Mantu Mahto @ Mantu Mahato v. For the Amicus

point was raised before the learned Family Court nor any of the parties have raised such a point in the pleadings before this Court but the point being a pure question of law is required to be decided by this Court.

4. The learned counsel has submitted that though no exact date of birth of the daughter has been brought on record by either party but in the application seeking maintenance which has been filed by the opposite party No. 2 before the learned court way back in the year 2017, it was mentioned that the daughter was about 18 years of age. He submits that by the time the evidence was adduced, the daughter must have attained the age of majority, and therefore no maintenance could have been granted in her favour. The learned counsel further submits that the daughter was not even separately made a party before the learned court, rather the opposite party No. 2 had claimed maintenance for herself as well as the daughter. 5. The learned counsel has further submitted that the entitlement of maintenance of unmarried daughter could have been granted only till she attains the age of majority. Beyond 18 years of age, the daughter can herself claim maintenance under Section 20 of the Hindu Adoption and Maintenance Act before the Family Court asserting that she was unable to maintain herself and was unemployed. In absence of such foundational fact, no maintenance could have been granted to the daughter beyond the age of 18 years. 6. The learned counsel has also submitted that the daughter was never examined and therefore there was no occasion for the petitioner to cross examine her on the point as to whether she was able to maintain herself or not. He has relied upon the judgment passed by the Hon’ble Supreme Court in Criminal Appeal No. 615 of 2020 (Abhilasha versus Prakash and Others) reported in (2021) 13 SCC 99 and submits that the earlier judgment passed by the Hon’ble Supreme Court in the case of Jagdish Jugtawat versus Manjulata and others reported in (2002) 5 SCC 422 has been distinguished and it has been held that the said judgment cannot be read to lay down the ratio that in a proceeding under section 125 Cr. P.C. filed by the daughter against her father, she is entitled to maintenance in terms of section 20(3) of the Hindu Adoption and Maintenance Act, 1956. He has referred to paragraph 24 of the said judgment. Learned counsel has further relied upon paragraph 36 of the said judgment to submit 2 that numerous reasons have been cited for not permitting the Court to pass an order of maintenance in favour of unmarried daughter who has attained the age of majority in a proceeding under section 125 Cr. P.C. and such relief has to be claimed in terms of section 20 of the aforesaid Act of 1956. He has also relied upon para 38 of the said judgment. The learned counsel has further relied upon the judgment passed by the Hon’ble Kerela High Court reported in 2023 Live Law (Kerela) 46 (Gireesh Kumar N. versus Rajni K.V.) to submit that the judgment of the Hon’ble Supreme Court has been followed and it has been held that the legal position is that by virtue of 125 (1) of Cr. P.C. an unmarried daughter who attained the majority could not claim maintenance in ordinary circumstances i.e. merely on the ground that she does not have means for the sustenance. At the same time, even though the unmarried daughter who attains majority is entitled for maintenance where such unmarried daughter is by reason of any physical and mental abnormality or injury is unable to maintain herself for which pleadings and evidence are mandatory. It has been held that otherwise the legal proposition is that an unmarried Hindu daughter can claim maintenance from her father till she is married resorting to section 20 (3) of Hindu Adoption and Maintenance Act provided she pleads and proves that she is unable to maintain herself and for enforcement of such a right she has to file an application/suit under section 20 of the said Act of 1956. Arguments of the learned Amicus Curiae 7. The learned Amicus Curiae appointed by this Court has submitted that the aforesaid judgment passed by the Hon’ble Supreme Court in the case of Abhilasha Versus Prakash (supra) is not applicable to the facts of the present case. She submits that the said judgment is related to situation where the order under section 125 Cr.P.C. is passed by a Judicial Magistrate and in the present case, the order of maintenance under Section 125 Cr. P.C. has been passed by the Family Court. She submits that the judgment passed in the case of Jagdish Jugtawat versus Manju Lata and Others which has been considered by the Hon’ble Supreme Court in the case of Abhilasha 3 has not been overruled by the Hon’ble Supreme Court. Rather, in