Sunday, December 28, 2014

Pay Maintenance to Unwed Daughter: HC

Pay Maintenance to Unwed Daughter: HC

By Charul Shah Published: 26th December 2014 06:02 AM

BENGALURU: The Karnataka High Court has ruled in favour of an unwed major girl who has sought maintenance from her estranged father.

Allowing the girl’s petition, the court held that a mentally injured child is entitled for maintenance under the provisions of CrPC and that denial of maintenance will amount to mental injury. Justice K N Phaneendra was hearing a petition filed by 28-year-old Meharunnisa, against her father seeking maintenance of `3,000 per month from him.

In her petition, Mehrunnisa said she had approached her father Syed Habeeb, an officer with Karnataka State Reserve Police, for maintenance till her marriage. As Habeeb failed to respond, she approached the magistrate court.

The magistrate court allowed the petition and asked Habeeb to pay her maintenance till she got married. However, Habeeb challenged the order before the Tumakuru fast track court. The fast track court allowed Habeeb’s petition and set aside the order of the magistrate court. Following this, Meharunnisa approached the high court.

In her petition, Meharunnisa said that she is a major and a helpless woman, being incapable of maintaining herself. She contended that her father is employed in KSRP and is capable of maintaining her. She contended that he is bound to maintain her till her marriage.

Contesting the petition, Habeeb contended that he gave ‘talaq’ (divorce) to his wife, the mother of Mehrunnissa, on February 19, 1993. During that time, his daughter was eight years old. He contended that at that time, when he sought Meharunnisa’s custody, her mother refused and assured him that she would take care of her. Hence, he is not liable to maintain the daughter, he contended.

Habeeb also contended that Meharunnisa is working at KGM Engineering Works in KIADB (Karnataka Industrial Areas Development Board) at Tumakuru and getting a salary of `3,000 per month. Therefore, she can maintain herself.

Justice Phaneendra, after hearing the contentions of both, observed, “It is to be noted only major daughters whether Hindu, Muhammadan, Parsi or Christian, wherever their rights are recognized under any other personal law or statute, are entitled for maintenance at the hands of their father or anybody till they get married, if they are unable to maintain themselves and the father is capable of maintaining them.

“If the right to claim maintenance of that lady is infringed, definitely it can be called as an injury which can very well fit into the definition of mental injury,” observed the judge. He also referred to provisions of Sec 125 of CrPc, which asks a father to maintain his mentally injured child.

The court further held that the father has violated his obligation by neglecting and refusing to maintain her. “No acceptable materials have been produced to show that the petitioner has got any property in her name, or is gainfully employed to refuse maintenance. Therefore, she is entitled for maintenance till her marriage,” ordered Justice Phaneendra.

Sources: http://www.newindianexpress.com

Also read FULL Judgment at: http://indiankanoon.org/doc/47423640/

IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 18TH DAY OF DECEMBER, 2014

BEFORE: THE HON'BLE MR. JUSTICE K.N. PHANEENDRA

CRL.P. NO.693/2014

BETWEEN:

MEHARUNNISA, D/O SYED HABEEB @ SYED HABEEBULLA, AGED ABOUT 28 YEARS, R/O DOOR NO. 83, LIG-1, KHB COLONY, SIRA GATE, TUMKUR-572 103. BY SRI. BOPANNA. B, ADVOCATE BPDS ASSOCIATES) ------ PETITIONER

AND

SYED HABEEB @ SYED HABEEBULLA, S/O LATE SYED GHOUSE PEER, AGED ABOUT 54 YEARS,R/OF 9TH BATTALLION, KSRP, KORAMANGALA, BANGALORE, NOW R/AT 1ST BATALLION, KSRP, KORAMANGALA, BANGALORE, NOW R/AT 1ST BATALLION, D-KSRP, RICHMOND ROAD CIRCLE, NEAR HOSMAT HOSPITAL, BANGALORE-560 025. (BY SMT. BHUSHANI KUMAR, ADVOCATE) ------  RESPONDENT

THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. BY THE PETITIONER TO SET ASIDE THE ORDER DATED 25.10.2013 PASSED BY THE F.T.C., TUMKUR IN CRL. R.P. NO. 149/2012 AND CONFIRM THE ORDER DATED 17.04.2012 PASSED BY THE II ADDL. C.J. AND J.M.F.C., TUMKUR IN C. MISC. NO.455/2007 AT ANNEXURE-A AND B & ETC.

THIS CRIMINAL PETITION HAVING BEEN RESERVED FOR PRONOUNCEMENT OF ORDER, COMING ON FOR 'PRONOUNCEMENT OF ORDER' BEFORE DHARWAD BENCH, THIS DAY, THE COURT PASSED THE FOLLOWING:

ORDER

1. I, feel it is just and appropriate to start this judgment by quoting a great universal verse, in Manusmrithi which often referred with regard to the protection of the women, which is being admired with great respects, irrespective of caste, creed, colour and religion;

      "Pita    rakshathi      kaumare,
      bhartha rakshathi youvane, Putrah
      rakshathi     vrudhapye,     na    stree

swatantryam arhathi" (original is in Sanskrit) Means - a women is protected by father in her childhood, her husband protects her in youth, and in old age she should be protected by her son. At no stage in her life should a woman be left alone and destitute. She deserves protection by man at every stage of her life.

