HIGH COURT OF JUDICATURE AT ALLAHABAD
Criminal Misc. Application No. 1760 of 2008
Smt. Raj Kumari Awasthi and another………………………….Applicants
State of U.P. and another…………………………………….Opposite parties
Hon’ble Amar Saran, J.
Heard Shri Saurabh Srivastava, learned counsel for the applicants and Shri Shashi Dhar Tripathi, learned Additional Government Advocate.
The applicants who are the wife and daughter of O.P. No. 2 have preferred this application under section 482 Cr.P.C. challenging the order dated 29.11.2007 whereby the learned Additional Chief Family Court, Kanpur Nagar has modified his order dated 9.5.06 granting maintenance to both the applicants at the rate of Rs. 700 per month in proceedings under section 127 Cr.P.C in Case No. 171 of 2006 and limited the grant of maintenance to his daughter, applicant Akansha till the date she turns major, i.e. till 21.8.06 whilst upholding the grant of maintenance to his wife, applicant Smt. Raj Kumari Awasthi
This part of the order was assailed by the applicants by arguing that under section 127 of the Code, grant of maintenance cannot be denied to an unmarried daughter, who has no source of income whatsoever to maintain herself and who being a student of Class-XII is in dire need of her father’s assistance for her education and upbringing.
My attention was however drawn to section 125(1)(c) of the Code, which reads as under :
125. Order for maintenance of wives, children and parents:- (1) If any person having sufficient means neglects or refuses to maintain- (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,.”
It is also relevant that under the Code, in view of the Explanation (a) to section 125, a minor is a person who has not attained majority under the Indian Majority Act, 1875.
I was extremely disturbed because on a plain reading of the aforesaid provision, it is apparent that a person having sufficient means is only required to maintain his unmarried daughter who has turned major, i.e. after she has crossed the age of eighteen years, only if her inability to maintain herself is due to any physical or mental abnormality or injury, and not otherwise. The position as it stands under this provision is that a college going girl of 18 years, (like the applicant No. 2), who is not yet married, unless she is unable to maintain herself due to any physical or mental abnormality or injury, can be refused maintenance by her father, who is possessed of sufficient means.
At the outset I must complement Shir Shashi Dhar Tripathi, learned Additional Government Advocate who was able to ferret out a two Judge decision of the Apex Court Jagdish Jugtawat Vs. Manju Lata and others, 2002(II) UP Cr.R313, where in similar circumstances the father had prayed that the girl child be allowed maintenance only till she attains majority and not thereafter. The Magistrate had refused his prayer, and the High Court while accepting the legal position that under section 125 of the Code, a minor is entitled maintenance from her parents only till she attains majority, declined to interfere with the order passed by the family court taking a cue from section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the HAM Act) and upheld the order of the family court with a view to avoid multiplicity of proceedings. The relevant portion of the judgement of the High Court was quoted by the Supreme Court in Jagdish Jugtawat (supra), which was as follows:
“Thus in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon’ble Supreme Court, the provisions of section 125 Cr.P.C. are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon’ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under section 125 Cr.P.C. on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent No. 3 as she would be forced to file another petition under sub-section (3) of section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigation,the order impugned does not warrant interference.” (Emphasis added)
The Apex Court also was of the view that no exception could be taken to the judgement/order passed by the learned Single Judge of the High Court in maintaining the order passed by the family court, which was based on a combined reading of section 125 of the Code and section 20(3) of HAM Act as it was of the view that the right of a minor girl for maintenance from her parents after attaining majority till her marriage is recognized in section 20(3) of the HAM Act.
Relying on the said decision of the Apex Court in Jagdish Jugtawat Vs. Manju Lata (Supra) I am staying the operation of the order dated 20.11.2007 passed by the Additional Chief Family Court, Kanpur Nagar insofar as it has limited the grant of maintenance to Km. Akansha only till she reaches the age of majority, i.e. till 21.8.2006.
