CASE: ABHILASHA V. PARKASH & ORS.

CASE COMMENT

DATE OF THE? CASE: 15th September 2020

APPELLANT: Abhilasha

RESPONDENT: Parkash & Ors.

BENCH/JUDGES: Ashok Bhushan, R. Subhash Reddy. M.R. Shah

LEGAL PROVISIONS: Code of Criminal Procedure, The Hindu Adoption and

FACTS:

1. In this case, the mother of the appellant, on her behalf, her two sons and the appellant
daughter, filed an application under section 125 of Cr.P.C against her husband, Parkash, claiming
maintenance for herself and three children. In this case, they were granted maintenance and
appellant no. 4, daughter was granted maintenance till she attains the age of majority.

2. The appellants were aggrieved against the judgement by judicial magistrate dated
16.02.2011.Thus, they filed a criminal revision before the court of sessions judge and same was
dismissed by the same decision. According to the learned additional sessions judges it was held
that appellant was not suffering from any physical, mental abnormality or injury , therefore she is
entitled to maintenance only till 26.04.2005 (till she attains majority).

3. Challenging the judgement of session judge, an application under sec. 482 of Cr.P.C was filed
before the high court. The high court dismissed the same with no modification in their decision.
Then the appeal was filed to the Supreme Court.
ISSUES RAISED:

1. Whether the appellant, who although had attained majority and is still unmarried is
entitled to claim maintenance from her father in proceedings under section 125 Cr. P. C.
Although she is not suffering from any physical or mental abnormality/injury?
2. Whether the orders passed by learned Judicial Magistrate as well as learned Revisional
Court limiting to claim maintenance till she attains majority on 26.04.2005 deserves to be
set aside with direction to be set aside with direction to the respondent to continue to give
maintenance even after age of majority till the appellant remains unmarried?

CONTENTION:

Arguments from Petitioner‘s side

The learned senior counsel from appellant side argued that even though the appellant has
attained the age of majority on 26.04.2005 but since she is unmarried, she is entitled to
maintenance from her father. He relied on the provision of section 20 of the Hindu Adoption and
Maintenance Act, 1956. According to which, a father is obliged to maintain his daughter unless
she gets married if she is unable to maintain herself.

Arguments from Respondent‘s side

The learned senior counsel from respondent side argued that courts below have rightly confined
the claim of the maintenance on 26.04.2005. As per section 125(1)(c) Cr. P. C. Entitlement to
claim maintenance by daughter, who has attained majority is confined to case where the person
by reason of any physical or mental abnormality or injury unable to maintain herself.

High court has rightly dismissed the application filed under section 482 of Cr. P. C of the
appellant since no case was made out to interfere in order passed by the judicial Magistrate and
learned Revisional Court in exercise or jurisdiction under section 482 Cr. P. C.
RATIONALE: The counsel from petitioner ‘s side relayed upon the case of Jagdish
Jugtawat V. Manju Lata and Ors 1. In this case, respondent was a minor unmarried girl of the
petitioner. The mother of respondent filed an application under section 125 of Cr.P.C claiming
maintenance at ₹500 per month to each of the applicant. A petition was filed before the high
court claiming that respondent can only claim maintenance till she attains majority and not
thereafter. The high court declined to interfere with the orders passed by the family court taking
the cue from section 20(3) of the Hindu Adoptions and Maintenance Act. The learned Single
Judge was persuaded to maintain the order of the family court with a view to avoid multiplicity
of proceedings.

In the above case, an order was passed by the Family court by granting maintenance which was
based on combined reading of section 125 Cr.P.C. and section 20 of The Hindu Adoptions and
Marriage Act, 1956. The high court in exercise of Criminal Revisional jurisdiction 2can very
well refuse to interfere with the judgement of courts below by which maintenance was granted to
unmarried daughter.

