# Awadesh Singh Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 1317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-02
- **Case number:** Criminal Revision No. 83 of 2024
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadesh-singh-revisionist-v-state-of-u-p-ors-52295
- **Pages:** 18

## Headnote

Law
-Criminal
Procedure
Code,1973 - Section 125 - The Hindu
Adoption and Maintenance Act, 1956 -
Sections 18, 20,23 & 24 - Family Courts
Act, 1984 - maintenance awarded under
CrPC under challenge by both the parties-
of
-
whether
the
daughter,
having
attained
majority,
was
entitled
to
maintenance under Section 125 CrPC- an
unmarried daughter is not entitled to
maintenance under Section 125 Cr.P.C.
after attaining majority unless she is
unable to maintain herself due to physical
or mental abnormality- Family Court's
order
granting
maintenance-upheld-
Family Court has jurisdiction under both
Section 125 Cr.P.C. and Section 20 of the
Hindu Adoptions and Maintenance Act,
1956- which allows maintenance for an
unmarried daughter until marriage- both
revisions dismissed- future modification
under Section 127 Cr.P.C.-in case of
change of circumstances. (Paras 27, 29,
30, 34, 38, 39, 40, 44, 45, 46, 50 and 51)

HELD:
The first of the definition is general, applicable
to one and all. According to this definition the
provision for the five necessary wants is
maintenance. These wants are food, clothing,
residence, education, and medical attendance
and treatment. This is a healthy concept of
maintenance. The satisfaction of these wants is
the minimum necessity of civilized homo
sapiens, so that a man may not live, in the
words of B. Mukherjee, J., "the life of a dog"
(Kiran Bala Vs Bankim Chandra, AIR 1967 Cal
603, 605). (para 30)

Section
20(3)
of
Hindu
Adoptions
and
Maintenance
Act,
1956
is
nothing
but
recognition of principles of Hindu Law regarding
maintenance of children and aged parents.
Section 20(3) now 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. (Para
34)

Section 488 Cr.P.C. (old) Section 125 (new)
sought to inhibit negligence of woman and
children with intent to serve a social purpose.
The provision provided for summary proceeding
to enable a deserted wife or helpless child,
legitimate or illegitimate, to get urgent relief.
The
laws
are
nothing
but
collective
consciousness of community. It is in the interest
of the community and social order that woman
and child who are neglected be maintained and
should be provided a forum to obtain urgent
relief to enable them to sustain. (Para 38)

In Nanak Chand's case the question arose as to
whether by virtue of Section 4 of Act, 1956, the
provision of Section 488 Cr.P.C. shall be
overridden. In the above case Supreme Court
explained the provisions of Section 488 Cr.P.C.
as well as Section 20 of the Act, 1956. Supreme
Court held that there is no inconsistency
between Section 488 Cr.P.C. and the Hindu
Adoptions and Maintenance Act and both can
stand together. Supreme Court further held that
Section 488 Cr.P.C. provides a summary remedy
and is applicable to all persons belonging to all
religions and has no relationship with the
personal law of the parties. (Para 40)

After enactment of Family Courts Act, 1984, a
Family Court shall also have the jurisdiction
exercisable by a Magistrate of the First Class
under Chapter IX of Cr.P.C. relating to order for
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance of wife, children and parents.
Family Courts shall have the jurisdiction only
with respect to city or town whose population
exceeds one million, where there is no Family
Courts, proceedings under Section 125 Cr.P.C.
shall have to be before the Magistrate of the
First Class. In an area where the Family Court is
not established, a suit or proceedings for
maintenance including the proceedings under
Section 20 of the Act, 1956 shall only be before
the District Court or any subordinate Civil Court.
(Para 45)

There may be a case where the Family Court
has jurisdiction to decide a case under Section
125 Cr.P.C. as well as the suit under Section 20
of Act, 1956, in such eventuality, Family Court
can exercise jurisdiction under both the Acts and
i

## Text

_Characters 0–39,866 of 58,483. This is a partial read: ask again with offset=39866 for what follows._

8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1317
(2024) 8 ILRA 1317
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Revision No. 83 of 2024
With
Criminal Revision No. 5926 of 2023

Awadesh Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Varun Srivastava, Sri Vishnu Bihari Tewari

Counsel for the Opposite Parties:
Sri Ashwani Kumar Yadav, G.A.

