Child can claim maintenance u/s 125 from mother

Madhya Pradesh High Court

Madhuri Bai vs Minor Surendra Kumar And Anr. on 24/4/1998

ORDER

V.K. Agarwal, J.

1. This petition under Section 482 of Cr.P.C., has been filed as the petitioner-mother feels aggrieved by the order dated 10-2-98 in Cr. Revision No.181/96, by 1st A.S.J. Raigarh, affirming the order dated 3-7-96 of Judicial Magistrate First Class, Saranggarh in Misc. Cr. Case No. 56/95, granting maintenance in favour of the minor sons of the petitioner under Section 125 of Cr.P.C.

2. The facts leading to the present petition are that the non-applicants-minor sons of the petitioner filed an application under Section 125 Cr.P.C.,through their grand-father as their guardian, claiming amount of maintenance against their mother- the present petitioner. The father of the non-applicants had died while in service as Helper in the M.P.E.B.. His wife- the present petitioner is admittedly receiving family pension after the death of her husband. The trial Court allowed the petition of minor sons-the non-applicants and granted maintenance of Rs. 200/- to each of them. The order was confirmed in revision by the 1st Addl. Sessions Judge.

3. The learned counsel for the petitioner has urged that under Section 125 of Cr.P.C. only the father can be directed to pay maintenance to the minor sons,and that under the said provision the mother was not under an obligation to pay maintenance to her minor sons. In this connection reliance has been placed on a decision of Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana (1989 Cri.L.J. 2032). It was, therefore, submitted that the order of the Magistrate granting maintenance and the order in revision directing the petitioner-mother to pay maintenance to her minor sons, is illegal. It has also been urged that though the petitioner is willing to keep her sons with her, but they are refusing to live with her, and therefore, she is not liable to pay any amount towards their maintenance.

4. It may be noticed that Section 125(1) of Cr.P.C. reads as below :–

“Order for maintenance of wives, children and parents :– (1) If any person having sufficient means neglects or refuses to maintain–

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.”

5. It would appear from Clause (b) of Section 125 (1) of Cr.P.C., that a person can be directed to pay monthly allowance of his minor child, if:–

(a) such person is having sufficient means; and

(b) neglects or refuses to maintain his minor child.

The liability as above for payment of monthly allowance towards maintenance arises irrespective of the considerations as to whether such minor child is legitimate or illegitimate or whether he is married or unmarried.

6. It is not in dispute that the non-applicants are the sons of the petitioner and are minors. Therefore, the question for consideration is whether the mother is liable to pay maintenance under Section 125(1)(b) of Cr.P.C. ?

7. It is true that in Clause (b) of Section 125 of Cr.P.C., the word used are ‘his’ legitimate or illegitimate minor child, and on that basis, it has been tried to be urged by the learned counsel for the petitioner that a mother would not be covered under this clause and cannot be held to be liable to pay maintenance. However, it may be noted that the opening words occurring in Section 125 (1) of Cr.P.C., indicate that any ‘person’ having sufficient means on refusal or neglect can be directed to pay the amount of maintenance. The word ‘person’ in the above clause would include a male or a female. Hence, though in Clause (b) Section 125 (1) Cr.P.C., the word ‘his’ is used, it cannot mean and relate to only a male. It may be noticed in this connection that Section 8 of Indian Penal Code, lays down that the pronoun ‘he’ and its derivates are used for any person, whether male or female. Further, Section 13 (1) of the General Clauses Act provides that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females.

8. Therefore, the pronoun ‘his’ occurring in Section 125(1) (b) Cr.P.C.,would mean and include ‘male’ and ‘female’ both. In other words, both parents whether he or she be mother or father, would be liable to pay maintenance to the minor child, if other conditions under Section 125 (1) of Cr.P.C., are fulfilled.

9. In the above connection reference may be made to Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai and Anr. (AIR 1987 SC 1100) wherein a similar contention with reference to Section 125 (1) (d) was raised. It was held therein that the pronoun ‘his’ occurring in the said provision denotes also a female in view of the provisions of Indian Penal Code, as well as the General Clauses Act.
Accordingly, it was ruled that a daughter would also be liable to pay maintenance to the parents, if the Court is satisfied that she has sufficient means and has her own income, and that the father or the mother as the case may be, is unable to maintain himself or herself.

10. In view of above, it is clear that the petitioner- mother would be liable to pay maintenance under Section 125(1) (b) of the Code of Criminal Procedure.
She cannot escape liability to pay maintenance simply because in Clause (b) of Section 125 (1) of Cr.P.C. word ‘his’ has been used. The case of T.P.S.H. Salva Saroja (supra) relied upon by the learned counsel for the petitioner would be of no assistance to her as the facts thereof and the matter of consideration has no bearing to the facts of the present case. In the said case the daughter had claimed maintenance against the mother on the ground that the movement of her mother with another person had caused damage to the reputation of her family,and had also caused injury in the mind of the daughter. It was held therein that the said injury to the mind of the daughter could not come within the scope of injury contemplated under Section 125 (1) (c) of Cr.P.C., and, therefore, it was held that the daughter would not be entitled to invoke the provisions of Section 125 of Cr.P.C., to claim maintenance from her mother. However, the question involved and decided in that case do not relate to and cannot be of any assistance to decide the present case.

11. The learned counsel for the petitioner has also contended that the petitioner is not liable to pay maintenance to her sons-the non-applicants as they are refusing to live with her on the instigation of the grandfather, who has filed petition for grant of maintenance on their behalf as their guardian.
However, it is noticed in this connection that the learned Judicial Magistrate has in his order dated 3-7-96 recorded that the non-applicants have expressed that they do not wish to live with their mother. It may be noticed that the non-applicants though are minors aged about 13 and 8 years respectively, but were in a position to express their willingness or unwillingness to live with the petitioner-mother. Their disinclination to live with their own mother speaks volumes about the conduct and mutual relations between the petitioner and her minor sons, as normally the minor sons would not have shown such a disinclination to live with their own mother without some vital and gross reasons. Therefore, the contention of the learned counsel for the petitioner that since the non-applicants are not willing to live with the petitioner-mother, she is not liable to pay any amount of maintenance to them, cannot be accepted.

12. Accordingly, no exceptional circumstances have been brought-forth so as to justify exercise of inherent powers under Section 482 of Cr.P.C..
Consequently, no interference in the order passed by the Courts below granting maintenance to the minor sons of the petitioner appears to be called for.
Therefore, this petition has no merit and is dismissed.

One thought on “Child can claim maintenance u/s 125 from mother

  1. it is the fate of indian men, in the divorce cases men are loosing the kids along with wives. it is only indian women who are brain washing the kids and nurturing ill will against fathers. maximum men are not going for second marriage because of marriage fobia. they are the loosers. laws should be changed.

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