If Unmarried Muslim Daughter Is Not Entitled To Maintenance U/S 125 CrPC, Family Court Can Consider Claim Under Muslim Personal Law: Kerala High Court

The Kerala High Court recently held that if a claim for maintenance under Section 125 of the CrPC made by an unmarried muslim daughter, who has attained majority, is not valid, the same claim can be made under Muslim Personal Law and the Family Court can consider it to prevent multiplicity of proceedings.

A division bench of Justice Alexander Thomas and Justice Ziyad Rahman observed that:

“We would hold that, for a major unmarried Muslim daughter, who is not suffering from any physical or mental abnormality or injury, as envisaged in clause (c) of sub-section 1 of Sec.125 of the Cr.P.C., a claim made before the Family Court under Sec.125 of the Cr.P.C., will not be maintainable. However, in case the claimant appears to be otherwise eligible for maintenance, in terms of Muslim Personal Law, then the Family Court need not drive the litigant to file a fresh claim and with the wholesome objective of avoidance of multiplicity of proceedings in maintenance claims, the Family Court can entertain the maintenance plea, under Muslim Personal Law.”

The court was considering an appeal against the order of the family court that granted interim maintenance of Rs. 4000/- per month in favour of an unmarried muslim daughter, aged 20 years. The daughter had been living with her mother, as her parents were living apart due to marital discord. This prompted the daughter to approach the family court to claim maintenance from her father under Section of the CrPC. The father subsequently approached the high court against the order of the family court.

While considering the question of whether a unmarried muslim daughter who has attained majority was entitled to claim maintenance under Section 125(1)(c) of the CrPC, the single bench of the high court had referred the matter to a Division Bench in view of two conflicting Division Bench decisions on the question.

In Mohammed v. Kunhayisha [2003 (3) KLT 106] and in Cholamarakkar & Anr. v. Pathummamma @ Pathumma & Anr. [2008 (3) KHC 973 (DB)], it was held that just by virtue of being unmarried, a major daughter will not be entitled to claim maintenance from her father. It was held in the decisions that, an unmarried daughter will be entitled to maintenance under Section 125 CrPC only if she is unable to maintain herself due to physical or mental abnormality or injury, as prescribed in Section 125(1)(c) of the CrPC.

Whereas in Yousaf v. Rubeena [(2010 (4) KLT 1 (DB)], it was held that a Muslim father is liable to pay maintenance to his unmarried daughter under Muslim personal law if she is not able to maintain herself. It was held in this case, that Sec.125 of the Cr.PC, applicable to all communities, would not, extinguish the liability of a father under Muslim Personal Law.

In view of the above apparent conflicting decisions, the matter had been referred to the division bench.

Adv. V Philip Mathews appeared for the petitioner father, Adv. M.Dinesh, appeared for the daughter and Adv. Saigi Jacob Palatty appeared for the State.

The court concurred with the view in Muhammed’s case and Cholamarakkar’s case which held that the pre-conditions in Sec.125(1)(c) of the CrPC will have to be fulfilled, for a major unmarried Muslim daughter to be eligible to claim maintenance from her father. However, in both these decisions, the court failed to consider the impact of Muslim Personal Law, with regard to maintenance of major Muslim unmarried daughter, the court noted.

In Yousaf’s case, the court noted that the matter was not decided with respect to a claim for maintenance under Sec.125 of the CrPC. The claim was considered invoking the provisions of Muslim personal law. In this case it was held that a major unmarried Muslim daughter, who is unable to maintain herself is entitled to claim maintenance from her father, who is capable of providing maintenance.

The court observed that there was no conflict between the decisions of the two division benches.

“We are of the view that, technically, there is no conflict of views in the decisions of the Division Bench of this Court in Cholamarakkar's case supra [2008 (3) KHC 973 (DB)] as well as in Yousaf's case supra [2010 (4) KLT 1 (DB)], as the former was in relation to claim under Sec.125 of the Cr.P.C and the latter was a claim in relation to Muslim Personal Law.”

If a claim for maintenance filed under Sec.125 of the Cr.P.C is rejected, but the claimant is entitled to make a similar claim under Muslim Personal Law, the Family Court can take into account the latter claim, even if the former claim is dismissed, said the court.

"The simple rationale for this, as enunciated in the verdicts of the Apex Court, is that otherwise the claimant, who has knocked the doors of the Court, for maintenance under Sec.125 of the Cr.P.C., will have to again approach the Family Court with the latter plea, if the former plea is found to be rejected or not maintainable. So, the approach taken by the Apex Court is clearly to the effect that, hyper-technical approach need not be resorted to in such matters, where such matters relate to maintenance claims and if the claim is otherwise maintainable, as stated above, then the Family Court, which has jurisdiction in that regard, can entertain such claims, without having to drive the litigant to file a fresh claim. Of course, this option is available only where the claim is made before the Family Court, since the Family Court will have jurisdiction to consider claims not only under Sec.125 of the Cr.P.C, but also claims as in the Hindu Adoption & Maintenance Act as well as Muslim Personal Law, etc."

Accordingly, the court in this case, directed the family court to entertain the plea of the daughter under Muslim Personal Law.

Case Title: XXX V State of Kerala

Citation: 2023 LiveLaw (Ker) 201

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