Rajnish v. Sahil

Judgment

2. Sahil son of Sh. Rajnish, r/o H No. 807, Sector 22, Housing Board Colony, Faridabad. Kumari Ritika minor d/o Rajnish son of Sh. Madan Gopal, minor through his natural guardian and brother Sahil son of Sh. Rajnish, r/o H No. 807, Sector 22, Housing Board Colony, Faridabad. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER ...Respondents Present: Mr. Harsh Garg, Advocate, for the revision-petitioner. Ms. Anjali Kukar, Advocate, for the respondents. SHAM SUNDER, J. * * * * This revision-petition is directed against the order dated

24.10.09, rendered by the Court of District Judge, Faridabad, vide which, it granted maintenance allowance, to Kumari Ritika, at the relevant time major daughter Rajnish, respondent (now revision-petitioner). Criminal Revision No. 3204 of 2009 2

2. The revision-petitioner, was married, to Kiran. From this wedlock, Sahil, a son, and Kumari Ritika, were born. It was stated that the behaviour of the revision-petitioner, towards Kiran, was rude, right from the very beginning. It was further stated that he executed a registered gift deed of house No. 807, Sector 22, Housing Board Colony, Faridabad, on 25.08.03, without disclosing, in whose favour, the same was executed. It was further stated that the revision-petitioner, has been living separately from Kumari Ritika, his daughter, and her mother since long. It was further stated that he neglected and refused to maintain Kumari Ritika. It was further stated that he was having illicit relations with some other lady. It was further stated that, even without seeking divorce, from their mother, he initiated to perform marriage through dot com computer by making a profile. It was further stated that, the revision-petitioner, used to beat Kiran, his wife and treat her with cruelty. It was further stated that Kumari Ritika, was having no source of livelihood. It was further stated that the revision-petitioner, is an employee of the Union Bank of India, Chakkarpur Branch, Gurgaon, and getting a salary of Rs. 25,000/- – Rs. 30,000/- per month, but, he failed to maintain Kumari Ritika, his daughter, though major. It was further stated that Kumari Ritika, was studying and she was unable to meet the expenses of her studies. Accordingly, an application, under Section 125 Cr.P.C., seeking maintenance, to the tune of Rs. 15,000/- per month, besides litigation expenses, to the tune of Rs. 11,000/-, was filed.

3. The respondent (now revision-petitioner), filed written Criminal Revision No. 3204 of 2009 3 statement, wherein, he admitted the marriage between him and Kiran. It was stated that his wife was also working, in Union Bank of India, at Delhi. It was further stated that Sahil and Kumari Ritika, were residing with their mother. It was further stated that the house, in which, they were residing belonged to him. It was further stated that the petitioners, were having rental income and had sufficient source of livelihood. It was admitted that the respondent (now revision-petitioner), was working, in Union Bank of India, Gurgaon, and was getting meager salary. The remaining averments, were denied, being wrong.

4. After hearing the Counsel for the parties, and, on going through the evidence, on record, the Court below, awarded 5,000/- per month, as maintenance, to Kumari Ritika.

5. Feeling aggrieved, the instant revision-petition, has been filed, by the revision-petitioner.

I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

7. The Counsel for the revision-petitioner, submitted that Kumari Ritika, admittedly was major, at the time of passing the order impugned. He further submitted that a major unmarried daughter (whatever the religion), is not entitled to maintenance from her parents from the date of attaining majority until and unless, the pre-conditions, laid down, in Section 125(1)(c) Cr.P.C., are fulfilled. He further submitted that Kumari Ritika, could, however, claim maintenance, if she was unable to maintain herself, due to physical or mental abnormality or injury. He further submitted that, in the petition, the Criminal Revision No. 3204 of 2009 4 said grounds, were neither pleaded, nor the same, were proved, during the course of evidence. He further submitted that, under these circumstances, the Court below, without going through the relevant provisions of Section 125 (1) (c) Cr.P.C., illegally granted maintenance allowance to Kumari Ritika, from the date, she attained majority. He also placed reliance on Rama Chandra Sahu Vs. Tapaswini Sahu and another, 2007, Crl. L.J., 2241, and, Kum. L. Usharani and others Vs. D.S. Lakshmaiah, 1993, Crl. L.J, 982 , in support of his contention.