2. In the case on hand, a major Mohammedan girl (unmarried major daughter) who succeeded before the J.M.F.C. Tumkur in Crl. Misc. No.455/07 in getting maintenance of Rs.800/- per month against her father till her marriage under Section 125 of Cr.P.C. but failed in the Revision Petition before the Fast Track Court, approached this Court for restoration of the orders of the J.M.F.C., by setting aside the order passed by the Fast Track Court, Tumkur in Cr.R.P. No. 149/12 dated 25.10.2013.

3. The factual matrix emanate from the records are that the petitioner Meharunnisa filed a petition u/s. 125 of Cr.P.C. claiming maintenance of Rs.3000/- per month till the date of her marriage against her father Syed Habeeb (the respondent herein). Subsequently, the respondent has developed hostile attitude towards the petitioner and her mother, and deserted them by contracting another marriage. He did not make arrangements for maintenance of the petitioner. He also neglected and refused to maintain her though capable of maintaining the petitioner. Having no source of income, being unable to maintain, the petitioner has made several attempts by making repeated requests to the respondent to provide her basic needs for sustenance. All her attempts went in vain; she inevitably filed a petition u/s. 125 of Cr.P.C. before the trial Court in C. Misc. No.455/07.

4. It is the specific contention of the petitioner that though she is major, she is helpless woman being incapable of maintaining herself. The respondent who is gainfully employed in Karnataka State Reserve Police, drawing handsome salary and capable of maintaining the petitioner, he is bound to maintain the petitioner till her marriage.

4(1). This petition was contested by the respondent before the trial Court. He has contended that he gave "Talak" (divorce) to his wife, who is none other than the mother of the petitioner, on 19.2.1993 itself. During that time the petitioner was aged about 8 years. At that time, the question of maintenance to the major daughter did not arise. The petitioner voluntarily left by severing the relationship with the respondent along with her mother and continued to stay with her mother. Though the respondent made request to hand over their child (daughter) to him but the mother of the petitioner refused to part with the child (daughter) by giving assurance before the "Jamath" that she will take care of the child (daughter). Therefore, he is not liable to pay any maintenance to his daughter now. It is further contended that the petitioner is hale and healthy, physically capable of working, educated and she is working at KGM Engineering Works in KIADB Industrial area at Tumkur and she is getting a salary of Rs.3,000/- per month. Therefore, she is not a lady who is unable to maintain herself. The petition was filed only with a sole intention to harass the respondent. Therefore, he has pleaded for dismissal of the petition.

5. After due contest, learned trial Judge considering all the aspects of the matter has allowed the petition granting a sum of Rs.800/- per month as maintenance in favour of the petitioner from the date of institution of the petition till the date of marriage of the petitioner.

6. The above said order of the learned Magistrate was challenged before the Fast Track Court, Tumkur in Cr.R.P. No. 149/12. Vide order dated 25.10.2013, the learned Fast Track Court Judge has allowed the Revision Petition and set aside the order passed by the trial Court and consequently dismissed the maintenance petition filed by the petitioner. Being aggrieved by the said order, the petitioner is before this Court.

7. A singular, short, but very interesting question of law crop up in this petition is:

"Whether the unmarried daughters of Muslim parents are entitled for an award of maintenance u/s. 125 Cr.P.C. even after attaining the age of majority till their marriage, if they are unable to maintain themselves from their father?

8. This question of law depends upon the interpretation of several statutes and also considering the customary principles of Mohammedan personal law. Before adverting to the interpretation of Sec.125(c) of Cr.P.C., the said provision is extracted below for ready reference:

"125. Order for maintenance of wife, children and parents. - (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself.
(Emphasis supplied)

9. So far as the instant case is concerned, Sec.125(c) is a relevant and dominant portion, which says that, if any person having sufficient means of income, neglects or refuses to maintain his legitimate or illegitimate child (not being a married daughter) attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself is entitled for maintenance. This provision does not make any difference as to whether the child is legitimate or illegitimate male or female. There is absolutely no dispute or denial by the respondent with regard to the legitimacy of the petitioner. The laudable object of this provision is to protect child from destitution and vagrancy. However, if such son or daughter is a major, according to plain reading of this provision there is no obligation on the father as such situation under law is expected to be handled by the child itself or if the girl is married, law expects that the situation should be handled by her husband.