Criminal
Law
-Criminal
Procedure
Code,1973 - Section 125 - The Hindu
Adoption and Maintenance Act, 1956 -
Sections 18, 20,23 & 24 - Family Courts
Act, 1984 - maintenance awarded under
CrPC under challenge by both the parties-
of
-
whether
the
daughter,
having
attained
majority,
was
entitled
to
maintenance under Section 125 CrPC- an
unmarried daughter is not entitled to
maintenance under Section 125 Cr.P.C.
after attaining majority unless she is
unable to maintain herself due to physical
or mental abnormality- Family Court's
order
granting
maintenance-upheld-
Family Court has jurisdiction under both
Section 125 Cr.P.C. and Section 20 of the
Hindu Adoptions and Maintenance Act,
1956- which allows maintenance for an
unmarried daughter until marriage- both
revisions dismissed- future modification
under Section 127 Cr.P.C.-in case of
change of circumstances. (Paras 27, 29,
30, 34, 38, 39, 40, 44, 45, 46, 50 and 51)

HELD:
The first of the definition is general, applicable
to one and all. According to this definition the
provision for the five necessary wants is
maintenance. These wants are food, clothing,
residence, education, and medical attendance
and treatment. This is a healthy concept of
maintenance. The satisfaction of these wants is
the minimum necessity of civilized homo
sapiens, so that a man may not live, in the
words of B. Mukherjee, J., "the life of a dog"
(Kiran Bala Vs Bankim Chandra, AIR 1967 Cal
603, 605). (para 30)

Section
20(3)
of
Hindu
Adoptions
and
Maintenance
Act,
1956
is
nothing
but
recognition of principles of Hindu Law regarding
maintenance of children and aged parents.
Section 20(3) now 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. (Para
34)

Section 488 Cr.P.C. (old) Section 125 (new)
sought to inhibit negligence of woman and
children with intent to serve a social purpose.
The provision provided for summary proceeding
to enable a deserted wife or helpless child,
legitimate or illegitimate, to get urgent relief.
The
laws
are
nothing
but
collective
consciousness of community. It is in the interest
of the community and social order that woman
and child who are neglected be maintained and
should be provided a forum to obtain urgent
relief to enable them to sustain. (Para 38)

In Nanak Chand's case the question arose as to
whether by virtue of Section 4 of Act, 1956, the
provision of Section 488 Cr.P.C. shall be
overridden. In the above case Supreme Court
explained the provisions of Section 488 Cr.P.C.
as well as Section 20 of the Act, 1956. Supreme
Court held that there is no inconsistency
between Section 488 Cr.P.C. and the Hindu
Adoptions and Maintenance Act and both can
stand together. Supreme Court further held that
Section 488 Cr.P.C. provides a summary remedy
and is applicable to all persons belonging to all
religions and has no relationship with the
personal law of the parties. (Para 40)

After enactment of Family Courts Act, 1984, a
Family Court shall also have the jurisdiction
exercisable by a Magistrate of the First Class
under Chapter IX of Cr.P.C. relating to order for
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance of wife, children and parents.
Family Courts shall have the jurisdiction only
with respect to city or town whose population
exceeds one million, where there is no Family
Courts, proceedings under Section 125 Cr.P.C.
shall have to be before the Magistrate of the
First Class. In an area where the Family Court is
not established, a suit or proceedings for
maintenance including the proceedings under
Section 20 of the Act, 1956 shall only be before
the District Court or any subordinate Civil Court.
(Para 45)

There may be a case where the Family Court
has jurisdiction to decide a case under Section
125 Cr.P.C. as well as the suit under Section 20
of Act, 1956, 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.(Para 46)

In the present case, the order impugned has
been passed by the family court exercising
jurisdiction under Family Courts Act, 1984. The
family court has jurisdiction for trying cases
both under Section 125 Cr.P.C. as well as under
Section 20 of the Act of 1956. (Para 50)

In case of Abhilasha Vs Parkash (supra), the
Supreme Court has held that an unmarried
daughter has right of maintenance under
Section 125 Cr.P.C. till she attains majority or is
covered by the exception as carved out in the
Section
125
Cr.P.C.
The
Supreme
Court,
however, declined to interfere with the order
impugned before the Supreme Court for the
reason that the proceedings were in the
aforesaid case before Judicial Magistrate First
Class and not before family court. The Judicial
Magistrate First Class has no jurisdiction to
entertain an application under Section 20 of
the Act of 1956. The Supreme Court also
granted liberty to the appellants before the
Supreme Court to take recourse Sub-clause
(3) of Section 20 of the Act of 1956, if so
advised, for claiming any maintenance against
her father. (Para 51)

Both Revision Applications dismissed. (E14)
List of Cases cited:

1. Rajnish Vs Neha & ors.in Criminal Appeal No.
703 of 2020 (arising out of SLP(Crl) No. 950 of
2018) decided on 04.11.2020 and also repored
in MANU/SC/0833/2020

