Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

ACADEMIC SEESION:2020-2025

CASE LAW

CASE BRIEF OF

ABHILASHA VS. PARKASH & OTHERS

Submitted to: Submitted by:

Ms. Ankita Yadav Saddhvi Nayak

Assitant Professor(Law) 200101114

RMNLU 1st semester (Section B)

B.A.L.L.B (Hons.)
 DECLARATION

I hereby declare that the project work entitled “A case brief of:
Abhilasha vs. Parkash & Others” submitted to the Dr. Ram
Manohar Lohiya National Law University, Lucknow is a record
of an original work done by me under the guidance of
Ms.Ankita Yadav, faculty of law, the Dr. Ram Manohar Lohiya
National Law University and this project is submitted in the
partial fulfillment of the requirements for the award of the
degree of B.A.L.L.B(Hons.). The results embodied in this have
not been submitted to any other University or Institute for the
award of any degree or diploma.
 ACKNOWLEDGEMENT

This term paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this case brief as a term paper.

Additionally, I express my gratitude and deep regards to my teacher for

the subject Ms. Ankita Yadav for giving me the freedom to work on the
case of “Abhilasha vs. Parkash and Others” and also for her
exemplary guidance, monitoring and constant encouragement
throughout the course of this term paper.

I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.

Moreover, I will also thank all my friends and seniors who aided me
along the way, and my family and friends for their constant
encouragement without which this assignment would not have been
possible.

I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.

THANKING YOU ALL.

Saddhvi Nayak
 CONTENTS

S.NO. TOPIC Pg.NO.

1. Statement of Facts 5-6

2. Issues 6

3. Judgement 6-7

4. Holding 7

5. Ratio of case 7-11

6. Additional Comment 11

7. Refernces 11

CASE BRIEF
ABHILASHA VS. PARKASH AND OTHERS

Citations: 2020 SCC Online SC 736 Appeal (Crl.) no.: 615 of 2020

Bench- Ashok Bhushan, R. Subhash Reddy, M.R. Shah

Authored by- Ashok Bhushan

Advocates: Appellant- Ms. Vibha Datta Makhija

Date of jugement: 15 September, 2020

Abhilasha …. Appellant(s)

Versus

Parkash & Others .....Respondent(s)

STATEMENT OF FACTS
A woman filed an application in 2002 under Section 125 Criminal Penal Code against her
husband seeking maintenance for herself as well as her three children. Her application was
dismissed by the Judicial Magistrate under Section 125 Cr.P.C. for her and her two sons. Her
daughter’s application was accepted for grant of maintenance for her till she attains majority.
The four applicants filed a criminal revision before the Court of Session Judge against the
decision of Judicial Magistrate. Again, criminal revision was dismissed with modification that
revisionist no. 4 (appellant before Supreme Court) will get maintenance until she attains
majority, i.e., 2005. Sessions Judge also held the provision under Section 125 Cr. P.C., the child
who has attained majority and has some kind of physical, mental injury or abnormality, unable to
maintain herself then she is also entitled to maintenance. Sessions Judge held that the revisionist
is not suffering from any physical, mental injury or abnormality therefore, is entitled to
maintenance only till she attains majority in 2005. Going against the order of both Judicial
Magistrate and Sessions Judge, an application was filed under Section 482 Cr.P.C. in High
Court by all four applicants. High Court also dismissed the application saying that both courts
were consistent about not giving maintenance to applicant no. 1 to 3. With regards to applicant
no. 4, it held that it does not find any illegality in Sessions Judge decision that has to interfered in
this court so, he dismissed the petition. Challenging to the High Court decision this appeal has
been filed.

ISSUES

SUBSTANTIVE ISSUE:

The issue was that the appellant’s mother, her two brothers and she was not getting maintenance
from her father. Her mother filed the case when she was minor. The court gave maintenance only
to the appellant that to till she attains majority. Now, she has attained majority but still is
unmarried and not employed to maintain herself so she wants maintenance from her father for
which she has appealed in the Supreme Court herself.

PROCEDURAL ISSUE:

The Judicial Magistrate, Sessions Judge and The High Court gave decision that the appellant will
get maintenance from her father only till she attains majority. To which she has challenged in the
Supreme Court. The main issues are :

 Whether the appellant, who has attained majority, is unmarried and is not having any
physical, mental injury or abnormality will be entitled to maintenance from her father
under Section 125 Cr.P.C.
 Whether the judgement passed by Judicial Magistrate, Sessions Judge and high court be
set aside and ask respondent to give maintenance to appellant even after she attains
majority till she is unmarried.

