrenGand his or her aged or infirm parents.

(2) legitimate or illegitimate child may claim maintenance fromhis or her father or mother so long as the child is minor.

(3) The obligation of person to maintain his or her aged or infirmparent or daughter who is unmarried extends in so far as the

parent or the unmarried daughter, as the case may be, is unable tomaintain himself or herself out of his or her own earnings or otherproperty.

Explanation.— In this section “parent” includes childless step-mother.”

12. The Act, 1956 was enacted to amend and codify the lawrelating to adoptions and maintenance among Hindus. bare perusal ofSection 125(1) Cr.P.C. as well as Section 20 of Act, 1956 indicates thatwhereas Section 125 Cr.P.C. limits the claim of maintenance of childuntil he or she attains majority. By virtue of Section 125(1)(c), an unmarrieddaughter even though she has attained majority is entitled for maintenance,where such unmarried daughter is by reason of any physical or mentalabnormality or injury is unable to maintain itself. The Scheme underSection 125(1) Cr.P.C., thus, contemplate that claim of maintenance bya daughter, who has attained majority is admissible only when by reasonof any physical or mental abnormality or injury, she is unable to maintainherself. In the present case, the Revisional Court has returned findingthat appellant is not suffering from any physical or mental abnormalityor injury due to which she is unable to maintain herself. The above findingsare not even questioned before us. What is contended that even if she isnot suffering from any physical or mental abnormality or injury, by virtueof Section 20 of Act, 1956, she is entitled to claim maintenance till she isunmarried.

13. For answering the question as noted above, we need to examinethe nature, extent and scope of Section 125 Cr.P.C. In the Code ofCriminal Procedure, 1898, Section 488 Cr.P.C. was the provision governingthe maintenance of wife or legitimate or illegitimate child of any person.Section 488(1) Cr.P.C. provided:

“488(1). If any person having sufficient means neglects or refusesto maintain his wife or his legitimate or illegitimate child unable tomaintain itself, the District Magistrate, Presidency Magistrate,a Sub-divisional Magistrate or Magistrate of the first class may,upon proof of such neglect or refusal, order such person to makea monthly allowance for the maintenance of his wife or such child,at such monthly rate, not exceeding five hundred rupees in thewhole, as such Magistrate thinks fit, and to pay the same to suchperson as the Magistrate from time to time directs.”

A14. Section 488 Cr.P.C. sought to inhibit negligence of womanand children with intent to serve social purpose. The provision providedfor summary proceeding to enable deserted wife or helpless child,legitimate or illegitimate, to get urgent relief. The laws are nothing butcollective consciousness of community. It is in the interest of thecommunity and social order that woman and child who are neglected beBmaintained and should be provided forum to obtain urgent relief toenable them to sustain.

15. This Court in Nanank Chand Vs. Chandra KishoreAggarwal and Others, (1969) 3 SCC 802 had occasion to considerthe provision of Section 488 Cr.P.C., 1898 The Court had occasion toCconsider the nature of proceedings under Section 488 Cr.P.C. in referenceto provisions of Hindu Adoptions and Maintenance Act, 1956, whichprovided for overriding effect of Act. Section 4 of the Act, 1956 is to thefollowing effect:

“Section 4. Overriding effect of Act- Save as otherwiseDexpressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any customor usage as part of that law in force immediately before thecommencement of this Act shall cease to have effect with respectto any matter for which provision is made in this Act;

(b) any other law in force immediately before thecommencement of this Act shall cease to apply to Hindus in sofar as it is inconsistent with any of the provisions contained in thisAct.”