10. The provisions u/s. 125 (1) (b) of Cr.P.C. if it is meaningfully read and construed appropriately, it makes no difference whether the child is legitimate or illegitimate minor child, but if it is unable to maintain itself, the father is liable to maintain them. The contradiction to Section 125(1) (b) and 125(1) (c) lies in a gray area that if the major daughters are neglected by their father or refused to maintain them, if they are unable to maintain themselves whether they are also entitled for maintenance. U/s. 125 (1)(c) of Cr.P.C. The pre condition under the provision is that the major, unmarried daughters (excluding a married daughter) if unable to maintain themselves owing to any mental or physical abnormality or injury, such child is also entitled to be maintained by the father. There may not be any much of a dispute or lack of clarity regarding physical or mental abnormality which can be ascertained by the Court depending upon the facts and circumstances of each case but the gray area lies as to exactly what is the scope and ambit of mental injury in the matter of entitlement of maintenance. Therefore, thought provoking issue raised by both the counsels in this particular case is with respect to the gray area under law in the matter of appreciating as to what amounts to mental injury particularly so far as it relates to unmarried major daughters. I am conscious that it will have a cascading effect and far reaching consequences if the interpretation is made to the effect, that unable to maintain themselves amounts to mental injury and infringement of legal right of major daughters to claim maintenance. Nevertheless the said gray area has to be plugged by proper and purposive interpretation of the said provision with the broad intention of the legislators in coining the said word injury in the provision under section 125(c) of Cr.P.C.

11. Before adverting to the area of interpretation, let me have a look at the decisions cited by the learned counsels in support of their claims and their submissions in this behalf.

12. The learned counsel for the petitioner invited my attention to the ruling of the Hon'ble Supreme Court in the case of NOOR SABA KHATOON VS. MOHD. QUASIM, reported in (1997) 6 Supreme Court Cases 233 wherein the Hon'ble Supreme Court has held that -

"Criminal Procedure Code, 1973 - Sec.125 - right of minor children staying with their divorced mother to claim maintenance under Sec 125 from their Muslim father having sufficient means till they attain majority or in case of females till they get married. The Supreme Court held that, the right is not affected by Sec 3(1) (b) of Muslim Women (Protection of Rights on Divorce) Act, 1986. Sec 3(1) (b) of 1986 Act provides additional maintenance to the divorced mother for maintaining her infant child for the fosterage period of two years from the date of birth of the child and is independent of the right of the minor children unable to maintain themselves to maintenance under S 125. That right is absolute under S. 125 as well as under Muslim Personal law. Benefit of S. 125 is available irrespective of religion and it would be unreasonable, unfair and inequitable to deny this benefit to the children only on ground of their being born of Muslim parents."
(Emphasis supplied)

13. It is submitted that the Supreme Court in detail dealing with this particular aspect has ultimately ruled that, Muslim Women (Protection of Rights on Divorce) Act 1986 meant to protect rights of Muslim women who have been divorced. It was not engaged to regulate the obligation of a Muslim father to maintain his minor children, who are unable to maintain themselves which continued to be governed by Sec.125 of Cr.P.C. Children of Muslim parents are entitled to claim maintenance u/s. 125 of Cr.P.C. for the period till they attain majority or they are able to maintain themselves, whichever is earlier, and in case of females till they get married, and this right is not restricted, affected or controlled by the divorce wife's right to claim maintenance for maintaining her infant child in her custody for a period of two years from the date of birth of the child concerned u/s. 3(1) (b) of the 1986 Act.

14. Looking to the broader perspective of Section 125 of Cr.P.C., the Court in detail dealing with the provisions under Muslim Women (Protection of Rights on Divorce) Act 1986, as noted above held that, though the child is entitled for maintenance under the said Act for a period of two years but thereafter also, particularly a female child till her marriage, the claim of maintenance is an absolute right conferred upon her u/s. 125 of Cr.P.C.

15. Learned counsel for the respondent herein has submitted that there is no provision under any Statute which translates the Mohammedan Law into a statutory right in favour of the major daughters to claim maintenance after attaining the age of majority till her marriage if she is unable to establish that she fall under any of the category u/s. 125(c) of Cr.P.C. that is, she must establish that she was suffering from physical or mental abnormality or injury which created a circumstance or situation that she became unable to maintain herself and then only she is entitled for maintenance. This particular aspect has not been dealt with in detail by the Hon'ble Supreme Court while dealing with the matter; however, it is only an obiter by the Hon'ble Supreme Court.

16. In this regard, the learned counsel for the respondent relied upon a decision of the Kerala High Court reported in 2003 (3) KLT 106 Between Muhammad vs. Kunhayisha, wherein the Kerala High Court had in detail dealt with the provisions of Section 125 of Cr.P.C. with reference to the above referred Supreme Court Judgment. Ultimately, the Court has come to the conclusion that the children of Muslim parents are entitled to claim maintenance u/s. 125 of Cr.P.C. for the period till they attain majority or till they are able to maintain themselves whichever is earlier. It is stated that it is an unnecessary and futile exercise to look for any authorities under the personal law of the Muslims when the provision 125 of Cr.P.C. itself is clear. The Kerala High Court has also dealt with Sec. 125 (c) of Cr.PC and held that major daughter, if unable to maintain herself, it cannot be called as physical or mental abnormality or injury. The Kerala High Court distinguished the Supreme court decision on the pretext that, the apex Court did not decide as to whether a Muslim daughter who has attained the age of majority is still entitled to claim maintenance from her father under section 125 of Cr.P.C. The Supreme Court in the said case has only dealt with claims of three minor children. The dictum in the decision is only that, the claims of children under section 125 Cr.P.C. is unaffected by the provisions of Muslim Women (PRD) Act 1986 and this alone is considered. Therefore, the observations made by the apex court is totally in different context. Hence, it cannot be a precedent. Therefore, ultimately the Kerala High Court concluded that major daughters are not entitled for maintenance u/s. 125 of Cr.P.C. though they are unmarried.

