NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

(Academic Session: 2020-2021)

SEMESTER: II (Mid Term)

SUBJECT: Sociology-II

TOPIC: Case Analysis: Abhilasha v. Parkash & Ors.1

Submitted To: Submitted By:

Prof. Tapan Mohanty Juhi Mandhare

Professor of Sociology Roll No. 47

NLIU, Bhopal

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2020 SCC OnLine SC 736

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TABLE OF CONTENTS

STATEMENT OF PROBLEM................................................................................................5

OBJECTIVES..........................................................................................................................5

DETAILS OF THE CASE.......................................................................................................5

NAME OF THE JUDGES.......................................................................................................6

BENCH....................................................................................................................................6

COUNSEL...............................................................................................................................6

OPINION AND JUGEMENT DELIVEREY..........................................................................6

BACKGROUND.....................................................................................................................6

FACTS OF THE CASE...........................................................................................................7

ISSUES FOR CONSIDERATION..........................................................................................7

ARGUMENTS ADVANCED.................................................................................................8

JUDGEMENT OF THE COURT............................................................................................8

RATIO DECIDENDI............................................................................................................10

CONCRETE JUDGEMENT.................................................................................................10

JUDGEMENT ANALYSIS...................................................................................................11

SOCIOLOGICAL RELEVEANCE.......................................................................................13

CONCLUSION......................................................................................................................16

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CERTIFICATE

This is to certify that the research for the project titled “Case Analysis: Abhilasha v. Parkash
& ors.” has been undertaken by Juhi Mandhare, of Semester-II roll no. 2020BALLB47 of the
National Law Institute University, Bhopal. The research is her own work and has been carried
out under the guidance of Prof. Tapan Mohanty. All the sources used for the research have
been duly acknowledged in the footnotes and bibliography.

(2020B.A.L.L.B.47)

(Signature of the Student)

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ACKNOWLEDGMENT

I would sincerely like to acknowledge and thank the Vice Chancellor Dr V Vijaykumar, and
Dean Undergraduate Studies Dr Ghayur Alam as well as the Professor for Sociology Prof.
Tapan Mohanty for giving me this opportunity to work on such a project that enlightened me in
not just one but many ways and helped me understand the concept of research in detail.

I would especially like to extend my gratitude to my teacher for guiding me throughout the due
course of the project and helping me out wherever possible.

Last but not the least I would like to acknowledge the efforts of my family and friends for
helping me make this project happen.

NLIU, Bhopal

June 20th, 2021

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STATEMENT OF PROBLEM

The law is a not perfect and hence cannot always be just to everyone, especially because it has
generated from centuries old moral principles. However, with changing times and social
perspectives, law must also be constantly amended so that injustice can be prevented, at least in
the instances where it is possible to do so.

OBJECTIVES

1. To analyse the case of Abhilasha v, Parkash and ors.2

2. To bring about and discuss the sociological perspective of the case.
3. To suggest (if feasible) changes that the law can accommodate in the light of social
perspectives.
4. To understand the need for social justice within the society with reference to the case.

DETAILS OF THE CASE

NAME
Abhilasha v. Prakash & ors.

CASE NO.

CRIMINAL APPEAL NO. 615 of 2020

(Arising out of S.L.P. (Criminal) No. 8260/2018)

COURT

Supreme Court of India

JURISDICTION

Criminal Appellate Jurisdiction

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2020 SCC OnLine SC 736

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NAME OF THE JUDGES

The case was before the division bench of the Supreme Court which consisted of Justices Ashok
Bhushan, R. Subhash Reddy, M.R. Shah

BENCH

The case consisted of a full bench of the Supreme Court.

COUNSEL

The counsel appearing on behalf of the appellants was Advocate Ms. Vibha Datta Makhija.

OPINION AND JUGEMENT DELIVEREY

There was only one opinion being the unanimous decision of the bench delivered by Hon’able
Justice Ashok Bhushan

BACKGROUND

The present case deals with a matter of providing maintenance, to an unmarried daughter and has
arisen out of a Special Leave Petition filed by the daughter Abhilasha. The case was originally
filed before the judicial magistrate, in the year 2002 by Abhilasha’s mother along with her and
her two siblings. The application that was filed before the judicial magistrate is was under
section 125 Cr. P.C. which was only considered in part and the decision was upheld by the
revisional courts and hence the appellant approached the Supreme Court in this matter.

