The entitlement of maintenance under Section 125 Cr.P.C. and Section 20(3) of the Hindu Adoption and Maintenance Act, 1956 for wives and unmarried major daughters.

1. Heard learned counsel for the petitioner and the opp. parties.

2. The petitioner is aggrieved by order of Principal Judge, Family Court dated 6.8.2005, passed in Maintenance Case No. 85(M) of 2003 by which he has ordered for payment of maintenance of Rs. 1000/- per month each to all the opp. parties from the date of filing of their petition i.e. 26.8.2003 and also a sum of Rs. 5,000/- by way of cost of litigation.

3. The complainant alleged that the petitioner contracted another marriage in the year 1983. It is further alleged that soon thereafter both the petitioner and his second wife began to torture her and she alongwith two daughters were forced to leave the matrimonial house and had to fall back on her parents for living. It has been claimed by the complainant that opp. party (petitioner here) has a Kirana (grocery) shop and earns Rs. 30,000/- per month.

4. The petitioner who was Opp. Party appeared and filed show cause before the Family Court and denied the allegation. He also stated that the complainant no. 1 Smt. Baby Devi had signed a memo stating therein that on account of estranged relationship both parties are ready for divorce. In the memo she stated that she has two minor daughters aged about 5 years and 11/2 years. Relying upon the aforesaid document, the petitioner claimed that she is living separately with mutual consent and thus is disentitled for maintenance under sub-section 4 of Section 125 of the Code of Criminal Procedure.

5. Section 125(4) of the Code of Criminal Procedure states that if a husband and wife live separately with mutual consent then in such case the wife becomes disentitled for maintenance. The Family Court after considering the materials on record as well as deposition of witnesses of both sides, directed the petitioner to pay maintenance of Rs. 1,000/- each to the wife and two daughters.

6. The petitioner has assailed the impugned order on the following grounds.

7. As opp. party no. 2 has agreed for mutual divorce she disentitles herself to maintenance under Section 125(4) of the Code of Criminal Procedure. Secondly, as the daughters have admittedly become major, thev are non-entitled to maintenance under section 125(1)(c) of the Cr.P.C. Furthermore, the Principal Judge, Family Court wrongly assessed the financial capability of the petitioner and erred in directing him to pay Rs. 3,000/- per month towards maintenance.

8. Learned counsel for opp. party nos. 1, 2 and 3 states that Annexure-3 is forged and fabricated document as she never signed such paper, rather she left the matrimonial house alongwith her two daughters on account of torture meted out to her at the hands of her hushand and his second wife. Furthermore the petitioner has a big grocery shop and earns about 40 thousand per month. In support of above contention learned counsel submits that the petitioner has so much money that he has purchased one house in the name of his second wife. Necessary document has already been on record.

9. In view of the conditions prescribed under Section 125(4) Cr.P.C. there cannot be any dispute to the proposition that if the wife lives separately with mutual consent, she incurs disability to get maintenance. However, in the instant case the position is different as the complainant has disputed the genuineness of Annexure-3. Moreover, neither the complainant nor any of her witnesses has stated that the former is living separately from her husband willingly or with mutual consent. In view of the aforesaid position, it is difficult to hold that opp. party no. 1 is living separately with mutual consent. Thus this Court is of the view that opp. party no. 1 does not suffer any disability under Section 125(4) Cr.P.C. disentitling claim of maintenance.

10. The next question is whether opp. party nos. 2 and 3, daughters of opp party no. 1 are entitled to maintenance. Again it is not in dispute that they have become major. The issue whether an unmarried major daughter is entitled to maintena