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2009(3) Crimes 583 (All.)
ALLAHABAD HIGH COURT
Vijay Kumar Verma, J.
Amod Kumar Srivastava
and Ors. –Petitioners
versus
State of U.P. and Ors. –Respondents
Criminal Revision Nos. 4400 and 5598 of 2006
Decided on 23.5.2008
Counsel for the Parties:
For the Petitioners:Mr. Sameer Jain, Advocate.
For the Respondent:Mr. Sudhir Kumar Srivastava, Advocate, A.G.A.
IMPORTANT POINT
A daughter who had attained majority though unmarried was not entitled to claim maintenance under Section 125 Cr.P.C. unless inability to maintain arose out of physical or mental abnormality or injury.
Headnote:(i) Criminal Procedure Code, 1973—Section 125—Maintenance—Whether unmarried daughter who has attained majority but was unable to maintain herself could claim maintenance from father? —Nothing on record to show that after attaining majority she was unable to maintain herself by reason of any physical or mental abnormality or injury—Impugned order granting maintenance in favour of daughters who were major on the date of order was liable to be set aside. (Para 9)
(ii) Criminal Procedure Code, 1973—Section 125—Order granting maintenance in favour of wife against whom there was a decree for restitution of conjugal rights in favour of husband—Decree for restitution of conjugal rights was passed ex parte in 1986—It was never put into execution and nor its intimation was ever given to applicant—Maintenance order was not liable to be interfered with —If however applicant wife had knowledge of decree and she wilfully disobeyed the directions given by Court in decree she would not have been entitled to get maintenance.
ORDER
Vijay Kumar Verma, J.—Whether an unmarried daughter who has attained majority, but unable to maintain herself and a wife, who wilfully disobeys the directions given by the Court in the decree for the restitution of conjugal rights, can claim maintenance allowance under the provisions of Section 125 of the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) are the main questions that fall for consideration in these revisions.
2. Challenge in both these revisions is to the judgment and order dated 24.6.2006 passed by the Family Court, Varanasi in Case No. 12 of 2002, Smt. Neelam Srivastava v. Sri Amod Kumar Srivastava, whereby allowing the application under Section 125, Cr.P.C., maintenance allowance @ Rs. 2,500 per month to Smt. Neelam Srivastava and Rs. 2,000 per month to both the daughters namely Km. Bhavya and Km. Divya (opposite party Nos. 3 and 4 in Criminal Revision No. 4400 of 2006) has been granted from the date of order. Smt. Neelam Srivastava has prayed in Criminal Revision No. 5598 of 2006 to enhance and grant maintenance allowance from the date of application under Section 125, Cr.P.C.
3. Shorn of unnecessary details, the facts leading to the filing of these revisions, as emerging from the record, in brief, are that marriage of Sri Amod Kumar Srivastava and Smt. Neelam Srivastava took place according to the Hindu rites and rituals in the year 1981. Out of the wedlock, the couple was blessed with two daughters namely Km. Bhavya and Km. Divya. Unfortunately their marriage could not succeed. Ultimately, Smt. Neelam Srivastava had to resort to the provisions of Section 125, Cr.P.C. and she filed an application for maintenance against her husband Sri Amod Kumar Srivastava on 12.3.1986 in the Court of Munsif Magistrate, Varanasi. The case remained pending for a considerable long period and ultimately the application under Section 125, Cr.P.C. was allowed vide impugned order dated 24.6.2006 passed by the Family Court, Varanasi, whereby the maintenance allowance as mentioned in Para (2) above has been granted from the date of order. Hence these revisions.
4. When the revisions were called for hearing on revising the list, none appeared for Smt. Neelam Srivastava and her daughters Km. Bhavya and Km. Divya. Hence arguments of Mr. Sameer Jain, learned counsel appearing for Sri Amod Kumar Srivastava in both revisions and learned AGA for the State were heard.
5. Two contentions were raised by the learned counsel for the revisionist Amod Kumar Srivastava. The first contention was that both the daughters namely Km. Bhavya and Km. Divya had attained majority prior to the passing of impugned judgment and hence they are not entitled now to get any maintenance under the provisions of Section 125, Cr.P.C. It was also submitted in this regard that the elder daughter Km. Bhavya has married on 13.5.2007 and on this ground also she is not entitled to get any maintenance from her father. In support of this first contention, the learned counsel for the revisionist in Criminal Revision No. 4400 of 2006 has placed reliance on the following cases:
(1) Moideen Kutty v. Pathumma and Others.1
(2) Kum L. Usharani & Others v. D.S. Lakshmaiah2; and
(3) T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana.3
6. The second contention of Mr. Sameer Jain was that a decree for the restitution of conjugal rights was passed against Smt. Neelam Srivastava on 17.4.1986 in suit No. 54 of 1986 by Civil Judge, Jaunpur and since that decree has not been complied with by her and she did not come to live with her husband Sri Amod Kumar Srivastava, hence on this ground, she is disentitled to get any maintenance allowance from her husband. In support of this contention Mr. Jain has placed reliance on the following cases:
(1) Harish Mansukhlal v. Hansagauri Ramshanker & Another.4
(2) In the matter of: Rabindra Nath Roy v. Anjana Roy.5
(3) Balram Dash v. Smt. Gitanjali Dash & Others.6
7. The learned AGA on the other hand has supported the impugned judgment co
