# Kumari Nidhi Gupta v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 1507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Criminal Revision No. 3478 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumari-nidhi-gupta-v-state-of-u-p-anr-50882
- **Pages:** 9

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 125 - Hindu
Adoption and Maintenance Act, 1956 -
Section
20
-
Against
rejection
of
maintenance application - Family Court
erred in dismissing applicant's claim for
maintenance from her father solely on
ground of her attaining majority, despite
her being unmarried at time of impugned
judgment - Parents' marriage dissolved by
decree of divorce, wherein lump-sum
maintenance awarded only to mother and
minor
son,
as
revisionist
was
then
residing with her father - Family Court
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
ought to have treated application u/s 125
Cr.P.C.
moved
by
revisionist
seeking
maintenance from her father as one u/s
20(3) Act, 1956, rather than dismissing it
on technical ground that application not
maintainable
as
applicant-daughter
already attained age of majority and she
was not entitled to seek maintenance - As
held by Apex Court in Abhilasha v. Prakash
(infra), Section 20(3) imposes statutory
obligation on Hindu to maintain his
unmarried daughter who is unable to
maintain herself, even though she has
become major, a right absolute in nature
and enforceable against her father until
her marriage - Impugned order, set aside.
(Para 14)

Revision allowed. (E-13)

List of Cases cited:

## Text

2 All. Kumari Nidhi Gupta Vs. State of U.P. & Anr.
1507
produce his evidence under section- 244
Cr.P.C. Undoubtedly, the provisions of
Section- 245(2) Cr.P.C. have certain
purpose. The opportunity which has been
provided
by
law
cannot
be
dealt
perfunctorily. It appears that the trial court
just took shelter of the order passed by the
revisional court by which the summoning
order was challenged. A minute difference
between the two stages may be noted. The
summoning order is passed at a stage where
the accused has no say in the matter and at
that stage, the order is passed rather in an
ex-parte manner, if I may be permitted to
use this word. No doubt at that stage as
well, the Court is obliged to consider the
evidence before it and to arrive at a
satisfaction that there are grounds for
summoning the accused. However, the
opportunity as provided to the accused
person under section- 245(2) Cr.P.C. is
different inasmuch at that stage the accused
has an opportunity to place his side of the
story and therefore at that stage, the trial
court is better equipped to weigh the
evidence (which is already on record) in a
more balanced manner. The opportunity
which was not available to the accused is
now available to him at that stage. The trial
court is not expected to not consider the
merits of the contentions of the accused
side and merely pass an order saying
nonchalantly that no new evidence has
come in between. It is noteworthy at this
juncture, that though the accused side
cannot produce any evidence in defence,
but he has every right to point out the
defects, deficiencies or infirmities, which
may already be there in the prosecution
story or the evidence produced by the
complainant. As is very clear from the
order itself, the learned trial court refused
to go into the merits of the objections
raised by the accused person on the premise
that no new evidence has come. This is a
flawed approach and against the provisions
of law. The impugned order suffers from
illegality, impropriety and is therefore
liable to be set-aside.

8. The impugned order is set-aside.
The learned trial court is directed to pass a
fresh order after giving an appropriate
opportunity of hearing.

9. Copy of this order be transmitted to
the court concerned immediately.
----------
(2024) 2 ILRA 1507
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 3478 of 2023

Kumari Nidhi Gupta ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Ashwani Kumar Sachan, Sri Saurabh Sachan

Counsel for the Respondents:
G.A., Sri Bipin Kumar, Sri Mohd. Naushad
Siddiqui

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 125 - Hindu
Adoption and Maintenance Act, 1956 -
Section
20
-
Against
rejection
of
maintenance application - Family Court
erred in dismissing applicant's claim for
maintenance from her father solely on
ground of her attaining majority, despite
her being unmarried at time of impugned
judgment - Parents' marriage dissolved by
decree of divorce, wherein lump-sum
maintenance awarded only to mother and
minor
son,
as
revisionist
was
then
residing with her father - Family Court
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
ought to have treated application u/s 125
Cr.P.C.
moved
by
revisionist
seeking
maintenance from her father as one u/s
20(3) Act, 1956, rather than dismissing it
on technical ground that application not
maintainable
as
applicant-daughter
already attained age of majority and she
was not entitled to seek maintenance - As
held by Apex Court in Abhilasha v. Prakash
(infra), Section 20(3) imposes statutory
obligation on Hindu to maintain his
unmarried daughter who is unable to
maintain herself, even though she has
become major, a right absolute in nature
and enforceable against her father until
her marriage - Impugned order, set aside.
(Para 14)