the case of Jagdish Jugtawat (supra) the High Court had refused to interfere with the order of maintenance in revisional jurisdiction as the order did not result in miscarriage of justice. She submits that the power to grant maintenance in terms of Section 20(3) of Hindu Adoption and Maintenance Act is also conferred upon the Family Court and therefore the direction to pay maintenance to unmarried daughter cannot be said to be without jurisdiction. She has also submitted that since no specific date of birth has been brought on record and the mother had simply stated that the daughter was about 18 years of age, it is apparent that on the date of filing of the case, the daughter was yet to acquire the age of majority. She submits that even the petitioner did not raise any such plea. 8. She has also submitted that although the point of law can be decided in revisional jurisdiction but in absence of these foundational facts as to what was the exact age of unmarried daughter, the impugned order may not be set aside. 9. She has further submitted that in the present proceedings the daughter has not been made a party and therefore any order which has been passed in her favour may not be set aside in her absence particularly when as per the petitioner also she has attained the age of majority. 10. The learned counsel has submitted that only a meagre amount of Rs. 1500/- per month has been awarded in favour of unmarried daughter and that too is payable till she gets married or she is gainfully employed and the moment the unmarried daughter gets married or is gainfully employed, the petitioner can certainly move the court for modification of the order of maintenance and therefore no miscarriage of justice has taken place by virtue of the impugned order. 11. The learned counsel has also submitted that at no point of time in the entire records it was ever the case of the petitioner before the learned court that the unmarried daughter was able to maintain herself, rather it has come in the evidence that she was still a college going student. 4 Arguments of the State 12. The learned counsel appearing on behalf of the State has supported the argument advanced by learned Amicus and has submitted that in revisional jurisdiction the order may not be set aside in absence of the unmarried daughter in whose favour there is an order of maintenance. The learned counsel has also submitted that there is no miscarriage of justice by virtue of the impugned order. Even if there is some error, no case for interference is made out. He has also submitted that the unmarried daughter may not be relegated for filing another case for a small amount which will unnecessarily incur multiplicity of proceedings. 13. He has also submitted that before the Hon’ble Supreme Court in the aforesaid judgment cited by the petitioner, enough materials were placed to show that the unmarried daughter had sufficient means to sustain herself but even in this revisional jurisdiction, no clinching material has been placed on record by the petitioner to show that his unmarried daughter was able to maintain herself in any manner. Argument of the opposite party no.2 14. The learned counsel appearing on behalf of the opposite party No. 2 has also adopted the submissions made by the learned Amicus and the learned counsel for the State. Findings of this Court 15. The records of the case reveal that a petition under section 125 Cr.P.C was filed by the opposite party no.2, Bina Devi, stating that the marriage was solemnized in the year 1991 and out of the wedlock, two daughters were born. The elder daughter, Sapna Kumari, was married and younger daughter, Puja Kumari, aged about 18 years, was a college-going girl. In the entire records of the case, the exact age of the younger daughter of the applicant has not come either from the side of the applicant or from the side of the petitioner. Rather, it was the specific case of the applicant that her younger daughter was about 18 years of age and was a college-going child and was not disputed by the petitioner. It was also stated that the petitioner is a permanent 5 employee of Tata Colliery and was getting a handsome salary besides other facilities. These facts are not in dispute. 16. With aforesaid background, the applicant claimed Rs.15,000/- per month for herself and Rs.5,000/- per month for the unmarried college-going girl child aged about 18 years as maintenance. 17. The sole point argued by the petitioner is whether any amount of maintenance could have been granted for the unmarried daughter beyond the age of majority i.e. 18 years in a petition filed u/s 125 of Cr.P.C by the family court. The entire argument is based on judgment passed in the case of Abhilasha Versus Prakash (supra) passed by Hon'ble Supreme Court which has also been followed by Hon'ble Kerela High Court in the case of Gireesh Kumar (supra). 