Muhammed Shaji v. State of Kerala,2023
Muhammed Shaji v. State of Kerala,2023
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State of Kerala
Honourable Justice Alexander Thomas
Honourable Justice Ziyad Rahman A A
CRL.MC NO. 6659 OF 2022
Section .125 and Section 482 of the Code of Criminal Procedure 1973,
The Respondent herein/claimant, has completed the age of majority and is an unmarried Muslim daughter of the petitioner.
However, the claimant has no case that, she suffers from any physical or mental abnormality or injury, as conceived in Sec.125(1) (c) of the Cr.P.C.
Therefore, the present claimant is not entitled to make a claim under Sec.125 of the Cr.P.C.
But the claim has been made before the Family Court.
Hence, going by the abovesaid perspective, the Family Court need not drive the litigant claimant to file a fresh claim under Muslim Personal Law and on the other hand, with the wholesome objective to avoid multiplicity of proceedings, as envisaged in the afore cited rulings of the Apex Court, can entertain the claim of the respondent herein under Muslim Personal Law.
Sri.V.Philip Mathews, learned counsel appearing for the petitioner herein (father), would submit that the perspectives of adjudication, both in terms of the standard of pleadings, appreciation of evidence, etc., in a claim for maintenance under the Hindu Adoption & Maintenance Act or under Muslim Personal Law, made before a Family Court, is substantially different from that in a claim before the said Court made under Sec.125 of the Cr.P.C., as the latter claim is to be tried on a summary basis, whereas, the former claim is to be tried as a suit. Further, the learned counsel for the petitioner would also urge that the claim under the Hindu Adoption & Maintenance Act is a statutory claim, as the claim is under the provision of an enactment made by the competent Legislature.
Whereas, the claim made under Muslim Personal Law cannot be said to be statutory, as it is raised in terms of the provisions of Muslim Personal Law, etc.
Whether the Claim of Maintenance Under Personal Law, If Unmarried Muslim Daughter is Entitled to Get Maintenance U/s 125 CrPC.
Whether the Family Court is established, for suit of proceedings for maintenance, including proceedings under Sec.20 of the Hindu Maintenance and Adoption Act, 1956.
After hearing both sides, it is ordered, in the interest of justice, that, in case the petitioner pays an interim maintenance @Rs.2,000/- per month, then he will be at liberty to file an application before the Family Court, seeking modification of the present interim order granted by the said court.
We have already held that the claim of the respondent herein, under Sec.125 of the Cr.P.C, is not maintainable. Hence, it is ordered that the petitioner will pay interim maintenance to the respondent herein @Rs.2,000/- per month, for the period from August, 2022 onwards and thereafter, can seek for modification of the impugned Annexure-D interim order. Hence, needless to say, the coercive warrant proceedings issued if any by the Family Court for enforcement of the impugned Annexure-D interim order, will not be maintainable and will stand re-called.
Sri.V.Philip Mathews, learned counsel appearing for the petitioner has also invited the attention of this Court to page 175 in Chapter-VII of the text book “Outlines of Muhammadan Law”, Fifth Edition, 2008, Oxford University Press, authored by Asaf A.A.Fyzee, dealing with maintenance.
By placing reliance on the abovesaid text book, the learned counsel for the petitioner would urge that an unmarried Muslim daughter, who is staying away from her father, is not entitled to separate maintenance, unless circumstances are such as to justify her staying away. In that regard, the learned counsel for the petitioner would submit that, admittedly, the case of the respondent herein is that she is living separately from the petitioner (father) and she has not urged any reasons as to justify her staying away from her father and hence, she is not entitled for maintenance, etc.
Per contra, Sri.M.Dinesh, learned counsel appearing for the respondent, would point out that the specific case of the respondent (daughter) is that the petitioner is either re-married or living with a lady other than the respondent's mother and that the respondent's mother and the respondent were forced to live separately from the father, as he did not permit them to reside with him, etc. We need not get into these aspects and it is for the parties to urge such versions before the Family Court.
Sri.V.Philip Mathews, learned counsel for the petitioner, has also placed reliance on some of the provisions of another text book, titled “Sunni Code of Muslim Personal Law applied by Courts of Justice in India” compiled by Sri.M.M.Aliyar, especially Sec.81 under Chapter VII thereof.
Per contra, Sri.M.Dinesh, learned counsel appearing for the respondents, would point out that the abovesaid text book, cannot be said to be authoritative, inasmuch as the afore relied on provisions appears to be distinctly different from the corresponding provisions relied on by the Apex Court in decisions as in Yousaf's case supra [2010 (4) KLT 1 (DB)], Ismayil's case supra [2011 (4) KLT 40] as well as Noor Saba's case supra [(1997) 6 SCC 233]. Further, the learned counsel for the respondents would also point out that it is noted in the penultimate paragraph of the foreword given in the above book that, the acceptance of the qualification, referred to in the said book by the Muslim community in the country and by different religious organizations and significantly by the Legislature of the country, is yet to be awaited, etc. We need not get into these rival submissions, except to say that it is for the parties to urge such aspects, if relevant before the Family Court.
Annexure-D interim order may be treated as an interim order passed by the Family Court in the claim under Muslim Personal Law. With these observations and directions, the above Crl.M.C will stand disposed of.
Family Court Can Consider Claim of Maintenance Under Personal Law, If Unmarried Muslim Daughter is Not Entitled to Get Maintenance U/s 125 CrPC.