F16. In Nanak Chand’s case the question arose as to whether byvirtue of Section 4 of Act, 1956, the provision of Section 488 Cr.P.C.shall be overridden. In the above case this Court explained the provisionsof Section 488 Cr.P.C. as well as Section 20 of the Act, 1956. This Courtheld that there is no inconsistency between Section 488 Cr.P.c. and theHindu Adoptions and Maintenance Act and both can stand together.GThis Court further held that Section 488 Cr.P.C. provides summaryremedy and is applicable to all persons belonging to all religions and hasno relationship with the personal law of the parties. Following was laiddown in paragraph 4:

“4.....The learned Counsel says that Section 488 Cr.P.C., insofarHas it provides for the grant of maintenance to Hindu, is inconsistent

with Chapter III of the Maintenance Act, and in particular, Section20, which provides for maintenance to children. We are unable tosee any inconsistency between the Maintenance Act and Section488, Cr.P.C. Both can stand together. The Maintenance Act is anact to amend and codify the law relating to adoptions andmaintenance among Hindus. The law was substantially similarbefore and nobody ever suggested that Hindu Law, as in forceimmediately before the commencement of this Act, insofar as itdealt with the maintenance of children, was in any way inconsistentwith Section 488, Cr.P.C. The scope of the two laws is different.Section 488 provides summary remedy and is applicable to allpersons belonging to all religions and has no relationship with thepersonal law of the parties. Recently the question came beforethe Allahabad High Court in Ram Singh v. State, AIR 1963 All355 , before the Calcutta High Court in Mahabir Agarwalla v.Gita Roy [1962] 2 Cr. L.J.528 and before the Patna High Court inNalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three HighCourts have, in our view, correctly come to the conclusion thatSection 4(b) of the Maintenance Act does not repeal or affect inany manner the provisions contained in Section 488, Cr.P.C.”

17. In Nanak Chand (supra) this Court had approved thejudgments of Allahabad High Court in Ram Singh Vs. State, AIR 1963All 355, judgment of Patna High Court in Nalini Ranjan Vs. KiranRani, AIR 1965 Pat. 442 and judgment of Calcutta High Court inMahabir Agarwalla Vs. Gita Roy, [1962] 2 Cr. L.J.528. This Courtin Mst. Zohara Khatoon Vs. Mohd. Ibrahim, (1981) 2 SCC 509,after noticing the judgment of this Court in Nanak Chand’s caseextracted relevant portions of judgments of Ram Singh, MahabirAgarwalla and Nalini Ranjan (supra) which were approved by thisCourt in Nanak Chand. In Ram Singh’s case, Allahabad High Courttook the view that Section 18 of Act, 1956 cannot be substituted forSection 488 Cr.P.C. In Nalini Ranjan, Patna High Court held that Section488 Cr.P.C. provided separate remedy and Section 488 Cr.P.C. coveredthe civil liability of husband under the personal law. It is useful toextract paragraphs 8, 9 and 10 of the judgment of this Court in ZoharaKhatoon which are to the following effect:“8. It would be seen that this Court approved of the decisionsin the cases of Ram Singh, Mahabir Agarwalla and Nalini Ranjan

mentioned in the observations extracted above. In order tounderstand the proper scope of Section 488 of the 1898 Codewhich is almost the same as that of Section 125 of the 1973 Code,it may be necessary to examine the decisions which were referredto with approval by this Court in Nanak Chand’s case (supra). InRam Singh v. State and Anr. Kailash Prasad, J. observed asfollows :-

“There is nothing in the Hindu Adoptions andMaintenance Act to suggest expressly or by necessaryimplication that the Act is intended to be substitute for theprovisions of Section 488 Cr.P.C. In fact the provisions ofSection 18 of the Act cannot be substitute for Section 488Cr.P.C. The latter provision is general and is applicable to awife, irrespective of her religion, but the former is applicableto the case of Hindus only. It could not, therefore, be intendedto be substitute for Section 488 Cr.P.C.

To the same effect is the decision of the Patna High Court inNalini Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty, AIR1965 Pat 442 where the following observations were made :-

Before the enactment of 1956, it was well settled thatthe right conferred by Section 488 Cr.P.C. was independent ofthe personal law of the parties. The right of maintenance underSection 488 was irrespective of the nationality or creed of theparties, the only condition precedent to the possession of thatright being in the case of wife the acceptance of the conjugalrelation. Further, Section 488 provided for only speedy remedyand summary procedure before Magistrate against starvationof deserted wife or child. This section did not cover the civilliability of husband or father under his personal law tomaintain his wife and children.

9. The Calcutta High Court also took the same view inGMahabir Agarwalla v. Gita Roy [1962] 2 Cr. L.J. 528 where thefollowing observations were made :-

An alternative but not inconsistent summary remedy wasprovided by Section 488 of the CrPC not only to the Hinduwife but generally to wives irrespective of religion for recoveryof maintenance from the husband. The two remedies were,however, not co-extensive.

