Friday, 7 February 2020

Whether muslim wife aged 15 years can file application for maintenance U/S 125 of CRPC without next friend?

Section 2 of the Indian Majority Act, 1875 lays down that nothing contained therein shall affect the capacity of any person to act in matters of marriage, dower, divorce, and adoption. Clause (b) of this section excepts the religion or religious rights and usages also of any class of citizens of India from the provisions of that Act. So, the provisions of Section 3 of that Act that every person domiciled in India shall be deemed to have attained his majority by having completed the age of 18 years and not before, has no application to this case. That the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce amongst Mohammadan's and that a Mohammadan wife, who has attained publicity, may file a suit for divorce without a next friend, even after she is under 18 years of age has been well recognised and can also be seen from page 283 of Mulla's Principles of Mohammadan Law Eighteenth Edition. Section 251 of the said principles dealing with capacity for marriage, would show that every Mohammadan of sound mind, who has attained puberty, may enter into a contract of marriage, while it can be seen from the Explanation to that section that puberty is presumed in the absence of evidence, on completion of the age of fifteen years. So, if a Mohammadan woman could validly contract a marriage on attainment of 15 years, I fail to understand how she could be barred from maintaining an action under Section 125, Cr. P. C. unless she is represented by a guardian more so, when there is no such disabling provision either in that section or anywhere else in the Code. If the Legislature intended that a wife, who is under 18 years of age, should not be permitted to start proceedings under Section 125 Cr. P. C. for maintenance against her husband, it would have certainly made the necessary provision therefore in that section itself, as in the case of certain other proceedings covered by the Code. Reference may be made to Sections 198 and 199 of the Code to illustrate the same-S. 198, dealing with prosecution for offences against marriage, lays down that where the aggrieved person happens to be under the age of 18 years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. There is a similar provision in Section 199 dealing with prosecutions for defamation. When it is thus seen that the legislature has taken care to provide for representation of certain categories of persons by others in proceedings under Sections 198 and 199 of the Cr. P. C, it would have done the same thing even in the case of applications under Section 125, Cr. P. C. But the conspicuous absence of any such embargo on a wife, who is below the age of 18 years, against applying for relief under Section 125, Cr. P. C. is in my opinion, sufficient to reject the contention urged for the petitioner that the respondent is not competent to apply for maintenance under Section 125, Cr. P. C. unless she is represented by a guardian, for the simple reason that she was only 15 years old at the date of her application.

IN THE HIGH COURT OF ANDHRA PRADESH

Decided On: 04.04.1979

Gulam Mustafa Vs. Tahara Begum and Ors.

Hon'ble Judges/Coram:
Y. Venkateswara Rao, J.


Citation: 1980 CRLJ 124 AP

1. The only question that arises for consideration in this revision petition is whether a Mohammadan wife aged 15 years, is entitled to initiate action without a next friend, for maintenance under Section 125 of the Cr. P.C. The husband is the petitioner before this Court.

2. The respondent who is divorced, applied to the III Metropolitan Magistrate for an order of maintenance under Section 125 Cr. P. C. alleging that her husband has refused to maintain her despite his having sufficient means therefore. As the learned Magistrate found on evidence that the respondent was aged only 15 years at the date on which she made the application for maintenance, he rejected her claim on the ground that being a minor, she was not competent to maintain the action unless she is represented by a guardian. This order was however reversed in revision by the learned Metropolitan Additional Sessions Judge, Hyderabad, and the matter was remanded to the Court of first instance for disposal on merits, as according to him, the mere fact that the respondent was only 15 years of age on the date of her application does not disqualify her from initiating the action under Section 125, Cr. P. C. Aggrieved lay this order the husband has preferred this petition.