2. Dharmarajan Vs Narayanan, (2001) 1 HLR
126 (Ker)

3. In re, AIR 1941 FC 72: 1941 FCR 72

4. Kiran Bala Vs Bankim Chandra, AIR 1967 Cal
603, 605

5. Arunachala Vs Anandayammal (AIR 1933 Mad
688: (1933) 56 Mad 913: 34 Cri LJ 950)

6. St. of Haryana & ors.Vs Santra (Smt.), (2000)
5 SCC 182:(AIR 2000 SC 1888)

7. Nanank Chand Vs Chandra Kishore Aggarwal
& ors., (1969) 3 SCC 802

8. Yamunabai Anantrao Adhav Vs Anantrao
Shivram Adhav & anr., (1988) 1 SCC 530

9. Kirtikant D. Vadodaria Vs St. of Guj. & anr.,
(1996) 4 SCC 479

10. Kiran Bala Saha plaintiff Vs Bankim Chandra
Saha defendant reported in AIR 1967 Calcutta
603 (V 54 C 128)

11. Jagdish Jugtawat Vs Manju Lata &
ors.reported in (2002) 5 SCC 422

12. Abhilasha Vs Parkash & ors.reported in 2020
CrLJ 4770 SC

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Criminal Revision No. 83 of
2024 has been filed by husband/revisionist
against the judgment and order dated
26.09.2023 passed by Principle Judge,
Family Court, Hathras in Case No. 656 of
2009
(Smt.
Urmila
and
another
v.
Awadhesh Singh) in proceedings under
Section 125 Cr.P.C. granting maintenance
8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1319
of Rs. 25,000/- per month to the wife Smt.
Urmila and Rs. 20,000/- per month to the
daughter Km. Gauri Nandini from the date
of order

2. Criminal Revision No. 5926 of
2023 has been filed by the wife and
daughter against the judgment and order
dated 26.09.2023 passed by Principle
Judge, Family Court, Hathras in Case No.
656 of 2009 (Smt. Urmila and another v.
Awadhesh Singh) in proceedings under
Section 125 Cr.P.C. initiated by the wife
and daughter for enhancement of the
maintenance as awarded by the order dated
16.09.2023.

3. Since both the revisions are
against the same order, they are being
decided together.

4. Heard Sri Vishnu Bihari Tewari,
learned counsel for the revisionist in
Criminal Revision No. 83 of 2024 and for
the opposite party in Criminal Revision No.
5926 of 2023 and Sri Ashwani Kumar
Yadav, learned counsel for the opposite
party in Criminal Revision No. 83 of 2024
and for the revisionist in Criminal Revision
No. 5926 of 2023.

5. Brief facts of the case are that an
application under Section 125 Cr.P.C. was
filed by Smt. Urmila and Km. Gauri
Nandini aged about 4 years under the
guardianship of her mother Smt. Urmila
against
Awdhesh
Kumar
Singh
for
maintenance on 05.10.2009. As per the
aforesaid application, Smt. Urmila was
married to Awdhesh Kumar Singh on
26.01.1992 as per the Hindu Rites. After
marriage, Smt. Urmila was treated badly by
her husband and in-laws. After one and a
half year of the marriage, husband
Awdhesh Kumar Singh filed a divorce
petition being Case No. 381 of 1993 under
Section 13 of Hindu Marriage Act. Couple
was blessed with one daughter namely Km.
Gauri Nandani - applicant No.2 in the
original application. It was further alleged
that Smt. Urmila and her daughter were ill
treated by the husband and his family
members and ultimately she was thrown
out of her matrimonial home along with her
daughter on 09.02.2009. It was also alleged
that the husband Awdhesh Kumar Singh
was a permanent lecturer in D.A.V. Degree
College, Kanpur and was earning about Rs.
81,000/- per month at the time of making
the application. The applicant - wife had no
means to maintain herself and her daughter
and therefore, a prayer was made to award
maintenance from the date of being turned
out from the matrimonial home to the tune
of Rs. 35,000/- per month. This application
was filed on 05.10.2009.

6. The application was contested
by the husband by filing the written
statement denying the averments made in
the application except for the birth of
daughter and that the husband was
employed as lecturer in D.A.V. Degree
College, Kanpur. It was stated in the
objections that the wife and his family
members used to pressurize the husband to
live separately from his parents and wife
treated the husband with cruelty and
therefore, an application for divorce was
filed by the husband. Allegations of cruelty
were denied and it was also stated that the
applicant is M.A. passed and was taking
tutions and earning about Rs. 8,000/- per
month. It was also stated that the applicant
had
left
the
matrimonial
home
on
10.01.2010 and she had taken all the
jewellery along with her. It had also been
stated in the objections that the husband
had taken a policy of Rs. 4,00,000/- in the
name of his daughter and the premium of
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs. 18748/- was being paid by the father.
After deduction of tax and G.P.F. carry
home salary of the husband was Rs.
56,000/- per month. The objections were
filed
by
the
husband/revisionist
on
09.07.2010.