However, in my view, the High Court and the Apex Court in Jagdish Jugtawat has taken this exceptional position, and sought to read the comparatively salutary provisions in the HAM Act because they have been troubled by the restriction implicit in section 125 (1) (c) of the Code whereby a father possessed of sufficient means can refuse maintenance to daughter who may have just become eighteen and is still unmarried and unable to maintain herself. Therefore I think by reading section 20(3) of the HAM Act into section 125(1)(c) of the Code in the peculiar circumstances of some cases, it cannot be demonstrated that section 125(1)(c) as it presently stands is not arbitrary or unreasonble, and the vires of the latter cannot be salvaged by this method. The rights and remedies provided under the HAM Act are completely distinct from the provisions and procedures for grant of maintenance under the Code of Criminal Procedure 1973, which is a comprehensive and self contained Code. In Nanak Chand v. Chndrakishore Aggarwal, AIR 1970 SC 446 it has been observed in paragraph 5 that: “The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State, AIR 1963 All 355, before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy, 1962 (2) Cri LJ 528 (Cal), and before the Patna High Court in Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three High Courts have, in our view, correctly come to the conclusion that section 4 (b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488, Criminal Procedure Code.”
It would be useful to note that when the Law Commission of India was contemplating the replacement of the existing Code of Criminal Procedure 1898, by the present 1973 Code, it suggested in its 41st report, (September 1969) in Chapter XXXVI paragraph 36.3, that a daughter or son of whatever age unable to maintain himself or herself should be entitled to maintenance under section 488 and had even called for a more extensive right than what was available under the personal laws. It would be useful here to quote paragraph 36.3 of the Report in toto:
“36.3. Section 488(1) speaks of neglecting or refusing to maintain the “wife” or “child”. Some controversy exists as to whether the expression “child” means a minor, or whether it includes any son or daughter unable to maintain himself or herself. It has been suggested that a daughter or son of whatever age should be entitled to maintenance under section 488.
No doubt, the right under section 488 will, if this view is adopted, be wider than that enjoyed under personal law. For example, under the Hindu Adoptions and Maintenance Act, 1956 a child can claim maintenance only so long as the child is a minor. This was also the rule of Hindu Law regarding sons. According to Muslim law also, a father is bound to maintain his sons until puberty and daughter until marriage, but not adult sons unless disabled by infirmity or disease. But having regard to the primary object of section 488-namely, prevention of vagrancy- a wider view on the subject is desirable. The emphasis should be on the inability to maintain itself and not on the age of the child.
In fact, the existing wording amply supports a wider interpretation. The position was lucidly explained in the undermentioned Patna case (Khidani v. Legan Singh, A.I.R. 1921 Pat. 379(1) with which we agree. Other cases on the subject are also noted below.” (viz. Bhagat Singh v. Emp., (1910) 26 P.R. 1910 Cr.; 6 I.C. 960; 11 Cr.L.J. 427; Krihnaswamy Iyer v. Chandravadana, (1918) I.L. R. 37 Mad. 565; 25 M.L. J. 349; Thambuswamy Pillay v. Ma Louse, (1917) 9 L.B. R., 37 I.C. 311; 10 Bur. L.T. 209)
The Apex Court in Nanak Chand v. Chandra Kishore Aggarwal, A.I.R. 1970 SC 446 has also reiterated the same position that there should be no limitation of age, in the definition of the word “child” and a child of any age should be entititled to maintenance if it is unable to maintain itself and the parent is possessed of sufficient means. It would be useful in this context to extract paragraphs 7, 8, 9 and 11 of Nanak Chand’s case:
7. The word ‘Child’ is not defined in the Code itself. This word has different meanings in different contexts. When it is used in correlation with father or parents, according to Shorter Oxford Dictionary it means:
“As correlative to parent, 1. The offspring, male or female, of human parents.”
