An unmarried Muslim daughter’s support claim may be considered by the family court under personal law if she is found ineligible U/S 125 CrPC: Kerala HC

He Kerala The High Court recently ruled that, in order to avoid multiplicity of proceedings, if an older unmarried Muslim daughter is found to be ineligible for maintenance from her father under section 125 of the CrPC, the family court may consider her claim in virtue of Muslim personal law without forcing her to file a new claim.

The court of Justice Alexander Thomas and Justice Ziyad Rahman AA referred to a decision by a three-judge panel of the Supreme Court in the Jagdish Jugtawat case (2002), as well as the decision in the Abhilasha case (2020). where the high court held that even if a claim under section 125 of the CrPC is liable to be rejected and the claim can be otherwise maintained under the Personal Law, as set out in the Hindu Adoption and Maintenance, etc., then in order to avoid multiple proceedings, the family court may consider the latter claim, even if it is obliged to dismiss the former claim.

The HC was of the opinion that the approach taken by the high court clearly pointed out that there is no need to resort to a hyper-technical approach in matters relating to maintenance claims. “And if the claim can otherwise be upheld, then the Family Court, which has jurisdiction in that regard, can consider such claims, without having to compel the litigant to file a new claim,” the court said.

The judges, however, said: “Of course, this option is available only when the claim is filed with the Family Court, since the Family Court will have jurisdiction to consider claims not only under Sec. 125 of the CrPC, but also claims such as in the Hindu Adoption and Support Law, as well as in the Muslim Personal Law, etc.”

The divisional court was dealing with a plea by a Muslim father to quash an order made by the family court ordering him to pay interim support at the rate of Rs 4,000 per month to his 20-year-old unmarried daughter. The man and his wife had separated.

The matter had been referred to the division court by a single-judge panel of the superior court, which had found conflicting views in two HC division court decisions.

According to the reference order, in the decision Cholamarakkar & Anr. v. Pathumma @ Pathumma & Anr. (2008), a divisional court held that an eldest unmarried Muslim daughter can claim maintenance from her father under section 125 of the CrPC only if her inability to support herself is attributable to physical or mental abnormality or injury. .

However, according to another divisional court decision in Yousaf v. Rubeena (2010), a Muslim father, who has sufficient means to pay support, has a responsibility under Muslim personal law to pay support to his eldest unmarried daughter when she is unable to do so. keep to herself. In that decision, it was also held that the legal provisions in section 25 of the CrPC, which is a piece of secular law, applicable to all communities, would in no way extinguish, alter, modify or eliminate liability under Muslim personal law. .

The current divisional court was of the opinion that, technically, there was no conflict of opinion in the decisions of the two divisional courts, as the Cholamarakkar case related to a claim under section 125 of the CrPC, and the case of Yousaf was a claim in relation to Muslim personal law. .

The court held that the crucial aspect to be considered here was related to avoiding multiplicity of proceedings.

Therefore, in response to the reference question in the present case, the Supreme Court held that for an unmarried Muslim eldest daughter, who does not suffer any physical or mental abnormality or injury, as provided for in clause (c) of the subsection 1 of article 125 of the CrPC, a claim filed with the family court under section 125 of the CrPC cannot be maintained. However, in case she appears to be eligible for maintenance, in terms of Muslim personal law, then the family court need not compel her to file a new claim.

Furthermore, with respect to the case in question, the court reduced the amount of provisional support to be awarded to the daughter to Rs 2,000 per month.

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