Revision allowed. (E-13)

List of Cases cited:

1. Dr. Jagdish Jugtawat Vs Smt. Manjulata &
ors., (2002) 5 SCC 424, (Paras 3, 4)

2. Noorsaba Khatoon Vs Mohammad Quasim,
AIR 1997 SC 3282

3. Nanak Chand Vs Chandra Kishore Agrawal,
AIR 1970 SC 446

4. Abhilasha Vs Prakash & ors., AIR 2020 SC
4355

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

6. Noor Saba Khatoon Vs Mohd. Quasim,
(1997) 6 SCC 233, (Paras 33, 34, 36, 38, 39)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionist, learned counsel for the opposite
party No.2, learned AGA for the State and
perused the material placed on record.

2. By means of instant criminal
revision, the revisionist has assailed the
order
dated
25.4.2022,
passed
by
Additional Principal Judge, Family Court
No.3, Kanpur Nagar, in Maintenance Case
No.12 of 2017, under Section 125 Cr.P.C.,
whereby the application for maintenance
moved by the revisionist, who is daughter
of opposite party No.2 has been dismissed
on the ground that she was not entitled to
seek maintenance from her father after
attaining age of majority, as under the
provisions of Section 125 Cr.P.C., only
minor children of a person are entitled
to seek maintenance whether married or
not.

3. The factual matrix of the case in
brief which led to filing present revision are
that the marriage of the revisionist's mother
and father was solemnized on 21.4.1994
and two children were born out of their
wedlock,
out
of
whom
the
applicant/revisionist is elder one. She was
born on 13.9.1995 and her younger sibling
born on 1.9.2000. The relations between
the parents of the applicant got strained and
father of the applicant filed a Divorce
Petition No.65 of 2011, before Principal
Judge, Family court, Kanpur Nagar and
consequently, a decree of divorce dated
12.7.2016 followed. The Family Court also
granted a lump-sum amount of Rs.5 lacs as
maintenance to the mother of the applicant.
The applicant was initially residing with
her father/opposite party No.2. After filing
of divorce petitioner, her father expelled
her from his home on 31.12.2010 at the age
of 15 years and since then, she is residing
alone alongwith her mother. The applicant
is completely dependant on her mother for
food, clothing, shelter, education and other
expenses also. Therefore, she filed an
application under Section 125 Cr.P.C. for
maintenance before the court below on
8.12.2016 at the age of 21, as she intended
to receive higher education and also for
bearing expenses of her marriage. During
2 All. Kumari Nidhi Gupta Vs. State of U.P. & Anr.
1509
pendency of proceedings under Section 125
Cr.P.C., before the family court, the
applicant had moved an application under
Section
125(c)
Cr.P.C.
for
interim
maintenance, in which a meagre amount of
interim maintenance of Rs.2,000/- per
month was paid to the applicant, which was
not in consonance with the financial needs
of the applicant. The respondent No.2, in
his belatedly filed written statement, has
stated that he has already paid Rs.5 lacs as
lump-sum
amount
towards
the
maintenance, which is part of decree of
divorce. The applicant has filed rejoinder
affidavit before the court below, in which
she filed receipt of educational fees which
show that her mother has been bearing her
educational expenses and she is not having
enough resources to meet out educational
and other expenses of the applicant.
However, the family Court without going
into the merits of the case, dismissed the
application under Section 125 Cr.P.C. in
limine by impugned order dated 25.4.2022
on impression that as the applicant had
already attained age of majority, she is not
entitled to seek maintenance from her
father/the respondent No.2 under Section
125
Cr.P.C.
and
she
has
to
seek
maintenance under Section 20 of Hindu
Adoption and Maintenance Act, 1956, as
appropriate remedy available to her. While
giving this finding, the Court placed
reliance on a judgement of Apex Court in
Dr. Jagdish Jugtawat vs Smt. Manjulata
And Ors, (2002) 5 SCC 424.