10. Thus, on consideration of the authorities mentionedabove, it is clear that the 1898 Code by virtue of Section 488provided summary remedy for awarding maintenance to neglectedwives irrespective of caste, creed, community or religion to whichthey belonged. It was in this context that the Courts referred toabove considered the effect of Hindu Adoption and MaintenanceAct and other similar Acts.”

18. This Court in Yamunabai Anantrao Adhav Vs. AnantraoShivram Adhav and Another, (1988) 1 SCC 530, held that personallaw applicable to the parties cannot altogether be excluded fromconsideration in proceeding under Section 125 Cr.P.C.

19. In Yamunabai’s case(supra), the question involved was asto whether Hindu woman who is married after coming into force ofHindu Marriage Act, 1955 to Hindu male having living lawfullywedded wife, can maintain an application for maintenance under Section125 Cr.P.C. This Court in the above case held the marriage of Yamunabaito be null and void from its very inception. In the above context, thisCourt referred to provision of Hindu Marriage Act, 1955 to find outmarital status. In paragraphs 5 and 6, following was laid down:“5. It has been contended on behalf of the appellant thatthe term ‘wife ‘ in Section 125 of the Code should be given awider and extended meaning so as to include therein not only alawfully wedded wife but also woman married in fact byperformance of necessary rites or following the procedure laiddown under the law. Relying upon the decision of this Court inMohd. Ahmed khan v. Shah Bano Beghum, 1985 Cri LJ 875 itwas argued that the personal law of the parties to proceedingunder Section 125 of the Code should be completely excludedfrom consideration. The relationship of husband and wife comesto an end on divorce, but divorcee has been held to be entitled tothe benefits of the section, it was urged, and therefore applyingthis approach woman in the same position as the present appellantshould be brought within the sweep of the section. We are afraid,the argument is not well founded. divorcee is included withinthe section on account of Clause (b) of the Explanation. Theposition under the corresponding Section 488 of the code of 1898was different. divorcee could not avail of the summary remedy.The wife’s right to maintenance depended upon the continuance

of her married status. It was pointed out in Shah Bano’s case thatsince that right could be defeated by the husband by divorcing herunilaterally under the Muslim Personal Law or by obtaining adecree of divorce under any other system of law, it was considereddesirable to remove the hardship by extending the benefit of theprovisions of the section to divorced woman so long as she didnot remarry, and that was achieved by including Clause (b) of theExplanation. Unfortunately for the appellant no correspondingprovision was brought in so as to apply to her. The legislaturedecided to bestow the benefit of the Section even on an illegitimatechild by express words but none are found to apply to de factowife where the marriage is void ab initio.

6. The attempt to exclude altogether the personal law applicableto the parties from consideration also has to be repelled. The sectionhas been enacted in the interest of wife, and one who intends totake benefit under Sub-section (1)(a) has to establish the necessarycondition, namely, that she is the wife of the person concerned.This issue can be decided only by reference to the law applicableto the parties. It is only where an applicant establishes her statuson relationship with reference to the personal law that anapplication for maintenance can be maintained. Once the rightunder the section is established by proof of necessary conditionsmentioned therein, it cannot be defeated by further reference tothe personal law. The issue whether the section is attracted or notcannot be answered except by the reference to the appropriatelaw governing the parties. In our view the judgment in Shah Bano’scase does not help the appellant. It may be observed that for thepurpose of extending the benefit of the section to divorcedwoman and an illegitimate child the Parliament considered itnecessary to include in the section specific provisions to that effect,but has not done so with respect to women not lawfully married.”

20. It is to be noted that in the above case personal law waslooked into to find out as to whether an application filed by the appellantYamunabai claiming to be his wife was maintainable or not. Anotherjudgment which needs to be noted is Kirtikant D. Vadodaria Vs. Stateof Gujarat and Another, (1996) 4 SCC 479. The question whichcame for consideration before this Court was as to whether expression“mother” used in clause (d) of sub-section (1) of Section 125 Cr.P.C.

includes stepmother. This Court referring to Section 125 Cr.P.C. as wellas provision of Section 20 of Act, 1956 held that stepmother can claimmaintenance from her stepson provided she is widow of her husband, ifliving, and also incapable of maintaining and supporting her.