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FACTS OF THE CASE

 The appellant’s mother (respondent no. 2 in the present SLP and applicant 1) along with
the appellant (applicant 4) and her two brothers (applicant 2&3) had filed an application
on before the Judicial Magistrate, Rewari under section 125 of Cr. P.C. for the claim of
maintenance from the husband/father Mr. Parkash (respondent 1 in the present case).
 The judicial magistrate via order dated 16.02.2011, dismissed the claim of the applicants
1, 2 and 3 and upheld the claim of applicant 4 until the attainment of the age of majority.
 Aggrieved, the applicants filed a revision petition against the order before the Court of
Sessions Judge, who too dismissed the petition and stated that as per section 125 Cr. P.C.,
only the children suffering from any mental of physical illness, which makes them unable
to fend for themselves can claim maintenance after majority.
 Disagreeing with the decision, an application was further filed in the high court of Punjab
and Haryana, under section 482 Cr. P.C. and the High Court as well by its order dated
16.02.2018 dismissed the application and stated that it does not find any illegality or
infirmity in the decision given by the additional sessions judge and hence, there can be no
interference with the order.
 Thus the present appellant has approached the Supreme Court under the provision of
Special Leave Petition.

ISSUES FOR CONSIDERATION

1. Whether the appellant, who although had attained majority and is still unmarried is
entitled to claim maintenance from her father in proceedings under Section 125 Cr. P.C.
although she is not suffering from any physical or mental abnormality/injury?
2. Whether the orders passed by learned Judicial Magistrate as well as learned Revisional
Court limiting the claim of the appellant to claim maintenance till she attains majority on
26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to
give maintenance even after 26.04.2005 till the appellant remains unmarried?

ARGUMENTS ADVANCED

1. On behalf of the appellant.

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 The counsel for the appellant, while relying on the Section 20 of the Hindu Adoptions &
Maintenance Act, 1956 (hereinafter referred to as “Act, 1956”) stated that even though the
appellant has attained majority on 26.04.2005, under the said provision she is entitled to
receive maintenance until she is unmarried.

It counsel also relied on the judgment of the Supreme Court in Jagdish Jugtawat vs. Manju
Lata and Others3 to support her claim, in which the family court had allowed for maintenance
to an unmarried daughter, even after attaining majority. The High Court and the Supreme
Court has taken to not interfering with the decision.

2. On behalf of the Respondent

The counsel for the respondent, while emphasizing on section 125 of Cr. P.C. and its ambit
stated that the courts have rightly allowed for the claim of maintenance till the attainment of
the appellant’s age of majority and further emphasized that to claim maintenance under
section 125 the child must be suffering from physical or mental abnormality and be unable to
maintain oneself.

JUDGEMENT OF THE COURT

The Supreme Court in its judgment considered two broad questions, mentioned above, but not
separately. The two questions were taken for broad discussion simultaneously as both are
interlinked to each other.

The court while considering the case of Nanank Chand vs. Chandra Kishore Aggarwal and
Others4, wherein the Supreme Court had a chance to consider Section 488 of the Criminal
Procedure Act, 1898 (Similar to section 125 Cr.P.C. 1973) with reference to section 4 of the Act,
1956. In this case the court held that section 488 of Cr. P.C. 1898 and section 4 of the Act, 1956
are not inconsistent with each other and hence both can stand together. Further the case of Mst.
Zohara Khatoon vs. Mohd. Ibrahim5 was also taken up by the court and here it was further stated
that nothing in the Act, 1956 expressly or impliedly suggests that it is to substitute section 488 of
Cr. P.C. The court also took a look at the case which the appellants had relied on i.e. Jagdish

3
(2002) 5 SCC 422
4
(1969) 3 SCC 802
5
(1981) 2 SCC 509

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Jugtawat vs. Manju Lata and Others and dismissed the contention on the ground that in the case
the courts have only refused to interfere with the judgment of the family court and this does not
lay down any ratio.

The Supreme Court referred to a number of cases and agreed that though the daughter can claim
maintenance under Section 20 of the Act, 1965, she cannot do so under Section 125 of Cr. P.C.
and the magistrate is also not expected to take up the burden of the civil suit that can be filed
under the Act, 1965. His jurisdiction is only limited to the section under which the appeal has
been filed before him. The court emphasized that section 125 is the universal rule and is
applicable to all persons, irrespective of the religion and stated that “the effect of a beneficial
legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear
provisions of a statute.” The court further went on to explain “The purpose and object of Section
125 Cr.P.C. as noted above is to provide immediate relief to applicant in a summary
proceedings, whereas right under Section 20 read with Section 3(b) of Act, 1956 contains larger
right, which needs determination by a Civil Court, hence for the larger claims as enshrined
under Section 20, the proceedings need to be initiated under Section 20 of the Act and the
legislature never contemplated to burden the Magistrate while exercising jurisdiction under
Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956.”

