APPELANT CODE- 56

CODE – 56

MARATHWADA MITRA MANDAL’S SHANKARRAO CHAVAN

LAW COLLEGE (2022-23)

BEFORE THE HON’BLE SUPREME COURT OF INDIA

REGULAR CRIMINAL APPEAL FILED U/S 125 OF THE CODE OF

CRIMINAL PROCEDURE, 1973

CRI.APP.NO.: 615 OF 2020

(Arising out of the SLP (Crl.) No. 8260/2018 and Order passed by the Hon’ble High court)

IN THE MATTER OF:

ABHILASHA …(APPEALLANT)

V/S

PARKASH …(RESPONDENT)

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TABLE OF CONTENTS

SR NO CONTENTS PAGE
NO
1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

3. LIST OF CASES 4

4. STATEMENT OF JURISDICTION 5

5. STATEMENT OF FACTS 6

6. STATEMENT OF ISSUES 7

7. SUMMARY OF PLEADINGS 8

8. ARGUMENT ADVANCED 9

9. PRAYER 13

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LIST OF ABBREVIATIONS

SLP Special Leave to Appeal

& And
Art Article
Hon’ble Honorable
Air All India Reporter
Sc Supreme Court
S. Section
Cr.P.C Criminal Procedure Code
U/S Under Section
V Versus
H.C High Court
Ors Others
No. Number
UoI Union Of India
Ed Edition
Ilr Indian Law Reports
U/Art Under Article
Viz Which Is
Chap Chapter

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INDEX OF AUTHORITIES

✓ BOOKS

1. R.V. Kelkar's Criminal Procedure

2. Ratanlal and Dhirajlal, Indian Penal Code 34th Edition.
3. The Code of Criminal Procedure, Dr Subzwari’s Eight
Edition.
4. Prof. S. N. Mishra, Indian Penal Code, 13th Edition
5. Gupte and Gupte, Criminal Manual, (7th Edition 2007)

✓ LEGAL DATABASE

1. Manupatra
2. Legalserviceindia
3. Scconline
4. Studocu
5. AIRonline

✓ LIST OF CASES

1. Jagdish Jugtawat Vs. Manju Lata and Others

2. Nanak Chand v. Chandra Kishore Aggarwal and Others
3. Ram Singh v. State, Allahabad high court
4. Nalini Ranjan v. Kiran Rani
5. Mahabir Agarwalla v. Gita Roy
6. Ram Chandra Giri v. Ram Suraj Giri

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STATEMENT OF JURISDICTION

An Appeal filed under Article 136 of The Constitution of India against Order passed
by the Hon’ble High Court, discharging the Respondent of the Charges levelled against
him vide Crime Registered No. 615/2020 with the Judicial Magistrate.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence, or order
passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces

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STATEMENT OF FACTS

1. The respondent No.2, mother of the appellant, on her behalf, as well as on behalf
of her two sons and the appellant daughter, filed an application under Section
125 Cr.P.C. against her husband, the respondent No.1, Parkash, claiming
maintenance for herself and her three children.

2. The learned Judicial Magistrate vide its judgment dated 16.02.2011 dismissed
the application under Section 125 Cr.P.C. of the applicant Nos. 1, 2 and 3 and
allowed the same for applicant No.4 (appellant before us) for grant of
maintenance till she attains majority.

3. Aggrieved against the judgment dated 16.02.2011, all the four applicants filed
a criminal revision before the Court of Sessions Judge, which criminal revision
was dismissed by learned Additional Sessions Judge by order dated 17.02.2014
with the only modification that revisionist No.4 (appellant before us) shall be
entitled to maintenance till 26.04.2005 when she attains majority.

4. Learned Additional Sessions Judge held that as per provision of Section 125
Cr.P.C., the children, who had attained majority are entitled to maintenance, if
by reason of any physical or mental abnormality or injury, they are unable to
maintain themselves. Learned Additional Sessions Judge also held that the
revisionist No.4 (i.e., appellant) is not suffering from any physical, mental
abnormality or injury, therefore, she is entitled to maintenance only till
26.04.2005 i.e., till she attains majority.

5. Challenging the order of Sessions judge as well the judicial magistrate, an

application under section 482 Cr.P.C. was filled before the high court by all the
applicants, the same was dismissed by the high court.

