Section 125, When mother is liable to pay maintenance

HIGH COURT OF CHATTISGARH AT BILASPUR

Criminal Revision No.508 of 2007

Smt. Teejan Bai Chandrakar…Petitioners

Versus

Rajeshwari Chandrakar…Respondents

{Criminal revision under Section 19 (4) of the Family Courts Act, 1984}

! Mr. Sourabh Sharma, counsel for the applicant None for the non-applicant though notice was served. Mr. Sourabh Dangi, Advocate appears as amicus curiae. Honble Mr. T.P. Sharma, J

Dated:10/09/2008

: Judgment

ORAL ORDER

(Passed on 10th September, 2008)

1. By this revision, the applicant has challenged legality and propriety of the order dated 24-7-2007 passed by the Judge, Family Court, Korba in M.J.C.No.80/2007, whereby learned Judge, Family Court has awarded maintenance to the major daughter from her mother under Section 125 of the Code of Criminal Procedure, 1973 (for short `the Code’).

2. Propriety of the order impugned is challenged on the ground that the major daughter is not entitled for any maintenance except under the condition provided in clause (c) of Section 125 (1) of the Code, as such, the trial Court has committed illegality by awarding maintenance to the major daughter that too from her mother.

3. I have heard Mr. Sourabh Sharma, learned counsel appearing for the applicant & Mr. Sourabh Dangi, Advocate, appearing as amicus curiae to assist the Court and address on the point whether the mother is liable to pay maintenance under Section 125 of the Code. I have perused the impugned order as also the record of the trial Court.

4. Mr. Sourabh Sharma, learned counsel for the applicant, submits that the major daughter is not entitled for any maintenance under Section 125 of the Code except on the condition as provided under clause (c) of sub-section (1) of Section 125 of the Code i.e. any major daughter unable to maintenance herself by reason of any physical or mental abnormality or injury is entitled for maintenance. In the instant case, the non-applicant who is the major daughter of the applicant has not adduced any evidence to the effect that she is unable to maintain herself on the ground of any mental or physical infirmity/abnormality, but learned Court below has awarded maintenance to her.

5. Mr. Sourabh Dangi, learned amicus curiae, submits that the daughter is entitled for maintenance against a person who is having sufficient means to maintain his legitimate or illegitimate minor child or his legitimate or illegitimate major child who by reason of any physical or mental abnormality or injury unable to maintain herself. This shows that the daughter is entitled for maintenance from a person who is under an obligation to maintain her and the word `person’ includes male and female. Mother is also under an obligation to maintain her child. Therefore, daughter is entitled for maintenance against her mother under Section 125 of the Code. He placed reliance in the matter of Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai and another1 in which it was held by the Apex Court that the word `his’ used in clause (d) of Section 125 (1) of the Code includes both male & female, and father is entitled for maintenance against his female daughter even after her marriage. Learned amicus curiae further placed reliance in the matter of Madhuri Bai v. Minor Surendra Kumar and another2 in which the M.P. High Court, Jabalpur, has held that clause (b) of Section 125 (1) of the Code saddles liability also on the mother, like father, to maintain her minor children. The word `his’ in the clause means and includes both `male’ and `female’. He further placed reliance in the matter of Smt. S.K. Chandrika v. Smt. Byamma and others3 in which it has been held by the High Court of Karnataka that the word `person’ includes `man’ and `woman’ or `male’ and `female’, if any `male’ or `female’ having sufficient means neglects or refuses to accept `his’ or `her’ liability to maintain then if other conditions of either clause (a), (b) or (c) of Section 125 are shown to exist, liability may be fastened to maintain.

6. Section 125 of the Code relates to order for maintenance of wives, children and parents. Sub-section (1) of Section 125 of the Code reads thus

“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, 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.

Provided further that the Magistrate

may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for

the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

7. It is clear from the above provision that if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, or his legitimate or illegitimate major child, who is by reason of any physical or mental abnormality or injury unable to maintain itself, such person is liable to maintain his wife or such child, father or mother.

8. In the case of Dr. Mrs. Vijaya (supra), dealing with the provisions of Section 125 of the Code, the Apex Court has held that the word `his’ used in clause (d) of Section 125 (1) of the Code does not include the parents claiming maintenance from their daughter, even the married daughter, because after her marriage daughter does not cease to be a daughter of the father or mother.

9. While dealing with the question of liability for maintenance of mother in the case of Madhuri (supra), the M.P. High Court, Jabalpur, after placing reliance in the matter of Dr. Mrs. Vijaya (supra) held that the word `person’ used in Section 125 (1) of the Code includes a male or a female, whether he or she be mother or father.