21. Now, we come to the Three Judge Bench judgment of thisCourt as relied by learned counsel for the appellant, i.e., JagdishJugtawat (supra). In the above case, the respondent No.3 was minorunmarried girl of the petitioner. The wife of the petitioner, i.e., mother ofrespondent No.3 filed an application under Section 125 Cr.P.C. claimingmaintenance @ Rs.500/- per month to each of the applicant, which wasgranted by the Family Court. revision was filed before the High Courtassailing the order contending that the respondent No.3, Kumari Rakhiwas entitled to maintenance only till she attains majority and notthereafter. High Court although accepted the legal position that underSection 125 Cr.P.C., minor daughter is entitled to maintenance fromher parents only till she attains majority but declined to interfere with theorders passed by the Family Court taking the cue from Section 20(3) ofthe Hindu Adoptions and Maintenance Act. The facts of the case andobservations of the High Court have been made in the paragraph 2 ofthe judgment, which is to the following effect:-

“2. The Petitioner is the father of Kumari Rakhi, Respondent 3herein, who is minor unmarried girl. Considering the applicationfiled under Section 125 of the Criminal Procedure Code byRespondent 1, wife of the Petitioner and mother of Respondent 3,claiming maintenance for herself and her two children, the FamilyCourt by order dated 22.7.2000 granted maintenance @ Rs.500per month to each of the Applicants. The Petitioner herein filed arevision petition before the High Court assailing the order of theFamily Court on the ground, inter alia, that Respondent 3 wasentitled to maintenance only till she attains majority and notthereafter. Considering the point the learned Single Judge of theHigh Court accepted, the legal position that under Section-125,CrPC, minor daughter is entitled to maintenance from her parentsonly till she attains majority, but declined to interfere with the orderpassed by the Family Court taking the cue from Section 20(3) ofthe Hindu Adoptions and Maintenance Act under which the rightof maintenance is given to minor daughter till her marriage. Thelearned Single Judge was persuaded to maintain the order of the

Family Court with view to avoid multiplicity of proceedings.The relevant portion of the judgment of the High Court is quotedhere:

“Thus, in view of the above, though it cannot be said that theorder impugned runs counter to the law laid down by the Hon’bleBSupreme Court, the provisions of Section 125 CrPC areapplicable irrespective of the personal law and it does not makeany distinction whether the daughter claiming maintenance isa Hindu or Muslim. However, taking an overall view of thematter, I, with all respect to the Hon’ble Court, am of the candidview that the provisions require literal interpretation and aCdaughter would cease to have the benefit of the provisionsunder Section 125 CrPC on attaining majority, though she wouldbe entitled to claim the benefits further under the statute/personal law.But the Court is not inclined to interfere, as theorder does not result in miscarriage of justice, rather interferingDwith the order would create great inconvenience to Respondent3 as she would be forced to file another petition under sub-section (3) of Section 20 of the Act of 1956 for furthermaintenance etc. Thus, in order to avoid multiplicity of litigations,the order impugned does not warrant interference.”

(underlined by us)

22. The judgment of this Court in Jagdish Jugtawat (supra) issheet anchor of learned counsel for the appellant. The question whichcame for consideration before this Court in Jagdish Jugtawat’s casehas been noted in paragraph 3 of the judgment which is to the followingeffect:F

“3. In view of the finding recorded and the observations made bythe learned Single Judge of the High Court, the only question thatarises for consideration is whether the order calls for interference......”

23. This Court answered the question noticed in paragraph 3 asabove in paragraph 4 in the following words:

“4. Applying the principle to the facts and circumstances of thecase in hand, it is manifest that the right of minor girl formaintenance from parents after attaining majority till her marriageHis recognized in Section 20(3) of the Hindu Adoptions and

Maintenance Act. Therefore, no exception can be taken to thejudgment/order passed by the learned Single Judge for maintainingthe order passed by the Family Court which is based on combinedreading of Section 125, Code of Criminal Procedure and Section20(3) of the Hindu Adoptions and Maintenance Act. For thereasons aforestated we are of the view that on facts and in thecircumstances of the case no interference with the impugnedjudgment order of the High Court is called for.”