Beaumont, C. J., in Shaikh Ahmed Shaikh Mahomed v. Bai Fatma, ILR (1943) Bom 38 at p. 40 = (AIR 1943 Bom 48 at pp. 48, 49) observed:
“The word “child” according to its use in the English language has different meanings, according to the context. If used without reference to parentage, it is generally synonymous with the word ‘infant’ and means a person who has not attained the age of majority…..Where the word ‘child’ is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age. In certain contexts it may include descendants of more remote degree, and be equivalent to “issue”. But, at any rate, where the word “child” is used in conjunction with parentage, it is not concerned with age. No one would suggest that a gift “to all my children” or “to all the children of A” should be confined to minor children. In section 488 of the Criminal Prcedure Code the word is used with reference to the father. There is no qualification of age; the only qualification is that the child must be unable to maintain itself. In my opinion, there is no justificiation for saying that this section is confined to children who are under the age of majority.”
8. We agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word.
9.As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v Jaswant Singh, (1964) 2 SCR 73 at p. 84 = (AIR 1963 SC 1521 at p. 1525), “Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose”. If the concept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is very unlikely to happen but if it does happen and the father is able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under section 488. We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen. As long ago as 1873, Pearson, J., in the matter of W. B. Todd, 1873-5 NWPHCR 237 had to deal with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance. The same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor, (1910) 6 Ind Cas 960 = (11 Cri LJ 427 (Punj)) and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot. We have seen no case in which a man of 77 has claimed maintenance and we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance.
12. In view of the reasons given above we must hold that the word “child” in section 488 does not mean a minor son or daughter and the real limitation is contained in the expression “unable to maintain itself”. (Emphasis added)
In paragraph 36.6, the Law Commission in its 41 st Report (supra) has recommended that section 488 may be amended, as under:
“36.6. In the light of the above discussion, sub-section (1) of section 488 may be amended to read as follows:-
” (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or legitimate child of any age unable to maintain itself, whether the child be married or unmarried, a Magistrate of the first class may (rest as in the present sub-section).”
It is unfortunate that in spite of the case law referred to above and this salutary recommendation of the Law Commission of India to extend the right of maintenance from parents with sufficient means to all children who were unable to maintain themselves, the amended provision in the 1973 Code took a retrograde step and restricted the right for maintenance to even less that what was available under the personal laws, by conferring the right to maintenance only on those children who have attained the age of maturity (i.e. eighteen years as per the Indian Majority Act) whose inability to maintain themselves is due to some physical or mental abnormality or injury.
The provision 125 (1) (c) of the Code as it is presently worded, even if it were taken as acceptable, so far as the obligation of a father to maintain an able bodied son, who has crossed 18 years of age is concerned where a rider could possibly be imposed that the said son may not be held entitled for maintenance unless he is able to show that his inability to maintain himself is due to some mental or physical abnormality or injury. But to expect that an unmarried daughter, who is still going to college or staying at home awaiting her marriage, and has no source of independent income to maintain herself can be denied maintenance from her father, who possesses sufficient means only because her inability to maintain herself is not due to any physical or mental abnormality as required in section 125(1)(c) of the Code would be extremely harsh and oppressive and in all likelihood violative of Articles 14 and 21 of the Constitution of India. This provision appears particularly anomalous and discriminatory because in the other clauses of section 125(1), i.e. in clauses (a), (b) and (d), a person with sufficient means is required to maintain his wife, his legitimate or illegitimate minor child whether married or not or his father or mother who are unable to maintain themselves and there is no additional requirement for these categories of persons to demonstrate that their inability to maintain themselves is due to physical or mental abnormality or injury for claiming the benefit of this salutary social legislation. The provision as it stands also seems contrary to the spirit of Articles 15(3) and 39 (e) and (f) of the Constitution of India which veritably enjoin the State to design laws for the welfare of women and children and for ensuring that children and youth are protected from moral and material abandonment.
