CRP No.288 of 2009

21st August, 2009

Petitioner Counsel: G. RAMA GOPAL
Respondent Counsel: (Mrs) S. PRANEETA

Cases Cited:
Noor Saba Khatoon Vs. Mohd. Quasim, AIR 1977 SC 3280 [Para PARA7,13]
Jagdish Jugtawat Vs. Manjulata, (2002)5 SCC 422 [Para PARA8,13]
Subhas Roy Choudhary Vs. State of Bihar, 2004 ALL MR (Cri) JOURNAL 34=2004 Cri.L.J. 573 [Para 9,13]
D. P. Maheshwari Vs. Delhi Administration, AIR 1983 SC 425 [Para PARA12,13]

JUDGMENT

-This revision is directed against order dated 6.11.2008 in IA No.178 of 2008 in OS No.47 of 2004 on the file of the Court of the Judge, Family Court, Visakhapatnam.

2. The respondent herein, who is the daughter of the petitioner herein, filed the suit under Section 7 of the Family Courts Act, 1984 ('the Act' for brevity), seeking maintenance etc., from the petitioner. The petitioner/defendant filed IA No.178 of 2008 seeking to frame a preliminary issue as to the maintainability of the suit for maintenance by the Christian daughter - the respondent/plaintiff, without there being any enactment empowering her to do so.

3. The case of the petitioner/defendant before the Court below was that he is a heart patient; that though the respondent/plaintiff is earning, she filed the present suit - OS No.47 of 2004 against him falsely with a view to harass him while another suit - OS No.67 of 2007 filed by her is pending; that she being the Christian daughter, no enactment entitles her to claim maintenance, and therefore, the present suit is not maintainable.

4. The case of the respondent/plaintiff before the Court below was that though previously the issue with regard to the maintainability of the suit was decided in her favour, the petitioner/defendant again raised the same issue in the present interlocutory application.

5. The Court below, considering the material available on record, having framed an additional issue -'Whether the suit is maintainable as the plaintiff is a Christian?' and having observed that previously an issue was framed with regard to the maintainability of the suit by the daughter against her father, but not on the ground that the daughter is a Christian; that as Section 125, Cr.P.C. provides maintenance to the children by the father, whether they are Christians, Hindus or Muslims and that as the High Court already decided that the jurisdiction under Section 125, Cr.P.C. is also vested in the Family Court under Section 7 of the Act; held the issue in favour of the respondent/plaintiff and against the petitioner/defendant.

6. The learned Counsel for the petitioner/defendant submits that the respondent/plaintiff being Christian is not entitled for maintenance without there being such enactment in her favour.

7. The learned Counsel for the respondent/plaintiff submitted that irrespective of the caste and the age of the daughter, she is entitled for maintenance from her parents as per law. In support of this contention, he relied on the judgment of the Apex Court in Noor Saba Khatoon Vs. Mohd. Quasim, AIR 1977 SC 3280, wherein the Apex Court observed that as per Section 3 of the Muslim. Women (Protection of Rights on Divorce) Act, 1986, female Muslim children are entitled to claim maintenance till they get married. The Apex Court also held that under Section 125, Cr.P.C., the maintenance of the children is obligatory on the father (irrespective of his religion), and that as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them.

8. The learned Counsel also relied on another judgment of the Apex Court in Jagdish Jugtawat Vs. Manjulata, (2002)5 SCC 422, wherein the Apex Court held that though Section 125, Cr.P.C. does not fix liability of parents to maintain children beyond attainment of majority, but right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956.

9. The learned Counsel further relied on the judgment of the Patna High Court in Subhas Roy Choudhary Vs. State of Bihar, 2004 Cri.L.J. 573 : [2004 ALL MR (Cri) JOURNAL 34], wherein it was held that major unmarried daughter is entitled to claim maintenance under Section 125, Cr.P.C. The want paras are extracted hereunder:

"9. The Supreme Court had the occasion to consider this question in the case Jagdish Jugtawat Vs. Manjulata, (2002)5 SCC 422, in which it has been held as follows:

"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 judgment/order of the High Court is called for."

10. Thus the principle and the precedent recognize the right of a major unmarried daughter to get maintenance and the same cannot be denied only on the ground that the daughter had attained majority. Hence, I answer the question posed at the outset in affirmative and hold that major unmarried daughter is entitled to claim maintenance."

10. Here, it is relevant to extract Section 125(1)(b), Cr.P.C., which reads as under :

"125. Order for maintenance of wives, children and parents:-(1) If any person having sufficient means neglects or refused to maintain-

(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, 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 such child, at such monthly rate as such Magistrate thinks fit..."

11. It is also relevant to extract Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 ('the Maintenance Act' for brevity), which reads as under:

"20. Maintenance of children and aged parents :

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the 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."

12. The aspect of adjudication of a preliminary issue was considered by the Apex Court in D. P. Maheshwari Vs. Delhi Administration, AIR 1983 SC 425, wherein it was held thus :

"....We think it is better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes, where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all Tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by Special Tribunals at interlocutory stages and on preliminary issues."

13. A perusal of the judgments of the Apex Court in Noor Saba Khatoon's case (supra) and Jagdish's case (supra), the judgment of the Patna High Court in Subhas Roy's case [2004 ALL MR (Cri) JOURNAL 34] (supra), Section 125, Cr.P.C. and Section 20(3) of the Maintenance Act and the material available on record, I am of the opinion that an unmarried daughter can claim maintenance from her parents irrespective of the religion to which she belongs even after attaining the majority. In D. P. Maheshwari's case (supra), the Apex Court observed that neither the High Court nor the Apex Court is required to be too astute to interfere with the exercise of jurisdiction by the Courts below on preliminary issues. In the circumstances, I hold that the respondent/plaintiff - daughter can maintain the suit against the petitioner/defendant - her father and the discretion exercised by the trial Court does not suffer from any illegality warranting interference by this Court.

14. In the result, the civil revision petition is dismissed. No order as to costs.

Petition dismissed.