24. In the above case, an order was passed by the Family Courtby granting maintenance which was based on combined reading ofSection 125 Cr.P.C. and Section 20 of Act, 1956. Although, the HighCourt and this Court had declined to interfere with the order of theFamily Court taking the cue from Section 20(3) of the Act, 1956 underwhich the right of maintenance is given to minor daughter till hermarriage, but the judgment of this Court in Jagdish Jugtawat (supra)cannot be read to laying down the ratio that in proceedings under Section125 Cr.P.C. filed by the daughter against her father, she is entitled tomaintenance relying on the liability of the father to maintain her unmarrieddaughter as contained in Section 20(3) of the Act, 1956. The High Courtin exercise of Criminal Revisional jurisdiction can very well refuse tointerfere with the judgment of Courts below by which maintenance wasgranted to unmarried daughter. This Court while hearing criminal appealagainst the above judgment of High Court was exercising jurisdictionunder Article 136 of the Constitution of India, and in the facts of thatcase, this Court refused to interfere with the judgment of High Court butin refusal to interfere by this Court, no ratio can be read in the judgmentof Jagdish Jugtawat (supra) as contended by learned counsel for theappellant.

25. In Classical Hindu Law prior to codification, Hindu malewas always held morally and legally liable to maintain his aged parents,a virtuous wife and infant child. Hindu Law always recognised the liabilityof father to maintain an unmarried daughter. In this context, we refer toparagraph 539 and 543 of Mulla – Hindu Law – 22[nd] Edition, which is asfollows:-

“539. Personal liability: liability of father, husband and son.—A Hindu is under legal obligation to maintain his wife, his minorsons, his unmarried daughters, and his aged parents whether hepossesses any property or not. The obligation to maintain these

Arelations is personal in character and arises from the very existenceof the relation between the parties.

Section 18 and 20 of the Hindu Adoptions and MaintenanceAct, 1956 deal with the question of maintenance of wife, childrenand aged parents. Reference may be made to the notes underthose sections.

543. Daughter. – (1) father is bound to maintain his unmarrieddaughters. On the death of the father, they are entitled to bemaintained out of his estate.

XXXXXXXXXXXXXX”

26. Muslim Law also recognises the obligation of father to maintainhis daughters until they are married. Referring to Mulla’s Principle ofMohammedan Law, this Court in State of Haryana and Others Vs.DSantra (Smt.), (2000) 5 SCC 182 in paragraph 40 held:-

“40. Similarly, under the Mohammedan Law, father is bound tomaintain his sons until they have attained the age of puberty. Heis also bound to maintain his daughters until they are married.[See: Mulla’s Principles of Mohammedan Law (19th Edn.) page300]......................”

27. Section 20(3) of Hindu Adoptions and Maintenance Act, 1956is nothing but recognition of principles of Hindu Law regardingmaintenance of children and aged parents. Section 20(3) now makes itstatutory obligation of Hindu to maintain his or her daughter, who isunmarried and is unable to maintain herself out of her own earnings orFother property.

28. Section 20 of Hindu Adoptions and Maintenance Act, 1956cast statutory obligation on Hindu to maintain his daughter who isunmarried and unable to maintain herself out of her own earnings orother property. As noted above, Hindu Law prior to enactment of Act,G1956 always obliged Hindu to maintain unmarried daughter, who isunable to maintain herself. The obligation, which is cast on the father tomaintain his unmarried daughter, can be enforced by her against herfather, if she is unable to maintain herself by enforcing her right underSection 20.