17. The learned counsel for the respondent strenuously contended that the Apex Court observed in the above said Noor Saba Khatoon's case that major daughter till she gets married, is entitled for maintenance u/s. 125 of Cr.P.C. but the Apex Court has not discussed the object of Mohammedan Law and also not dealt in detail with the provisions of Sections 125 (c) of Cr.P.C. Therefore, it has no binding force on this Court or any other Court because no law as such has been laid down in the above said case.

18. Learned counsel for the petitioner also cited another ruling reported in (2002) 5 Supreme Court Cases 422 between Jagadish Jugtawat Vs. Manjulata and Others, wherein the Hon'ble Supreme Court has held that:

"Criminal Procedure Code, 1973 - S. 125 - Though S.125 does not fix liability of parents to maintain children beyond attainment of majority, but right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized under S. 20(3) of Hindu Adoptions and Maintenance Act - Therefore, on a combined reading of the two provisions held, High Court was justified in upholding the order of Family Court, by which it granted maintenance under S.125 to the daughter even after her attaining majority but till her marriage, taking the view that it would avoid multiplicity of proceedings as otherwise the party would be forced to file another petition under S.20(3) for further maintenance-Hindu Adoption and Maintenance Act, 1956, S.20(3)."

19. Though the Apex Court has held that u/s. 20(3) of the Hindu Adoption & Maintenance Act provides right to claim maintenance after attaining the majority till the date of their marriage. Nevertheless, in this case also as rightly argued by the learned counsel for the respondent Sec. 125(c) of Cr.PC has not been in detail dealt with by the Court. However, as a speedy remedy the petition has been allowed u/s. 125 of Cr.P.C. providing maintenance to the daughter even after attaining the age of majority till her marriage.

20. Looking to the above said decisions as rightly conceded by both the counsels, that in both the above said rulings the Supreme Court has not in detail gone through whether the major daughters either under Hindu law or under the Mohammedan law, are entitled to claim maintenance under any statute or personal law, can also claim maintenance u/s. 125 of Cr.P.C. as a matter of right, which is the main important aspect to be dealt with by this Court.

21. It is to be borne in mind that, despite the catena of decisions that have literally overcrowded the field of law relating to maintenance u/s. 125 of Cr.P.C. and almost all the interpretations having been crystallized into well recognized statutory principles and legal concepts, but with the passage of time and possibly due to lack of sufficient and broad application of mind to the changed and hard realities of several aspects to the present scenario, the Courts are periodically called upon to reconsider or re-interpret the areas still considered to be gray areas. In this regard, the Indian judiciary has been constantly trying to make the concept of justice real for all its citizens irrespective of their caste, creed and religion, economic and social status. We must see to it that people who have been deprived of justice on account of infringement of their legal right, or poverty or otherwise also get real, inexpensive, speedy and timely justice.

22. Though we have a very rich, noble valuable guidance from our noble judges, still we are unable to ensure justice to the poor and needy, even though we have large number of personal and statutory laws. Therefore it is right time to demolish all the barriers and obstacles by finding out collective solutions. We should make justice to be pursued fairly, fully and impartially as a matter of right. The aspirations to justice and providing access to justice should be the foundation stone to mould the life of the citizens.

23. Our judicial system though considered to be perfectly structured may yet not be an effective justice delivery system. Therefore, we have to be always innovative, reformative. Our deeds must always be thought provoking. Improvement and introspection of our system are the two eyes of our system to see what reforms are necessary to our system, in order to make it more people friendly and less defective, and more effective. It is said, "a saner thought will always throw more light even on the same subject". In this backdrop, this court has to understand the magnanimous and wide vision depicted in the above quoted decisions of the Apex Court and also the principles relating to interpretation of statutes.

24. In the wake of above thinking, this particular case is also in my opinion requires a deeper and sharper analysis on Sec. 125(c) of Cr.PC in order to apply the said provision addressing sociological problems which are prevailing in the society and rampantly affecting the rights of the major daughters.

25. The words used in Sec.125(c) Cr.P.C. ie; "physical, mental abnormality or injury" require a paramount consideration and interpretation to attain the real object.

26. But the Court has to examine the phraseology used in S.125(c) of Cr.PC particularly the wordings "physical or mental abnormality or injury" if meaningfully understood, and properly interpreted, whether the unmarried daughters if they are unable to maintain themselves neglected and refused by their father, itself becomes an injury to any of their legal right and is sufficient to bring them within the ambit of S.125(c) of Cr.PC to claim maintenance from their father. In this background, it needs to be analyzed what constitutes an injury as contemplated under the said provision.