In case of Saba Khatoon V. Mohd. Quasim3, which was a case under section 125 Cr.P.C,
which was a case under section 125 Cr.P.C. , A Muslim wife with her daughter and a son filed an
application claiming maintenance under section 125 of Cr.P.C. The high court held that minor
children were not entitled for maintenance under section 125,Cr.P.C. A special leave to appeal
was filed questioning the judgement. This court dealing with section 125 Cr.P.C. as well as
Muslim Women(Protection of Rights on Divorce) Act,1986 held that effect of a beneficial
legislation like section 125 Cr.P.C. cannot be allowed to be defeated except through clear
provisions of a statute. According to it, it is unfair to deny the benefit to the children only on the
ground that they are born of Muslim parents.

In order to answer the issues in the present case, the court recognised the need to examine the
nature, extent and scope of section 125 Cr. P.C. According to section 488(1) of Cr.P.C. , if any
person refuses to maintain his wife or child, then on the proof of such refusal the court can order
maintenance at a monthly rate.

1
I (2001) DMC 605
2
INDIAN CONST.art 136
3
AIR 1997 SC 3280
In case of Nanak Chand V. Chandra Kishore Aggarwal and Others4, the court held that there
is no inconsistency between section 488 of Cr.P.C and the Hindu Adoption and Maintenance
Act and both can stand together.

DEFECTS OF LAW : Section 20(3) of Hindu Adoptions and Maintenance Act, 1956
makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is
unable to maintain herself out of her own earnings or other property. The right of unmarried
daughter under section 20(3) to claim maintenance from her father when she is unable to
maintain herself is absolute and the right given to unmarried daughter under section 20 is right
granted under personal law , which can very well be enforced by her against her father.

Section 125 of Cr.P.C deals with orders for maintenance of wives, children and parents.
According to section 125(1)(c) , a person has a responsibility to maintain 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.

Hindu Adoptions and Maintenance Act is a part of personal law and hence is applied to limited
people only where code of criminal procedure is regarded as an uniform law and hence is
applicable to all persons.

In my view, section 125 of Cr.P.C and section 20(3) of Hindu Adoption and Maintenance Act,
1956 deals with the same purpose i.e. of providing maintenance but section 20(3) of act ,1956
covers a wider range whereas section 125 of Cr.P.C. provides a limited scope only . Hence, the
person applying for maintenance in either of the sections have to first examine both the sections
carefully and then decide whether to go with section 125 of Cr.P.C or with section 20(3) of Act,
1956. If the appellant in the given case had filed a suit under section 20(3) of act of 1956, then it
was quite possible that the court had granted her the maintenance.

Even in Muslim laws, it is recognised that the father have an obligation to maintain his wife,
minor children and unmarried daughter and aged parents.

INFERENCE: In the present case, the magistrate while deciding proceedings under section
125 Cr.P.C. could not have exercised the jurisdiction under section 20(3) of Act,1956. The high

4
AIR 1969 DELHI 235
court do not find any infirmity in the order of the judicial magistrate first class as well as learned
Additional Magistrate in not granting maintenance to appellant who had become major. Other
reasons due to which the high court was satisfied by the orders passed by judicial magistrate as
well as learned Additional session judges were:

1. There was no occasion for any pleading on behalf of the appellant that she was not able
to maintain herself even after attaining the majority. The learned Additional Sessions
Judge noticed the submission of the respondent that appellant did not come in the witness
box even when she had attained majority to claim that she was unable to maintain herself.
2. Applicant no. 2 to 4, i.e. two sons and the appellant also had filed the proceedings under
section 20 of the Act,1956 being suit no. 6 of 2001, which was dismissed as withdrawn
on 17.12.2012.
3. There was a plot of land was purchased in name of the appellant on 31.07.2000 from the
joint income earned by mother and father of the appellant which has been agreed to be
sold in the year 2012 for a total sale consideration of ₹11,77,000/- . According to the
affidavit filed by appellant, the agreement to sell had taken place between the appellant
and Arjun on 31.07.2000 for a sale consideration of ₹11,77,000/-, out of which appellant
had received ₹10,89,000 as earnest money.

Thus, the plea for maintenance till the appellant was rejected. But, the court declared that the
appellant can file a suit relying on section 20(3) of the Act, 1956 provided that she pleads and
proves that she is unable to maintain herself.