Kerala The High Court recently ruled that in order to avoid multiplicity of proceedings, if an unmarried adult Muslim daughter is not found entitled to maintenance from her father under Section 125 of the CrPC, the family court may consider her claim. Can muslim personal law without forcing him to file a new claim.
A bench of Justice Alexander Thomas and Justice Ziyad Rehman AA referred to the judgment of a three-judge bench of the Supreme Court in Jagdish Jugtawat’s case (2002) as well as Abhilasha’s case (2020), where the apex court held that even if Only a claim under section 125 CrPC can be dismissed and if the claim is otherwise maintainable under personal law, as described in the Hindu Adoptions and Maintenance Act, etc., to avoid multiplicity of proceedings , the family court may consider the latter. claim, even if it is bound to reject the former claim.
The HC noted that the approach taken by the apex court was clearly to the effect that there is no need to resort to an overly technical approach in matters relating to claims of maintenance. The court said, “and if the claim is otherwise maintainable, the Family Court, having jurisdiction in that regard, may consider such claims, without resorting to filing a fresh claim.”
However, the judges said, “Of course, this option is available only where the claim is made before the Family Court, as the Family Court would not only have jurisdiction to entertain claims under Section 125 CrPC, but also does that in the Hindu Adoptions and Maintenance Act as well as in the Muslim Personal Law, etc.”
The bench was hearing a plea filed by a Muslim father seeking to set aside an order passed by a family court directing him to pay interim maintenance at the rate of Rs 4,000 per month to his 20-year-old unmarried daughter. The man and his wife were separated.
The matter was referred to a division bench by a single-judge bench of the high court, which found conflict of views in the two HC division bench judgements.
As per the reference order, in the judgment in Cholamarakkar & Ors. V 3rd @ 3rd and others. [2008]The Bench had held that an elder Muslim unmarried daughter can claim maintenance from her father under Section 125 CrPC only if the inability to maintain herself is due to physical or mental abnormality or injury.
However, as per another division bench’s decision in Yusuf v. Rubina [2010]A Muslim father, who has sufficient means to pay maintenance, is bound under Muslim personal law to pay maintenance to his principal unmarried daughter when she is able to maintain herself. does not happen. In that judgment, it was also held that the statutory provision in Section 25 of the CrPC, which is a part of secular law, applicable to all communities, in any way, abrogates, alters, modifies or abridges the liability under Will not Muslim Personal Law.
The present bench held that technically, there was no conflict of views in the judgments of the two benches as the case of Cholamarkar was in relation to a claim under Section 125 CrPC, and the case of Yusuf was a claim in relation to Muslim Personal Law . ,
The court held that the important aspect which needed to be considered here pertained to the avoidance of multiplicity of proceedings.
Therefore, in response to the reference issue in the present case, the HC held that for a prominent unmarried Muslim daughter who does not suffer from any physical or mental abnormality or injury as envisaged in clause (c) of sub-section 1 Is. Section 125 of CrPC A claim under Section 125, CrPC shall not be maintainable before the Family Court. However, the Family Court need not compel her to file a fresh claim if she appears to be otherwise eligible for maintenance in terms of Muslim Personal Law.
In the ongoing matter, the court reduced the amount of interim maintenance to be given to the daughter to Rs 2,000 per month.
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