6. Aggrieved from the order passed by the high court, an appeal was filed by the
appellant (Abhilasha) who is the daughter of respondent.

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STATEMENT OF ISSUES

ISSUE I

WHETHER THE APPELLANT, WHO ALTHOUGH HAD ATTAINED MAJORITY

AND IS STILL UNMARRIED IS ENTITLED TO CLAIM MAINTENANCE FROM
HER FATHER IN PROCEEDINGS UNDER SECTION 125 CR.P.C. ALTHOUGH
SHE IS NOT SUFFERING FROM ANY PHYSICAL OR MENTAL
ABNORMALITY/INJURY?

ISSUE II

WHETHER THE ORDERS PASSED BY LEARNED JUDICIAL MAGISTRATE AS

WELL AS LEARNED REVISIONAL COURT LIMITING THE CLAIM OF THE
APPELLANT TO CLAIM MAINTENANCE TILL SHE ATTAINS MAJORITY ON
26.04.2005 DESERVES TO BE SET ASIDE WITH DIRECTION TO THE
RESPONDENT NO.1 TO CONTINUE TO GIVE MAINTENANCE EVEN AFTER
26.04.2005 TILL THE APPELLANT REMAINS UNMARRIED?

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SUMMARY OF PLEADINGS

1. Whether the appellant, who although had attained majority and is still
unmarried is entitled to claim maintenance from her father in proceedings
under section 125 Cr.P.C. Although she is not suffering from any physical
or mental abnormality/injury?

The right of unmarried daughter to claim maintenance from her father when she is
unable to maintain herself is absolute.

2. Whether the orders passed by learned judicial magistrate as well as learned

revisional court limiting the claim of the appellant to claim maintenance
till she attains majority on 26.04.2005 deserves to be set aside with direction
to the respondent no.1 to continue to give maintenance even after
26.04.2005 till the appellant remains unmarried?

YES, the judicial magistrate while deciding proceedings under section 125 Cr.P.C.
have not exercised the jurisdiction under section 20(3) of Hindu Adoptions and
Maintenance act, 1956

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ARGUMENT ADVANCED

I. WHETHER THE APPELLANT, WHO ALTHOUGH HAD ATTAINED

MAJORITY AND IS STILL UNMARRIED IS ENTITLED TO CLAIM
MAINTENANCE FROM HER FATHER IN PROCEEDINGS UNDER
SECTION 125 Cr.P.C. ALTHOUGH SHE IS NOT SUFFERING FROM
ANY PHYSICAL OR MENTAL ABNORMALITY/INJURY?

1. It is humbly submitted that it is an absolute right of unmarried daughter to claim

maintenance from her father when she is unable to maintain herself.

Section 125 of Cr.P.C. reads as: [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

(1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18-

12- 1978).

(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

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(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 not exceeding five hundred rupees in the whole,

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 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. 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) Such allowance shall be payable from the date of the order, or, if so ordered,

from the date of the application for maintenance.

(2) If any person so ordered fails without sufficient cause to comply with the

order, any such Magistrate may, for every breach of the order, issued a

warrant for levying the amount due in the manner provided for levying fines,

and may sentence such person, for the whole or any part of each month' s

allowances remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month or until payment

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if sooner made: Provided that no warrant shall be issued for the recovery of

any amount due under this section unless application be made to the Court

to levy such amount within a period of one year from the date on which it

became due: Provided further that if such person offers to maintain his wife

on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an

order under this section notwithstanding such offer, if he is satisfied that there

is just ground for so doing. Explanation. - If a husband has contracted marriage

with another woman or keeps a mistress, it shall be considered to be just ground

for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under

this section if she is living in adultery, or if, without any sufficient reason, she

refuses to live with her husband, or if they are living separately by mutual

consent.

(5) On proof that any wife in whose favour an order has been made under this

section is living in adultery, or that without sufficient reason she refuses to live

with her husband, or that they are living separately by mutual consent, the

Magistrate shall cancel the order.

2. It is humbly submitted that every law or provision of law has a main purpose or

motive for which it is enacted and comes into force. This main purpose behind

a provision of law is called as Cardinal principle.

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3. It is humbly submitted that the Cardinal principle behind the provision under

section 125 of Cr.P.C. is to provide for a speedy, effective and rather

inexpensive remedy against the persons who neglect or refuse to maintain their

dependent parents, children, and wives.

