Bombay High Court
Ajijuddin Khan S/O Rayajuddin ... vs Toufique Parvej S/O Azijuddin ... on 3 February, 2022
Bench: Avinash G. Gharote
1 45.WP.546-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO. 546 OF 2020
( Mr. Ajijuddin Khan S/o Rayajuddin Khan
Vs.
Mr. Toufique Parvej S/o Azijuddin Khan )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Ms. Ayushi Dangre, Advocate h/f Mr. A.N, Ansari, Advocate for the
Petitioner.
CORAM: AVINASH G. GHAROTE, J.
DATED : 3rd FEBRUARY, 2022.
Hearing was conducted through Video
Conferencing and the learned counsel agreed that the
audio and visual quality was proper.
2. Heard Ms. Dangre, learned counsel holding
for Mr. A.N. Ansari, learned counsel for the petitioner.
She submits that the petitioner was married with one
Parveen Anjum on 14.06.2001, from which marriage the
respondent was born on 01.05.2002. Thereafter in
February 2006, a divorce took place between the
petitioner and his wife, whereupon, the wife remarried
and the respondent continued to reside with the wife.
3. An application under Section 125 of the Code
of Criminal Procedure (hereinafter to be referred as
"Cr.P.C.") came to be filed bearing Misc. Criminal Case
No. 89/2011 before the learned JMFC, Lakhani, claiming
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maintenance, in which, by judgment dated 03.07.2013,
maintenance of Rs. 2,000/- (Rs. Two Thousand Only)
per month came to be granted to the respondent. An
application under Section 127 of the Cr.P.C., being Misc.
Criminal Case No. 67/2014 came to be filed for
enhancement, which came to be allowed by judgment
dated 22.10.2018, enhancing the maintenance from
Rs. 2,000/- (Rs. Two Thousand Only) per month to
Rs. 3,000/- (Rs. Three Thousand Only) per month from
the date of the application. In this judgment itself it is
observed in para 9, that the respondent, on the date of
passing the judgment was 16 years of age. This was
further challenged by the respondent, in revision before
the learned Sessions Judge, Bhandara, by way of
Criminal Revision No. 29/2019, in which, by the
impugned judgment dated 02.07.2020, the maintenance
granted to the respondent, was further enhanced to
Rs. 4,000/- (Rs. Four Thousand Only) per month from
01.11.2016 till completion of education of the applicant,
after noting that as on the date of passing of the
judgment, the applicant therein, might be of 18 years,
however, inspite of the same, it was held that the
applicant would be entitled to get maintenance from his
father till completion of his education. It was further
observed, that it was not in dispute that the applicant
was taking education (page 48).
4. Ms. Dangre, learned counsel appearing for
the petitioner submits, that even before the passing of
the impugned judgment on 02.07.2020, the respondent
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had attained majority on 01.05.2020, and therefore, the
learned Sessions Court, could not have continued the
maintenance beyond the date of the respondent attaining
majority, much less enhanced the same. She further
submits, that though the learned Sessions Court records,
that it was not in dispute that the applicant was taking
education, however there was nothing on record to
indicate that this was so. It is further contended, that
except the statement contained in the application under
Section 125 of the Cr.P.C., that the respondent at that
point of time was 9 years and was 16 years and was
studying in 12th standard when the order of enhancement
was made under Section 127 of the Cr.P.C., and a bare
statement that when the revision was presented, the
applicant was aged about 17 years and was prosecuting
his education of graduation, there is absolutely nothing
on record to indicate that the respondent was taking
education of any sort whatsoever. She further contends,
that the factum of education is one which is
eminently demonstrable by documents such as the
bonafide certificate and admission card etc, and nothing
of the sort was placed on record for the learned Sessions
Court to arrive at a finding that the respondent was
taking education.
5. Further relying upon the language of Section
125 of the Cr.P.C. and specifically clause (b) of Sub
Section (1), she submits, that maintenance under the
said provision is permissible only to a minor child.
Further relying upon clause (c) of Sub Section (1) of
4 45.WP.546-2020.odt
Section 125 of the Cr.P.C., she submits, that maintenance
could be awarded to a child who has attained majority
only in a case where such child is, by reason of any
physical or mental abnormality or injury unable to
maintain itself. She therefore submits, that for the
purpose of enhancing the maintenance and continuing it
beyond the age of majority of the respondent, the
requirement of Section 125 (1)(c) of the Cr.P.C., ought
to have been pleaded and fulfilled, which has not been so
done. She further submits, that the factor of grant of
maintenance for the purpose of education is not one,
which is contemplated by Section 125(1)(c) of the
Cr.P.C., and therefore, on this ground also presuming,
that the respondent was taking education, the same was
impermissible. She further submits, that the parties
profess Muslim religion, and therefore, would be
governed by the language of Section 125 of the Cr.P.C.,
and not otherwise. She further places reliance on the
Explanation (a) of Section 125(1) of the Cr.P.C., which
defines a minor to be a person who, under the provisions
of Indian Majority Act, 1875, is deemed not to have
attained majority. By placing reliance on provisions of
Section 3 of the Indian Majority Act, 1875, it is submitted
that the age of majority is 18 years, and therefore,
insofar as Section 125(1)(b) of the Cr.P.C., is concerned,
the same would clearly not be applicable to the
respondent having attained majority on 01.05.2020 and
thereby ceases to be a minor. In order to buttress her
argument, she places reliance upon Shivaji Vs. Alka,
2011 (6) RCR (Cri) 2540 (BOMBAY). At this stage,
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learned counsel for the petitioner, seeks short
accommodation to place on record the compilation of
judgments which she relies upon. Since, Mr. D.V.
Mahajan, learned counsel for the respondent is not
online, list the matter on 07.02.2022 for further
consideration.
JUDGE
SD. Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:04.02.2022 11:13
