# ABHILASHA v. PARKASH & ORS

- **Citation:** [2020] 11 S.C.R. 244
- **Court:** Supreme Court of India
- **Decided:** 2020-09-15
- **Case number:** Criminal Appeal No. 615 of 2020
- **Bench:** Ashok Bhushan, R. Subhash Reddy, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abhilasha-v-parkash-ors-34500
- **Pages:** 24

## Headnote

Code of Criminal Procedure, 1973: s.125 - Whether a Hindu
unmarried daughter is entitled to claim maintenance from her father
under s.125 Cr.P.C. only till she attains majority or she can claim
maintenance till she remains unmarried - Held: The Scheme under
s.125(1) Cr.P.C. contemplate that claim of maintenance by an
unmarried 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 - However, an unmarried Hindu
daughter can claim maintenance from her father till she is married
in terms of s.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 s.20 of Act, 1956 - Hindu
Adoptions and Maintenance Act, 1956 - s.20 - Code of Criminal
Procedure, 1898 - s.488.
Code of Criminal Procedure, 1973: s.125 - Nature, extent
and scope of - Discussed.
Code of Criminal Procedure, 1973: s.125 - Hindu Adoptions
and Maintenance Act, 1956 - Distinction between - Held: The
purpose and object of s.125 is to provide immediate relief to
applicant in a summary proceedings, whereas right under s.20 read
with s.3(b) of Act, 1956 contains larger right, which needs
determination by a Civil Court, hence for the larger claims as
enshrined under s.20, the proceedings need to be initiated under
s.20 of the Act and the legislature never contemplated to burden the
Magistrate while exercising jurisdiction under s.125 Cr.P.C. to
determine the claims contemplated by Act, 1956.
Family Courts Act, 1984: Jurisdiction of Family Court - Family
Courts shall have the jurisdiction only with respect to city or town
[2020] 11 S.C.R. 244
244
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whose population exceeds one million and where there is no Family
Courts, proceedings under s.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 s.20 of the Act, 1956 shall only be
before the District Court or any subordinate Civil Court - There
may be a case where the Family Court has jurisdiction to decide a
case under s.125 Cr.P.C. as well as the suit under s.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 s.20 of Act, 1956 so as to avoid multiplicity of
proceedings - Hindu Adoptions and Maintenance Act, 1956 - s.20
- Code of Criminal Procedure, 1973 - s.125.
Dismissing the appeal, the Court
HELD: 1. A bare perusal of Section 125(1) Cr.P.C. as well
as Section 20 of the Hindu Adoptions and Maintenance Act, 1956
indicates that 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. In the present case, the
Revisional Court returned a finding that appellant is not suffering
from any physical or mental abnormality or injury due to which
she is unable to maintain herself. The above findings are not
even questioned before this court. What is contended that even
if she is not suffering from any physical or mental abnormality or
injury, by virtue of Section 20 of Act, 1956, she is entitled to claim
maintenance till she is unmarried. [Para 12][253-B-E]
2. In the Code of Criminal Procedure, 1898, Section 488
was the provision governing the maintenance of wife or legitimate
or illegitimate child of any person. Section 488 sought to inhibit
negligence of woman and children with intent to serve a social
purpose. The provision provided for summary proceeding to
ABHILASHA v. PARKASH & ORS.
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ABHILASHA
v.
PARKASH & ORS.
(Criminal Appeal No. 615 of 2020)
SEPTEMBER 15, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973: s.125 - Whether a Hindu
unmarried daughter is entitled to claim maintenance from her father
under s.125 Cr.P.C. only till she attains majority or she can claim
maintenance till she remains unmarried - Held: The Scheme under
s.125(1) Cr.P.C. contemplate that claim of maintenance by an
unmarried 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 - However, an unmarried Hindu
daughter can claim maintenance from her father till she is married
in terms of s.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 s.20 of Act, 1956 - Hindu
Adoptions and Maintenance Act, 1956 - s.20 - Code of Criminal
Procedure, 1898 - s.488.
Code of Criminal Procedure, 1973: s.125 - Nature, extent
and scope of - Discussed.