4. It is humbly submitted that in the present case the appellant is totally dependent

on her parents because she is unemployed along with being unmarried.

II. Whether the orders passed by learned judicial magistrate as well as learned

revisional court limiting the claim of the appellant to claim maintenance

till she attains majority on 26.04.2005 deserves to be set aside with direction

to the respondent no.1 to continue to give maintenance even after

26.04.2005 till the appellant remains unmarried?

1. It is humbly submitted that the Judicial Magistrate has not its jurisdiction over

Sec 20 of the Hindu Adoptions and Maintenance Act, 1956.

Section 20 of Hindu Adoptions and Maintenance Act, 1956 reads as: [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)

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A legitimate or illegitimate child may claim maintenance from his or her father

or mother so long as the child is a minor. (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 parent 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.

Explanation. — In this section “parent” includes a childless step-mother.”

2. It is humbly submitted that the Apex Court has clearly stated in the case of

Nanak Chand v. Chandra Kishore Aggarwal and Others, the Court held that

there is no inconsistency between section 488 of Cr.P.C. and the Hindu

Adoption and Maintenance act and both can stand together. The Court further

held that section 488 Cr.P.C. and the Hindu Adoption and Maintenance act and

both can stand together. The Court further held that section 488 of Cr.P.C.

provides a summary remedy and is applicable to all persons belonging to all

religion and has no relationship with the personal law of the parties.

3. It is humbly submitted that the legislative intent behind Section 20 of Hindu

Adoptions and Maintenance Act, 1956 has been explained by the Hon’ble

Supreme Court in Jagadish Jugtawat v. Manju and other. In this case, the

family Court allowed maintenance for minor girl till she married under section

20(3) of the Hindu Adoption and Maintenance act, 1956. The relevant portion

of the judgment of the high court as quoted here

“it cannot be said that the order impugned runs counter to the law laid down

by the Hon’ble Supreme Court, the provisions of section 125 CrPC are

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applicable irrespective of the personal law and it does not make any distinction

whether the daughter claiming maintenance is a Hindu or a Muslim. However,

taking an overall view of the matter, I, with all respect to the Hon’ble Court, am

of the candid view that the provisions require literal interpretation and a

daughter would cease to have the benefit of the provisions under section 125

CrPC on attaining majority, though she would be entitled to claim the benefits

further under the statute/personal law. But the Court is not inclined to interfere,

as the order does not result in miscarriage of justice, rather interfering with the

order would create great inconvenience to Respondent 3 as she would be forced

to file another petition under sub-section (3) of section 20 of the Act of 1956 for

further maintenance etc. Thus, in order to avoid multiplicity of litigations, the

order impugned does not warrant interference.”

4. It is humbly submitted that the unmarried daughter, irrespective of physical or

mental status is liable for maintenance from father and is her absolute right

5. In another case, Ram Singh v. State, the Allahabad High Court took the view

that section 18 of Hindu Adoption and Minority act, 1956 cannot be substitute

for section 488 of Cr.P.C., 1898. Court observes as follows:

“There is nothing in the Hindu Adoptions and Maintenance Act to suggest

expressly or by necessary implication that the Act is intended to be a substitute

for the provisions of Section 488 Cr.P.C. In fact, the provisions of Section 18 of

the Act cannot be a substitute for Section 488 Cr.P.C.”

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6. In Mahabir Agarwalla v. Gita Roy, the Court has made the following

observation.

“An alternative but not inconsistent summary remedy was provided by section

488 of the Cr.P.C., not only to the Hindu wife but generally to wives irrespective

of religion for recovery of maintenance from the husband. The two remedies

were, however, not co-extensive.”

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PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited,

the counsel for the Appellant humbly prays that the Hon’ble Court be pleased to

adjudge, hold and declare:

I. That the Hon’ble Court may kindly be pleased to allow the said appeal and

set aside the impugned order passed by the High Court.

II. That the Hon’ble Court may kindly be pleased to consider and decide the

maintenance amount which is liable to be paid by the respondent no. 1.

And grant such other and further relief as may be deemed fit in the facts and

circumstances ofthe case and as may be required in the interests of justice.

All of which is most humbly prayed.

COUNSEL FOR THE APPELLANT

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