7. The application under Section
125 Cr.P.C. was allowed by the Judicial
Magistrate, Court No. 3, Hathras by its
judgment and order dated 31.01.2013
awarding maintenance of Rs. 20,000/- per
month to the wife and Rs. 10,000/- to the
daughter.
Against
the
order
dated
31.01.2013, two revisions were were filed,
one by the husband and other was by the
wife. Both the revisions were allowed by
the order dated 09.10.2013 passed by
Additional Session Judge, Court No. 2,
Hathras and order dated 31.01.2013 was
set-aside and the matter was remanded for
rehearing after providing opportunity of
hearing to both the sides. The order dated
09.10.2013, was challenged by the wife and
daughter Smt. Urmila and Km. Nandani
before this Court in Criminal Misc. Writ
Petition No. 25465 of 2013 (Smt. Urmila
and another v. Awdhesh Kumar Singh).
The writ petition so filed by Smt. Urmila
was disposed of by this Court by order
dated 17.02.2022 with a direction to the
parties to appear before the trial court in
compliance of order dated 09.10.2013 and
trial court was directed to decide the matter
expeditiously as early as possible in
accordance with law without granting
unnecessary adjournment to either of the
parties preferably within a period of six
months. It was also directed by the writ
court that till final decision of the
application, the respondent husband should
pay month to month maintenance amount
pursuant to the order passed by the trial
court i.e. Rs. 30,000/- per month as had
been ordered by this Court vide interim
order dated 20.12.2013. It was also directed
by this Court that the amount already paid
by the respondent husband would also be
adjusted in the final payment of the
maintenance.

8. During pendency of application,
an amendment was sought by the wife that
maintenance amount be increased to Rs.
70,000/- for herself and Rs. 30,000/- for the
daughter.

9. The application under Section
125 Cr.P.C. was allowed by the Principle
Judge, Family Court, Hathras awarding Rs.
25,000/- per month to the wife and Rs.
20,000/- to the daughter as maintenance
from the date of order, hence, the present
revision.

10. Criminal Revision No. 5926 of
2023 has been filed by the wife and
daughter
for
enhancement
of
the
maintenance amount.

11. Since the facts and the order
impugned is common in both the Criminal
Revisions, this Court taking the Criminal
Revision No. 83 of 2024 as the leading
case.

12. It has been contended by the
learned counsel for the revisionist, that the
opposite party no. 3 Km. Gauri Nandini
(daughter) was born on 25.06.2005 and had
attained the age of majority on 25.06.2023
before
the
order
impugned
dated
26.09.2023. The court below had erred in
law awarding maintenance to the daughter
who was major on the date of order and
was not entitled to maintenance in view of
the provisions of the Section 125 Cr.P.C.
Learned counsel for the revisionist relied
upon the judgment of the Apex Court in
case of Abhilasha v. Parkash and others
8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1321
reported in 2020 CrLJ 4770 SC wherein the
Supreme Court has held that unmarried
daughter who has attained majority and is
not suffering any mental or physical
abnormality, is not entitled to claim
maintenance under Section 125 Cr.P.C.

13. Learned counsel for the
revisionist has also contended that as both
the parties has not filed affidavit disclosing
their assets and liability, the objective
assessment of approximate amount to be
awarded towards maintenance, is not
possible and the amount awarded towards
maintenance is excessive. In this regard,
learned counsel for the revisionist has also
relied upon the judgment and order passed
by Supreme Court in Case of Rajnish v.
Neha and others in Criminal Appeal No.
703 of 2020 (arising out of SLP(Crl) No.
950 of 2018) decided on 04.11.2020 and
also repored in MANU/SC/0833/2020.

14. Before proceeding with the
matter, it would be appropriate to look into
the provisions of Section 125 Cr.P.C. as
under:

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

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

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

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

 A Magistrate of the first class may,
upon proof of such neglect or refusal, order
such person to make a monthly allowance for
the maintenance of his wife or such child,
father or mother, at such monthly rate as
such Magistrate thinks fit, and to pay the
same to such person as the Magistrate may
from time to time direct;

 Provided that the Magistrate may
order the father of a minor female child
referred to in clause (b) to make such
allowance, until she attains her majority, if
the Magistrate is satisfied that the husband of
such minor female child, if married, is not
possessed of sufficient means.

 Provided
further
that
the
Magistrate may, during the pendency of the
proceeding regarding monthly allowance for
the maintenance under this Sub-Section,
order such person to make a monthly
allowance for the interim maintenance of his
wife or such child, father or mother, and the
expenses of such proceeding which the
Magistrate considers reasonable, and to pay
the same to such person as the Magistrate
may from time to time direct;
 Provided also that an application
for the monthly allowance for the interim
maintenance and expenses of proceeding
under the second proviso shall, as far as
possible, be disposed of within sixty days
from the date of the service of notice of the
application to such person.

Explanation.- For the purposes of this
Chapter,-

 (a) "minor" means a person who,
under the provisions of the Indian Majority
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1875 (9 of 1875) is deemed not to have
attained his majority;

 (b) "wife" includes a woman who
has been divorced by, or has obtained a
divorce from, her husband and has not
remarried.