Code of Criminal Procedure, 1973: s.125 - Hindu Adoptions
and Maintenance Act, 1956 - Distinction between - Held: The
purpose and object of s.125 is to provide immediate relief to
applicant in a summary proceedings, whereas right under s.20 read
with s.3(b) of Act, 1956 contains larger right, which needs
determination by a Civil Court, hence for the larger claims as
enshrined under s.20, the proceedings need to be initiated under
s.20 of the Act and the legislature never contemplated to burden the
Magistrate while exercising jurisdiction under s.125 Cr.P.C. to
determine the claims contemplated by Act, 1956.
Family Courts Act, 1984: Jurisdiction of Family Court - Family
Courts shall have the jurisdiction only with respect to city or town
[2020] 11 S.C.R. 244
244
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whose population exceeds one million and where there is no Family
Courts, proceedings under s.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 s.20 of the Act, 1956 shall only be
before the District Court or any subordinate Civil Court - There
may be a case where the Family Court has jurisdiction to decide a
case under s.125 Cr.P.C. as well as the suit under s.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 s.20 of Act, 1956 so as to avoid multiplicity of
proceedings - Hindu Adoptions and Maintenance Act, 1956 - s.20
- Code of Criminal Procedure, 1973 - s.125.
Dismissing the appeal, the Court
HELD: 1. A bare perusal of Section 125(1) Cr.P.C. as well
as Section 20 of the Hindu Adoptions and Maintenance Act, 1956
indicates that 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. In the present case, the
Revisional Court returned a finding that appellant is not suffering
from any physical or mental abnormality or injury due to which
she is unable to maintain herself. The above findings are not
even questioned before this court. What is contended that even
if she is not suffering from any physical or mental abnormality or
injury, by virtue of Section 20 of Act, 1956, she is entitled to claim
maintenance till she is unmarried. [Para 12][253-B-E]
2. In the Code of Criminal Procedure, 1898, Section 488
was the provision governing the maintenance of wife or legitimate
or illegitimate child of any person. Section 488 sought to inhibit
negligence of woman and children with intent to serve a social
purpose. The provision provided for summary proceeding to
ABHILASHA v. PARKASH & ORS.
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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. [Paras 13, 14][253-F; 254-A-B]
Mulla - Hindu Law 22nd Edition - referred to.
3. Section 20(3) of the 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. 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. [Paras 27, 31]
[262-E-F; 264-C-D]
Noor Saba Khatoon v. Mohd. Quasim (1997) 6 SCC
233 : [1997] 6 SCC 182 - relied on.
4. 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. 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.
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
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she has become major enforcing her right under Section 20 of
Act, 1956 so as to avoid multiplicity of proceedings. However
the Magistrate in exercise of powers under Section 125 Cr.P.C.
cannot pass such order. [Paras 32, 33][264-E-H; 265-A]
Jagdish Jugtawat v. Manju Lata and Others (2002) 5
SCC 422 - relied on.
5. The maintenance as contemplated under Act, 1956 is a
larger concept as compared to concept of maintenance under
Section 125 Cr.P.C. Section 3(b) while defining maintenance gives
an inclusive definition including marriage expenses. The purpose
and object of Section 125 Cr.P.C. 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 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. [Paras 35, 36][265-D, G]
6. 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. 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. [Paras 38, 39]
[267-B, C-D]
Nanak Chand v. Chandra Kishore Aggarwal and Others
(1969) 3 SCC 802 : [1970] 1 SCR 565; Ram Singh v.
State AIR 1963 All 355; Nalini Ranjan v. Kiran Rani
AIR 1965 Pat. 442; Mahabir Agarwalla v. Gita Roy
[1962] 2 Cr. L.J.528; Mst. Zohara Khatoon v. Mohd.
Ibrahim (1981) 2 SCC 509 : [1981] 2 SCR 910;
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
ABHILASHA v. PARKASH & ORS.
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and Another (1988) 1 SCC 530; Kirtikant D. Vadodaria
v. State of Gujarat and Another (1996) 4 SCC 479 :
[1996] 2 Suppl. SCR 45; State of Haryana and Others
v. Santra (Smt.) (2000) 5 SCC 182 : [2000] 3 SCR 195referred to.
