Sec 125 CRPC | Major Son Or Daughter Not Entitled To Maintenance, Except When A Statute Or Personal Law Comes To Aid: J&K&L High Court
The Jammu and Kashmir and Ladakh High Court recently ruled that a major son or daughter cannot be awarded maintenance by a Magistrate in exercise of his powers under Section 125 of CR.P.C but in an appropriate case, a Family Court has jurisdiction to grant maintenance to a major Hindu daughter on the basis of a combined reading of the provisions contained in Section 125 of the Cr. P....
The Jammu and Kashmir and Ladakh High Court recently ruled that a major son or daughter cannot be awarded maintenance by a Magistrate in exercise of his powers under Section 125 of CR.P.C but in an appropriate case, a Family Court has jurisdiction to grant maintenance to a major Hindu daughter on the basis of a combined reading of the provisions contained in Section 125 of the Cr. P. C and Section 20(3) of the Hindu Adoption and Maintenance Act.
The observation came from Justice Sanjay Dhar while hearing a plea wherein the petitioner had invoked the jurisdiction of the court under Section 482 CrPC challenging order passed by learned Judicial Magistrate, 1st Class Srinagar, whereby application of the petitioner seeking cancellation of maintenance order granted in favour of the respondents has been dismissed. Through the medium of the petition challenge was also been thrown to order passed by Additional Sessions Judge, Srinagar, whereby revision petition against the aforesaid order of the learned trial Magistrate had been dismissed.
The petitioner challenged the order primarily on the ground that the respondents, upon attaining the age of majority, were not entitled to maintenance from their father i.e., the petitioner. Petitioner further contended that in terms of Section 125 Cr. P. C, it is only legitimate or illegitimate minor children unable to maintain themselves who are entitled to claim maintenance from their father. On this ground, it is urged that the respondents having attained the age of majority are not entitled to claim maintenance from the petitioner from the date they attained the age of majority, the counsel submitted.
Adjudicating upon the matter the court observed that the literal interpretation of the provision makes it clear enough that the legitimate or illegitimate minor son, whether married or not, who is unable to maintain himself, is entitled to claim maintenance from his father. The word "minor" as per the Explanation is a person who, under the provisions of the Majority Act, is deemed not to have attained the age of majority. That means a minor child would be a person who has not attained the age of 18 years, the bench underscored.
Deciding the matter in controversy the bench recorded the observations of supreme court in Noor Saba Khatoon vs. Mohd. Quasim, (1997) wherein SC observed that the obligation of a Muslim father to maintain his minor children is governed by Section 125 Cr. P. C and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. The Apex Court had further held that in the case of female children, this obligation extends till their marriage.
The bench of Justice Dhar further expounding on the matter also placed reliance on Abhilasha vs. Parkash & ors 2020 wherein SC observed,
"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 Hindu Adoption and Maintenance 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. However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order".
Dealing with the petition at hand the bench observed that in the instant case, the respondents have admittedly attained the age of majority, as such, they are not entitled to claim maintenance from their father after they attained the age of majority. The learned trial Magistrate, as such, did not have jurisdiction to award maintenance in favour of the respondents beyond their age of majority and hence the order passed by the learned trial Magistrate dismissing the application of the petitioner for cancellation of order of maintenance is, therefore, without jurisdiction, the bench explained.
Allowing the petition the court ser aside the impugned order passed by the trial Magistrate as upheld by the Revisional Court.
Case Title : Showkat Aziz Zargar Vs Nabeel Showkat & Another.
Citation : 2022 LiveLaw (JKL) 139