Pleas seeking maintenance against minor maintainable: Allahabad HC

Prayagraj, Sep 30 (PTI) Deciding a case involving child marriage and a maintenance claim against a minor husband, the Allahabad High Court has held that an application under sections 125 and 128 CrPC seeking maintenance against a minor is maintainable.

Giving the above ruling, Justice Madan Pal Singh observed, "There is no bar in entertaining the application under section 125 and section 128 CrPC filed against a minor." According to the counsel for the petitioner, the husband was 13 years old when he was married to the opposite party no. 2. Two years later, a child was born to the couple.

When the husband was about 16 years old, an application under section 125 CrPC was filed by the wife seeking maintenance from him.

The Additional Principal Judge (family court), Bareilly granted maintenance of Rs 5,000 per month for the wife and Rs 4,000 per month for the child.

During the court proceedings, challenging the order of the court, the counsel for the 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, the counsel added.

It was also pleaded that since the wife had refused to live with the revisionist without reasonable cause, she is not entitled to maintenance according to 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. 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 husband was a minor, he had attained majority on the date of the judgment.

To avoid an increase in pendency, the court did not remand the matter back to the trial court, and observed: "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." 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 Supreme Court in Rajnesh Vs Neha, the high court, in its decision dated September 25, reduced the maintenance amount to Rs 2,500 for the wife and Rs 2,000 for the husband, i.e., a total of Rs 4,500, which is 25 per cent of his income.

The court directed that arrears, if any, shall be calculated based on the amount fixed by the high court. PTI COR RAJ KSS KSS