Case Law Reference
(2002) 5 SCC 422
relied on
Para 15
[1970] 1 SCR 565
referred to
Para 15
[1981] 2 SCR 910
referred to
Para 17
(1988) 1 SCC 530
referred to
Para 18
[1996] 2 Suppl. SCR 45
referred to
Para 20
[2000] 3 SCR 195
referred to
Para 26
[1997] 6 SCC 182
relied on
Para 29
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
615 of 2020.
From the Judgment and Order dated 16.08.2018 of the High Court
of Punjab and Haryana at Chandigarh in CRM-M-16328 of 2014 (O&M).
Ms. Vibha Datta Makhija, Sr. Adv., Aditya Singh, Shubham Singh,
Ajay Ravish, Deepkaran Dalal and Karan Dalal, Advs., for the appearing
parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. This appeal has been filed by the appellant, daughter of
respondent Nos. 1 and 2, challenging the order of the High Court of
Punjab and Haryana at Chandigarh dated 16.08.2018 by which order
the High Court dismissed the application under Section 482 Cr.P.C. filed
by the appellant praying for setting aside the order of the Judicial
Magistrate First Class, Rewari dated 16.02.2011 as well as the order
dated 17.02.2014 passed by the Additional Sessions Judge, Rewari.
3. The brief facts necessary to be noticed for deciding this appeal
are:-
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3.1 The respondent No.2, mother of the appellant, on her behalf,
as well as on behalf of her two sons and the appellant daughter,
filed an application under Section 125 Cr.P.C. against her
husband, the respondent No.1, Parkash, claiming maintenance
for herself and her three children. The learned Judicial
Magistrate vide its judgment dated 16.02.2011 dismissed the
application under Section 125 Cr.P.C. of the applicant Nos. 1,
2 and 3 and allowed the same for applicant No.4 (appellant
before us) for grant of maintenance till she attains majority.
3.2 Aggrieved against the judgment dated 16.02.2011, all the four
applicants filed a criminal revision before the Court of Sessions
Judge, which criminal revision was dismissed by learned
Additional Sessions Judge by order dated 17.02.2014 with the
only modification that revisionist No.4 (appellant before us)
shall be entitled to maintenance till 26.04.2005 when she attains
majority. Learned Additional Sessions Judge held that as per
provision of Section 125 Cr.P.C., the children, who had attained
majority are entitled to maintenance, if by reason of any
physical or mental abnormality or injury, they are unable to
maintain themselves. Learned Additional Sessions Judge also
held that the revisionist No.4 (i.e. appellant) is not suffering
from any physical, mental abnormality or injury, therefore,
she is entitled to maintenance only till 26.04.2005 i.e., till she
attains majority.
3.3 Challenging the order of Sessions Judge as well as the Judicial
Magistrate, an application under Section 482 Cr.P.C. was filed
before the High court by all the applicants including the
appellant. High Court by the impugned judgment dated
16.02.2018 dismissed the application filed under Section 482
Cr.P.C. by making following observations:-
"Both the Courts are consistent with regard to declining
maintenance to petitioners No. 1 to 3. As regards grant of
maintenance to Abhilasha by the trial Court, the order regarding
it was modified by learned Additional Sessions Judge, Rewari
observing that she was entitled to get maintenance till attaining
majority and not thereafter since she is not suffering from any
physical or mental abnormality or injury, in those eventualities
ABHILASHA v. PARKASH & ORS.
[ASHOK BHUSHAN, J.]
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a child, who though has attained majority but is unable to
maintain itself is entitled to get maintenance.
I do not find any illegality or infirmity in the judgment
passed by learned Additional Sessions Judge, Rewari, which
might have called for interference by this Court while exercising
jurisdiction under Section 482 Cr.P.C.
Therefore, the petition stands dismissed."
3.4 This appeal has been filed challenging the judgment of the
High Court.
