While Ordering Maintenance Under Domestic Violence Act, Magistrate Must Specify Whether It Is Being Provided Under CrPC Or HAMA: Kerala High Court

Justice P G Ajithkumar ordered thus:

“In the light of the discussions made above, I hold that the Magistrates dealing with a petition claiming maintenance under Section 20(1)(d) of the D.V.Act shall specify in the order under which provision; whether under Section 125 of the Code or under Section 20(3) of the Maintenance Act maintenance is ordered. Reminding the learned Magistrates dealing with matters coming under the D.V.Act of the above aspect, this petition is dismissed.”

In the facts of the case, both the father and daughter are Hindus. When the daughter was aged 14 years, she filed a petition before the Additional Chief Judicial Magistrate (Economic Offence) Court, Ernakulam seeking maintenance.

The Magistrate ordered the father to pay rupees 2000 monthly maintenance to the daughter under Section 20 (1) (d) of the DV Act.

When the daughter attained majority, the father filed a petition seeking to exempt him from making monthly maintenance to the daughter under the DV Act.

The father contended that the daughter attained majority age and that she was earning sufficient income from her employment abroad. The daughter argued that the father was liable to pay monthly maintenance since she was unmarried and incomeless.

The Magistrate allowed the petition and exempted the father from paying monthly maintenance to the major daughter under the DV Act in 2015. Aggrieved by the order, the daughter has approached the High Court.

During the pendency of the revision petition, the daughter got married in 2017. Thus, the Revision Petition will consider the entitlement of monthly maintenance to the daughter from 2015 till her date of marriage in 2017.

The Court stated that the Magistrate could order monthly maintenance to the daughter under Section 20 (1) (d) of the DV Act. It stated that the maintenance order under the DV Act could be ordered either under Section 125 of CrPC or Section 20 (3) of the Maintenance Act.

The Court thus stated that the nature of the maintenance order would change depending upon whether it was ordered as per Section 125 of CrPC or Section 20 (3) of the Maintenance Act.

The Court ruled that if a maintenance order were made under Section 20 (3) of the Maintenance Act, then maintenance payment would continue till the daughter gets married or till she becomes self-reliant. “If in recognition of the statutory right of the daughter under Section 20(3) of the Maintenance Act ordered the father to pay maintenance, that obligation can be ceased only on she marries or becomes an earning member. The court can order exemption only if the father proves such a disqualification of the daughter to receive maintenance”, added the Court.

Further, the Court held that if a maintenance order was made under Section 125 CrPC, then the maintenance payment would cease when the daughter attained the age of majority. As per Section 125 CrPC, a major unmarried daughter is not entitled to maintenance unless she is suffering from physical or mental abnormality due to which she cannot maintain herself. It stated that Section 125 CrPC is secular and applicable to all so it cannot be assumed that maintenance would not be ordered under Section 125 CrPC.

As such, the Court ordered there is a lack of specificity in the order of the Magistrate. The Court thus stated that the Magistrate should specify in the order if maintenance is ordered under Section 125 of CrPC or Section 20 (3) of the Maintenance Act. 

Counsel for Revision Petitioner: Advocates Subal J.Paul, Sheeba Thomas

Counsel for Respondents: Senior Public Prosecutor Pushpalatha M K, Advocates Amrin Fathima, Stefin Thomas, Kavya P.R., Anjana Sanjay

Citation: 2024 LiveLaw (Ker) 359

Case Title: Shilpa v K K Rajeevan

Case Number: CRL.REV.PET NO. 1661 OF 2018

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