The court in its decree stated that the daughter is entitled to receive maintenance under the Act,
1956 provided she proves that she is unable to maintain herself, while the same cannot be done
under Section 125 Cr.P.C. and hence to claim maintenance as an unmarried daughter on the
ground of unsustainability must be brought as a civil suit under Section 20 of the Act, 1956.

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RATIO DECIDENDI

The ratio of the case is that the unmarried daughter, who is not suffering from any
physical/mental is not entitled to claim maintenance from her father under section 125 Cr. P.C.
and to claim it under Section 20 of the Hindu Adoption & Maintenance Act, 1956 a separate suit
must be brought under specific provision. The claim under the Act, 1956 cannot be made in a
hearing for Section 125.

CONCRETE JUDGEMENT

The court while recognizing the right of the unmarried daughter to claim maintenance decreed
that this right can only be claimed under Section 20 of the Hindu Adoption & Maintenance Act,
1956 and for that a separate suit under the specific section must be brought.

The appeal was dismissed.

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JUDGEMENT ANALYSIS

The judgment is legally referred to as a landmark judgment in the light of an unmarried

daughter’s right to claim maintenance from her father. According to the facts of the case, the
daughter had been along with her siblings and the mother, litigating to secure a certain amount as
maintenance. The daughter approached the court under Section 125 of the Cr. P.C. and thus the
appeals too, were maintained under this section, however the claim of the petitioner/appellant
does not fit under the established law of the section. In India maintenance is not only governed
by the general law i.e. the Cr. P.C. which is drafted and is applicable irrespective of the religion,
but also the personal laws that differ from every religion and while the courts of criminal
jurisdiction are not banned from hearing the cases of maintenance, it is also correct that they
have their own limitations.

The law is maintained and clear on the idea of maintenance under section 125, which the courts
are required to follow and which does not include the provision for the maintenance of an
unmarried daughter. The judiciary does not hold the power to significantly add on a new
beneficiary to a provision for in the Indian democracy that power lies with the legislature. The
court’s duty is simply to interpret the provisions, define their ambit and take away their
vagueness. Though section 125 of Cr. P.C. does not allow for maintenance to an unmarried
daughter, the personal governing maintenance in Hindus i.e. the Hindu Adoption and
Maintenance Act, 1956 does on a set condition and it was under the section 20 of the said act that
the counsel of the appellant based their claim. The appellant solely relied on the judgment of
Jagdish Jugtawat, wherein the daughter and the mother had approached the family court under
section 125 of Cr. P.C. and she was granted a right to maintenance till marriage, however in this
case with further appeals, both the High Court and the Supreme Court were in agreement that
though the ambit of section 125 only extends to the child till attainment of majority, she would
become entitled to claim under the personal law. Hence the sole purpose of both the courts
behind not interfering with the judgment was to avoid multiplicity of proceedings.

However in the present case the appellant were not so fortunate and their first litigation was to
the Judicial Magistrate and the court while discussing this, points out that it was never the
intention of the legislature to burden the Magistrate while exercising jurisdiction under Section

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125 Cr.P.C. to determine the claims contemplated by Act, 1956. And this is the reason that the
court accepts the contention of the respondent that under section 125 unmarried daughters are not
entitled to claim maintenance from their fathers. Further the court also establishes that while
maintenance provided under section 125 is an immediate relief and in the case of the Act 1956 a
vast relief that requires determination and calculation, thus it is only right that the maintenance
matter under the Act 1956 be dealt by the court that has the proper jurisdiction to do so.
Agreeably the court does not strip the daughter off of her right to claim maintenance but only
points out that, the claim cannot stand due to the limitation of the statute and hence it is by the
law that an unmarried daughter, unable to maintain herself makes a claim under the proper
provision.

I stand in agreement with the court as far as the judgment talks of the need to make a claim under
the correct provision. Under the common law system which bases itself upon precedents, if the
Supreme Court on the basis of any reasons what so ever allows for claims which do not satisfy
the conditions required, the judgment is not only against the ethics of the law, it is also against
the idea of precedents and though not every judgment can be termed as a precedent, its weight as
a Supreme Court judgment cannot be lessened. Further when laws are established and courts are
divided on the basis of their jurisdiction, one of the main reasons behind this is to not over-
burden the court and make the process of litigation simple and a mistake on the part of the courts
threatens this peaceful distinction.