8. On the other hand, the Counsel for the respondents, submitted that, a major unmarried daughter, who is unable to maintain herself, because of unemployment or being a student, could not be denied maintenance, by her father, on the ground, that the reason to maintain herself was not related to physical or mental abnormality. She further submitted that when an unmarried daughter is unable to earn and maintain herself, that by itself can be construed as physical or mental abnormality or injury. She further submitted that the Court below, was, thus, right in holding, that it was the duty of the father of Kumari Ritika, major unmarried daughter, to maintain her and to pay the expenses of her education. She further submitted that the order impugned, passed by the Court below, being legal and valid, is liable to be upheld. She also placed reliance, on Jagdish Jugtawat Vs. Manju Lata and others, 2003(3), RCR (Criminal), 471 (SC), Satish Kumar Vs. State of Punjab, 2005(1), RCR (Criminal), 256, and, Shyam Sunder Malik Vs. Ms. Geetika Malik and another, 2006(3), RCR (Criminal), 439 (Delhi), in support of her contention. Criminal Revision No. 3204 of 2009 5

9. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be accepted, in the manner, depicted, hereinafter. The Legislature, in its wisdom, chose to employ expressions and terminology, in the Code of Criminal Procedure, 1973, after taking into consideration, the working of Section 488 Cr.P.C., incorporated in the earlier Code of Criminal Procedure, 1898. Section 125 Cr.P.C., is a piece of secular law, applicable to all persons, in India, whatever be their religious faith. Chapter IX of the Cr.P.C., though, it appears, in the Procedural Code, confers substantive rights and provides a machinery for enforcement of such rights. To maintain one's own wife/child/parent etc., may have been the duty, under the personal law or purely under the norms of morality of the Society earlier. But, under Section 125, it is made the legal duty of all Indians. It is a futile exercise to look for authority under the personal law for the statutory stipulations in Chapter IX. Whatever be the basis or the rationale, which prompted the Parliament, to impose such a duty on the parent/husband/children to maintain their children/wife/parents, it remains that Chapter IX creates such statutory liability, and seeks to enforce the same, through the criminal adjudicatory process. It is true that Courts have on some occasions, unnecessarily perhaps, looked up to the personal law to discover/invent the basis or rationale of the provisions of Chapter IX. But whether such rationale basis exists or not, it is very evident that Section 125 Cr.P.C, obliges every person, to maintain the persons, specified in Clauses (a) to (d) of Section 125(1). Criminal Revision No. 3204 of 2009 6 Parliament's competence to impose such a duty on all is beyond controversy. The Court, while interpreting the provisions of a Statute, is not required to construe the same, in the manner, it wants. While interpreting a particular provision of the Statute, the Court, is not to strain the same, so as to deflect from the normal interpretation.

10. In the instant case, we are concerned with Clauses (b) and (c) of sub-section (1) of Section 125 Cr.P.C. The same deal with the obligation of every person to maintain children. Minor children are covered within the sweep of Clause (b), whereas, the major children, are covered, within the sweep of Clause (c). All minors are entitled to look up to their parents, to provide maintenance to them. Whether such minor children are married or not, the obligation of the parents, continues. Clause (b), therefore, applies only to minor children, and they are entitled for payment of maintenance, if the other pre- conditions are satisfied.

11. The right to claim maintenance, from their parents, is not confined only to minor children. Even children, who have already attained majority are entitled to be maintained, by their parents. Their case is covered by Clause (c). Two fundamental pre-conditions, are to be satisfied, if such a child, who has attained majority, was to claim maintenance, from his/her parents. These pre-conditions are as under:- (i) Such child should not be a married daughter. The Legislature advisedly appears to have excluded married major daughter from the sweep of Section 125 (c) as she is entitled to claim maintenance from her husband under Section 125(1) (a). Criminal Revision No. 3204 of 2009 7 (ii) Such child must be one unable to maintain himself/herself “by reason of any physical or mental abnormality or injury.” In respect of such children suffering from such physical or mental abnormality the parents are made liable to maintain them even beyond the period of minority. This is obviously because they are unable to maintain themselves and cannot be expected to do so on account of their physical or mental infirmity. Vagrancy has to be prevented and the charge of looking after them must be assigned to some one and, undoubtedly, their parents having sufficient means are the best persons who must be obliged to shoulder that responsibility.

12. In the instant case, as stated above, Kumari Ritika, is admittedly a major unmarried daughter. It is to be seen, as to whether, she was unable to maintain herself “by reason of any physical or mental abnormality or injury”. This is the crucial question, that requires determination, in this revision-petition. There is nothing, in the petition of Kumari Ritika (now respondent), in this regard, and, no evidence, was produced by her, to establish, that she suffered from any physical or mental abnormality or injury, incapacitating her to maintain herself. In the absence of any averment, in this regard, in the petition, and any evidence having been led, to that effect, the Court below, could not coin of its own, any explanation, to come to the conclusion, that Kumari Ritika, major unmarried daughter, was entitled to maintenance.