29. We may also notice another judgment of this Court in NoorSaba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, which was acase under Section 125 Cr.P.C. Muslim wife with her two daughtersand son filed an application claiming maintenance under Section 125Cr.P.C. The trial court allowed the maintenance to the wife and childrenfrom her husband. The husband after divorcing the wife filed applicationin the trial court seeking modification of the order in view of the provisionsof the Muslim Women (Protection of Rights on Divorce) Act, 1986.The trial court modified the order insofar as the grant of maintenance ofwife was concerned but maintained the order of maintenance to each ofthe three minor children. The husband challenged the order by means ofrevision, which was dismissed by the Revisional Court. An applicationunder Section 482 Cr.P.C. was filed in the High Court. The High Courtaccepted the claim of husband and relying on provision of Section 3(1)(b)of the Act, 1986 held that Muslim wife is entitled to claim maintenancefrom her previous husband for her children only for period of twoyears from the date of birth of the child concerned. The High Court heldthat minor children were not entitled for maintenance under Section 125,Cr.P.C. special leave to appeal was filed questioning the judgment.This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 heldthat effect of beneficial legislation like Section 125 Cr.P.C. cannot beallowed to be defeated except through clear provisions of statute.ThisCourt held that there is no conflict between the two provisions.

30. This Court noticed the provisions of Section 3 of Muslim Women(Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. Itis relevant to refer to the following observations made by this Court inparagraph 7 of the above judgment:

“7....Under Section 125, CrPC the maintenance of thechildren is obligatory on the father (irrespective of his religion)and as long as he is in position to do so and the children have noindependent means of their own, it remains his absolute obligationto provide for them. Insofar as children born of Muslim parentsare concerned there is nothing in Section 125 CrPC which exemptsa Muslim father from his obligation to maintain the children. Theseprovisions are not affected by Clause (b) of Section 3(1) of the1986 Act and indeed it would be unreasonable, unfair, inequitableand even preposterous to deny the benefit of Section 125 CrPCto the children only on the ground that they are born of Muslim

Aparents. The effect of beneficial legislation like Section 125CrPC, cannot be allowed to be defeated except through clearprovisions of statute. We do not find manifestation of any suchintention in the 1986 Act to take away the independent rights ofthe children to claim maintenance under Section 125 CrPC wherethey are minor and are unable to maintain themselves. MuslimBfather’s obligation, like that of Hindu father, to maintain his minorchildren as contained in Section 125 CrPC is absolute and is notat all affected by Section 3(1)(b) of the 1986 Act. ......”

31. The provision of Section 20 of Act, 1956 cast clear statutoryobligation on Hindu to maintain his unmarried daughter who is unableCto maintain herself. The right of unmarried daughter under Section 20 toclaim maintenance from her father when she is unable to maintain herselfis absolute and the right given to unmarried daughter under Section 20 isright granted under personal law, which can very well be enforced byher against her father. The judgment of this Court in Jagdish JugtawatD(supra) laid down that Section 20(3) of Act, 1956 recognised the rightof minor girl to claim maintenance after she attains majority till hermarriage from her father. Unmarried daughter is clearly entitled formaintenance from her father till she is married even though she hasbecome major, which is statutory right recognised by Section 20(3)and can be enforced by unmarried daughter in accordance with law.E

32. After enactment of Family Courts Act, 1984, Family Courtshall also have the jurisdiction exercisable by Magistrate of the FirstClass under Chapter IX of Cr.P.C. relating to order for maintenance ofwife, children and parents. Family Courts shall have the jurisdiction onlywith respect to city or town whose population exceeds one million, whereFthere is no Family Courts, proceedings under Section 125 Cr.P.C. shallhave to be before the Magistrate of the First Class. In an area wherethe Family Court is not established, suit or proceedings for maintenanceincluding the proceedings under Section 20 of the Act, 1956 shall only bebefore the District Court or any subordinate Civil Court.G

33. There may be case where the Family Court has jurisdictionto decide case under Section 125 Cr.P.C. as well as the suit underSection 20 of Act, 1956, in such eventuality, Family Court can exercisejurisdiction under both the Acts and in an appropriate case can grantmaintenance to unmarried daughter even though she has become majorHenforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity

of proceedings as observed by this Court in the case of JagdishJugtawat (supra). However the Magistrate in exercise of powers underSection 125 Cr.P.C. cannot pass such order.

34. In the case before us, the application was filed under Section125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passedthe order dated 16.02.2011. The Magistrate while deciding proceedingsunder Section 125 Cr.P.C. could not have exercised the jurisdiction underSection 20(3) of Act, 1956 and the submission of the appellant cannot beaccepted that the Court below should have allowed the application formaintenance even though she has become major. We do not find anyinfirmity in the order of the Judicial Magistrate First Class as well aslearned Additional Magistrate in not granting maintenance to appellantwho had become major.

