An unmarried major daughter, unable to maintain herself due to reasons such as illiteracy, unemployment, or being a student, is entitled to maintenance from her father under Section 125 of the Code.

Satish Kumar Mital, J.

1. In this case, the question for consideration is as to whether an unmarried major daughter, who is unable to maintain herself, can claim maintenance from her father under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) and as to whether to claim such maintenance, she is further required to establish that she cannot maintain herself only on account of her physical or mental abnormality or injury.

2. The petitioner (father) has filed the instant petition under Section 482 of the Code impugning the order dated 10.1.2001 passed by Judicial Magistrate Ist Class, Jalandhar, dismissing his application filed under Section 127 of the Code for cancelling the earlier order of interim maintenance on the ground that the respondent (daughter) has now attained majority and now she is not entitled to maintenance under Section 125 of the Code. The respondent was awarded an interim maintenance of Rs. 400/- per month under Section 125 of the Code, vide order dated 1.6.2001, passed by Judicial Magistrate Ist Class, when she was minor. The respondent attained the date of majority on 21.2.2002. On 25.3.2002, the petitioner filed an application for cancellation of the aforesaid interim maintenance on the ground that after attaining the age of majority, respondent No. 2, being unmarried daughter, is not entitled for any maintenance under clause (c) of Section 125 of the Code. Under this clause a major unmarried daughter is entitled for grant of maintenance only where she is, by reason of her any physical or mental abnormality or injury, unable to maintain herself.

3. The aforesaid application of the petitioner has been dismissed by the trial Court vide the impugned order dated 10.1.2004, while holding that respondent No. 2 is a student and has no sufficient source of income to maintain herself. Therefore, the petitioner, being her father, is legally obliged to maintain his unmarried daughter, even though major, till the date of her marriage. It has also been found that the petitioner is in Government servant and is earning Rs. 5,300/- per month, therefore, he can easily pay the interim maintenance of Rs. 400/- per month to his daughter, who is studying in college. For coming to the said conclusion, the trial Court relied upon decision of the Honble Apex Court in Jagdish Jugtawar v. Manju Lata, 2003(3) RCR(Crl.) 472 (SC) : 2003(2) Apex Court Judgments 137, wherein it has been held that unmarried major girl has right to claim maintenance from her father. This right flows from Section 125 of the Code and Section 20(3) of the Hindu Adoption and Maintenance Act.

4. Counsel for the petitioner submitted that the impugned order dated 10.1.2004, passed by the trial Court, is totally contrary to the provisions of clause (c) of Section 125 of the Code and its intents and purposes. He submitted that the respondent being a major unmarried daughter, is not entitled for maintenance from her father because there is no finding that she is unable to maintain herself due to her physical or mental abnormality or injury. He submitted that until and unless, respondent establishes that she is unable to maintain herself on account of her physical or mental abnormality or injury she cannot claim maintenance under Section 125 of the Code from her father, even though she is a major unmarried daughter. In support of his contention, he relied upon a decision of the Kerala High Court in Muhammed v. Kumhayisha, 2003(4) RCR(Criminal) 397, wherein it has been held as under :-

"Even hard cases cannot lay down bad law and the Court has to be very conscious of that. The language of Section 125, according to me, does not at all permit a construed that the status of major daughter as an unmarried person can by itself be constructed as "physical or mental abnormality or injury" sufficient to bring her case within the sweep of Section 125(c). Whatever be the religion of the parties, the language of the Statute does not pe