27. As it is apparent that physical or mental abnormality can be easily ascertained from the facts and circumstances of the case, the physical or mental abnormality is altogether different from physical or mental injury. If the legislators intended to address only a physical or mental abnormality they would have stopped there itself without inserting the word 'or injury' into the statute book u/s. 125(c). Therefore, apart from understanding what is meant by 'physical or mental abnormality', the Court also should bear in mind what is intended by the legislators in using the words 'physical or mental injury' to a person. So far as physical injury is concerned, there is no difficulty to come to a definite conclusion that the physical injury which amounts to disability, for which the person unable to maintain himself/herself, then the father is liable to maintain such of the children even after attaining the age of majority. Therefore, what meaning that should be attached to 'mental injury', play a dominant role in ascertaining the real and dominant intention of the legislators u/s. 125 (c) of Cr.P.C.

28. In this background it becomes incumbent upon this Court to ascertain what is meant by "injury" and what is meant by "mental injury."

29. Neither the Criminal Procedure Code which is a procedure to conduct criminal cases including the provisions u/s. 125 of Cr.P.C. nor the Civil Procedure Code which enables to conduct the Civil proceedings define what is meant by 'injury'. Therefore, it is essential to fall back to the definition of the 'injury' by taking external aids, i.e., dictionary meaning and also under any other provisions of law. So far as the Criminal law is concerned, Indian Penal Code is a closest companion of the Criminal Procedure Code. In the Indian Penal Code the word 'injury' is defined and what is meant by 'legal and illegal act' is also defined. For the purpose of understanding I, can gainfully extract the definition of "legal and illegal act", and 'injury' as enunciated u/s. 43 and 44 of I.P.C.

"Section 43. "Illegal", "Legally bound to do" - The word "illegal" is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a civil action; and a person is said to be "legally bound to do" whatever it is illegal in him to omit."

30. On plain understanding of the words "illegal" which is synonymous, to the word "unlawful"? The words "illegal and unlawful" have the same meaning under the Code. Thus the word "illegal" refers to three important aspects in the Section;

(a) everything done which is an offence.

(b) everything which is prohibited by law, and

(c) everything which furnishes ground for civil action.

31. Thus it clearly indicate that if a person legally bound to do something if he refuses to do that particular act which creates a right in another person either to exercise that right against the person who violated his duty as if an offence or to exercise a civil action for the purpose of his remedies, such acts amounts to illegal acts. It can be further clarified that if any such right is created by law for the time being in force whether it is a customary law or statutory law by virtue of such legal right, a person can enforce against another person who is legally bound to respect that right, if he does not, then it amounts to an act prohibited by law.

32. If the said analogy is applied to the present set of facts and circumstances, and also in view of my findings regarding the right of a Mohammedan major unmarried girl discussed in the later part of this judgment, the Mohammedan daughter who has become major and not yet married has got right to claim maintenance under the Personal law. As a resultant consequence personal law prohibits the father from refusing and neglecting to maintain his major daughter. Therefore, it can be safely said that a father under the Mohammedan customary law is legally bound to maintain his major daughter till she not only attains the age of majority but also till she gets married. As such, if he fails to accept the liability whether it is moral or legal, it becomes an illegal act of the said person?

33. In this background the 'injury' as contemplated under Section 44 of IPC is also to be understood. Section 44 of IPC defines the word 'injury', which is extracted below:

"44. The word "injury" denotes any harm whatever illegally caused to any person in body, mind, reputation or property."

34. The above said provision clearly indicates that injury need not be in a particular form, it may be either to the body or to the mind or to the reputation or property of a person and that injury is caused illegally. Therefore, the word "injury" has got a definite and significant connection with the word "illegal" as defined under section 43 of I.P.C. Therefore, it can be understood that if any person legally bound to do some act if he fails to do that act if it is an offence or if he fails to do that act which he is bound by any law for the time being in force or if he does any particular act which is prohibited by any law which give raise to a civil or criminal action in favour of the owner of that right, such illegality itself amounts to an 'injury' if it is done to body, mind, reputation or property. Therefore, the 'injury' can very well be explained that if due to any illegal act if a person suffers any bodily injury, mental injury or injury to his reputation or to property, then such sufferings can be called as an 'injury'.

35. Before deducing a definite and concrete definition to this particular word 'injury' it is also just and necessary to bear in mind the definition given to the word 'injury' in general parlance, i.e., according to the dictionary meaning. The word 'injury' has been defined in the Black's Law Dictionary 5th Edition as "any wrong or damage done to another, either in his person, rights, reputation or properties, the invasion of any legally protected interest of another."

36. In another book which is referred to as judicial dictionary Second Edition by Justice L.P. Singh and P.K. Majumdar the word 'injury' is defined as -

"the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property"

37. This definition is also accepted and adopted by the Hon'ble Apex Court in a decision reported in the case of S.N. Harman Singh Vs. State (Delhi Administration) AIR 1976 SC 2140.

38. The "law of Tort" is recognized as a law which gave birth to rights for recovery of damages for infringement of legal rights vested in certain person. The exposition of law as per Tort is that ''the law'' is nothing but a rule to control the human conduct accepted by the Society and enforced by the State for the betterment of human life".