 (2) Any such allowance for the
maintenance or interim maintenance and
expenses of proceeding shall be payable
from the date of the order, or, if so ordered,
from the date of the application for
maintenance or interim maintenance and
expenses of proceeding, as the case may be.

 (3) If any person so ordered fails
without sufficient cause to comply with the
order, any such Magistrate may, for every
breach of the order, issue a warrant for
levying the amount due in the manner
provided for levying fines, and may
sentence such person, for the whole, or any
port of each month's allowance allowance
for the maintenance or the interim
maintenance and expenses of proceeding,
as the case may be remaining unpaid after
the
execution
of
the
warrant,
to
imprisonment for a term which may extend
to one month or until payment if sooner
made;

 Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be
made to the Court to levy such amount
within a period of one year from the date
on which it became due;

 Provided further that if such
person offers to maintain his wife on
condition of her living with him, and she
refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her,
and may make an order under this section
notwithstanding such offer, if he is satisfied
that there is just ground for so doing.

 Explanation.- If a husband has
contracted marriage with another woman or
keeps a mistress, it shall be considered to be
just ground for his wife's refusal to live with
him.

 (4) No wife shall be entitled to
receive an allowance for the maintenance or
the interim maintenance and expenses of
proceeding, as the case may be from her
husband under this section if she is living in
adultery, or if, without any sufficient reason,
she refuses to live with her, husband, or if
they are living separately by mutual consent.

 (5) On proof that any wife in whose
favour an order has been made under this section is
living in adultery, or that without sufficient reason
she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order."

15. There is no dispute that the
opposite party no. 3 daughter was born on
25.06.2005 and has attained majority on
25.06.2023. The order impugned has been
passed on 26.09.2023 awarding maintenance
of Rs. 20,000/- from the date of order to the
opposite party no. 3. Date of birth of opposite
party no. 3 has not been denied by the
opposite parties and from the perusal of the
application under Section 125 Cr.P.C. filed
by the opposite parties on 05.10.2009, it is
apparent that opposite party no. 3 has been
alleged to aged about four years on
05.10.2009 which confirms the date of birth
of the opposite party no. 3 and the fact that
prior to passing of the order impugned, the
opposite party no. 3 has attained majority.

16. Per contra, learned counsel
appearing for the opposite party wife and
8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1323
daughter contended that the trial court has
rightly
passed
the
order
awarding
maintenance to the wife and daughter. It
has been further contended that this Court
should not interfere in the order passed by
the court below even if it comes to the
conclusion that in proceedings under
Section 125 Cr.P.C., the court below could
not have awarded maintenance to the
daughter after she attained majority as the
daughter is entitled for maintenance till she
is married in view of the provisions
contained in Section 20 of the Hindu
Adoption and Maintenance Act, 1956
(herein after referred to as the Act of 1956).
No exception should be taken to the
judgment and order passed by the court
below on combined reading of provisions
of Section 125 Cr.P.C. and Sub clause (3)
of Section 20 the Act of 1956. It is further
contended since daughter is entitled for
maintenance under the Act of 1956, no
useful purpose would be served in setting
aside the order passed by the court below
and relegating the daughter to move an
application under the provisions of Section
20 and Sub-clause (3) of Act of 1956 for
the same relief which have already been
granted in the proceedings under Section
125 Cr.P.C.

17. Learned counsel for the
respondent
next
contended
that
the
maintenance awarded by the court below
was
on
lower
side
as
the
revisionist/husband is employed as a
permanent teacher in a degree college. It
has been further contended that the court
below
erred
in
law
in
awarding
maintenance from the date of order and it
ought to have awarded maintenance from
the date of application. Maintenance
awarded to the wife and daughter be
enhanced considering the income of the
revisionist/husband.
18. Before considering the rival
submissions of the parties, it will be useful
to note the provisions of Act of 1956
regarding
maintenance
of
wife
and
daughter.

19. Section 18 of the Act of 1956
contemplates maintenance of wife which is
quoted as under:

 18.Maintenance of wife.- (1)
Subject to the provisions of this section, a
Hindu wife, whether married before or after
the commencement of this Act, shall be
entitled to be maintained by her husband
during her lifetime.

 (2) A Hindu wife shall be entitled
to live separately from her husband without
forfeiting her claim to maintenance-

 (a) if he is guilty of desertion, that
is to say, of abandoning her without
reasonable cause and without her consent
or against her wish, or of willfully
neglecting her;
 (b) If he has treated her with such
cruelty
as
to
cause
a
reasonable
apprehension in her mind that it will be
harmful or injurious to live with her
husband;

 (c) if he is suffering from a
virulent form of leprosy;

 (d) if he has any other wife
living;

 (e) if he keeps a concubine in the
same house in which his wife is living or
habitually
resides
with
a
concubine
elsewhere;

 (f) if he has ceased to be a Hindu
by conversion to another religion;
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
 (g) if there is any other cause
justifying her living separately.