3. Learned Counsel for the petitioner contends that the court below should have seen that the respondent, who is admittedly a minor, does not have the capacity to maintain an action under the provisions of Section 125, Cr. P. C. and that the learned Metropolitan Additional Sessions Judge failed to notice the difference between the right to maintenance and capacity to sue for maintenance. It is further urged by him that since the application under Section 125, Cr. P. C. is in the nature of a quasi-judicial proceeding, as has been held by their Lordships of the Supreme Court in Jagir Kaur v. Jeswant Singh MANU/SC/0242/1963 : [1964]2SCR73 the provisions of the Civil P. C. are applicable to the case and that the respondent is therefore not entitled to maintain the action for maintenance unless she is represented by a next friend as provided by Order XXXII, Rule 1, C.P.C. But 'minor', according to the Explanation added to Rule 1 of Order XXXII, C.P.C. means a person who has not attained his majority within the meaning of Section 3 of the Indian Majority Act, 1875, where the suit relates to any of the matters mentioned in Clauses (a) and (b) of Section 2 of that Act or to any other matter. Section 2 of the Indian Majority Act, 1875 lays down that nothing contained therein shall affect the capacity of any person to act in matters of marriage, dower, divorce, and adoption. Clause (b) of this section excepts the religion or religious rights and usages also of any class of citizens of India from the provisions of that Act. So, the provisions of Section 3 of that Act that every person domiciled in India shall be deemed to have attained his majority by having completed the age of 18 years and not before, has no application to this case. That the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce amongst Mohammadan's and that a Mohammadan wife, who has attained publicity, may file a suit for divorce without a next friend, even after she is under 18 years of age has been well recognised and can also be seen from page 283 of Mulla's Principles of Mohammadan Law Eighteenth Edition. Section 251 of the said principles dealing with capacity for marriage, would show that every Mohammadan of sound mind, who has attained puberty, may enter into a contract of marriage, while it can be seen from the Explanation to that section that puberty is presumed in the absence of evidence, on completion of the age of fifteen years. So, if a Mohammadan woman could validly contract a marriage on attainment of 15 years, I fail to understand how she could be barred from maintaining an action under Section 125, Cr. P. C. unless she is represented by a guardian more so, when there is no such disabling provision either in that section or anywhere else in the Code. If the Legislature intended that a wife, who is under 18 years of age, should not be permitted to start proceedings under Section 125 Cr. P. C. for maintenance against her husband, it would have certainly made the necessary provision therefore in that section itself, as in the case of certain other proceedings covered by the Code. Reference may be made to Sections 198 and 199 of the Code to illustrate the same-S. 198, dealing with prosecution for offences against marriage, lays down that where the aggrieved person happens to be under the age of 18 years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. There is a similar provision in Section 199 dealing with prosecutions for defamation. When it is thus seen that the legislature has taken care to provide for representation of certain categories of persons by others in proceedings under Sections 198 and 199 of the Cr. P. C, it would have done the same thing even in the case of applications under Section 125, Cr. P. C. But the conspicuous absence of any such embargo on a wife, who is below the age of 18 years, against applying for relief under Section 125, Cr. P. C. is in my opinion, sufficient to reject the contention urged for the petitioner that the respondent is not competent to apply for maintenance under Section 125, Cr. P. C. unless she is represented by a guardian, for the simple reason that she was only 15 years old at the date of her application.

4. Clause (a) of the Explanation to this section defines a 'minor' as meaning a person who, under the provisions of the Indian Majority Act, 1875 is deemed to have attained majority, for the purpose of awarding maintenance to a minor female child against its father under Sub-section (1) (b). When 'child' itself is defined to be a person who cannot be deemed to have attained majority under the provisions of the Indian Majority Act, 1875, the provisions of which, as already seen do not apply to matters relating to marriage, dower, divorce, etc. the respondent who is a Mohammadan wife, cannot be considered to be in worse position than a 'child' to be disentitled to maintain an action under Section 125, Cr. P. C. Since the respondent has admittedly attained the age of 15 years by the date of the petition and was married to the petitioner some time before then and the marriage was also consummated the petitioner cannot be heard to say that his wife cannot be regarded as a person who can safeguard her own interests to require representation by some other person as next friend or guardian for proceedings under Section 125, Cr. P. C, The petition is, thus devoid of merits.

5. This revision, therefore, fails and is accordingly dismissed.


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