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SOCIOLOGICAL RELEVEANCE

It is well established that law is a social phenomenon i.e. law is that external occurrence that
affects a person’s behavior and influences the people around. Law is also a tool for social
transformation, it has over the years, coupled with the individual’s need for peace and security,
helped bring the society to a stage where a number of people with various differences have come
to co-exist. It is much different from the time when we had ‘birds of a feather flocking together’.
In contrast the society too has influenced the amendments and reformations of certain laws, for
as society changes and leaving the traditional chain of thoughts opens itself up to new ideas, the
law is also reformed to meet the changing needs of the society. It is also, in my opinion, a law
that if not enforce can initiate a change in people about certain issues that they might hold a bias
towards. Thus it is necessary that laws are amended and reformed as soon as a new idea, which is
in favor of the rights and dignity of an individual, is harbored by a substantial number of people
of the society to promote and preserve its worth.

The present case i.e. Abhilasha v. Prakash talks about the responsibility of the father to provide
maintenance for his children and the two main provisions discussed herein are Section 125 of the
Criminal Procedure Code, 1978 and Section 20 of the Hindu Adoptions & Maintenance Act,
1956 which both deal with the same issue, but fall under the different class of law where one is a
general law and is of criminal nature and the other is a personal law of civil nature. In almost all
the societies the primary burden of bringing up the family, of taking care of the monetary needs
of the child and the parents and so on. In the recent times, the right to claim maintenance has also
been extended to the husband but only under personal laws, as is embedded in Section 24 of the
Act, 1956. But not all personal laws or the general law for that matter recognize the right of the
husband to claim maintenance and a husband who is unable to meet even his needs is expected to
be the provider of the wife and children compulsorily under certain personal laws. In paragraph
25 of the judgment, Justice Ashok Bhushan also acknowledges that fact and states “In Classical
Hindu Law prior to codification, a Hindu male was always held morally and legally liable to
maintain his aged parents, a virtuous wife and infant child.” Another aspect is that the law allows
for a child, who is mentally/physically abnormal to receive maintenance from the father, under
the Act, 1956 a daughter unable to maintain herself is also entitled to claim maintenance yet the
same right and entitlement does not extend to the son. Why has the law expected the son to

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become independent as soon as he becomes of the majority age and why has the law not
considered the son’s inability to maintain himself. The clause 3 of section 20 of the act states
“The obligation of a person to maintain his or her aged or infirm parent or a daughter who is
unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is
unable to maintain himself or herself out of his or her own earnings or other property.” This
provision has made no consideration to include the son as well, who may also not be under
circumstances to sustain himself.

This is a societal prejudice against men, where we have expected them to be flag-bearers of a
family’s monetary responsibility. We have expected them to grow up all so suddenly and be able
to maintain themselves. With the onset of the 21st century the movement advocating for Gender
Equality has gained momentum and today the need for gender equality is widely recognized. It is
also true that the primary victims of gender bias are women, who have traditionally been
subjected to patriarchy; however, this does not take away from the fact that men too have been
subjected to gender bias, sometimes having to shoulder household responsibilities alone or
sometimes being tagged as a perpetrator for the sole niche of being a man. The provisions that
have been mentioned in the case are too, a solid example of gender bias against men.

Another problematic aspect of these provisions or rather the ones that are not in consonance to
the present societal expectations is the idea that the claim for maintenance is only valid till the
majority of the child. In the previous times, education till grade 10 th was a basic standard and
usually, people could easily land good jobs with that level of education or jobs that would pay
them well enough to support their families; however today for a person to be eligible for a well-
paid and respectable job, the basic requirement is a higher secondary certificate as well as a
university degree. It is, in this situation not appropriate or cognizant for the laws to expect the
children to be able to become self-sustaining, especially since the job procurement has become
much difficult. At this age, the children due to the lack of resources may not be able to have a
fully-fledged future. It is understandable that the entire responsibility cannot be shoved onto the
parent, completely absolving the parents from the same is also not completely appropriate on the
part of the law.

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It is, hence, much necessary that the law takes into consideration this gender bias against men
and the traditional ideal of becoming self-sustaining at the age of 18 i.e. on attaining majority are
the aspects of law that no more hold relevance in the present times and therefore amendments to
these must be made, so that the human right of the various persons, that may be subjected to
these provisions, are not infringed upon.

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CONCLUSION

The case is landmark, in the sense that it establishes the scope of Section 125 Cr. P.C. and would
act as a definitive precedent for maintenance cases. It lays down the need for s initiation of
separate suit to be able to make a claim under Section 20 of the Act, 1956 and is also defining of
the power of the Magistrate. Sociologically, we could identify the existence of the prejudice
against men as the sole breadwinner and one who’s able to sustain themselves. The prejudice and
their effects, as discussed above, need to be reconsidered and amended especially because the
law to an extent affects the ideals of the individuals. When law recognizes something, it is
natural that people would tend to associate with it in a positive light. Therefore while acting as a
tool for social change, the lawmakers must recognize the up and coming social ideals and bestow
the law with the change so that individuals rights can be sustained through collective
consciousness.

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