4. Learned counsel for the revisionist
submitted that from the joint reading of two
judgments of Hon'ble Apex Court in
Noorsaba
Khatoon
v.
Mohammad
Quasim, AIR 1997 SC 3282 and Nanak
Chand vs. Chandra Kishore Agrawal,
AIR 1970 SC 446, it is apparent that
Section 125 Cr.P.C. is a summary remedy
of secular character and provisions of
Hindu Marriage Act, which is part of
personal law, does not repel nor affect the
beneficial provisions of Section 125
Cr.P.C., which are applicable to every
citizen in the country, irrespective of his or
her personal law. A Hindu major daughter,
who is not able to maintain herself can
claim maintenance from her father till she
gets married in the same manner as a
Muslim major daughter, who is entitled to
seek maintenance from his father. The
learned court court has misread the
judgment of Hon'ble Apex Court in Dr.
Jagdish Jugtawat vs Smt. Manjulata
And Ors, (supra) and has drawn long long
conclusion. A judgment of Hon'ble Apex
Court in Abhilasha vs. Prakash and
others, AIR 2020 SC 4355, Hon'ble
Supreme Court has considered the claim of
a daughter, who has attained age of
majority and held that there may be a case
where family court has jurisdiction to
decide a case under Section 125 Cr.P.C. as
well as a suit under Section 20 of Hindu
Adoption and Maintenance Act, 1956 and
in such eventuality, the 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 of the Act, 1956, so as to avoid
multiplicity of the proceeding as observed
by this Court in the case of Dr. Jagdish
Jugtawat vs Smt. Manjulata And Ors,
(supra) . However, the magistrate in
exercise of powers under Section 125
Cr.P.C. cannot pass such orders.

5. He lastly submitted that if a major
daughter is unable to maintain herself
because of her illiteracy, unemployment or
if being student, she will be considered at
par with a person having physical or mental
abnormality and will be entitled to seek
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance. Even after attaining age of
majority under provisions of Section 125
Cr.P.C. before the Family Court. The
applicant is a unemployed major and
unmarried girl. She is a victim of domestic
friction and matrimonial discord between
her father and mother. Her father is a man
of sufficient economic resources and he is
under liability to look after his daughter,
who
is
socially
vulnerable
and
unemployed.

6. Per contra, learned AGA and
learned counsel for the respondent No.2
submitted that revision is ill conceived.
There is no illegality or infirmity in
impugned order passed by the court below.
A Hindu daughter, who has attained age of
majority is not entitled to seek maintenance
under provisions of Section 125 Cr.P.C.
from her father or mother and only remedy
available to her, if she is unable to
maintain herself or is unmarried, to seek
maintenance under provisions of Section
20 of Hindu Adoption and Maintenance
Act, 1956. The provisions of Section 20
of the Act, bestow the Court specific
power of grant of maintenance to such
daughter who has attained age of
majority.

7. The revisionist had initially filed a
petition under Section 482 Cr.PC. Feeling
aggrieved by the impugned order before
this Court, however, during the course of
pendency of application under Section 482
Cr.P.C. No.2695 of 2022, an application for
amendment was moved by her with prayer
to permit her to convert the application
under Section 482 Cr.P.C. into criminal
revision under Section 397/401 Cr.P.C. and
the prayer was allowed eventually by this
Court and application was converted into
present criminal revision by the order of
this Court dated 23.3.2023.