 (3) A Hindu wife shall not be
entitled
to
separate
residence
and
maintenance from her husband if she is
unchaste or ceases to be a Hindu by
conversion to another religion.

20. Section 20 of the Act of 1956
contemplates maintenance of children and
aged parents and the same is quoted as
under:

 20. Maintenance of children
and aged parents.- (1) Subject to the
provisions of this section a Hindu is bound,
during his or her lifetime, to maintain his or
her legitimate or illegitimate children and
his or her aged or infirm parents.

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

 (3) The obligation of a person to
maintain his or her aged or infirm parent or
a daughter who is unmarried extends in so
far as the parent or the unmarried daughter,
as the case may be, is unable to maintain
himself or herself out of his own earning or
other property.

21. Section 23 of the Act of 1956
provides for amount of maintenance and
the same is quoted as under:

 23. Amount of maintenance.- (1)
It shall be in the discretion of the court to
determine whether any, and if so what,
maintenance shall be awarded under the
provisions of this Act, and in doing so the
court
shall
have
due
regard
to
the
considerations set out in sub-section (2) or
sub-section (3), as the case may be, so far as
they are applicable.

 (2) In determining the amount of
maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this
Act, regard shall be had to-

 (a) the position and status of the
parties;

 (b) the reasonable wants of the
claimant;

 (c) if the claimant is living
separately, whether the claimant is justified in
doing so;

 (d) the value of the claimant's
property and any income derived from such
property, or from the claimant's own earning
or from any other source;

 (e) the number of persons entitled
to maintenance under this Act.

 (3) In determining the amount of
maintenance, if any, to be awarded to a
dependent under this Act, regard shall be had to-

 (a) the net value of the estate of the
deceased after providing for the payment of his debts;

 (b) the provision, if any, made
under a Will of the deceased in respect of the
dependent;

 (c) the degree of relationship
between the two;

 (d) the reasonable wants of the
dependant;

 (e) the pas relations between the
dependant and the deceased;
8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1325
 (f) the value of the property of the
dependent and any income derived from
such property; or from his or her earning or
from any other source;

 (g) the number of dependents
entitled to maintenance under this Act.

22. Section 24 of the Act of 1956
provides that no person is entitled to claim
maintenance if he or she has ceased to be
Hindu by conversion to any other religion.

23. Some persons are unable to
earn their livelihood due to their tender
years, old age, some mental drawback or
some social inhibition. Law imposes in
their interest the obligation of maintaining
them on some other persons. In other
words, these persons are given the right to
obtain maintenance from some other
persons.

24. Every legal system has fixed
an age before attaining which no person is
regarded competent to settle his legal
status. On completing that age he is made
sui juris, legally competent and free to take
decisions about his status. The law takes
upon its own shoulders the responsibility of
safeguarding the interests on the court or an
authority of State to carry out that
responsibility.

25. The duty to maintain the
dependents has been lent the sanction of
religion. The Dayabhaga has quoted Manu:

 "Maintenance of the group of
dependants opens the way to heaven. If this
group is troubled, it leads to hell.
Therefore, efforts should be made to
maintain
it."
भरणं
पोष्यवर्गस्य
प्रशस्तं
स्वर्गसाधनम्। नरकं पीड़ने चास्य तस्मात् यत्नेन
त भरेत्।। Manu in Dayabhaga, II:23. Not
found in the Manusmriti.

26. In Classical Hindu Law prior
to codification, a Hindu male was always
held morally and legally liable to maintain
his aged parents, a virtuous wife and infant
child. Hindu Law always recognised the
liability of father to maintain an unmarried
daughter. In this context, we refer to
paragraph 539 and 543 of Mulla- Hindu
Law- 22nd Edition, which is as follows:

 "539. Personal liability; liability
of father, husband and son- A Hindu is
under a legal obligation to maintain his
wife, his minor sons, his unmarried
daughters, and his aged parents whether he
possesses any property or not. The
obligation to maintain these relations is
personal in character and arises from the
very existence of the relation between the
parties.

27. Under Hindu law the right to
or the obligation of maintenance is founded
on two grounds: relationship and property.
A is entitled to get maintenance from B.

 (a) If A has a particular kind of
relationship with B. On this basis the minor
son and unmarried daughter are entitled to
maintenance from his or her father, aged
parents from their son and the wife from
her husband. It has been put in the mouth
of Manu by the Mitakshara that a man
should maintain his aged parents, chaste
wife and minor son (i.e. child) even by
doing a hundred such deeds which are not
prescribed for him. वृद्धौ च माता पपतरौ साध्वी
भायाग सुतः पशशुः। अप्यकायग शतं कृत्वा भतगव्या
मनृरब्रवीत्।। Quoted by Mit. On Yaj. I: 224.
The word अकायग has been translated as
'misdeeds'. (see Mayne's HINDU LAW
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
AND USAGE, 14th Edn., p. 1153, S. 722)
it is submitted that the translation is not
correct.

