NARAYAN RATH Vs. SAKUNTALA RATH

JUDGEMENT

(1.) THIS is an application under Section 482, Cr.P.C. by the petitioner for quashing the order dated 21.1.2003 passed by the J.M.F.C., Kodala in Misc. Case No. 4 of 2000 and the confirming order dated 29.7.2003 passed by the learned 2nd Additional Sessions Judge, Berhampur in Criminal Revision No. 17 of 2003 (subsequently renumbered as Crl. Revision No. 36 of 2003, GDC).

(2.) OPP . Party No. 1 on behalf of herself and also on behalf of minor daughter -opp. party No. 2 filed a petition under Section 125, Cr.P.C. for maintenance claiming herself as the wife and opp. party No. 2 as daughter of the petitioner. The case of the opp. parties was that petitioner and opp. party No. 1 were married according to the Hindu rites and customs on 5.2.1981 and opp. party No. 2 was born out of the said wedlock. Some time after the birth of opp. party No. 2, the petitioner neglected to maintain the opp. parties and subjected them to physical and mental torture, as a result, opp. parties had to leave the house of the petitioner and take shelter in the house of parents of opp. party No. 1. Since the opp. parties have no adequate income to maintain themselves filed the petition under Section 125, Cr.P.C. demanding maintenance from the petitioner. The petitioner resisted the claim of maintenance on the plea that opp. party No. 1 is not his legally married wife, and opp. party No. 2 is a major girl, who is not suffering from any disease or infirmity, that petitioner. No. 1 has sufficient income to maintain herself and opp. party No. 2, that his own income, is very meager.

(3.) ALTHOUGH the petitioner challenged the findings of the Courts below on various grounds, during the course of hearing, Ms. Panda learned counsel for the petitioner confined the challenge to the maintenance order passed in favour of opp. party No. 2 on the plea that after attaining majority opp. party No. 2 is not entitled to get maintenance under Section 125, Cr.P.C. Learned counsel for the petitioner submits that in view of the bar provided under Section 125(1)(c) of the Cr.P.C. opp. party No. 2 is not entitled to any maintenance from the petitioner as she is now a major and is not suffering from any physical, mental abnormality or injury and in support of this stand cited an unreported case, Aainul Ali Khan v. Sagar Begum @ Suka Begum and three Ors. (Criminal Appeal No. 50 of 1992), where it was held by this Court that a major child, who is unable to maintain itself by reason of any physical or mental abnormality or injury is only entitled to maintenance under Section 125, Cr.P.C. Mr. B. Pujari, learned counsel for the opp. parties, on the other hand, submitted that a major unmarried daughter, who has no income of her own can be taken as a child suffering from injury/infirmity and would be entitled to maintenance from the father. In this regard learned counsel cited the case of Jitendra Nath Sarkar v. Dalia Sarkar and Ors. (1999) 16 OCR 255 and Jagdish Jugtawat v. Manjulata and Ors. (2002) 23 OCR (SC) -434. In the case of Aalnul Ali Khan v. Sagar Begum and Ors. (supra) interpreting the words of Section 125(1)(c) of the Cr.P.C., it was simply held that no order of maintenance can be passed in favour of a child who has attained majority, unless by reason of any physical or mental abnormality or injury, the child is unable to maintain itself. The issue as to whether an unmarried daughter having no income to maintain herself can claim maintenance from her father after attaining majority was closely analyzed in the case of Jitendra Nath Sarkar v. Dalia Sarkar and Ors. (supra) by this Court and in the case of Jagdish Jugtawat v. Manjulata and Ors. (supra) by the apex Court. In the former case analyzing the meaning of the word 'injury' appearing in Section 125(1)(c) of the Cr.P.C., it was held that major unmarried daughter ipso facto may not be entitled to maintenance in view of the provision of Section 125(1)(c) of the Code if it is proved that she has a source of income to maintain herself, but when she claims lack of income to maintain herself, then unless contrary is pleaded and proved, she is bound to be maintained by her father or mother, as the case may be. It was reasoned that at that time, the definition of term 'injury' comes to her aid to protect her from the harm to body and mind. In the case of Jagdish Jugtawat a three Judge Bench of the apex Court held that though Section 125, Cr.P.C. does not fix liability of parents to maintain major children, but right of a female child for maintenance from parents after attaining majority till her marriage is recognized under Section 20(3) of Hindu Adoptions and Maintenance Act and, therefore, on a combined reading of both the provisions the Court would be justified in granting maintenance to the daughter under Section 125, Cr.P.C. even after her attaining majority, but only till the date of her marriage. The apex Court gave this ruling taking a view that it would avoid multiplicity of proceeding as otherwise the parties would be forced to file another petition under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956.