8. From the perusal of record, it
appears that the decree of divorce under
Section 13 of Hindu Marriage Act was
passed on 12.7.2016 on application of
respondent No.2 against his wife Smt. Alka
Gupta @ Bebi, the mother of the applicant
and Rs.5 lacs was granted as lump-sum
amount of maintenance in said judgment
for maintenance of the applicant and her
son, as at that time present applicant was
residing with her father and her younger
brother was living with her mother and
probably, for that reason, no provision was
made for present applicant in said decree of
divorce. The applicant has stated before the
court below in her representation that she
was undergoing MCA course. In Jagdish
Jugtawat vs Smt. Manjulata And Ors,
(supra), the petitioner was father of Kumari
Rekha, respondent No.3, who is minor and
unmarried daughter of respondent No.1,
wife of petitioner, had filed a claim for
maintenance before the family court by
order dated 22.7.2000, granted maintenance
at the rate of Rs.500/- per month to each of
the applicants. The petitioner filed a
revision petition before the High Court,
assailing the order of family court on the
ground, inter-alia that respondent No.3 was
entitled to maintenance only till she attains
majority and not thereafter. Considering the
points, learned Single Judge of the High
Court accepted the legal position that under
Section 125 Cr.P.C., a minor daughter is
entitled to maintenance from her parents
only till she attains majority. A minor
daughter is entitled to maintenance only till
she attains majoirty, but declined to
interfere with the order passed by family
court taking cue from Section 20(3) of the
Hindu Adoption and Maintenance Act,
1956, under which the right of maintenance
is given to a minor daughter till her
marriage. Learned Single Judge was
persuaded to maintain the order of the
2 All. Kumari Nidhi Gupta Vs. State of U.P. & Anr.
1511
family court with a view to avoid
multiplicity of proceeding. Hon'ble Apex
Court observed as under:-

"3. In view of the finding
recorded and the observations made by the
learned Single Judge of the High Court, the
only question that arises for consideration
is whether the order calls for interference.
A
similar
question
came
up
for
consideration by this Court in the case of
Noor Saba Khatoon v. Mohd. Quasim , AIR
1997 SC 3280 : 1997 (6) SCC 233 : 1997
SCC (Cri) 924 relating to the claim of a
Muslim divorced woman for maintenance
from her husband for herself and her minor
children. This Court while accepting the
position that Section 125, CrPC does not
fix liability of parents to maintain children
beyond attainment of majority, read the
said provision and Section 3(l)(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.

4. Applying the principle to the
facts and circumstances of the case in
hand, it is manifest that the right of a 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. Therefore,
no exception can be taken to the
judgment/order passed by the learned
Single Judge for maintaining the order
passed by the Family Court which is based
on a combined reading of Section 125
Cr.P.C. and Section 20(3) of the Hindu
Adoptions and Maintenance Act. For the
reasons aforestated we are of the view that
on facts and in the circumstances of the
case, no interference with the impugned
judgement/order of the High Court is called
for.

With above observations, the
Hon'ble Apex Court dismissed the Special
Leave Petition.

9. In Abhilasha vs. Prakash and
others (supra), a Special Leave to Appeal
was filed by the appellant, the daughter of
the respondent No.1 and 2, challenging the
order of the High Court of Punjab and
Haryana dated 16.8.2018, by which the
order, the High Court dismissed the
application U/S 482 Cr.P.C. filed by the
appellant praying for setting aside the order
of Judicial Magistrate Ist Class, Revari,
dated 16.2.2011 as well as 17.2.2014,
passed by the revisional court. The original
application for maintenance was filed by
the respondent No.2 against her husband,
the respondent No.1 Prakash claiming
maintenance of herself as well as her three
children. The learned Judicial Magistrate
dismissed the application in respect of
applicant Nos.1, 2 and 3 but granted
maintenance
to
applicant
No.4,
the
appellant before the Apex Court till she
attains majority. Aggrieved by the said
judgement dated 16.2.2011, all the four
applicants filed a criminal revision before
the Court of Session, which was also
dismissed by order dated 17.2.2014 with
the only modification that the revisionist
No.4 (appellant) shall be entitled to
maintenance till 26.4.2005, when she
attains
majority,
as
post
majority
maintenance can only be granted to a
daughter, if she is by reason of any physical
or mental abnormality or injury, unable to
maintain herself, as she was not suffering
from any physical or mental abnormality or
injury, she was not entitled to obtain
maintenance after the date on which, she
attains majority. The High Court by
judgement dated 16.2.2018, dismissed the
application under Section 482 Cr.P.C. filed
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
by the applicants and affirmed the orders of
court below.

10. Hon'ble Supreme Court while
discussing its previous judgments in
Abhilasha
vs.
Prakash
and
others
(supra) as well as its judgment in Nanak
Chand vs. Chandra Kishore Agrawal and
others (supra) and some other previous
cases,
framed
two
question
for
consideration in that appeal:-

(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?

11.

Hon'ble
Apex
Court
in
Yamunabai
Anantrao
Adhav
Vs.
Anantrao Shivram Adhav and Another,
(1988) 1 SCC 530, held that personal law
applicable to the parties cannot altogether
be
excluded
from
consideration
in
proceeding under Section 125 Cr.P.C.

