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BOMBAY HIGH COURT
Bharati H. Dangre, J.
Agnes Lily Irudaya —Petitioner
versus
Irudaya Kani Arsan —Respondent
Writ Petition No.2872 of 2017
Decided on 6.4.2018
Counsel for the Parites:
For the Petitioner:Mrs. Sumangala Biradar Advocate
For the Respondent:Ms. Shabnam Kazi i/by Ms Suvarna Joshi, Advocate
IMPORTANT POINT
Unmarried daughter though attained majority is entitled to claim maintenance from father.
Headnote:(A) Criminal Procedure Code, 1973—Section 125—Maintenance—Petitioner-mother claiming maintenance for her major daughter—Under Section 125 of Cr.P.C. it is only minor child who is entitled to claim maintenance if such child is not able to maintain itself—Child who has attained majority is held entitled for claiming maintenance on account of physical or mental abnormality or injury he is unable to maintain himself—There is no any specific provision contained in Section 125 for grant of maintenance to a daughter who is major— However, unmarried daughter though attained majority is entitled to claim maintenance from father. (Paras 10 and 11)
(B) Criminal Procedure Code, 1973—Section 125—Maintenance—Locus standi to maintain application for maintenance—Daughter can be a competent person to file her own application claiming maintenance—However, in order to avoid multiplicity of proceeding, no fault can be found in application preferred by mother claiming maintenance with a view to meet expenses of daughter since wife has not claimed maintenance for herself and she has not denied factum of her employment—Technical objection cannot come in way of granting substantive relief in favour of petitioner to claim an amount of maintenance for meeting expenses of her daughter’s education. (Para 13)
Result: Petition allowed.
Bharati H. Dangre, J.—The present petition is filed by the petitioner-mother claiming maintenance for her major daughter under section 125 of the Code of Criminal Procedure and the legal issue involved is whether a major daughter is entitled for maintenance under section 125 of the Code of Criminal Procedure (“the Cr.P.C.” for short) and another issue which arises out of the present proceedings, whether a mother is competent to file proceedings claiming maintenance on behalf of her major daughter.
2. A brief in sight into the facts would reveal that the petitioner, a Roman Catholics, was married to respondent no.1 in the year 1988 and three children were born from the wedlock. At present, two sons are aged 25 and 24 years respectively and daughter Alcina Judy is presently 19 years. It is the claim of the petitioner that all the major children are residing with her. It is the specific case of the petitioner that the respondent had deserted her in the year 1997 and she was living with her minor children and on the contrary the respondent is living an adulterous life. The petitioner had filed proceedings under section 125 of Cr.P.C. bearing petition No. E24/2003 in the Family Court, Mumbai seeking maintenance for her three children who were then minors. The said petition resulted into consent terms being signed by the parties on 25 April 2003 where the respondent no.1 agreed to pay maintenance @ Rs.1000/per month towards each minor child. Subsequently on account of change in circumstances the petitioner moved an application for enhancement of maintenance for her three children and by judgment dated 30/12/2009, the respondent was directed to pay an amount of Rs.5000/per month towards maintenance of the second son till he attained majority and an amount of Rs.3000 per month was awarded for maintenance of minor daughter Alcina Judy, attained age of majority on 21st August 2015. It is the case of the petitioner that though the daughter has attained the age of majority and she is financially depending on the petitioner, since she is persuading her higher education and considerable amount is required to meet her day to day expenses which the petitioner is not able to arrange for. According to the petitioner, she is not getting any financial assistance from her elder son who had already obtained an educational loan for graduation and he is repaying said loan. As far as second son is concerned, according to the petitioner, he has graduated but is without any job opportunity.
3. The petitioner moved an application under section 125 of the Cr.P.C. before the Family Court at Bandra and in the said application she claimed maintenance to the tune of Rs.25000 per month for herself. In the said application, the petitioner stated that though her major sons are residing with her, but they are not contributing towards her maintenance. She has stated that the daughter is prosecuting her studies and in the academic year 2015-16 she had to pay amount of Rs.1,02,834 as college admission fee of the Xavier’s Institute of Engineering, Mahim and she has also paid an amount of Rs.60,000/- as contribution towards development of educational infrastructure of the institute. The petitioner stated in the application that in the next two academic years there is likely to be increase in the educational fees of the daughter Alcina Judy and she also has to bear the expenses for books and stationery, travelling expenses, her mobile bill, Internet expenses, clothing, medical expenses and she is also required to keep some amount for her marriage expenses. The petitioner specifically claim that she had borne the major financial burden of maintenance of three children and she is left with no savings, resultantly she is forced to approach the court seeking maintenance for herself so that she can pay for the daughter’s higher education and repay the loans. She therefore claimed an amount of Rs.15000/- per month from the date of application as an interim maintenan
