New Delhi: A Supreme Court bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah on Tuesday held that as a proposition of law, an unmarried Hindu daughter can claim maintenance from her father till she is married, provided she pleads and proves that she is unable to maintain herself. However, for enforcement of this right, her application/suit has to be under Section 20 (3) of the Hindu Adoptions and Maintenance Act (HAMA), 1956, rather than under Section 125 of the Code of Criminal Procedure (CrPC), the bench ruled.
In the instant case, Abhilasha v Parkash & Others, an unmarried daughter challenged the order of the judicial magistrate 1st class, Rewari, granting her maintenance in 2011 at Rs 3,000 per month to be paid by her father from the date of filing of the petition under Section 125 CrPC until she becomes a major. Along with the unmarried daughter, her mother and two minor sons had also filed the petition, but were not granted maintenance, because they did not plead and prove that they were unable to maintain themselves. The unmarried daughter was found to be entitled to get maintenance from October 17, 2002, when she filed the application till February 7, 2005, when she became a major.
The additional sessions judge, Rewari had dismissed their appeals. The ASJ observed that the unmarried daughter was entitled to get maintenance until she becomes a major and not thereafter since she was not suffering from any physical or mental abnormality or injury, which are the exceptions which can make a child eligible for maintenance even after becoming a major but is unable to maintain herself. However, the ASJ corrected the date of her attaining majority as April 26, 2005, and extended her eligibility for maintenance till then.
Going strictly by Section 125(1)(c) of the CrPC, the ASJ refused to consider her plea for maintenance from her father until her marriage.
The Punjab and Haryana high court dismissed their appeals against these orders in August 2018, saying it did not find any illegality or infirmity in the ASJ’s judgment.
The SC’s order
In the Supreme Court, while challenging the order of the high court, it was argued on behalf of the unmarried daughter, who was the appellant, that as per section 20 of the HAMA, 1956, the obligation of the father to maintain his daughter extends until she is married. As the appellant claimed to be still unemployed, she said she was entitled to claim maintenance from her father.
Comparing Section 125 of the CrPC with Section 20(3) of HAMA, the bench noted that the former contemplates that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury and she is unable to maintain herself.
The bench noted that Section 488 of the CrPC sought to inhibit the negligence of woman and children with the intent to serve a social purpose. The provision provided for summary proceeding to enable a deserted wife or helpless child, legitimate or illegitimate, to get urgent relief. “The laws are nothing but collective consciousness of community. It is in the interest of the community and social order that woman and child who are neglected be maintained and should be provided a forum to obtain urgent relief to enable them to sustain”, the bench observed.
Relying on Supreme Court’s previous decision in Lnanak Chand v Chandra Kishore Aggarwal and others (1969), the bench held that there is no inconsistency between Section 488 of the CrPC. and HAMA and both can stand together. Section 488 of the CrPC provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties, the bench held, citing its previous judgment.
In classical Hindu law prior to codification, a Hindu male was always held morally and legally liable to maintain his aged parents, a virtuous wife and infant child, the bench reasoned. While Hindu law always recognised the liability of the father to maintain an unmarried daughter, Muslim law also recognises the obligation of the father to maintain his daughters until they are married, the bench pointed out.
Obligation can be enforced
The obligation of a Hindu father to maintain his unmarried daughter can, therefore, be enforced by her against her father, if she is unable to maintain herself, the bench held.
While explaining the position under the Muslim law, the bench referred to the Supreme Court’s previous decision in Noor Saba Khatoon v Mohd. Quasim (1997). The Supreme Court held in this case that the effect of beneficial legislation like Section 125 of the CrPC cannot be allowed to be defeated except through clear provisions of a statute. The court, therefore, held that there is no conflict between Section 125 of the CrPC and the Muslim Women (Protection of Rights on Divorce) Act, 1986, enacted in the aftermath of the Shah Bano verdict by the Supreme Court during the term of the then prime minister Rajiv Gandhi.
The Supreme Court held in this case that it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 of the CrPC to the children only on the ground that they are born of Muslim parents. A Muslim father’s obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 of the CrPC is absolute and is not at all affected by the 1986 Act, the Supreme Court had held in that case. Relying on the same case, the Supreme Court held on Tuesday that the right of an unmarried daughter under Section 20 of HAMA to claim maintenance from her father when she is unable to maintain herself is absolute.
However, the bench added that the magistrate, in exercise of powers under Section 125 of the CrPC cannot pass an order under Section 20 of HAMA. The maintenance as contemplated under HAMA is a larger concept as compared to the concept of maintenance under Section 125 of the CrPC, the bench held. The bench pointed out that Section 3(b) of HAMA gives an inclusive definition of maintenance, including marriage expenses.
The larger right under HAMA requires a determination by a civil court, and parliament never contemplated to burden the magistrate while exercising jurisdiction under Section 125 of the CrPC for this purpose, the bench held.