JUDGEMENT

The bench dismissed the plea of the appellant as the application was filed under Section 125
Cr.P.C. which provides maintenance only till the applicant is minor and if major then, suffering
from physical, mental injury or abnormality. Also, the bench gave the appellant the liberty to
take recourse to section 20(3) of Hindu Adoption and Maintenance Act, 1956 to claim
maintenance against her father. The bench told that a daughter who had attained majority and is
unmarried is entitled to maintenance only if she is suffering from physical, mental injury or
abnormality under section 125 of Criminal Penal Code. Section 20 of Hindu Adoption and
Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is
unmarried and is unable to maintain herself out of her earnings or her property. Section 125 of
Cr.P.C. is to get immediate relief to a applicant but Section 20 of HAMA (Hindu Adoption and
Maintenance Act), 1956 is a larger right , which needs determination by a civil court.

HOLDING
The Supreme Court held that if a Hindu unmarried daughter in unable to maintain herself then
her father must maintain her. She has to show that she is not able to maintain herself and to claim
maintenance she has to file the application under Section 20(3) of Hindu Adoption and
Maintenance Act, 1956. Section 125 of Cr.P.C. will only allow maintenance till the appellant
attains majority or is dealing with mental, physical injury or abnormality after attaining majority.
Section 125 of Cr.P.C. has a narrow scope of application. The bench went through various case
before giving this decision.

RATIO OF CASE
The learned counsel of appellant relied on provisions of Section 20 of HAMA, 1956. She also
submitted the judgement of Supreme Court in Jagdish Jugtawat vs. Manju Lata and Others,
( 2002) 5 SCC 422 in support of the appellant. The counsel for respondent refuted the
submission. The counsel told that the Courts below have already given decision on claim of
maintenance till the appellant attains majority. Under Section 125 of Cr.P.C. , the maintenance
after gaining majority will only be given if the appellant is facing a physical, mental injury or
abnormality and Revisional Court has submitted the report that the appellant is not facing any
issue. Further, when the application was filed appellant was minor so Judicial Magistrate allowed
the application till she attains majority under Section 125(1) of Cr.P.C. . The sessions judge also
made modified the judgement that the appellant is entitled to maintenance only till 2005, i.e.,
when she attains majority. Section 125(1) of Cr.P.C. says that:
“125. Order of 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

(b) His legitimate or illegitimate minor child whether married or not, unable to maintain
itself
(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 abnormality or injury unable
to maintain itself
(d) His father or mother, unable to maintain herself or himself

XXXXXXXXXXXXX”

The learned counsel for appellant has placed reliance on Section 20 of Hindu Adoption and
Maintenance Act, 1956 which is as follows:

“20.Maintenance of children and aged parents.—

(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to
maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so
long as the child is minor.
(3) The obligation of a person to maintain his or aged parent or daughter who is unmarried, as
the case maybe , is unable to maintain himself or herself our of his or her earnings or other
property.

XXXXXXXXX”

A bare perusal of Section 125(1) of Cr.P.C. and Section 20 of Act, 1956 , we see the limitations
of Section 125(1) of Cr. P.C. as in this the appellant is getting maintenance only till he/she
attains majority and after that if he/she is facing some issue in mental, physical injury or
abnormality after attaining majority, then ony she gets maintenance. In section 20 of Act, 1956
there is no such restriction, a father or mother has to maintain his/ her daughter unable to
maintain herself until she is unmarried. For answering the question above and to see the nature,
scope of Section 125 of Code of Criminal Procedure,1898, Section 488 of Cr.P.C. was the
provision governing the maintenance of wife and child which is as follows:

“488 (1). If any person having sufficient means neglects or refuses to maintain his wife or his
legitimate or illegitimate child unable to maintain itself, the District Magistrate, Presidency
Magistrate, Sub-Divisional Magistrate or 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, at such monthly rate, not exceeding five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time
directs.”

This Section is to inhibit negligence of woman and children with intent to serve the social
purpose. The laws are nothing but collective consciousness of community to get urgent relief to
help them to sustain. The court had occasions to consider the Section 488 of Cr.P.C. in reference
with section 20 of the Act, 1956, which provided with overriding affect of the Act (Section 4)
which is as follows: “Section 4. Overriding effect of Act-
(a)any text , rule or interpretation of Hindu law or any custom or usage as part of that law in
force immediately before the commencement of this act shall cease to have effect with respect to
any matter for which provision is made in this act; (b)any other law in force immediately
before the commencement of this act shall cease to apply to Hindus in so far as it is inconsistent
with any of the provisions contained in this Act.”