 The word अकायग does not mean
misdeed- those action which are wrong or
injurious to others. It means those actions
which are not properly his act according to
the Shastras as a member of a particular
Varna or Ashrama etc. For example, if a
Brahman is unable to make sufficient
means for the support of his family or
parents by the professions of a teacher or
priest (which are prescribed for him as a
Brahman), he can take to agriculture,
business or service etc. (which are not
prescribed for him).

 (b) If B has any such property out
of which A is entitled to get maintenance.
If B is not possessed of that property, he
has no duty to maintain A, although he may
be possessed of immeasurable wealth. In
fact, this is not the right unto B, this is the
right unto the property which is charged
with the maintenance of A and which is at
present owned or managed or controlled by
B. For example, a karta of a joint Hindu
family is bound to maintain all the
members of the joint family because he is
the manager of the joint family property:
He has no obligation to give maintenance
out of his separate or personal property to
those
members
on
the
ground
of
relationship.

28. During the British period, three
Acts were passed which affected directly or
indirectly the right to maintenance of a
female Hindu.

 (1) Hindu Widows' Remarriage
Act, 1856. It provided that all rights and
interests which a widow had in her
husband's property by way of maintenance,
ceased upon her remarriage (Dharmarajan
v. Narayanan, (2001) 1 HLR 126 (Ker).
This Act is repealed by the Hindu Widows'
Remarriage (Repeal) Act, 1983.

 (2) Hindu Women's Rights to
Property Act, 1937. This Act conferred the
right of inheritance upon the widow of a
Hindu, his son's widow and his son's son's
widow. Before that she had only the right
to maintenance from those who inherited
her husband's property, instead of the right
of inheritance from her husband. The Act
did not expressly abolish her right of
maintenance but the effect of giving the
right of inheritance to her was that her right
to maintenance lost its basis. This Act did
not extend to agricultural land (Hindu
Women's Right to Property Act, 1937, In
re, AIR 1941 FC 72: 1941 FCR 72). She
was, therefore, entitled to get maintenance
from those who inherited the agricultural
land from her husband. The Act is now
repealed by the Hindu Succession Act,
1956 (HSA Section 31).

 (3) Hindu Married Women's
Right
to
Separate
Residence
and
Maintenance Act, 1946. This Act gave a
Hindu wife the right to live separately from
her husband and also to get maintenance
from him on certain grounds. The Act now
stands repealed by the Hindu Adoption and
Maintenance Act, 1956 (HAMA Section
29) because the provisions of that Act have
been assimilated in Section 18 of the
HAMA.

29. Sub section (b) of Section 3 of
Act of 1956 defines maintenance which is
as under:

 "(a)....

 (b) "maintenance" includes-
8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1327
 (i) in all cases, provision for food,
clothing, residence, education and medical
attendance and treatment;

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

 (c) ........"

30. The first of the definition is
general,
applicable
to
one
and
all.
According to this definition the provision
for
the
five
necessary
wants
is
maintenance.
These
wants
are
food,
clothing, residence, education, and medical
attendance and treatment. This is a healthy
concept of maintenance. The satisfaction of
these wants is the minimum necessity of
civilized homo sapiens, so that a man may
not live, in the words of B. Mukherjee, J.,
"the life of a dog" (Kiran Bala v. Bankim
Chandra, AIR 1967 Cal 603, 605).

 This definition of maintenance is
more humane than the understanding of
maintenance before it. Earlier provision for
the satisfaction of three wants was
considered sufficient as maintenance. For
example, the Madras High Court has held
in Arunachala v. Anandayammal (AIR
1933 Mad 688: (1933) 56 Mad 913: 34 Cri
LJ 950), that maintenance includes nothing
more than appropriate food, clothing and
lodging.

31. The inclusion of provision for
education and medical assistance and
treatment by Act of 1956 in definition of
maintenance has definitely enlarged the
concept of maintenance of other laws,
personal and local, e.g. Section 125 Cr.P.C.

32. The second part of the
definition of maintenance applies only to
the case of an unmarried daughter. In
addition to the provision for the necessary
wants
as
mentioned
above,
her
maintenance
includes
the
reasonable
expenses of and incident to her marriage.

33. Muslim Law also recognises
the obligation of father to maintain his
daughters until they are married. Referring
to Mulla's Principle of Mohammedan Law,
Supreme Court in State of Haryana and
Others Vs. Santra (Smt.), (2000) 5 SCC
182:(AIR 2000 SC 1888) in paragraph 40
held:-

 "40.
Similarly,
under
the
Mohammedan Law, a father is bound to
maintain his sons until they have attained
the age of puberty. He is also bound to
maintain his daughters until they are
married.
[See:
Mulla's
Principles
of
Mohammedan Law (19th Edn.) page
300]......................"