18. No other point has been argued. 19. In the judgment passed by the Hon’ble Supreme Court in the case of Abhilasha (supra) the Judicial Magistrate First Class had passed an order under Section 125 Cr.P.C., granting maintenance to the appellant before the Hon’ble Supreme Court until she attains the age of majority. In revision, the learned Additional Sessions Judge was of the view that, as per the provisions of Section 125 Cr.P.C., children who have attained majority are entitled to maintenance if, by reason of any physical or mental abnormality or injury, they are unable to maintain themselves. The learned Additional Sessions Judge held that the daughter was not suffering from any physical or mental abnormality or injury, therefore she was entitled to maintenance only till she attained the age of majority. The high court also refused to interfere. The daughter was the petitioner before the Hon’ble Supreme Court. It was her case that since she was unmarried, she was entitled to claim maintenance from her parents, irrespective of her attaining the age of majority. Reliance was placed on Section 20 of the Hindu Adoption and Maintenance Act, 1956 to submit that, as per Section 20, there is an obligation on a person to maintain his daughter who is unmarried, and this obligation extends till she is married. Reliance was placed on the judgment passed by the Hon’ble Supreme Court, reported in (2002) 5 SCC 422 (Jagdish Jugtawat Vs. Manju Lata and 6 othes). It was asserted that the appellant was still unemployed and, therefore, entitled to claim maintenance from her father. The following two questions were framed by the Hon’ble Supreme Court at paragraph 7: “(i) 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? (ii) Whether the orders passed by learned Judicial Magistrate as well as learned Revisional Court limiting the claim of the appellant to claim maintenance till she attains majority on 26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to give maintenance even after 26.04.2005 till the appellant remains unmarried?” Both the issues were decided against the petitioner (Abhilasha- the unmarried daughter) and the case was dismissed not only considering the jurisdiction of the magistrate but also the money available with her . 20. Before proceeding further to discuss the ratio of the judgement passed in the case of Abhilasha (supra) it is important to consider the judgement passed in the case of Jagdish Jugtawat (supra). 21. In the judgment passed by the Hon’ble Supreme Court in the case of Jagdish Jugtawat (supra), the Family Court had passed an order of maintenance to the girl-child holding that she was entitled to receive maintenance till her marriage. It was challenged before the High Court on the ground that she would be entitled to maintenance only till she attains the age of majority in terms of section 125 Cr.P.C. The High Court accepted the legal position that under section 125Cr.P.C, a minor daughter is entitled to maintenance only till she attains majority, but declined to interfere with the orders passed by the Family Court taking cue from section 20 (3) of Hindu Adoption and Maintenance Act under which the right of maintenance is given to a minor daughter till her marriage. The High Court persuaded to maintain order of Family Court with a view to avoid multiplicity of proceedings. The order of the High Court was challenged before the Hon’ble Supreme Court seeking modification only to the extent that the minor daughter would be entitled to receive maintenance only till, she attains majority and not further. The Hon’ble Supreme Court 7 refused to interfere with the order of learned trial court by referring to the earlier judgment passed in the case reported in (1997) 6 SCC 233 (Noor Saba Khatoon Vs. Mohd. Quasim) wherein the Hon'ble Supreme Court had accepted the position that section 125 Cr.P.C does not fix liability upon parents to maintain children beyond attaining the age of majority, read the said provision with section 3 (1) (b) of the Muslim Women (Protection of Rights on Divorce) Act and hold that under the said Act, liability for providing maintenance extends beyond attaining majority of dependent girl. The Hon’ble Supreme Court in the case of Jagdish Jugtawat (supra) ultimately held in paragraph 4 that the right of 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 and therefore no exception can be taken to the judgment / order passed by the High Court for maintaining the order passed by the Family Court which was based on a combined reading of section 125 Cr.P.C and section 20 (3) of Hindu Adoption and Maintenance Act and accordingly dismissed the appeal.