35. The maintenance as contemplated under Act, 1956 is largerconcept as compared to concept of maintenance under Section 125Cr.P.C. Section 3(b) while defining maintenance gives an inclusivedefinition including marriage expenses in following words:-

“3.Definitions- In this Act unless the context otherwise requires-

XXXXXXXXXXXXXXX

(b) “Maintenance” includes-

(i)in all cases, provision for food, clothing, residence, educationand medical attendance and treatment;

(ii) in the case of an unmarried daughter also the reasonableexpenses of and incident to her marriage;

(c) “minor” means person who has not completed his or her ageof eighteen years.”

36. The purpose and object of Section 125 Cr.P.C. as noted aboveis to provide immediate relief to applicant in summary proceedings,whereas right under Section 20 read with Section 3(b) of Act, 1956contains larger right, which needs determination by Civil Court, hencefor the larger claims as enshrined under Section 20, the proceedingsneed to be initiated under Section 20 of the Act and the legislature nevercontemplated to burden the Magistrate while exercising jurisdiction underSection 125 Cr.P.C. to determine the claims contemplated by Act, 1956.

A37. There are three more reasons due to which we are satisfiedthat the orders passed by the learned Judicial Magistrate as well aslearned Additional Sessions Judge in the revision was not required to beinterfered with by the High Court in exercise of jurisdiction under Section482 Cr.P.C. The reasons are as follows:-

B(i)The application was filed by the mother of the appellant inthe year 2002 claiming maintenance on her behalf as well ason behalf of her two sons and appellant, who was minor atthat time. The appellant being minor at that time whenapplication was filed on 17.10.2002, there was no occasionfor any pleading on behalf of the appellant that she was notCable to maintain herself even after attaining the majority.Section 20 of the Act, 1956 on which reliance has been placedby learned counsel for the appellant recognising the right ofmaintenance of unmarried daughter by person subject tothe condition when “the parents or the unmarried daughter,Das the case may be, is unable to maintain themselves/herselfout of their/her own earnings or other property”. The learnedAdditional Sessions Judge noticed the submission of therespondent that appellant did not come in the witness boxeven when she had attained majority to claim that she wasunable to maintain herself, which contention has been notedEin paragraph 12 of the judgment of the learned AdditionalSessions Judge.

(ii) From the judgment of the learned Judicial Magistrate, anotherfact, which is relevant to be noticed is that applicant Nos. 2to 4, which included the appellant also had filed the proceedingsFunder Section 20 of the Act, 1956 being Suit No. 6 of 2001,which was dismissed as withdrawn on 17.12.2012.

(iii) Another factor, which need to be noticed that in the counteraffidavit filed in this appeal, there was specific pleading ofthe respondent that plot of land was purchased in name ofGthe appellant admeasuring 214 sq. Yds. In the rejoinderaffidavit filed by the appellant, it has been admitted that theplot was purchased on 31.07.2000 from the joint incomeearned by mother and father of the appellant, which had beenagreed to be sold in the year 2012 for total sale considerationHof Rs.11,77,000/-. In the rejoinder affidavit, an affidavit of

prospective purchaser has been filed by the appellant, whereit is mentioned that agreement to sell had taken place betweenappellant and Arjun on 31.07.2000 for sale consideration ofRs.11,77,000/-, out of which appellant had receivedRs.10,89,000 as earnest money.

38. We, thus, accept the submission of the learned counsel for theappellant that as preposition of law, an unmarried Hindu daughter canclaim maintenance from her father till she is married relying on Section20(3) of the Act, 1956, provided she pleads and proves that she is unableto maintain herself, for enforcement of which right her application/suithas to be under Section 20 of Act, 1956.

39. In facts of the present case the ends of justice be served bygiving liberty to the appellant to take recourse to Section 20(3) of theAct, 1956, if so advised, for claiming any maintenance against her father.Subject to liberty as above, the appeal is dismissed.

Devika Gujral

Appeal dismissed.