13. Even hard cases, cannot lay down bad law, and the Court, has to be very conscious of that. The language of Section 125, in my considered opinion, does not at all permit a construction, that the status Criminal Revision No. 3204 of 2009 8 of a major daughter, as an unmarried person, can by itself, be construed as “physical or mental abnormality or injury” sufficient to bring her case within the sweep of Section 125(1)(c). Whatever be the religion of the parties, the language of the Statute, does not permit an unmarried major daughter, to be brought within the purview of Section 125(1)(c) on the sole reason/ground of her being an unmarried daughter. She has to prove further that she is unable to maintain herself and such inability to maintain herself, is attributable to physical or mental abnormality or injury, if any, which she is afflicted with. If the intention of the Parliament were to grant maintenance to a major unmarried daughter, solely on the ground of her unmarried status, nothing prevented it from making an express provision imposing liability, on the parents, to provide maintenance to her till she was married without any pre- condition. The disability, if that be one, of remaining unmarried alone – was definitely not reckoned, by the Parliament, as sufficient to entitle her to claim maintenance under Section 125(1)(c) Cr.P.C. That evidently is the reason why the Parliament, which must be presumed to have been conscious of the rights of the unmarried daughters, under the Hindu and Mohammedan personal law (statutory and customary) to claim maintenance, from their parents, till they are married, did not chose to confer such right on them under Section 125(1)(c) Cr.P.C. Under these circumstances, the Court below, illegally granted maintenance allowance, to the unmarried major daughter of the revision-petitioner, in transgression of the provisions of Section 125(1) (c) Cr.P.C. Criminal Revision No. 3204 of 2009 9

14. No doubt, reliance was placed, by the Counsel for the respondents, on Jagdish Jugtawat's case (supra), decided by the Apex Court. Para 3 of the said judgement reads as under:- “A similar question came up for consideration by this Court in the case of Noor Saba Khatoon Vs. Mohd. Quasim, AIR, 1997, SC, 3280, relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and the 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.”

15. A judicial precedent is authority only for the principle, which it declares and applies to the facts before it. Of course, even the obiter of the Apex Court is binding on all Courts of the land. But precedents are not to be read, reckoned and understood as the statutory provisions are read, reckoned and understood. The Apex Court, in Noor Saba Khatoon's case (supra), on which, reliance was placed, in Jagdish Jugtawat's case (supra), was not called upon to consider, whether a Muslim daughter who had attained the age of majority, was still entitled to claim maintenance, from her father, under Section 125 Cr.P.C. That question was not decided by the Apex Court. The Apex Court, was dealing with the claims of three minor children. The dictum in the said decision, is only that the claims of children under Section 125 Cr.P.C. are unaffected by the provisions of the Muslim Women Criminal Revision No. 3204 of 2009 10 (Protection of Rights on Divorce) Act. The aforesaid decision was an authority only for the proposition, that rights, under Section 125 Cr.P.C., were not affected. It did not lay down or declare what the rights under Section 125 were. It, thus, would be improper and unreasonable to construe the observations in Noor Sabha's case (supra), as expanding the right to maintenance under Section 125 Cr.P.C., to all major unmarried daughters, or to all major Muslim unmarried daughters. In Satish Kumar's case (supra), no doubt, a single Bench of this Court, held that, when an unmarried daughter is unable to earn and maintain herself, that by itself, is physical or mental abnormality or injury. With due respect, this interpretation, is not in consonance with the provisions of Section 125(1)(c) Cr.P.C. Had it been the intention of the Parliament, it would have certainly incorporated, under Section 125(1)(c) Cr.P.C., that all unmarried daughters, who are unable to maintain themselves, for whatever the reasons, may be, would be entitled to maintenance from her father. In that event, Section 125(1)(c) Cr.P.C., would not have qualified Clause (c) by the word “by reason of any physical or mental abnormality or injury.” In Shyam Sunder Malik's case (supra), the question, with regard to the interpretation of the provisions of Section 125(1)(c) Cr.P.C., did not fall for consideration. It was, under these circumstances, that a single Bench of the Delhi High Court, held that, daughters living with mother were entitled to maintenance from their father, even if, the mother was earning hand. The facts of Jagdish Jugtawat's, Satish Kumar's, and, Shyam Sunder Malik's cases Criminal Revision No. 3204 of 2009 11 (supra), being clearly distinguishable from the facts of the instant case, no help, can be drawn, by the Counsel for the respondents, therefrom. The submission of the Counsel for the respondents, in this regard, being without merit, must fail, and the same stands rejected.

16. For the reasons recorded above, the revision-petition, is accepted, in the manner, that Kumari Ritika, an unmarried major daughter, would not be entitled to maintenance, under Section 125(1)(c) Cr.P.C., from the date of attaining majority. The order dated

24.10.09, rendered by the Court of District Judge (Family Court), Faridabad, is set aside, in the manner, indicated above.

17. The Registry shall comply forthwith.

09.03.2010 Amodh (SHAM SUNDER) JUDGE