39. In a wider sense it includes any law, statutory enactment or rule to control the human action like for example religious, social, political moral, or statutory rules to control the conduct of the persons. However, those statutory rules of conduct which emanate from the gates of parliament and legislature, protected and enforced by the State really constitute the law of the land in its stricter sense, which are also called as positive law. So far as the civil wrongs are concerned, mainly germane and recognized under law of tort. A tort is a legal term in common law of jurisprudence that means a wrong which may give raise to both criminal and civil actions and remedies. The civil wrongs are recognized, the acts, resulting in injury or harm that constitute a ground for law suits either on the criminal side or on the civil side. In this background the law of tort, recognizes infringement of a legal right itself as an injury. When the wrongful act is committed, it amounts to infringement of a legal right or a private right of a person by virtue or breach or violation of a duty, which can very well recognized by a maxim injuria sine damnum.

40. The real significance of legal damage can be illustrated by the maxim damnum sine injuria (damage without infringement of a legal right) which elucidates that there are many acts which though harmful, are not wrongful and give no right of action to any person who suffered from their effects but in certain circumstances even though there is no harm at all. But the converse maxim "Injuria sine damno" enunciates if there is a wrongful act then the person gets right to enforce to recover damages even there is no actual damage caused. This means an infringement of a legal private right itself is a damage which would give rise to a cause of action for enforcement of such right.

41. The illegal act or wrongful act can be committed by means of malfeasance and non-malfeasance. The term 'malfeasance' applies to commission of an unlawful act (act prohibited by law). The term 'misfeasance' means doing of a legal act in an improper manner. The term 'nonfeasance' meaning there to failure or omission to perform some act which there is an obligation to perform under any law for the time being in force.

42. On careful perusal of the definition of injury under various contexts it is clear that an infringement of a legal right of a person recognized under any law for the time being in force which is enforceable in the Court of law amounts to causing of injury to that person. It can be very well referred to as a physical or mental injury. The legal right may be in abstract, and may not be pursued by human senses, nevertheless it is there in existence either under customary law principles or under any statutory laws.

43. In this background the court has to now ascertain whether the Major daughters in India are vested with any right to claim maintenance either under their personal law or under any statutory law.

44. In this background, it needs a detailed analysis of the provisions under Mohammedan and Hindu, Christian; Parsi personal laws in contrast to Section 125 of Cr.P.C. It is worth to note here there is a specific provision u/s. 20(2) of Hindu Adoption & Maintenance Act wherein the said Act imposes an obligation upon the parents, mother and father both equally to maintain the children both legitimate and illegitimate and even major daughters till they get married. But there are absolutely no such contemporary provisions under any statute so far as Muslim, Christian and Parsi daughters are concerned. The Hindu Law which recognized the right of maintenance, after long lapse of time transforming Hindu law into Hindu Adoption & Maintenance Act. But till date the Mohammedan law which governs the grant of maintenance to the daughters even after they attain the age of majority till they get married is not yet transformed into any statutory right.

45. It is worth to refer some of the scholarly Articles under Mohammedan Law.

46. According to Hamilton's Hedaya, a classical work on Muslim Law (Volume I) Book No. 4 (1791 Edition), in Chapter XV (sect 4) at page 408, it is stated:

"The maintenance of infant children rests upon their father; and no person can be his associate or partner in furnishing it (in the same manner as no person is admitted to be associated with a husband in providing for the maintenance of his wife) because the word of GOD, in the Kuran, Says "THE MAINTENANCE OF THE WOMAN WHO "SUCKLES AN INFANT RESTS UPON HIM TO WHOM THE INFANT "IS BORN".

From the above passage it appears that maintenance of an infant child also rests upon the father, because, as maintenance is decreed.

47. In another book written by Neil B.E. Baillie, in his book on 'Digest of Muhammadan Law, III Impression (1957 Edition), at page 460, says:

"A father is bound to maintain his children and no one shares the burden with him."

He further says, at page no. 462:

"A father must maintain his female children absolutely until they are married, when they have no property of their own. But he is not obliged to maintain his other male children unless they are disabled by infirmity or disease."

In another famous book Tyabji on Muslim law it is stated that:

"the father is solely obliged to provide the entire maintenance to his children until they become adult, including the period of infancy, during which the mother or any other person is entitled to their custody. The daughters are entitled to maintenance until they are married and unless they have property of their own" The famous Jurist Mulla in his book on Principles of Mohammedan Law (18th Edition) 4th Re-print, at page 383, states at item 370 as follows:

"370 - Maintenance of Children and grand-children, - (1) a father is bound to maintain his sons until they have attained the age of puberty (majority). He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintain them."

In another book written by B.R. Verma on Islamic Law - Personal-a Commentary on Mohammedan Law dealing with the question of maintenance to the children at page 302, it is stated that:

a person even though he is a poor, shall bound to maintain his children till the time of weaning, but after that the duty to maintain their children and grand children shall, if they are not possessed of property from which they can be maintained. The children and grandchildren are to be maintained, i.e., in case of boys who have not attained the age of majority and in case of girls till they get married.

In another book written by Asaf A.A. Fyzee, in his book 'Out-line of Muhammadan Law (IVth Edition) at page 214 states that:-

"Father is bound to maintain his sons until they attain puberty and his daughters until they are married. He is also responsible for the upkeep of his widowed or divorced daughter."