In Nanak Chand vs. Chandra Kishore Aggarwal and Others, (1969) 3 SCC 802, this court
explained the provisions of Section 488 of Cr.P.C. and section 20 of Act, 1956 and held that
there is no inconsistency between these two and they can stand together. The section 488 of
Code of Criminal Procedure, stand for all religion while Section 20 of Act, 1956 stands only for
the Hindus. The court also goes through various jugements of this court and of high courts as
well. The court also sees the muslims law in maintenance of child or aged parents. The case in
front of the court was filed in front of Judicial Magistrate. Going through the proceedings, he
cannot exercise his jurisdiction under Section 20 of the Act, 1956 when the application was filed
under Section 125 of Cr.P.C. The court also said that they did not find any infirmity in the order
of Judicial Magistrate as well as Sessions Judge in not granting the maintenance to the appellant
who had become major. The word maintenance in section 20 of Act, 1956 is a larger concept as
compared to Section 125 of Cr.P.C. Section 3(b) defines the word maintenance inAct, 1956
“3. Definitions –In this act unless the context otherwise requires-

(b) “Maintenance includes-

(i) in all cases, provision for food, clothing, residence, education and medical attendance and
treatment;

(ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her
marriage ;

(c) “minor” means a person who has not completed his or her age of eighteen years.”

The court gave three reasons why they are not questioning the orders of Judicial Magistrate and
Sessions Judge and were satisfied by their judgements in the revision was not required to
interfere with the High court in exercise of jurisdiction under Section 482 Cr.P.C. The three
reasons are:

 The application was filed by the appellant’s mother in 2002 under Section 125 Cr.P.C.
claiming maintenance on her behalf, her two sons and the appellant. There was no need
for pleading on behalf of the appellant as she was minor and was not able to maintain
herself. After attaining majority, she did not even proof that she was not able to maintain
herself. The counsel for respondent submitted that the appellant did not claim that she is
major and is not able to maintain herself as in the Section 20(3) of Hindu Adoptions and
Maintenance Act, 1956, “the parents or the unmarried daughter as the case may be, is
unable to maintain herself/themselves out of her/their own earnings or other property.”
The appellant was focused on Section 125 of Cr.P.C. to claim maintenance which she
only could get after attaining majority when she is facing some physical, mental injury or
abnormality and she was not facing any issue.
 Another relevant fact from the judgement from Judicial Magistrate that applicant no. 2
and 4(appellant) has filed the application under Section 20 of Act, 1956 being suit no. 6
of 2001, which was dismissed and withdrawn on 17.12.2012.
 Another fact, with the affidavit filed in this appeal there was a specific pleading by the
respondent that a plot of land was purchased in name of the appellant from the joint
 income of mother and father of the appellant on 31.07.2000. Affidavit filed by appellant,
it has been admitted. It was agreed to be sold in 2012 for Rs.11, 77, 000/- . In the
rejoinder, affidavit filed by appellant it is confirmed that the sale of that place had taken
between the appellant and Arjun for Rs.11, 77, 000/- out of which appellant had received
Rs.10, 89, 000/- as earnest money.

ADDITIONAL COMMENT
The bench accepted the submission of Learned counsel for appellant that as a preposition of
law, an unmarried Hindu daughter can claim maintenance from her father until she is
married under Section 20(3) of Act, 1956 provides she pleads and prove that she is unable to
maintain herself from her earnings and other property. The bench of Judges gave liberty to
the appellant to take recourse to Section 20(3) of Act, 1956, for claiming maintenance from
her father. The purpose and object of Section 125 of Cr.P.C. is to provide immediate relief to
applicant in a summary proceedings nut Section 20(3) of Act, 1956 contains larger right.

REFERENCES

 Indiankanoon.org. 2021. Abhilasha Vs Parkash On 15 September, 2020. [online] Available

at: https://indiankanoon.org/doc/150712885
 Lawsisto.com. 2021. Unmarried, Unemployed, Major Daughter Is Entitled To Claim
Maintenance From Her Father: SC | Lawsisto Legal News. [online] Available at:
https://lawsisto.com/legalnewsread/ODE0Mg==/Unmarried-Unemployed-Major-Daughter-is-
Entitled-to-Claim-Maintenance-from-her-Father-SC
 IAL, IAL - CASE-LAW ANALYSIS--ABHILASHA V. PRAKASH, 2020 SCC...,
https://www.facebook.com/155272021801460/posts/case-law-analysis-abhilasha-v-
prakash-2020-scc-online-sc-736-decided-on-15092020/623426358319355/

 Daaman.org. 2021. [online] Available at:

https://www.daaman.org/jd/Abhilasha-Vs-Prakash/can-an-unmarried-Hindu-daughter-claim-
maintenance-from-her-father-clarified