It is noteworthy that under the Muslim Personal Law also provisions for maintenance has been made for unmarried daughters and even for divorced daughters who are unable to maintain themselves. This position with regard to the claim for maintenance of unmarried or divorced daughters (major or minor) in Muslim Personal law has been described in paragraph 9 of the Apex Court decision in Noor Saba Khatoon Vs. Mohd. Quasim, AIR 1997 SC 3280, by relying on a text book on Muslim law by Tahir Mahamood:
9. “Prof. Tahir Mahamood, in his book “Statute-Law relating to Muslims in India” (1995 Edn.) while dealing with the effect of the provisions of section 125, Cr.P.C. on the 1986 Act and the Muslim Personal Law observes at page 198 :
“These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Shah Bano case and the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim law . . . . . .
As regards children, the Code adopts the age of minority from the Majority Act, 1875 by saying : “Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority” – [Explanation to section 125(1), clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the Cr.P.C. law to obtain maintenance from its parents if they “neglect or refuse” to maintain it despite “having sufficient means”
By Muslim Law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thayiba (divorcee/widow). Sons are entitled to it till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet had said :
“Whoever has daughters and spends all that he has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand.”
If a father is poverty-stricken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves.” (Emphasis added)
However, the aforesaid passage cited in Noor Saba Khatoon (supra) shows that under Muslim personal Law so far as the male child is concerned, once he has reached puberty and unless he is handicapped or indigent, which prevents him from maintaining himself, he is not held entitled for maintenance.
In the Hindu Personal Law also as I have mentioned above, under section 20(3) of HAM Act an obligation on 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.
The said provision reads as under:
” 20 (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.”
I think that as salutary amendments have been introduced for making Chapter IX of the Code more sensitive and responsive to the special needs and problems of females, retention of section 125(1)(c) in its present form appears to be the result of a oversight by the Legislature. Thus seeing the inadequacy of the limit of maintenance of Rs. 500/-, which was all that was permissible under the 1973 Code, by Act No. 50 of 2001, effective from 24.9.2001, the limit of Rs. 500/- has been done away with, and now there is no ceiling on the amount that can be granted as maintenance to the wife or other eligible person. Of course the sufficiency of the means of the person who is required to provide maintenance will have to be taken into account. Likewise, as the proceedings for maintenance were becoming unduly prolonged due to non-cooperation by the adversary husband, by the same 2001 amendment a provision for interim maintenance of the wife or the child and the expenses of such proceedings, as the Magistrate considers reasonable have also been introduced. Such an application for interim maintenance and expenses for proceedings is required to be disposed of as far as possible within 60 days from the date of notice of the application on the person. Another salutary amendment introduced in the 1973 Act itself was that explanation (b) to section 125 of the Code a “wife” included a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
In this view of the matter, I am of the opinion that the said sub-section 125(1)(c) needs to be amended by the Legislature and the right of to be maintained by a parent having sufficient means should be provided to all unmarried daughters, even after they have attained majority who are unable to maintain themselves. That is the only way to prevent vagrancy and destitution of the girl child, which is one of the prime objectives that these summary provisions for maintenance, which Chapter IX of the Code seeks to address.
I, therefore, direct that notice be issued to the Union of India through the Attorney General of India, and the State of U.P. through the Advocate General to show cause within two months as to how they support the legal validity of section 125 (1) (c) of the Code insofar as the said provision has imposed an additional requirement on an unmarried girl who has attained majority, and is unable to maintain herself that she further demonstrate that her inability to maintain herself is due to some physical or mental abnormality or disease. Copy of this order be also forwarded to the Law Commissions of India and U.P. and also to the National and U.P. State Commissions for Women for appropriate intervention by these bodies. The Registrar General is directed to issue the aforesaid notices to the Attorney General of India and the Advocate General of U.P. and to communicate this order to the Law Commissions of India and U.P. and to the National and U.P. State Commissions for Women within two weeks.
Notice may also be issued to opposite party No. 2, who may file a counter affidavit by the next date fixed. As directed above the operation of the order dated 20.11.2007 passed by the Additional Chief Family Court, Kanpur Nagar insofar as it has limited the grant of maintenance to Km. Akansha only till she reaches the age of majority, i.e. till 21.8.2006. shall be kept in abeyance until further orders.
List this case on 7.4.2008 for further orders.