A Magistrate cannot pass an order for grant of maintenance to an unmarried daughter who is a major under Section 125 of the Criminal Procedure Code.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.397 of 2021 Decided on: 09.01.2023 Ashwani Kumar .…Petitioner.

Versus Parwati & another …. Respondents.

Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting? ¹ Yes For the petitioner : Mr. Anirudh Sharma, Advocate.

For the Respondents : Mr. Karan Singh Kanwar, Advocate.

Ajay Mohan Goel, Judge (Oral)

By way of this petition, filed under Section 482 of the Criminal Procedure Code, the petitioner has prayed for the following relief:-

“It is, therefore, respectfully prayed that the petition may kindly be allowed and order dated 09.08.2019 passed in a Criminal Revision No.27-S/10 of 2018, titled as Ashwani Kumar Versus Parwati and another passed by the ld. Additional Sessions Judge-I Solan, District Solan (HP), whereby the order passed by the ld. Judicial Magistrate First Class Court No.1, Solan, District Solan, H.P. in Cr.MA No.128/4 of 2018 dated 12-10-2018 has been affirmed may kindly be set aside and petition filed by the present respondents may kindly order to be dismissed.”

Whether reporters of the local papers may be allowed to see the judgment?

2. Brief facts necessary for the adjudication of the present petition are that a petition was filed under Section 125 of the Criminal Procedure Code (hereinafter to be referred as ‘Cr.P.C.’) by the respondents herein against the present petitioner, seeking maintenance on the ground that the applicants were the wife and daughter of the respondent therein and as they were not being looked after by the husband, therefore, they were legally entitled for maintenance from the husband.

3. An order was passed by the Court of learned Judicial Magistrate, 1^st Class, Court No.1, Solan, District Solan, H.P., in Cr.MA No.128/4 of 2018, titled as Smt. Parwati & another Versus Sh. Ashwani Kumar, decided on 12.10.2018, in terms whereof, learned Trial Court ordered that the daughter was entitled for interim maintenance to the tune of Rs.15,000/- per month, though no maintenance was awarded in favour of the wife. This conclusion was arrived at by learned Trial Court by observing that an unmarried daughter till she attained the age of majority was entitled for grant of maintenance under Section 125 of the Cr.P.C.

4. Feeling aggrieved, the petitioner herein preferred a revision petition, i.e. Criminal Revision No. 27-S/10 of 2018, titled as Ashwani Kumar Versus Parwati & another, and in terms of order dated 09.08.2019, the Court of learned Additional Sessions Judge-I, Solan, District Solan, H.P. modified the maintenance amount from Rs.15,000/- to Rs.10,000/- per month.

5. Learned counsel for the petitioner has argued that order of grant of maintenance in favour of daughter passed by learned Trial Court, as affirmed by learned Revisional Court with some modifications is perverse and not sustainable in the eyes of law as both the learned Courts below erred in not appreciating that as the daughter was major as on the date when the application was filed under Section 125 of the Criminal Procedure Code, therefore, no interim orders could have been passed in her favour of learned Court below qua grant of maintenance. Learned counsel has placed reliance upon the judgment of Hon’ble Supreme Court, reported in 2020 AIR (SC) 4355, titled Abhilasha Versus Parkash & Ors., and argued that as the order of grant of maintenance is per se in violation of the provisions of Section 125 of the Criminal Procedure Code, therefore, present petition be allowed.

6. Learned counsel for the respondent, however, defended the order passed by learned Courts below and submitted that the father otherwise owes a duty to maintain her daughter and therefore, he had no right to invoke the inherent jurisdiction of this Court so vested under Section 125 of the Criminal Procedure Code and seek setting aside of aforesaid orders.

7. I have heard learned counsel for the parties and have gone through the impugned order.

8. It is not in dispute that as on the date when the peti