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Synopsis

The Kerala High Court recently ruled that to avoid multiplicity of proceedings, if an unmarried major Muslim daughter is found not entitled to maintenance from her father under Section 125 of CrPC, the Family Court can entertain her claim under Muslim Personal Law without forcing her to file a fresh claim.

The bench of Justice Alexander Thomas and Justice Ziyad Rahman AA referred to a three-judge bench decision of the Supreme Court in Jagdish Jugtawat's case (2002) as well as the decision in Abhilasha's case (2020) where the top court held that even if a claim under Section 125 of the CrPC is liable to be repelled and if the claim is otherwise maintainable under the Personal Law, as enunciated in the Hindu Adoption & Maintenance Act, etc., then to avoid multiplicity of proceedings, the Family Court can consider the latter claim, even if it is bound to dismiss the former claim.

The division judge bench opined that the approach taken by the Apex Court was clearly to the effect that, a hyper-technical approach need not be resorted to in matters related to maintenance claims. "And if the claim is otherwise maintainable, then the Family Court, which has jurisdiction in that regard, can entertain such claims, without having to drive the litigant to file a fresh claim," court said.

The court, however, clarified that:

"Of course, this option is available only where the claim is made before the Family Court, since the Family Court will have jurisdiction to consider claims not only under Sec.125 of the CrPC, but also claims as in the Hindu Adoption & Maintenance Act as well as Muslim Personal Law, etc."

The division bench was dealing with a plea filed by a Muslim father to quash the order passed by the Family Court directing him to pay interim maintenance at the rate of Rs.4000/per month to his 20-year-old unmarried daughter. The man and his wife had separated.

The matter had been referred to the division bench by a single judge bench of the high court, who had found a conflict of views in two high court division bench decisions.

As per the reference order, in the decision in Cholamarakkar & Anr. v. Pathummamma @ Pathumma & Anr. [2008], it was held by a division bench that a major Muslim Unmarried daughter, can claim maintenance from her father in terms of Sec.125 of the CrPC, only if her inability to maintain herself is attributable to physical or mental abnormality or injury.

However, as per another division bench decision in Yousaf v. Rubeena [2010], a Muslim father, who has sufficient means to pay maintenance, has the liability under Muslim personal law to pay maintenance to his major unmarried daughter when she is not able to maintain herself. In that decision, it was also held that the statutory provisions in Section 25 of the CrPC, which is a piece of secular law, applicable to all communities, would not, in any manner, extinguish, alter, modify or obliterate the liability under the Muslim Personal Law.

The present division bench opined that technically, there was no conflict of views in the decisions of the two division benches as Cholamarakkar's case was in relation to a claim under Section 125 of the CrPC, and Yousaf's case was a claim in relation to Muslim Personal Law.

Court held that the crucial aspect that needed to be considered here was relating to avoidance of multiplicity of proceedings.

Therefore, in answer to the reference issue in the present matter, court held that for a major unmarried Muslim daughter, who is not suffering from any physical or mental abnormality or injury, as envisaged in clause (c) of sub-section 1 of Section 125 of the CrPC, a claim made before the Family Court under Section 125, CrPC, will not be maintainable, however, in case, she appears to be otherwise eligible for maintenance, in terms of Muslim Personal Law, then the Family Court need not drive her to file a fresh claim.

Further, regarding the case at hand, court reduced the amount of the interim maintenance to be given to the daughter to Rs.2,000/per month.

Case Title: XXX v. State of Kerala