4. Ms. Vibha Datta Makhija, learned senior counsel appearing for
the appellant submits that even though the appellant had attained majority
on 26.04.2005 but since she is unmarried, she is entitled to claim
maintenance from her father. Learned senior counsel contends that High
Court committed error in dismissing the application filed under Section
482 Cr.P.C. of the appellant on wrong premise that since appellant has
attained majority and is not suffering from any physical or mental
abnormality, she is not entitled for any maintenance. Ms. Makhija has
relied on provisions of Section 20 of the Hindu Adoptions & Maintenance
Act, 1956 (hereinafter referred to as "Act, 1956") and submits that as
per Section 20 obligation of a person to maintain his daughter, who is
unmarried, extends till she is married. Ms. Makhija relies on judgment of
this Court in Jagdish Jugtawat Vs. Manju Lata and Others, (2002)
5 SCC 422 in support of her submission. She submits that High Court
committed error in taking a contrary view to the above judgment of this
Court. Ms. Makhija submits that appellant is still unemployed, hence,
she is entitled to claim maintenance from her father.
5. Learned counsel for the respondent refuting the submission of
the learned senior counsel for the appellant contends that Courts below
have rightly confined the claim of the maintenance of the appellant till
she attains majority on 26.04.2005. It is submitted that as per Section
125 Cr.P.C. entitlement to claim maintenance by daughter, who has
attained majority is confined to case where the person by reason of any
physical or mental abnormality or injury unable to maintain herself.
Revisional Court has returned a finding that there is no case that appellant
is by reason of any physical or mental abnormality or injury is unable to
maintain herself. It is submitted that High Court has rightly dismissed
the application filed under Section 482 Cr.P.C. of the appellant since no
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case was made out to interfere in orders passed by the Judicial Magistrate
and learned Revisional Court in exercise of jurisdiction under Section
482 Cr.P.C.
6. We have considered the submissions of the learned counsel for
the parties and have perused the records.
7. From the submissions of the learned counsel for the parties,
following two questions arise for consideration in this 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?
8. Both the questions being interconnected, we proceed to take
them together. Application under Section 125 Cr.P.C. was filed on
17.10.2002 by the applicants including the appellant as applicant No.4
against Parkash, father of the appellant. The date of birth of the appellant
being 26.04.1987, she was minor at the time when the application was
filed. Learned Judicial Magistrate allowed the application of the appellant
for maintenance till she attains majority. Learned Revisional Court has
also affirmed the judgment with modification that appellant was entitled
to receive maintenance till 26.04.2005 instead of 07.02.2005, which is
date when she attains majority. In support of application under Section
125 Cr.P.C., applicant had examined Surya Dev Pandey as PW1, Chunni
Lal Saini as PW2, Vikas Saini as PW3 and Dr. Raj Saini as PW4. The
claim of the applicant Nos. 1, 2 and 3 was rejected, which was also
affirmed by Courts below and is not subject matter of this appeal.
9. The question to be answered in the present case is as to whether
a Hindu unmarried daughter is entitled to claim maintenance from her
father under Section 125 Cr.P.C. only till she attains majority or she can
claim maintenance till she remains unmarried. Section 125(1) Cr.P.C.,
which is relevant for the present case is as follows:-
ABHILASHA v. PARKASH & ORS.
[ASHOK BHUSHAN, J.]
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"125. Order for maintenance of wives, children and
parents.-(1) If any person having sufficient means neglects or
refuses 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,
XXXXXXXXXXXXXXXXXXXXXXXX"
10. The claim of maintenance of applicant No.4 was filed at the
time when she was minor. During pendency of the application, she
became major on 26.04.2005. The learned Judicial Magistrate, therefore,
allowed the application of the appellant for maintenance till she attains
majority on 26.04.2005.
11. Learned counsel for the appellant contends that the appellant
is entitled to receive maintenance till she remains unmarried but said
argument was rejected only on the ground that appellant is not suffering
from any physical or mental abnormality or injury, therefore, she is not
entitled for maintenance. The provision on which learned counsel for
the appellant has placed reliance, i.e., Section 20 of the Hindu Adoptions
and Maintenance Act, 1956, needs to be noted, which provides for
maintenance of children and aged parents, which is as follows:-
"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
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parent or the unmarried daughter, as the case may be, is unable to
maintain himself or herself out of his or her own earnings or other
property.
