MAHESHBHAI VAMANBHAI BAVISKAR Vs. ASHABEN MAHESHBHAI BAVISKAR

JUDGEMENT

(1.) By way of present Criminal Revision Application, the petitioner has challenged the judgment and order dtd. 04/12/2021 passed by the learned Principal Judge, Family Court, Navsari in Criminal Misc. Application No.172 of 2016 (Old Maintenance Application No.17 of 2015), disputing the order of maintenance qua respondent no.2- the daughter.

(2.) Facts of the case in brief are that the petitioner had married respondent no.1. Respondent no.2 is his younger daughter. Respondent no.1 and respondent no.2 are residing separately since about 22 years. Elder daughter, of the petitioner and respondent no.1, had been married by the petitioner. The Respondents had earlier filed Maintenance Application No.72 of 2000 under Sec. 125 of the Criminal Procedure Code, 1973 (for short 'the CrPC") against the petitioner before the JMFC, Navsari. The JMFC, Navsari, was pleased to grant Rs.350.00 and Rs.250.00 per month as maintenance to respondent nos.1 and 2 respectively. Thereafter, the respondents preferred Maintenance Application No.135 of 2002 under Sec. 127(1) of the CrPC for enhancement of maintenance and the same was allowed and the maintenance was enhanced to Rs.500.00 and Rs.400.00 for respondents nos.1 and 2 respectively. Thereafter, the respondents again preferred Maintenance Application No.409 of 2009 under Sec. 127(1) of the CrPC for enhancement. The learned 4th Additional Chief Judicial Magistrate, Navsari vide judgment and order dtd. 20/04/2011 allowed the same and enhanced maintenance of respondents to Rs.2,000.00 each per month. Thereafter, again the respondents preferred an application being Criminal Misc. Application No.172 of 2016 (Maintenance Application No.17 of 2015) and the same was allowed by the learned Principal Judge, Family Court, Navsari vide judgment and order dtd. 04/12/2021 and enhanced maintenance of the respondents to Rs.5,000.00 each per month, aggrieved by the same, the petitioner is before this Court.

(3.) Mr. H. B. Shethna, learned advocate for the applicant submitted that the impugned order of the learned Principal Judge, Family Court, Navsari dtd. 04/12/2021 in a proceedings of Maintenance Application No.17 of 2015 (renumbered as Criminal Misc. Application No.172 of 2016) under Sec. 127 of the CrPC has failed to note that the age of the applicant no.2 would be 17 years and six months at the time of institution of the petition on 07/01/2015. Learned advocate Mr.Shethna submitted that as per the record, the date of birth is 22/07/1997 and, therefore, learned judge was required to pass an order to the effect that applicant no.2 would be entitled to receive maintenance amount till she attains majority. Mr.Shethna, learned advocate submitted that since the impugned order does not specify the date, so a challenge is given, since the father would not be legally liable to pay the maintenance amount to the major daughter. Relying upon the judgment of Abhilasha vs. Parkash reported in AIR 2020 SC 4355, Mr. Shethna, learned advocate submitted that this aspect has already been covered by the judgment where the Supreme Court has laid down that the Hindu unmarried daughter is entitled to receive maintenance from her father under Sec. 125 of CrPC only till she attains majority and if she remains unmarried then she would have to go under Sec. -20 of the Hindu Adoption and Maintenance Act, 1956 (for short 'the HAM Act') and, thus, stated that unless and until she does not plead and prove that she is unable to maintain herself and for that files an application/suit under Sec. 20 of HAM Act, she would not be entitled to any maintenance amount from her father. Mr.Shethna, learned advocate has also relied upon various decisions in support of his submissions and thus, stated that the order impugned requires modification. The relevant paragraphs relied upon by learned advocate Mr.Shethna are narrated as under: