Vishram Ramji Kerai & 2 vs State Of Gujarat & on 6 September, 2017

R/SCR.A/146/2012 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 146 of 2012

VISHRAM RAMJI KERAI 2….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:
MR DG CHAUHAN, ADVOCATE for the Applicant(s) No. 1 – 3
RONAK D CHAUHAN, ADVOCATE for the Applicant(s) No. 1 – 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR HK PATEL, ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1

CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

Date : 06/09/2017
ORAL ORDER

1. RULE. Learned Additional Public Prosecutor Mr. H.K.

Patel waives service of notice of Rule on behalf of the

respondent – State.

2. This petition is filed under Section 226 of the Constitution

of India challenging the order dated 11.10.2011 passed by

the learned 2nd Additional Sessions Judge, Kutch-Bhuj in

Criminal Revision Application No.84/2010 by which the

learned Sessions Judge had confirmed the order dated

20.08.2010 passed by the Court of the learned Judicial

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Magistrate First Class, Bhuj in Criminal Miscellaneous

Application No.389/2006.

3. The facts in brief are as under :-

a) The three petitioners are the brothers who have settled

in the United Kingdom since 1969 and have been residing

there ever since. Today, the petitioners No.1 and 2 are

senior citizens aged 70 years and 60 years and the

petitioner No.3 is aged 58 years. All the petitioners are

leading a retired life in the United Kingdom. The parents

of the petitioners continued to reside in India at Bhuj.

However, on 18.04.1984, the mother of the petitioners

passed away. The father of the petitioners being alone was

kept in the care of respondent No.2 (original applicant).

After expiry of the father of the petitioners on 12.02.1995,

thereafter in July 2006, the respondent No.2 filed a

Criminal Miscellaneous Application No.389/2006 in the

Court of the learned Judicial Magistrate First Class for

maintenance under Section 125 of the Code of Criminal

Procedure, 1973 (hereinafter referred to in short as ‘the

Code’) and the learned Magistrate by an order dated

20.08.2010 directed payment of maintenance of

Rs.1,000/ against the petitioners and in favour of the

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respondent No.2.

b) Being aggrieved, the petitioners preferred a Revision

Application on 21.11.2010 which came to be disposed of

by the impugned order by the learned Additional Sessions

Judge on 11.10.2011 confirming the order of the

Magistrate Court.

4. Learned Advocate for the petitioners submitted that the

claim of respondent No.2 under Section 125 of the Code is

not maintainable as the respondent No.2 is the not the

natural mother of the petitioners. The respondent No.2 is

not the legally wedded wife of the father of the petitioners

so as to be consider as a step mother of the petitioners. It

is submitted that under Section 125, the right to claim

maintenance is only that of a natural mother. It is further

submitted that when the respondent No.2 started residing

with the father of the petitioners as a care taker, at that

time, the petitioners were already major and infact, much

elder to the respondent No.2. The petitioners had already

settled in United Kingdom and there were never a relation

of a mother and son with the respondent No.2 so as to

create right to claim maintenance. Learned Advocate also

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submitted that the Court below have proceeded on the

basis of presumption of marriage and clearly no evidence

has appeared on record to establish fact of marriage of the

respondent No.2 with the father of the petitioners, and

therefore, the right under Section 125 of the Code in any

case could not be created.

5. Learned Advocate for the petitioners has taken this Court

to the evidence on record in the form of deposition of the

respondent No.2 where she has infact, admitted that no

marriage as per the rituals were performed. It is

submitted that the presumption on part of both the Courts

below of existence of marriage in absence of clear cut

evidence of marriage, an error has been committed in

considering the case of respondent No.2 in granting

maintenance. Learned Advocate for the petitioners has

referred and relied on the judgment of the Apex Court in

the case of Yamunabai Anantrao Adhav v. Anantrao

Shivram Adhav and Another reported in (1988) 1 SCC

530 to argue that to treat the respondent No.2 as wife and

therefore, consequentially the step mother of the

petitioners, she has to fall in the definition of a ‘wife’ as

contemplated under the Hindu law. The other judgment

of the Apex Court relied by the learned Advocate for the

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petitioners is in the case of Kirtikant D. Vadodaria v.

State of Gujarat and Another reported in (1996) 4 SCC

479 to contend that the expression ‘mother’ under Section

125(1)(d) of the Code would cover only a real or natural

mother and would not include the step mother.

6. Despite service, no appearance is filed on behalf of the

respondent No.2. Hence, this Court is left with no other

option but to proceed with the hearing, considering that

the matter is of the year 2012 and with the assistance of

the learned Additional Public Prosecutor Mr. H.K. Patel.

7. The Court has gone through the case papers which

includes the application under Section 125 of the Code, the

order of the Magistrate Court, Revision Application and the

order thereto. The Court has also gone through other

papers including the cross examination of respondent No.2

vide Exhibit 35. The Court is of the view that the

conclusion drawn by the Court of the learned Magistrate

and confirmed by the Sessions Court about the fact of

marriage is in the realm of presumption. The revisional

Court has confirmed the presumption of marriage by the

Magistrate Court. Considering the fact which has come on

record regarding the stay of respondent No.2 with the

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father of the petitioners for a long period clearly, an error

is committed by the Court below by considering that on the

basis of deposition of neighbours, the fact of marriage can

be presumed. Such presumption of fact of marriage is

impermissible. The provisions of Hindu law prescribes the

rituals which necessarily require to be undertaken to bring

a marriage into existence. Mere long term residence may

create right in favour of the respondent No.2, but such

right would be with regard to the father of the petitioners,

but certainly no rights are created against the petitioners.

The Courts below have failed to take into consideration the

ratio of the judgment of the Apex Court in the case of

Kirtikant Vadodaria (supra) wherein in Paragraphs 11,

12 and 13 it is held as under :-

“11. Admittedly, the expressions ‘mother’ and
‘stepmother’ have not been defined either in the Code
or in the
General Clauses Act, 1897. These
expressions have also not been defined by the Hindu
law or the Hindu Adoptions and
Maintenance Act,
1956 or by any other law. As stated earlier, all that
the explanation attached to
Section 20 of the Hindu
Adoptions and
Maintenance Act, 1956 provides is
that the expression ‘parent’ includes a childless
stepmother. This being the position, we have to
resort to the dictionary meaning and the meaning in
which these expressions are commonly understood in
the popular sense. In the Permanent Exn. of Words
and Phrases, Vol. 27-A, at p.348, the word ‘mother’
has been given the meaning “to denote a woman who
has borne a child or a female parent, especially one
of the human race”. In Vol. 40 of the said Permanent

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Edn. of Words and Phrases, at p. 145, the expression
‘stepmother’ has been given the meaning as to be the
“wife of one’s father by virtue of a marriage
subsequent to that of which the person spoken of is
the offspring”. It has been further stated that a
‘stepmother’ is a relative by affinity and the
relationship continues after the death of the father.
Black’s Law Dictionary, 5th Edn., at p. 913, has given
the meaning of ‘mother’ as a “woman who has borne
a child”, a “female parent”. Further, at p. 1268, the
meaning of ‘stepmother’ is stated to mean “the wife
of one’s father by virtue of a marriage subsequent to
that of which the person spoken of is the offspring”.
Similarly, in The Shorter Oxford English Dictionary,
Vol. II at p. 1360, the meaning of the word ‘mother’ is
given as a “woman who has given birth to a child or a
female parent” and at p. 2122, the expression
‘stepmother’ has been assigned the meaning as “the
wife of one’s father by a subsequent marriage”.
According to Webster Dictionary (International Edn.),
the expression ‘mother’ means a female parent and
that which has produced or given birth to anyone.
Thus, on a conspectus view of dictionary meaning of
the two expressions – ‘mother’ and ‘stepmother’ in
various dictionaries, it clearly emerges that there is
inherent distinction between the status of a ‘mother’
and ‘stepmother’ and they are two distinct and
separate entities and both could not be assigned the
same meaning. The expression ‘mother’ clearly
means only the natural mother who has given birth
to the child and not the one who is the wife of one’s
father by another marriage.

