Chattisgarh High Court
Dilip Sharma vs Swati Sharma on 1 April, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 25/01/2022
Judgment delivered on: 01 /04/2022
CRMP No. 158 of 2022
Dilip Sharma S/o Late Shri Ram Lochan Sharma, Aged About
52 Years, R/o Flat No. 202, Chaman Heights, Chadda Badi,
Nehru Nagar, Bilaspur, P. S. Civil Line, District Bilaspur
Chhattisgarh.
---- Petitioner
Versus
1. Swati Sharma D/o Shri Dilip Sharma, Aged About 22 Years,
R/o H. No. Hig 1/128, Sector-1, Deen Dayal Upadhyay Nagar,
Police Station Deen Dayal Upadhyay Nagar, Raipur Tehsil And
District Raipur Chhattisgarh.
2. Shashank Sharma S/o Dilip Sharma, Aged About 17 Years.
Respondent No. 02, Is Minor Through Natural Guardian
Mother Madhulika Sharma, R/o H. No. Hig 1/128, Sector-1,
Deen Dayal Upadhyay Nagar, Police Station Deen Dayal
Upadhyay Nagar, Raipur Tehsil And District Raipur
Chhattisgarh.
---- Respondents
For Petitioner : Mr. Ravindra Sharma, Adv.
For Respondents : Mr. Anish Tiwari, Adv
Hon'ble Smt. Justice Rajani Dubey, J.
C A V Order
1. This petition has been filed under Section 482 of Cr.P.C.
against the order dated 05.01.2022 passed by the First Additional
Principal Judge, Family Court, Raipur in Execution Case (MJC) No.
558/2018, whereby learned Judge has passed the order of
maintenance of Rs. 3,71,000/- in favour of the respondents.
2. The fact of the case, in short, is that marriage of the
petitioner and mother of the respondents namely Smt. Madhulika
Sharma was solemnized on 26.01.1999 and out of their wedlock
respondents No. 1 & 2 were born on 17.05.2000 & 23.02.2005
respectively and she has been living separately along with the
respondents to her maternal house since May 2013. On 07.09.2013
Madhulika Sharma filed an application under Section 125 of Cr.P.C.
for grant of maintenance before Principal Judge, Family Court
Raipur which was registered as MJC Case No. 279/2013 in which
learned Family Court vide order dated 27.06.2015, passed ex-parte
order and granted Rs. 5,000/- per month in favour of Madhulika
Sharma and Rs. 6,000/- each, in favour of the respondents.
Thereafter, when petitioner came to know about the ex-parte order
against him, he preferred the revision petition Registered as
Criminal Revision No. 519/2016 and the same was disposed of by
this Court vide order dated 17.06.2016 with liberty to approach
before the Court below by filing an application under Section 126(2)
of Cr.P.C. In compliance of the order of High Court, petitioner
preferred an application under Section 126(2) which was allowed by
the trial Court vide order dated 20.09.2016 and the impugned order
dated 27.06.2015 was set-aside and a direction was issued to
reinstate the original case of 125 Cr.P.C.
3. After hearing afresh, learned Family Court, vide order dated
22.03.2018, allowed the application for grant of maintenance and
awarded Rs. 8,000/- in favour of respondent Swati Sharma and Rs.
7,000/- in favour of respondent Shashank Sharma (total Rs.
15,000/-) towards maintenance. Against that order, petitioner
preferred criminal revision before this Court, registered as Criminal
Revision No. 407/2018 and the same was dismissed vide order
dated 04.12.2019 affirming the impugned order dated 22.03.2018.
4. On 04.08.2018, the respondents filed an application under
Section 125(3) Cr.P.C. for execution of order dated 22.03.2018. The
petitioner appeared before the trial Court and filed his reply of the
application. On 04.02.2020, petitioner filed an application under
Section 127 of Cr.P.C. which is still pending. On 04.03.2021,
respondents again filed an application for payment of maintenance.
On 27.03.2021 petitioner filed his reply of the application and
specifically refuted the claim of the respondents stating that the
respondent No. 1 is not entitled to get any maintenance from the
date of attaining her majority i.e. 17.05.2018 because she is
physically and mentally fit.
5. On 28.07.2021 by an oral order of the Court below, both the
parties were directed to submit their calculation regarding the
payment of maintenance and in compliance of the order, both the
parties have submitted their details. As per the calculations of the
respondents they are entitled for balance maintenance about of Rs.
3,11,000/- till 28.07.2021, on the other hand, petitioner has
calculated the amount of Rs. 2,96,000/- out of which Rs. 2,89,000/-
has been already paid to the respondents. Thereafter, on
28.07.2021, petitioner again paid the amount of Rs. 15,000/-. Thus,
as per petitioner, total amount of Rs. 3,04,000/- has been paid to
the respondents.
6. Learned trial Court directed the petitioner to pay the
maintenance amount, therefore, the petitioner approached to this
Court and filed Writ Petition 227 No. 368/2021 by raising his
grievance but this Court, at motion stage, disposed of the writ
petition vide order dated 05.08.2021 and directed the Court below
to ascertain and determine the arrears of maintenance after giving
opportunity of hearing both the parties and also directed to decide
the application filed by the petitioner under Section 127 of Cr.P.C.
expeditiously. On 04.10.2021, respondents again filed application
under Section 125 (3) of Cr.P.C. for payment of arrears. On
05.01.2022 learned trial Court directed the petitioner to pay all
arrears of maintenance i.e. Rs. 3,71,000/- to the respondents
against which the petitioner has filed the present petition.
