[S.125 CrPC] Application For Maintenance Against Minor Is Maintainable: Allahabad High Court
The Allahabad High Court has held that application under Sections 125 and 128 CrPC seeking maintenance against minor are maintainable.
While dealing with a case involving child marriage and a maintenance claim against a minor husband, Justice Madan Pal Singh held that
“There is no bar in entertainment of application under Section 125 Cr.P.C. and Section 128 Cr.P.C. filed against a minor.”
According to the counsel for revisionist, the revisionist-husband was 13 years old when he was married to opposite party no.2 and 2 years later, opposite party no. 3 was born. When the revisionist was about 16 years old, application under Section 125 CrPC was filed by the wife seeking maintenance from him. Whereby the Additional Principal Judge, Family Court No.1, Bareilly granted maintenance of Rs. 5000 per month for the wife and Rs. 4000/- per month for the child.
Challenging the order of the Additional Principal Judge, Family Court No.1, Bareilly, counsel for revisionist pleaded that since the revisionist was a minor, no application under Section 125 could be filed against him. It could only be filed through his guardian. It was also pleaded that since the wife had refused to live with the revisionist without reasonable cause, she is not entitled to maintenance as per Section 125(4).
The Court observed that Chapter IX of the Code of Criminal Procedure did not provide that applications against minors must be filed through their guardians. It observed that Section 125 CrPC provides that any person with means refuses to maintain his wife, child (legitimate/ illegitimate) can move an application before the Magistrate, who upon consideration of facts shall award a sum.
The Court held that there is no bar regarding applications under Section 125 or Section 128 on seeking maintenance from minors. However, the Court noted that the High School certificate of the revisionist was not available before the Lower Court but was filed before the High Court. It also observed that though on the date of the application, the revisionist was a minor, he had attained majority on the date of the judgment.
To avoid increase in pendency, the Court did not remand the matter back to the Trial Court and observed that
“This Court has also room to doubt that a minor person himself dependent upon his parents and in any case it cannot be presumed that he has sufficient means to maintain himself. In any view of the matter he cannot able to maintain his wife and daughter. However, as and when he attains the age of majority i.e. 18 years of age, he has to bear his responsibly in order to maintain his legally wedded wife and his real minor daughter.”
Upholding the findings of the Trial Court regarding the wife not wanting to live with the husband due to cruelty and demand of dowry, the Court held that assuming he was a labourer after attaining majority, he would be earning Rs. 18,000 per month. Relying on the decision of the Apex Court in Rajnesh Vs. Neha, the Court reduced the maintenance amount to Rs. 2500/- for the wife and Rs. 2000/- for the child, i.e., total Rs. 4500/- which is 25% of his income.
The Court directed that arrears, if any, shall be calculated based on the amount fixed by the High Court.
Case Title: Abhishek Singh Yadav v. State Of Up And Others