48. From purposive and meaningful reading of all the recitals from the various authors in various books cited above, it is crystal clear from the Mohammedan personal (Customary) Law that the obligation of the father to maintain his children particularly boys till they attain the age of puberty, but in case of daughters till they get married is a indefeasible right acquired under the personal law, but as above stated that it is not yet transformed into a statutory law. Nevertheless, such right to maintenance can be equally enforceable before the civil court. Therefore those rights can be safely called as legal rights.

49. Section 20 of the Hindu Adoption & Maintenance Act gives an absolute right to the daughters to claim maintenance against their father under civil proceedings by means of a duly constituted suit. But, in order to acquire speedy remedy, the said right also can be exercised u/s. 125 Cr.P.C. as narrated by the Hon'ble Apex Court in the above cited two decisions (Noor Saba khathoon, and. Jagdish Jugtawat) Though the Apex Court has not in detail dealt with S.125 (c) of Cr.PC, but the right of female even after attaining the age of majority till she is married in order to avoid vagrancy and driving her to immorality and for their subsistence of maintenance, the courts can award maintenance under section 125 of Cr.P.C.

50. On comparative study of all the personal laws and statutory laws, it is apparent that, Hindu wife, minor children, and major daughters aged parents, are entitled to enforce their rights to claim maintenance before the civil courts. Likewise, the Mohammedan wife is also entitled to exercise her maintenance right under the Muslim Divorce (Protection of Muslim Woman) Act, 1986. The Mohammedan major girls though there is no statutory law, they can enforce their right under personal law before the civil courts. Therefore, in order to enforce their rights they can go before the Civil Court by interpreting the provisions under the customary Mohammedan law but not a statutory right is created upon them under any statute for the time being in force. Though the customary laws recognized as strong laws than the statutory laws but nevertheless in all the cases in order to achieve or obtain speedy remedy the Mohammedan girls cannot rush to the Civil Court and wait for such a long time for the purpose of getting the remedy. In this background coupled with the object of Section 125 of Cr.PC, in my humble opinion, that the word "injury" as contemplated u/s. 125(c) of Cr.PC is to be interpreted in such a manner so that it would benefit the persons who are entitled to claim maintenance in that particular provision in order to survive till they get other alternative for their subsistence. Therefore, in this background I am of the considered opinion that, the said provision is to be interpreted in such a manner so as to advance justice and to suppress the mischief. Any interpretation which causes harm or injury as such to the members of the Society and it goes contrary to the very purpose and intention of the legislators in providing such speedy remedy to the parties, such interpretations should be avoided. In this background it is worth to bear in mind the rules of construction of Statutes.

51. It is well recognized principle of interpretation of statutes that statutes are not mere exercises but are instrument of Government. While constructing statute the general purpose, undertaking by that enactment should be borne in mind by the Courts. In this regard it is worth to note here a passage in Maxwell Interpretation of Statutes 10th Edition page 229 wherein Maxwell, a famous author eloquently narrates that:

"Where the language of a statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence."

52. If the above said principles are applied to this case, S.125(c) of Cr.PC has to be understood along with the main object of introducing the provisions u/s. 125 to 128 of Cr.PC and the Court should bear in mind that the provisions have to be interpreted in such a manner, that it is in conformity with the main intention of the legislators in bringing those provision into the statute book. Therefore, if the words are susceptible to two interpretations, the interpretation which is more harmonious with the intention of the legislator with reference object of the statute, though it may be less correct grammatically, but if the words are plain and can be of holding one meaning, effect should be given to them irrespective of the conclusion that might play from it.

53. This Court also conscious of the fact that the duty of the Court is not to enlarge scope of legislation but the intention of the legislators. When the provision is plain and unambiguous, the Court also cannot rewrite recast or reframe the legislation for any good reason, to say that it has no power to legislate. Even the Courts also cannot add the words to a Statute or delete from it which are not there, assuming that there is a defect or omission in the words used by the legislators. But the Court shall decide what the law is and not what it should be. Bearing in mind the above said principles of interpretation as I have already narrated that this Court is not deleting or adding any words to Section 125(c) of Cr.PC but this Court is only making its earnest efforts to interpret what is the real intention of the legislators in using the words 'physical or mental abnormality or injury' particularly with reference to the 'physical or mental injury" and also to bring the objectives of the said provisions in accordance with other recognized provisions under several enactments already discussed.

54. Speedy and timely remedy is the basic and fundamental object of section 125 of Cr.P.C. coupled with the inability of the wife, children and father or mother to maintain themselves, which could lead to lot of social problems. Therefore, it has become the concern of the State to not to allow such inability to grow into irresistible social problem to a greater magnitude. Unless the consequences of such inability were checked by providing appropriate measures, large scale of immorality could be the probable offshoot there from. Therefore, in this background the Parliament thought of in its wisdom to bring up these provisions in order to provide speedy and effective remedy to avoid destitution and vagrancy and also to remind the persons who have got greater obligations to maintain their wife and children. Therefore, the parliament in its desire and wisdom to find a solution to this problem evolved a summary procedure as against cumbersome civil litigation which is found in its expression in sections 125 to 128 of Cr.P.C. In plethora of rulings, the Hon'ble Apex Court has held that the said provision is fully consistent with Article 15(3) of the Constitution of India. Further added to the above, the Supreme Court in many decisions interpreting the provisions of Section 125 of Cr.PC, enlarged the scope of the said provisions and held that the magnanimity in interpreting the provisions could help the people at large and avoid destitution and vagrancy. It may also be useful to recapitulate some of the land mark judgments of the Apex court, enlarging the scope of the said provision:

(1) (1985) 2 SCC 556 Mohammad Ahmed Khan Vs Shahbanoo Begum. (wife includes divorced wife nor remarried, entitle for maintenance.) 