7. Learned counsel for the appellant submits that the impugned
order is illegal, perverse and contrary to law as learned Family
Court has failed to consider the fact that respondent No. 1 has
attained the majority on 17.05.2018, she is fit in mental condition
and from the date of majority she is not entitled to get any
maintenance. It is next contended that the learned Family Court
erred in ignoring the fact that the application under Section 127 of
Cr.P.C. registered as case No. 116/2020 has been filed by the
petitioner, proceeding of which is parallely going on with the
proceeding of Execution Case (MJC) No. 558/2018, has not been
decided till date, therefore, the impugned order dated 05.01.2022
is liable to be set-aside. In support of his submission learned
counsel for the petitioner placed reliance in the matters of
Abhilash Vs. Prakash & Others reported in AIR Online 2020
SC 727 and this Court's order in Sukul Ram Sahu Vs. Ku.
Kalyani Sahu passed in CRR No. 501/2021 vide order dated
17.12.2021.
8. Learned counsel for the respondent supported the impugned
order of the trial Court and in support of his argument he placed
reliance in the matter of Jagdish Jugtawat Vs. Manju Lata &
Others passed in (2002) 5 SCC 422.
9. Heard counsel for both the parties and perused the material
available on record.
10. Petitioner filed order-sheets of the execution case and it is
clear from order-sheets that on 05.01.2022 both the parties filed
their calculation of maintenance. Learned trial Court held in para 32
as under:-
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fnyhi 'kEkkZ dks ;g vknsf'kr fd;k x;k gS fd dq- Lokfr 'kekZ dks
[email protected]& #i;s izfrekg o 'k'kkad 'kekZ dks [email protected]& #i;s izfrekg vkns'k
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dks 30][email protected]& #i;s] 30-06-2021 dks 29][email protected]& #i;s] 28-07-2021 dks
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11. It is clear from Annexure P/2 that the order was passed by
learned Family Court on 22.03.2018 and the petition was filed on
07.09.2013 in which petitioner objected that the respondent No.1 is
major daughter, therefore, she is not entitled to get maintenance
under Section 125 of Cr.P.C. Petitioner also stated that he filed
application under Section 127 of Cr.P.C. before Family Court but till
date his application has not been decided finally. Against order
dated 20.03.2018 petitioner filed revision before this Court but his
revision petition numbered as CRR No. 407/2018 was dismissed by
this Court on 04.02.2019.
12. Section 125 of Cr.P.C. and Section 20(3) of the Hindu Adoption
and Maintenance Act deal with the maintenance to minor & major
Hindu daughter. For ready reference, Section 125(1)(b) of Cr.P.C. &
Section 20(3) of the Act is being reproduced herein below:-
"125. Order for maintenance of wives, children
and parents-
(1) If any person having sufficient means neglects or
refuses to maintain-
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself.
A Magistrate of the first class may, upon proof of such
neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate, as such
Magistrate think fit, and to pay the same to such person
as the Magistrate may order the father of a minor
female child referred to in Clause (b) to make such
allowance, until she attains her majority, if the
Magistrate is satisfied that the husband of such minor
female child, if married, is not possessed of sufficient
means."
"20. Maintenance of children and aged parents:-
(3) the obligation of a person to maintain his or her
aged or infirm parent or a daughter who is unmarried
extends in so far as the parents or the unmarried
daughter, as the case may be, is unable to maintain
himself or herself out of his or her own earnings or
other property."
13. From reading of Section 125(1)(b) of the Act, it is evident that
it does not provide for maintenance to a major unmarried daughter
whereas Section 20(3) of the Act does so. Thus, there are two
statutes which make provision for grant of maintenance. If two
statutes grant the same relief then both the provision have to be
read in harmony, not in contradiction. If such a rule is applied,
same will avoid any apparent contradiction between the different
statutes dealing with the same subject, it would not be a proper
construction of law to hold that under Code a major unmarried
daughter would not be entitled to maintenance, but the Act
governing the same field, major unmarried daughter would be
entitled for maintenance. It is evident that the right of major
unmarried girl for maintenance from parents after attaining
majority till her marriage flows from the combined reading of
Section 125 of the Code and 20 (3) of the Act.
14. The Hon'ble Apex Court had the occasion to consider this
question in the case of Jagdish Jugtawat Vs. Maju Lata &
Others (2002) 5 SCC 422 in which it has been held that:-
"Applying the principle to the facts and circumstances
of the case in hand, it is manifest that the right of a
major girl for maintenance from parents after attaining
majority till her marriage is recognized in Section 20(3)
of the Hindu Adoptions & Maintenance Act. Therefore,
no exception can be taken to the judgment/order
passed by the learned Single Judge for maintaining the
order passed by the Family Court which is based on a
combined reading of Section 125 Cr.P.C. and Section
20(3) of the Hindu Adoption & Maintenance Act."
15. Considering the facts and circumstances of the case, the law
laid down in the matter of Jagdish (supra) and further considering
the fact that the revision petition of the petitioner was dismissed by
this Court and application under Section 127 of Cr.P.C. is still
pending before the Family Court, this Court finds that the impugned
order passed by the learned Family Court is based on proper
appreciation of oral and documentary evidence and need not to be
corrected. Hence, the petition filed by the petitioner under Section
482 of Cr.P.C is liable to be and is hereby dismissed.
Sd/-
(Rajani Dubey)
Judge
V/-
