Uttarakhand High Court
Satya Prakash Naithani vs State Of Uttarakhand And Others on 16 November, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 377 of 2021
Satya Prakash Naithani ....Revisionist
Vs.
State of Uttarakhand and Others ..... Respondents
Presents:-
Mr. Neeraj Garg, Advocate for the revisionist.
Mr. Pankaj Joshi, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
the order dated 01.12.2021, passed in Criminal Case No.
107 of 2020, Smt. Poonam Naithani and Another Vs.
Satya Prakash Naithani, by the court of Principal Judge,
Family Court, Dehradun, District Dehradun ("the case").
2. Heard learned counsel for the revisionist
and perused the record.
3. In the revision, notices were issued to the
respondent nos. 2 & 3, but despite notices, they did not
appear.
4. It appears that the respondent no.2, Smt.
Poonam Naithani, and respondent no. 3, Anshika Naithani,
who are wife and daughter of the revisionist, respectively
filed an application for maintenance under Section 125
of the Code of Criminal Procedure, 1973 ("the Code"),
which is the basis of the case. In that case, an
application was filed by the revisionist with the
averments, therein, that the respondent no.3 is major.
Therefore, she is not entitled to maintenance. That
application has been rejected by the impugned order
order dated 01.12.2021.
5. In fact, in the case, an order of interim
maintenance, passed on 12.05.2022, has been
challenged by the revisionist in Criminal Revision
No.286 of 2022, Satya Prakash Naithani Vs. State of
Uttarakhand and Others, which has been rejected by
this Court earlier today.
6. Learned counsel for the revisionist would
submit that, in fact, an application under Section 125 of
the Code is not maintainable by a major daughter, who
is not physically challenged.
7. On the question of entitlement of
maintenance to a major daughter in a proceeding under
Section 125 of the Code, in the case of Abhilasha Vs.
Prakash and Others, 2020 SCC OnLine SC 736, the
Hon'ble Supreme Court observed as hereunder:
"32. After enactment of Family Courts Act,
1984, a Family Court shall also have the
jurisdiction exercisable by a Magistrate of the
First Class under Chapter IX of Cr.P.C. relating
to order for maintenance of wife, children and
parents. Family Courts shall have the
jurisdiction only with respect to city or town
whose population exceeds one million, where
there is no Family Courts, proceedings under
Section 125 Cr.P.C. shall have to be before the
Magistrate of the First Class. In an area where
the Family Court is not established, a suit or
proceedings for maintenance including the
proceedings under Section 20 of the Act, 1956
shall only be before the District Court or any
subordinate Civil Court."
"33. There may be a case where the
Family Court has jurisdiction to decide a case
under Section 125 Cr.P.C. as well as the suit
under Section 20 of Act, 1956, in such
eventuality, Family Court can exercise
jurisdiction under both the Acts and in an
appropriate case can grant maintenance to
unmarried daughter even though she has
become major enforcing her right under
Section 20 of Act, 1956 so as to avoid
multiplicity of proceedings as observed by this
Court in the case of Jagdish Jugtawat (supra).
However the Magistrate in exercise of powers
under Section 125 Cr.P.C. cannot pass such
order."
8. The case is pending before the family court.
In view of the judgment in the case of Abhilasha (supra),
this Court is of the view the Court below has rightly held
that it has jurisdiction to decide the maintenance
application filed by the respondent no.3. This Court does
not see any reason to make any interference and the
revision deserves to be dismissed.
9. The revision is dismissed.
(Ravindra Maithani, J.)
16.11.2022
Ravi Bisht