Explanation.- In this section "parent" includes a childless stepmother."
12. 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. In the present case, the Revisional Court has returned a finding
that appellant is not suffering from any physical or mental abnormality
or injury due to which she is unable to maintain herself. The above findings
are not even questioned before us. What is contended that even if she is
not suffering from any physical or mental abnormality or injury, by virtue
of Section 20 of Act, 1956, she is entitled to claim maintenance till she is
unmarried.
13. For answering the question as noted above, we need to examine
the nature, extent and scope of Section 125 Cr.P.C. 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."
ABHILASHA v. PARKASH & ORS.
[ASHOK BHUSHAN, J.]
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14. Section 488 Cr.P.C. 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.
15. This 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 The Court had occasion to
consider the nature of proceedings under Section 488 Cr.P.C. 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."
16. 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 this Court explained the provisions
of Section 488 Cr.P.C. as well as Section 20 of the Act, 1956. This 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.
This 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
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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. Recently the question came before
the Allahabad High Court in Ram Singh v. State, AIR 1963 All
355 , before the Calcutta High Court in Mahabir Agarwalla v.
Gita Roy [1962] 2 Cr. L.J.528 and before the Patna High Court in
Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three High
Courts have, in our view, correctly come to the conclusion that
Section 4(b) of the Maintenance Act does not repeal or affect in
any manner the provisions contained in Section 488, Cr.P.C."
17. In Nanak Chand (supra) this Court had approved the
judgments of Allahabad High Court in Ram Singh Vs. State, AIR 1963
All 355, judgment of Patna High Court in Nalini Ranjan Vs. Kiran
Rani, AIR 1965 Pat. 442 and judgment of Calcutta High Court in
Mahabir Agarwalla Vs. Gita Roy, [1962] 2 Cr. L.J.528. This Court
in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, (1981) 2 SCC 509,
after noticing the judgment of this Court in Nanak Chand's case
extracted relevant portions of judgments of Ram Singh, Mahabir
Agarwalla and Nalini Ranjan (supra) which were approved by this
Court in Nanak Chand. In Ram Singh's case, Allahabad High Court
took the view that Section 18 of Act, 1956 cannot be substituted for
Section 488 Cr.P.C. In Nalini Ranjan, Patna High Court held that Section
488 Cr.P.C. provided a separate remedy and Section 488 Cr.P.C. covered
the civil liability of a husband under the personal law. It is useful to
extract paragraphs 8, 9 and 10 of the judgment of this Court in Zohara
Khatoon which are to the following effect:
"8. It would be seen that this Court approved of the decisions
in the cases of Ram Singh, Mahabir Agarwalla and Nalini Ranjan
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mentioned in the observations extracted above. In order to
understand the proper scope of Section 488 of the 1898 Code
which is almost the same as that of Section 125 of the 1973 Code,
it may be necessary to examine the decisions which were referred
to with approval by this Court in Nanak Chand's case (supra). In
Ram Singh v. State and Anr. Kailash Prasad, J. observed as
follows :-
"There is nothing in the Hindu Adoptions and
Maintenance Act to suggest expressly or by necessary
implication that the Act is intended to be a substitute for the
provisions of Section 488 Cr.P.C. In fact the provisions of
Section 18 of the Act cannot be a substitute for Section 488
Cr.P.C. The latter provision is general and is applicable to a
wife, irrespective of her religion, but the former is applicable
to the case of Hindus only. It could not, therefore, be intended
to be a substitute for Section 488 Cr.P.C.
To the same effect is the decision of the Patna High Court in
Nalini Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty, AIR
1965 Pat 442 where the following observations were made :-
Before the enactment of 1956, it was well settled that
the right conferred by Section 488 Cr.P.C. was independent of
the personal law of the parties. The right of maintenance under
Section 488 was irrespective of the nationality or creed of the
parties, the only condition precedent to the possession of that
right being in the case of a wife the acceptance of the conjugal
relation. Further, Section 488 provided for only a speedy remedy
and a summary procedure before a Magistrate against starvation
of a deserted wife or child. This section did not cover the civil
liability of a husband or a father under his personal law to
maintain his wife and children.
