Omana Chetan and Shefali since minor R/by her mother and natural guardian Smt. Omana Chetan vs S.S. Rangegowda and Nagarathnamma

K.L. Manjunath, J.—Short question that arises for the consideration of this Court in this writ petition is whether a widowed daughter-in-law along with her minor daughter can file a claim petition claiming maintenance u/s 125 of Cr.P.C. (sic).

1st petitioner is the widow of one S.R. Chetan and 2nd petitioner is the minor daughter of deceased Chetan who died in a road traffic accident occurred on 28.8.2003. 1st petitioner married Chetan on 21.2.2000 at Chickmagalur. Out of their marriage, 2nd petitioner was born. After the death of her husband, 1st petitioner along with her minor who is the 2nd petitioner has filed maintenance u/s 125 of Cr.P.C. before the Family Court at Bangalore against the respondents who are parents of deceased Chetan.

Family Court raised an objection in regard to the maintainability of the petition filed by the petitioners u/s 125 of Cr.P.C. Family Court considering the provisions of Section 125 of Cr.P.C. came to the conclusion that petition as not maintainable in view of specific provisions u/s 19 of the Hindu Adoption & Maintenance Act. Being aggrieved by the dismissal of the petition as not maintainable, present writ petition is filed.

Heard the counsel for the parties.

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

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 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:

[Provided further that the Magistrate may, during the pendency of the proceedings 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 for 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."

Admittedly, petition is filed by the petitioners after the death of Chetan. Section 125 Cr.P.C. provides to claim maintenance by the wife, children and parents. From a plain reading of provisions of Section 125 Cr.P.C. it is clear to the court that widowed daughter-in-law or a grand-child cannot maintain a petition u/s 125 of Cr.P.C. Therefore, this Court is of the opinion that family court was justified in dismissing the petition filed u/s 125 of Cr.P.C. holding that the same was not maintainable and that petitioners herein have to file a separate suit claiming maintenance under the provisions of the Hindu Adoption & Maintenance Act, 1956. Having seen the provisions of Section 125 of Cr.P.C. and the petition averments, this Court cannot take a different view than that of the Family Court.

Accordingly, this petition is dismissed. Liberty is granted to the petitioners to file a civil suit for claiming maintenance.