12. Hon'ble Apex Court in Abhilasha vs.
Pralasj and others (supra), clarified in
paragraph No.24 of its judgement that the
judgement of this Court in Jagdish
Jugtawat (supra) cannot be read to laying
down the ratio that in proceedings under
Section 125 Cr.P.C. filed by the daughter
against her father, she is entitled to
maintenance relying on the liability of the
father to maintain her unmarried daughter
as contained in Section 20(3) of the Act,
1956. The High Court in exercise of
Criminal Revisional jurisdiction can very
well refuse to interfere with the judgment
of Courts below by which maintenance was
granted to unmarried daughter. This Court
while hearing criminal appeal against the
above judgment of High Court was
exercising jurisdiction under Article 136 of
the Constitution of India, and in the facts of
that case, this Court refused to interfere
with the judgment of High Court but in
refusal to interfere by this Court, no ratio
can be read in the judgment of Jagdish
Jugtawat (supra) as contended by learned
counsel for the appellant. 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 - 22 nd Edition, in
paragraph No.543, a father is bound to
maintain his unmarried daughters. On the
death of the father, they are entitled to be
maintained out of his estate.

13. Hon'ble Apex Court further
observed that Muslim Law also recognises
the obligation of father to maintain his
daughters until they are married and his
sons until they have attained the age of
puberty.
(Mulla's
Principles
of
Mohammedan Law (19th Edn.) 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
2 All. Kumari Nidhi Gupta Vs. State of U.P. & Anr.
1513
maintain herself out of her own earnings or
other property. 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 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 of the Act. This
Court in Noor Saba Khatoon Vs. Mohd.
Quasim, (1997) 6 SCC 233, which was a
case under Section 125 Cr.P.C. as well as
provisions of Muslim Women (Protection
of rights on Divorce), Act 1986, held that
affect of a beneficial legislation like
Section 125 Cr.P.C. cannot be allowed to be
defeated except through clear provisions of
statute. In the case before us, the
application was filed under Section 125
Cr.P.C. before Judicial Magistrate First
Class, Rewari who passed the order dated
16.02.2011. The Magistrate while deciding
proceedings under Section 125 Cr.P.C.
could not have exercised the jurisdiction
under Section 20(3) of Act, 1956 and the
submission of the appellant cannot be
accepted that the Court below should have
allowed the application for maintenance
even though she has become major. We 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.
The
maintenance
as
contemplated under Act, 1956 is a larger
concept as compared to concept of
maintenance under Section 125 Cr.P.C.
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 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. Hon'ble Apex Court further held as
under:-

33. 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 as observed by
this Court in the case of Jagdish Jugtawat
(supra).
However
the
Magistrate
in
exercise of powers under Section 125
Cr.P.C. cannot pass such order.

34. In the case before us, the
application was filed under Section 125
Cr.P.C. before Judicial Magistrate First
Class, Rewari who passed the order dated
16.02.2011. The Magistrate while deciding
proceedings under Section 125 Cr.P.C.
could not have exercised the jurisdiction
under Section 20(3) of Act, 1956 and the
submission of the appellant cannot be
accepted that the Court below should have
allowed the application for maintenance
even though she has become major. We 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.

36. The purpose and object of
Section 125 Cr.P.C. as noted above is to
provide immediate relief to applicant in a
summary proceedings, whereas right under
Section 20 read with Section 3(b) of Act,
1956 contains larger right, which needs
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
determination by a Civil Court, hence for
the larger claims as enshrined under
Section 20, the proceedings need to be
initiated under Section 20 of the Act and
the legislature never contemplated to
burden the Magistrate while exercising
jurisdiction under Section 125 Cr.P.C. to
determine the claims contemplated by Act,
1956.

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 Act, 1956.