9. The Calcutta High Court also took the same view in
Mahabir Agarwalla v. Gita Roy [1962] 2 Cr. L.J. 528 where the
following observations were made :-
An alternative but not inconsistent summary remedy was
provided by Section 488 of the CrPC not only to the Hindu
wife but generally to wives irrespective of religion for recovery
of maintenance from the husband. The two remedies were,
however, not co-extensive.
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10. Thus, on a consideration of the authorities mentioned
above, it is clear that the 1898 Code by virtue of Section 488
provided a summary remedy for awarding maintenance to neglected
wives irrespective of caste, creed, community or religion to which
they belonged. It was in this context that the Courts referred to
above considered the effect of Hindu Adoption and Maintenance
Act and other similar Acts."
18. This 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.
19. In Yamunabai's case(supra), the question involved was as
to whether a Hindu woman who is married after coming into force of
Hindu Marriage Act, 1955 to a Hindu male having a living lawfully
wedded wife, can maintain an application for maintenance under Section
125 Cr.P.C. This Court in the above case held the marriage of Yamunabai
to be null and void from its very inception. In the above context, this
Court referred to provision of Hindu Marriage Act, 1955 to find out
marital status. In paragraphs 5 and 6, following was laid down:
"5. It has been contended on behalf of the appellant that
the term 'wife ' in Section 125 of the Code should be given a
wider and extended meaning so as to include therein not only a
lawfully wedded wife but also a woman married in fact by
performance of necessary rites or following the procedure laid
down under the law. Relying upon the decision of this Court in
Mohd. Ahmed khan v. Shah Bano Beghum, 1985 Cri LJ 875 it
was argued that the personal law of the parties to a proceeding
under Section 125 of the Code should be completely excluded
from consideration. The relationship of husband and wife comes
to an end on divorce, but a divorcee has been held to be entitled to
the benefits of the section, it was urged, and therefore applying
this approach a woman in the same position as the present appellant
should be brought within the sweep of the section. We are afraid,
the argument is not well founded. A divorcee is included within
the section on account of Clause (b) of the Explanation. The
position under the corresponding Section 488 of the code of 1898
was different. A divorcee could not avail of the summary remedy.
The wife's right to maintenance depended upon the continuance
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of her married status. It was pointed out in Shah Bano's case that
since that right could be defeated by the husband by divorcing her
unilaterally under the Muslim Personal Law or by obtaining a
decree of divorce under any other system of law, it was considered
desirable to remove the hardship by extending the benefit of the
provisions of the section to a divorced woman so long as she did
not remarry, and that was achieved by including Clause (b) of the
Explanation. Unfortunately for the appellant no corresponding
provision was brought in so as to apply to her. The legislature
decided to bestow the benefit of the Section even on an illegitimate
child by express words but none are found to apply to a de facto
wife where the marriage is void ab initio.
6. The attempt to exclude altogether the personal law applicable
to the parties from consideration also has to be repelled. The section
has been enacted in the interest of a wife, and one who intends to
take benefit under Sub-section (1)(a) has to establish the necessary
condition, namely, that she is the wife of the person concerned.
This issue can be decided only by a reference to the law applicable
to the parties. It is only where an applicant establishes her status
on relationship with reference to the personal law that an
application for maintenance can be maintained. Once the right
under the section is established by proof of necessary conditions
mentioned therein, it cannot be defeated by further reference to
the personal law. The issue whether the section is attracted or not
cannot be answered except by the reference to the appropriate
law governing the parties. In our view the judgment in Shah Bano's
case does not help the appellant. It may be observed that for the
purpose of extending the benefit of the section to a divorced
woman and an illegitimate child the Parliament considered it
necessary to include in the section specific provisions to that effect,
but has not done so with respect to women not lawfully married."
20. It is to be noted that in the above case personal law was
looked into to find out as to whether an application filed by the appellant
Yamunabai claiming to be his wife was maintainable or not. Another
judgment which needs to be noted is Kirtikant D. Vadodaria Vs. State
of Gujarat and Another, (1996) 4 SCC 479. The question which
came for consideration before this Court was as to whether expression
"mother" used in clause (d) of sub-section (1) of Section 125 Cr.P.C.