22. This Court finds that in the judgment passed by Hon'ble Supreme Court in the case of Abhilasha (supra), the aforesaid judgment in the case of Jagdish Jugtawat (supra) was not overruled. Rather, it has been fully discussed by considering the fact that the judgment passed in the case of Jagdish Jugtawat (supra) was arising out of judgment passed by Family Court and observed that the High Court in exercise of criminal revisional jurisdiction can very well refuse to interfere with the judgments of courts by which maintenance was granted to unmarried daughter. The Hon'ble Supreme Court while hearing the petition under Article 136 of the Constitution of India and while refusing to interfere with the judgment of the High Court in the case of Jagdish Jugtawat (supra) cannot be said to have laying down any ratio. The Hon’ble Supreme Court further considered the enactment of Family Court Act, 1984 and observed that in a case where Family Court has jurisdiction to decide the case under section 125 Cr.P.C as well as the suit under section 20 of Hindu Adoption and 8 Maintenance Act, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed in the case of Jagdish Jugtawat (supra). However, such exercise cannot be undertaken by the Magistrate while exercising power under section 125 Cr.P.C. The Hon’ble Supreme Court ultimately distinguished the case of Jagdish Jugtawat (supra) by holding that in Abhilasha (supra) the case was filed under section 125 Cr.P.C before the Judicial Magistrate and held that the Magistrate while deciding the proceedings under section 125 Cr.P.C could not have exercised the jurisdiction under section 20 (3) of the Act of 1956 and therefore the submission of the appellant could not be accepted that the Judicial Magistrate should have allowed the application for maintenance even though she had become major. The Hon'ble Supreme Court did not find any infirmity in the order of the Judicial Magistrate as well as the order passed by the learned Additional Judicial Magistrate in not granting maintenance to the appellant who had become major. The Hon’ble Supreme Court in the case of Abhilasha (supra) also considered certain facts including the fact that a suit filed under section 20 of the Act of 1956 by the appellant was withdrawn and that the appellant had received huge amount on account of sale consideration of some property. The Hon’ble Supreme Court in the case of Abhilasha (supra) held as follows at paragraph 38: “38. We, thus, accept the submission of the learned counsel for the appellant that as a preposition of law, an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20 (3) of the Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of the Act, 1956.”

23. This Court finds that the present case is arising out of order passed by Family Court which certainly has the jurisdiction to pass orders not only under section 125 Cr.P.C but also under section 20 of 9 the Hindu Adoption and Maintenance Act. It is not in dispute that the parties are governed by Hindu Law. It is further not in dispute that the younger daughter was a college going child and it was never the case of the petitioner that his younger daughter was capable of earning or she had any source of livelihood. The learned court has granted maintenance till the minor girl become employed or till her marriage. Before this Court also, it is not the case of the petitioner that the daughter has any source of income or that she has undergone marriage. The fact remains that the exact age of the girl was not brought before the court concerned and it is not clear as to when she attained the age of majority. It is apparent that the applicant had stated that her younger daughter was about 18 years of age. In such circumstances, it cannot be said that at the time of filing the application seeking maintenance the younger daughter had attained the age of majority. However, it appears that the younger daughter of the petitioner might have attained the age of majority during the pendency of the application and she has not been made a party in the present proceeding. 24. Considering the totality of facts and circumstances, this Court is of the considered view that the judgment passed in the case of Abhilasha (supra) does not apply so far as the point of jurisdiction is concerned, as the impugned order in the present case has been passed by the Family Court and not by a Magistrate and also in view of the fact that the case was filed when the younger daughter of the petitioner was yet to attain majority. The impugned order giving maintenance to daughter beyond the age of majority and till she is gainfully employed or married cannot be said to be wholly without jurisdiction as the power to grant such maintenance is certainly maintenance is certainly referrable to the provisions of Hindu Adoption and Maintenance Act,1956 and the Family Court certainly has the power to grant such maintenance. This court further finds that only a meagre amount has been fixed as maintenance of the younger daughter who was studying in inter. 10

25. In view of the aforesaid facts and circumstances of this case, this Court is not inclined to interfere with the impugned order in revisional jurisdiction. 26. However, it is certainly open to the petitioner to seek modification of the amount of maintenance on account of any subsequent development like employment of his younger daughter or her marriage. 27. This revision is accordingly dismissed. 28. Pending I.A, if any, is closed. Appreciation for Amicus Curiae and Payment: 29. Before parting, this Court observes that vide order dated

09.05.2024, Mrs. Swati Shalini, Advocate was appointed as an amicus in this case by this Court. I record my appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case who could prepare in a short period of time and effectively assist this Court in the matter. The Secretary, Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to her within a period of 4 weeks upon submission of bills by her @ Rs.5500/- per day subject to the cap of maximum permissible amount. 30. Let a copy of this order be communicated to the court concerned and the Secretary, Jharkhand High Court Legal Services Committee. Saurav (Anubha Rawat Choudhary, J.) 11