12. It may be mentioned here that in The General
Clauses Act though the expression “father” has been
defined in clause 20 of
Section 3, out the expression
“mother has not been defined. The expression
“father” as defined in the
General Clauses Act, 1656
means in the case of anyone whose Personal Law
permits adoption, shall include an adoptive father’.

Applying the said analogy, at best. an adoptive
mother may also be included in the expression
mother but not a step mother. As discussed above, a
step-mother is one who is taken as a wife by the
father of the child other than the one from whom the
is born or who has given birth to the one from whom
he is born or who has given birth to him. This clearly

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goes to show that the woman who gives birth to a
child and another woman who is taken by the father
as his other wife are tow distinct and separate
entities in the eye of Law and who in common
balance are know and recognized as real ‘mother’
and step-mother. That being so, another woman who
is taken as a wife by the father of the child cannot be
given the status of mother to the child born from
another woman as there is no blood relation between
the two.

13. We may also here usefully refer to an old
decision of an Division Bench of Bombay High Court
in
Bai Daya v. Natha Govindalal [ (1885) 9 Indian Law
Report 279], wherein on the basis of the opinion of
Manu and Mitakshara, it was held that the term
‘mata’ stands for ‘janani’ “genitrix”, and sapatnamata
” noverca”. It has been further observed in the said
decision that ‘mata’ and ‘mata-pitrau’ are Sanskrit
words which are used in the text by Manu,
Mitaksnara and Salamphatta and in both the cases
discussion proceeds on the supposition that the
primary meaning of ‘mata’ was ‘natural mother’ and
that it was only in secondary and figurative sense
that it could mean a “step-mother”. It is, therefore,
clear that even under the old Hindu Law also, the
expression mother was referable only to the natural
mother who has given birth to the child and not the
step-mother. It would be difficult to assume that the
legislature was unmindful of the social fabric and the
structure of relationship in the families. The
existence of various kinds of relatives in our society
was not some thing of which the Parliament may be
said to ignorant when it thought to enact the New
Code of 1973 and for the first time not only the
parents were included amongst the persons entitled
to claim maintenance under
Section 125 (1)(d) but
even the divorced woman had been included in the
expression wife to be entitle to claim maintenance,
who were not so included in
Section 488 of the “step-
father” or “step-mother” are not included in the
expression “his-father” or mother” occuring in clause

(d) of Section 125(1) of the code giving a clear
indication of the legislative intent.”

8. Thus, in context of the interpretation given by the Apex

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Court with regard to Section 125 of the Code, this Court is

of the view that the Magistrate Court as well as the

Revisional Court committed an error in treating the

respondent No.2, firstly as the wife of the deceased –

father of the petitioners and consequentially, as the step

mother of the petitioners so as to give a rise of her right to

claim maintenance. The chronology of events as

mentioned hereinabove also creates a doubt in the mind of

the Court as to the bonafide of the application for

maintenance that too after 11 years, after the death of the

father of the petitioners.

9. In view of the aforesaid, the petition deserves to be

allowed and the impugned orders, i.e. order dated

11.10.2011 passed by the learned 2nd Additional Sessions

Judge, Kutch-Bhuj in Criminal Revision Application

No.84/2010 and the order dated 20.08.2010 passed by the

Court of the learned Judicial Magistrate First Class, Bhuj in

Criminal Miscellaneous Application No.389/2006 are set

aside. Rule made absolute accordingly.

Sd/-

(A.Y. KOGJE, J.)
Caroline

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