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includes stepmother. This Court referring to Section 125 Cr.P.C. as well
as provision of Section 20 of Act, 1956 held that stepmother can claim
maintenance from her stepson provided she is widow of her husband, if
living, and also incapable of maintaining and supporting her.
21. Now, we come to the Three Judge Bench judgment of this
Court as relied by learned counsel for the appellant, i.e., Jagdish
Jugtawat (supra). In the above case, the respondent No.3 was a minor
unmarried girl of the petitioner. The wife of the petitioner, i.e., mother of
respondent No.3 filed an application under Section 125 Cr.P.C. claiming
maintenance @ Rs.500/- per month to each of the applicant, which was
granted by the Family Court. A revision was filed before the High Court
assailing the order contending that the respondent No.3, Kumari Rakhi
was entitled to maintenance only till she attains majority and not
thereafter. High Court although 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 but declined to interfere with the
orders passed by the Family Court taking the cue from Section 20(3) of
the Hindu Adoptions and Maintenance Act. The facts of the case and
observations of the High Court have been made in the paragraph 2 of
the judgment, which is to the following effect:-
"2. The Petitioner is the father of Kumari Rakhi, Respondent 3
herein, who is a minor unmarried girl. Considering the application
filed under Section 125 of the Criminal Procedure Code by
Respondent 1, wife of the Petitioner and mother of Respondent 3,
claiming maintenance for herself and her two children, the Family
Court by order dated 22.7.2000 granted maintenance @ Rs.500
per month to each of the Applicants. The Petitioner herein filed a
revision petition before the High Court assailing the order of the
Family Court on the ground, inter alia, that Respondent 3 was
entitled to maintenance only till she attains majority and not
thereafter. Considering the point the learned Single Judge of the
High Court accepted, the legal position that under Section-125,
CrPC, a minor daughter is entitled to maintenance from her parents
only till she attains majority, but declined to interfere with the order
passed by the Family Court taking the cue from Section 20(3) of
the Hindu Adoptions and Maintenance Act under which the right
of maintenance is given to a minor daughter till her marriage. The
learned Single Judge was persuaded to maintain the order of the
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Family Court with a view to avoid multiplicity of proceedings.
The relevant portion of the judgment of the High Court is quoted
here:
"Thus, in view of the above, though it cannot be said that the
order impugned runs counter to the law laid down by the Hon'ble
Supreme Court, the provisions of Section 125 CrPC are
applicable irrespective of the personal law and it does not make
any distinction whether the daughter claiming maintenance is
a Hindu or a Muslim. However, taking an overall view of the
matter, I, with all respect to the Hon'ble Court, am of the candid
view that the provisions require literal interpretation and a
daughter would cease to have the benefit of the provisions
under Section 125 CrPC on attaining majority, though she would
be entitled to claim the benefits further under the statute/
personal law. But the Court is not inclined to interfere, as the
order does not result in miscarriage of justice, rather interfering
with the order would create great inconvenience to Respondent
3 as she would be forced to file another petition under subsection (3) of Section 20 of the Act of 1956 for further
maintenance etc. Thus, in order to avoid multiplicity of litigations,
the order impugned does not warrant interference."
(underlined by us)
22. The judgment of this Court in Jagdish Jugtawat (supra) is
sheet anchor of learned counsel for the appellant. The question which
came for consideration before this Court in Jagdish Jugtawat's case
has been noted in paragraph 3 of the judgment which is to the following
effect:
"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.
....."
23. This Court answered the question noticed in paragraph 3 as
above in paragraph 4 in the following words:
"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
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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, Code of Criminal Procedure 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
judgment order of the High Court is called for."
24. In the above case, an order was passed by the Family Court
by granting maintenance which was based on combined reading of
Section 125 Cr.P.C. and Section 20 of Act, 1956. Although, the High
Court and this Court had declined to interfere with the order of the
Family Court taking the cue from Section 20(3) of the Act, 1956 under
which the right of maintenance is given to a minor daughter till her
marriage, but the judgment 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.