10. In the case of Smt. S.K. Chandrika (supra), while dealing with the provisions of Section 125 of the Code, the High Court of Karnataka has held that

“When Legislature has not used the expression of `man’ but used `person’, it includes `male’ and `female’ and it cannot be read to be referring to `man’ only. The provisions of Section 125 are social welfare legislation. The object of such a provision has been considered to be that such persons who are not able to maintain themselves, they should not be left to the agony of starvation, frustration or of destitution and in case of female destitution, which may lead to prostitution. To avoid such a situation, the legislature has enacted this provision. A social welfare legislation has to be interpreted keeping in view the object of the provision. If a female person is earning and she has got minor children to maintain and she refuses to maintain the minor children, be it be male or female, then definitely she is liable to maintain them as the legislature has not used the expression `man’ or `woman’, but `person’, it has to be taken that person includes both male and female, `his’ may also be interpreted as `her’ in view of the above provisions of the General Clauses Act as well as provisions of the IPC referred to above. In sub-section, again the legislature has used the expression `any person’. So, in my opinion, the petition for maintenance under Section 125, no doubt, is maintainable against the mother irrespective of the fact that mother belongs to feminine gender. In the decision given by the Punjab and Haryana High Court referred by the revision petitioner’s Counsel, the question involved was question of liability of maintaining the father and mother, and the question was whether son is only liable or daughter is also liable. In that decision, no doubt, reference has been made to Section 11 of the IPC, but neither Section 8 of the CPC nor Section 13 of the General Clauses Act nor illustrative nature of the section has been considered. Anyway, I am unable to agree with the view expressed by the Punjab and Haryana High Court in the case of Raj Kumari v. Yashodha Devi, 1978 Cri. L.J. 600. The question of maintenance of old parents if a person has no son and parents are old aged, question is whether they should be left to die of starvation or frustration or destitution, to vagaries of life particularly when daughters are given share in the property of the father, then why they should not be held liable to maintain their old parents. Anyway, I have observed earlier, I am unable to accept the view expressed by that decision by Punjab and Haryana High Court. I agree with the decision of Andhra Pradesh High Court in the case of Repalli Masthanamma v. Thota Sriramulu and another, 1982 Mad. L.J.R. (Cri.) 313 (AP), in which Single Judge of the Andhra Pradesh High Court has taken the same view as I have taken that here `person’ includes both `male and `female’ and `his’ is to be read as `her’ also.”

11. Proceeding under Section 125 of the Code is summary and provisional in nature for the purpose of speedy disposal of such matter in the interest of society. The object is not to punish a person for neglect to maintain those whom he is bound to maintain. The section provides only a speedy remedy by a summary procedure to enforce liability in order to avoid vagrancy. Its primary object is to give social justice to women and children and to prevent them from destitution and vagrancy by compelling those who can support those who are unable to support themselves. These provisions provide a speedy remedy to those who are in distress.

12. In the instant case, both the parties are Hindu. Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (for short `the Act, 1956′) provides for maintenance to legitimate or illegitimate children and aged or infirm parents, which reads as follows: –

“20. Maintenance of children and aged parents.-(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) 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.”

13. Section 20 of the Act, 1956, cast a bounden duty upon a Hindu male or female to maintain his or her legitimate or illegitimate child and his or her infirm parents. Under Section 20 of the Act, 1956, mother is under an obligation to maintain her legitimate or illegitimate child which includes son and daughter. Maintenance of daughter and son by the mother is her civil liability. But maintenance under Chapter- IX of the Code is a summary and speedy remedy to save unable dependant in order to void vagrancy and destitution. Under Section 125 of the Code, wife and children are entitled for maintenance from their husband & father. It shows that husband or father is primarily liable for maintenance. If by a reason of his death or inability, the father is not able to maintain, then liability may be shifted upon the mother.

14. As regards the question of entitlement for maintenance of non-applicant Rajeshwari Chandrakar, who is the daughter of the applicant, in terms of Section 125 of the Code, the non-applicant is a major and she is entitled for maintenance from the applicant only in case of any physical or mental abnormality or injury by which she is unable to maintain herself. Non-applicant Kumari Rajeshwari Chandrakar is aged about 25 years. She has stated in her evidence recorded on 9- 7-2007 that her father died 4 years prior to filing of this application i.e. 2007 and when her younger brother Vijay Kumar Chandrakar, who at the time of recording her evidence was aged about 23 years, was aged about 6 months, the applicant left her father’s house i.e. the applicant’s husband’s house. After the death of the father of non- applicant i.e. husband of the applicant, her mother received retrial benefits of Rs.8,90,000/- and she has refused to maintain her i.e. the non-applicant herein. The non- applicant has further stated in her evidence that the applicant has sufficient means to maintain her. At present, grand-mother of the non-applicant is maintaining the non- applicant. The non-applicant is also earning by stitching & weaving.

15. Evidence of the non-applicant reveals that her grand- mother is maintaining her and she herself is also earning by stitching & weaving. The non-applicant has not stated that she is not able to maintain herself on the ground of any physical or mental abnormality or injury. A major daughter is entitled for maintenance only when she is unable to maintain herself on the ground of any physical or mental abnormality or injury. In absence of any such material, the non-applicant is not entitled for maintenance form the present applicant. Learned trial Court has not considered her entitlement and awarded the maintenance. The order impugned is not sustainable in the eye of law, same is liable to be set aside.

16. In the result, the revision is allowed and the order impugned is quashed.

17. Before parting with the case, I record my appreciation to the valuable assistance rendered by Mr. Sourabh Dangi, Advocate, in addressing the Court on the point whether the mother is liable to pay maintenance to a major daughter under Section 125 of the Code.

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