34. Section 20(3) of Hindu
Adoptions and Maintenance Act, 1956 is
nothing but recognition of principles of
Hindu Law regarding maintenance of
children and aged parents. Section 20(3)
now 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.

35. Section 20 of Hindu Adoptions
and Maintenance Act, 1956 cast a statutory
obligation on a Hindu to maintain his
daughter who is unmarried and unable to
maintain herself out of her own earnings or
other property. As noted above, Hindu Law
prior to enactment of Act, 1956 always
obliged a Hindu to maintain unmarried
daughter, who is unable to maintain herself.
The obligation, which is cast on the father
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
to maintain his unmarried daughter, can be
enforced by her against her father, if she is
unable to maintain herself by enforcing her
right under Section 20.

36. The Act, 1956 was enacted to
amend and codify the law relating to
adoptions and maintenance among Hindus.
A bare perusal of Section 125(1) Cr.P.C. as
well as Section 20 of Act, 1956 indicates
that whereas Section 125 Cr.P.C. limits the
claim of maintenance of a child until he or
she attains majority. By virtue of Section
125(1)(c), an unmarried daughter even
though she has attained majority is entitled
for maintenance, where such unmarried
daughter is by reason of any physical or
mental abnormality or injury is unable to
maintain itself. The Scheme under Section
125(1) Cr.P.C., thus, contemplate that
claim of maintenance by a daughter, who
has attained majority is admissible only
when by reason of any physical or mental
abnormality or injury, she is unable to
maintain herself.

37. In the Code of Criminal
Procedure, 1898, Section 488 Cr.P.C. was
the provision governing the 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 refuses to
maintain his wife or his legitimate or
illegitimate child unable to maintain itself,
the District Magistrate, a Presidency
Magistrate, a Sub-divisional Magistrate or
a Magistrate of the first class may, upon
proof of such neglect or refusal, order such
person to make a monthly allowance for the
maintenance of his wife or such child, at
such monthly rate, not exceeding five
hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same
to such person as the Magistrate from time
to time directs."

38 . Section 488 Cr.P.C. (old)
Section 125 (new) sought to inhibit
negligence of woman and children with
intent to serve a social purpose. The
provision
provided
for
summary
proceeding to enable a deserted wife or
helpless child, legitimate or illegitimate, to
get urgent relief. The laws are nothing but
collective consciousness of community. It
is in the interest of the community and
social order that woman and child who are
neglected be maintained and should be
provided a forum to obtain urgent relief to
enable them to sustain.

39. Supreme Court in Nanank
Chand Vs. Chandra Kishore Aggarwal and
Others, (1969) 3 SCC 802 had occasion to
consider the provision of Section 488
Cr.P.C., 1898 in reference to provisions of
Hindu Adoptions and Maintenance Act,
1956, which provided for overriding effect
of Act. Section 4 of the Act, 1956 is to the
following effect:

 "Section 4. Overriding effect of
Act- Save as otherwise expressly provided
in this Act,-

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

 (b) any other law in force
immediately before the commencement of
this Act shall cease to apply to Hindus in so
far as it is inconsistent with any of the
provisions contained in this Act."
8 All. Awadhesh Singh Vs. State of U.P. & Ors.
1329
40. In Nanak Chand's case the
question arose as to whether by virtue of
Section 4 of Act, 1956, the provision of
Section 488 Cr.P.C. shall be overridden. In
the above case Supreme Court explained
the provisions of Section 488 Cr.P.C. as
well as Section 20 of the Act, 1956.
Supreme Court held that there is no
inconsistency between Section 488 Cr.P.C.
and the Hindu Adoptions and Maintenance
Act and both can stand together. Supreme
Court further held that Section 488 Cr.P.C.
provides a summary remedy and is
applicable to all persons belonging to all
religions and has no relationship with the
personal law of the parties. Following was
laid down in paragraph 4:

 "4.....The learned Counsel says
that Section 488 Cr.P.C., insofar as it
provides for the grant of maintenance to a
Hindu, is inconsistent with Chapter III of
the Maintenance Act, and in particular,
Section 20, which provides for maintenance
to children. We are unable to see any
inconsistency between the Maintenance Act
and Section 488, Cr.P.C. Both can stand
together. The Maintenance Act is an act to
amend and codify the law relating to
adoptions and maintenance among Hindus.
The law was substantially similar before
and nobody ever suggested that Hindu
Law, as in force immediately before the
commencement of this Act, insofar as it
dealt with the maintenance of children, was
in any way inconsistent with Section 488,
Cr.P.C. The scope of the two laws is
different. Section 488 provides a summary
remedy and is applicable to all persons
belonging to all religions and has no
relationship with the personal law of the
parties.