- (1.) This revisional application is pertaining to miscellaneous proceeding, being No. 474M of 2007, under section 125 of the Code of Criminal Procedure. The petitioner herein is the father of the opposite party, Jayita @ Chaita Dey. Jayita Dey initiated the maintenance proceeding against her father, the petitioner herein, praying for maintenance to the tune of Rs. 3,000/- per month. In her petition she stated clearly that on the date of filing of the petition, she was 19 years old and that she was major. The learned Chief Judicial Magistrate, Malda, disposed of the application by an order dated 21.07.2010 thereby allowing the prayer of the petitioner, Jayita, for maintenance to the tune of Rs. 3,000/- per month. The opposite party/father, Swapan Kumar Dey, has come up with this application challenging the legality, 2 validity and propriety of the order, mainly, on the following grounds: (a) that the learned Court ought not to have entertained the application which was, ex facie, not maintainable in view of the fact that the petitioner, Jayita, being major daughter of the present petitioner, cannot claim maintenance under section 125 of the Code of Criminal Procedure; (b) that the learned Magistrate did not even consider as to whether the father refused and neglected to maintain Jayita. Mr. Roy, learned Counsel appearing on behalf of the petitioner/father, contends that in view of section 125 of the Code of Criminal Procedure, a major daughter cannot maintain an application under section 125 of the Code for maintenance from her father. He takes me to the provisions laid down in section 125 of the Code of Criminal Procedure and submits that the languages of section 125 of the Code are free from ambiguity and are explicit enough to indicate that none but legitimate or illegitimate minor child whether married or not, who are unable to maintain, are entitled to maintenance. Mr. Roy in support of his contention refers to a decision of the Hon'ble Apex Court in Amarendra Kumar Paul vs. Maya Paul & Ors., 2010 CrLJ 395.
(2.) Mr. Chatterjee, learned Counsel appearing on behalf of the opposite party/daughter, contends that while dealing with an application under section 125 of the Code of Criminal Procedure, Court may take into consideration the provisions of Hindu Adoptions and Maintenance Act which provides maintenance of a daughter till marriage. He also refers to a decision of the Hon'ble Apex Court in Jagdish Jugtawat vs. Manju Lata & Ors., 2002 SCC(Cri) 1147.
(3.) The section 125 of the Code of Criminal Procedure is reproduced below:- 125. Order for maintenance of wives, 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, 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 thinks fit and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father or a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate 4 is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.--For the purposes of this Chapter,-- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) ...........................................;