(2) (1999) 7 SCC 675, Dwarika Prasad Vs Bidyuth Parva Dixit. ( Strict proof of marriage is not necessary to claim maintenance under the section) 


(3) (2004) 5 SCC 196 Vijakumar Prasad Vs State of Bihar. (Proceedings are quasi civil in nature, and not intended to punish the wrongdoer.) 


(4) (2008) 9 SCC 672 shaila Kumari Devi Vs Krishnana Bhagwan pathak( implied powers to grant interim maintenance) 


(5) (2011) 1 SCC 141. Chanmuniya Vs Virendra Kumar Singh Kushwala (long cohabitation without valid marriage, presumption of marriage and maintenance can be granted.

(6) (2014) 1 SCC 199. Badshah Vs Urmila Badshah Godse. (living in relationship also entitles a woman to claim maintenance under the provision."

55. It is clear from the above quoted decisions that the Hon'ble Apex court has given a responsible indication that, the courts should avoid construction or interpretation of statuted which would reduce the legislation to futility and should accept the construction based on the viewd that parliament would legislate only for the purpose of bringing about an effective result.

56. Applying the above said principles to the facts of the case on hand, the Mohammedan daughter who has got a right to be maintained by her father under Muslim personal Law, as already noted above, the infringement of such right of that lady itself amounts to an injury which can be very well be equated to the word 'injury' used in S.125(c) of Cr.P.C. Physical or mental abnormality has to be established before the Court of law by means of evidence. But the mental or physical injury as already narrated above, physical injury can be perused by the appearance or by means of senses but mental injury it is nothing but malice in law which can be gathered on the basis of violation of a legal right to claim maintenance vested under any law for the time being in force including S.125 of Cr.P.C. If such right is infringed by the adversary then automatically it will fall u/s. 125 (c) of Cr.PC. The other riders which are there in the said provision also have to establish that they are unable to maintain themselves has to be strictly complied. If that right to claim maintenance of that lady is infringed, definitely it can be called as an injury which can very well be fit into the definition of mental injury and in my opinion that must have been the intention of the legislators and the parliamentarians in introducing the word 'injury' u/s. 125 (c) of the Cr.P.C.

57. Having come to such a conclusion, it is also to be noted here that only major daughters whether Hindu, Muhammadan, Parsi or Christian wherever their rights are recognized under any other personal law or statute for the time being in force that they are entitled for maintenance at the hands of their father or anybody till they get married, if they are unable to maintain themselves and father is capable of maintaining them. Then only the word 'injury' used in Section 125 (c) of Cr.PC can be pressed into service in order to hold that their right has been infringed and therefore, they are entitled for maintenance u/s. 125 of the Cr.P.C.

58. It goes without saying that the said provision is not applicable particularly to major sons though they are not married because of the simple reason that no law recognizes the major sons are entitled to maintenance till they get married. But they are also entitled to maintenance only if they are suffering from any mental or physical abnormality or injury.

59. In view of the above observations and circumstances now coming back to the facts of this particular case, it is specifically stated in the petition that the petitioner herein has categorically stated in the petition as could be made out from the averments culled out in the Criminal Revision Petition that petitioner is the daughter of respondent and she is not having any source of income to maintain herself. On the other hand, the respondent-father is working in Karnataka State Reserve Police drawing handsome salary and is capable of maintaining the petitioner and that the respondent has violated his obligation and he neglected and refused to maintain her. No acceptable materials have been produced to show that the petitioner has got any property in her name, or is gainfully employed to refuse maintenance. Therefore she is entitled for maintenance till her marriage. In view of my discussion all the ingredients which are necessarily to be pleaded u/s. 125 of Cr.P.C. are very much there in the petition. Therefore, I do not find any strong reasons to refuse to grant maintenance as ordered by the trial Court. The revisional Court without applying its mind in detail to the facts and circumstances of the case and also without appreciating the judgment of the trial Court has dismissed the petition by allowing the Revision Petition. Therefore, in my opinion, it is bad in law and the same deserves to be set aside.

60. Accordingly, I proceed to pass the following:

ORDER 

The Criminal Petition filed u/s. 482 of Cr.P.C. is hereby allowed.

The order passed by the Incharge Presiding Officer, Fast Track Court, Tumkur in Cr.R.P. No. 149/2012 dated 25.10.2013 is hereby quashed.

Consequently the order passed by the III J.M.F.C. at Tumkur in C.Misc. No. 455/2007 in granting maintenance of Rs.800/- per month in favour of the petitioner till her marriage from the respondent is hereby confirmed.


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