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

14. In the present case, the family
court has committed a legal error while
dismissing the application for maintenance
filed by the applicant from her fatherpresent respondent No.2 only on the ground
that she has attained age of majority despite
the admitted fact that she was unmarried at
the time of impugned judgement. The
marriage of parents of the revisionist has
already been dissolved by a decree of
divorce
passed
on
12.7.2016,
in
Matrimonial Suit No.65 of 2021, Lalit
Gupta @ Manoj Gupta vs. Smt. Alka @
Bebi, under Section 13 of Hindu Marriage
Act and a lump-sum maintenance has been
awarded in said order for maintenance to
the mother and minor brother of the
revisionist therein as the revisionist was
residing with her father at that time. The
family court is empowered to treat the
application under Section 125 Cr.P.C.
moved
by
the
revisionist
seeking
maintenance from her father may be treated
as maintenance petition under Section
20(3) of the Act, 1956 by the court below
and same should have been liable to be
decided accordingly, without dismissing the
application under Section 125 Cr.P.C. on
technical ground that the application was
not maintainable under Section 125 Cr.P.C.
as the applicant-daughter had already
attained age of majority and she was not
entitled to seek maintenance under Section
125 Cr.P.C. A fine distinction has been
drawn by Hon'ble Apex Court in Abhilasha
vs. Prakash and others (supra) in this
regard, where it is held that the provision of
Section 20 of Act, 1956 cast clear statutory
obligation on a Hindu to maintain his
unmarried daughter who is unable to
maintain herself. The right of unmarried
daughter under Section 20 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. Unmarried daughter
is clearly entitled for maintenance from her
father till she is married even though she
has become major, which is a statutory
right recognised by Section 20(3) and can
be enforced by unmarried daughter in
accordance with law.

15. In the light of forgoing discussion
and placing reliance on dictum of Hon'ble
Apex Court in Abhilasha vs. Prakash and
others (supra), it is clear that in order to
avoid
multiplicity
of
proceedings,
a
consistent stand is liable to be taken that
the petition under Section 125 Cr.P.C. can
2 All. Smt. Soni Saxena @ Neetu Saxena Vs. State of U.P. & Ors.
1515
be entertained by Family Court without
pushing the major daughter of the opposite
party to file an independent petition
seeking maintenance under Section 20(3)
of the Act. The family court has got
jurisdiction to decide the case under
Section 125 Cr.P.C. as well as maintenance
suit under Section 20 of the Act, 1956.
Therefore, the family court can exercise
jurisdiction under both the acts and in
appropriate case can grant maintenance to
unmarried major daughter from her father,
even though she has become major, enforcing
her rights under Section 20 of the Act, 1956, so
as to avoid multiplicity of the proceedings.

16. Hon'ble Apex Court also held that
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 proceeding.

17. Accordingly, present criminal
revision stands allowed and the impugned
order passed by learned family court is set
aside.

18. The Family Court concerned is
directed to treat the application moved by
the applicant/revisionist under Section 125
Cr.P.C. as an application moved under
Section 20(3) of Hindu Adoption and
Maintenance Act, 1956 and decide the
same afresh in accordance with law and on
merits of the case, after giving opportunity
of hearing to both the parties, preferably
within a period of three months from the
date of presentation of certified order of
this Court.
----------
(2024) 2 ILRA 1515
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 6033 of 2023

Smt. Soni Saxena @ Neetu Saxena
 ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist:
Sri Jitendra Singh

Counsel for the Respondents:
G.A., Sri Vikesh Kumar Tiwari

Criminal Law - Indian Penal Code, 1860 -
Section 342, 376(3) & 506 - POCSO Act,
2012 - Section 5(dha)/6 - Juvenile Justice
(Care and Protection of Children) Act, 2015 -
Section 37(c), 101 - Child Welfare Committee
refused to release victim-girl in care and custody
of her mother for reasons which have been
elaborately dealt with in impugned order dated
23.08.2023 - Appellate court instead of deciding
matter on merits, declined to exercise its powers
on patently wrong assumptions - It is difficult to
understand how such view has been taken by
appellate court that it had no jurisdiction to hear
challenge to order passed by Child Welfare
Committee, in appeal - As is quite obvious,
appeal shall lie to children court against all
orders passed by Child Welfare Committee
except where order has been passed relating to
foster care or sponsorship foster care - Appellate
court's order set aside, matter remanded for
fresh decision in accordance with law. (Para 5, 6)

Revision disposed of. (E-13)

List of Cases cited:

1. Girish Kumar Vs St. of U.P. & ors.,
2022:AHC:206879
decided
on
25.11.2022,
(Paras 6, 10, 11)