Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 217

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, ZIYAD RAHMAN A.A., JJ.
Muhammed Shaji, S/o. Hydrose Kunju – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 6659 of 2022
Decided on : 08-03-2023

Advocates:
Advocate Appeared:
For the Appellant : V PHILIP MATHEWS
For the Respondent: ADV M.DINESH, SRI SAIGI JACOB PALATTY-SR.GOVERNMENT PLEADER

Point of Law: Sec.125 of the CrPC reads as order for maintenance of wives, children and parents.

Headnote:
Code of Criminal Procedure 1973 – Section 482, 125, (1)(c) - Kerala High Court Act, 1958 – Section 3 - Muslim Women (Protection of Rights on Divorce), Act, 1986 – Section 3(1)(b) - Muslim Personal Law (Shariyat) Application Act, 1937 – Section 2 - Muslim Personal Law (Shariat) Application (Kerala Amendment) Act, 1963) - Constitution of India, 1950 - Article 142 - Quashment of interim order - Unmarried daughter - Pay interim maintenance - Aggrieved by proceedings petitioner seeking for quashment of impugned Annexure-D interim order – An unmarried Muslim daughter, who is staying away from her father, is not entitled to separate maintenance. (Para 43)
Finding of the court :
Case of respondent is that she is living separately from petitioner (father) and she has not urged any reasons as to justify her staying away from her father and hence, she is not entitled for maintenance, etc - Learned counsel for respondents would also point out that it is noted in penultimate paragraph of foreword given in above book that, acceptance of qualification, referred to in said book by Muslim community in country and by different religious organizations and significantly by Legislature of country, is yet to be awaited, etc – Court need not get into these rival submissions, except to say that it is for parties to urge such aspects, if relevant before Family Court - Annexure-D interim order may be treated as an interim order passed by Family Court in claim under Muslim Personal Law.
Result: Crl.M.C disposed of.

ORDER :

ALEXANDER THOMAS, J.

The case set up in the above Criminal Miscellaneous case, filed under Sec.482 of the Code of Criminal Procedure 1973, is to the effect that R-2 herein is the daughter of the petitioner herein and R2 is now aged 20 years and that due to family disputes, the petitioner herein and his wife (mother of R2) are living apart. Further that, R-2 has filed Annexure-A Memorandum of Maintenance Claim, as MC No.154/2021 before the Family Court, Attingal, under Sec.125 of Cr.P.C, in which the petitioner herein has been arrayed as the sole respondent therein and the claim therein is that the Family Court may order that the respondent therein (petitioner herein) shall pay maintenance to the applicant therein (R-2 herein) at the rate of Rs.25,000/-per month. Further, the interim relief in Annexure-A petition is for an order from the Family Court, so as to direct the petitioner herein (respondent therein) to pay interim maintenance at the rate of Rs.25,000/-per month to the applicant therein (R-2 herein). The Family Court has passed the impugned Annexure-D interim order dated 04.08.2022 in CMP No.92/2022 in MC No.154/2021, directing that, considering the facts and circumstances disclosed in this petition as well as the age of the parties and the financial capacity of the parties and the liability of the respondent therein (petitioner herein), the petitioner herein (respondent therein) shall pay interim maintenance at the rate of Rs.4000/-per month to the applicant therein (R2 herein), which shall be paid on the 10th of every month.

2. Being aggrieved by the abovesaid proceedings, the petitioner herein (respondent therein) has preferred the instant Criminal Miscellaneous case, under Sec.482 of CrPC, seeking for quashment of the impugned Annexure-D interim order dated 04.08.2022 etc.

3. Heard Sri.V.Philip Mathews, learned counsel appearing for the petitioner, Sri.M.Dinesh, learned counsel appearing for R-2 herein and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.

4. The above Crl.MC came up for consideration before the learned Single Judge of this Court on 28.09.2022, on which day this case was admitted and an interim order dated 28.09.2022 was passed in Crl.MA No.1/2022 in this Crl.MC, ordering that the execution of the impugned order in MC No.154/2021 on the file of the Family Court, Attingal will stand stayed till 10.11.2022. Later, the learned Single Judge, in exercise of the powers under the proviso to Sec.3 of the Kerala High Court Act, has passed an order dated 06.12.2022, referring this case for determination by a Division Bench, in view of the apparent conflict of views of two Division Bench decisions. It is stated in the said reference order that the petitioner has contended that a learned Single Judge of this Court, in the decision in Mohammed v. Kunhayisha [2003 (3) KLT 106], has held that a major Muslim unmarried daughter is not entitled to claim maintenance from her parents unless her invalidity to maintain herself is attributable to physical or mental abnormality or injury, as conceived in Section 125(1)(c) of the CrPC and that mere status as an unmarried daughter will not entitle such an unmarried major daughter to claim maintenance from her father, in terms of Sec.125 of the CrPC. Further, it is also noted in the reference order that a Division Bench of this Court, in the decision in Cholamarakkar & Anr. v. Pathummamma @ Pathumma & Anr. [2008 (3) KHC 973 (DB)], has also upheld the abovesaid legal position, that a major Muslim Unmarried daughter, can claim maintenance from her father in terms of Sec.125 of the Cr.PC, only if her inability to maintain herself is attributable to physical or mental abnormality or injury, as conceived in Clause c of subsection 1 of Sec.125 of the CrPC. Further, it is noted in the reference order that, per contra, counsel for the respondent herein (claimant) has placed reliance on another Division Bench decision of this Court in the decision, Yousaf v. Rube