Lnanak Chand Vs. Shri Chandra Kishore
Agarwala & Ors [1969] INSC 141 (20 May 1969)
20/05/1969 SIKRI, S.M.
SIKRI, S.M.
RAMASWAMI, V.
CITATION: 1970 AIR 446 1970 SCR (1) 565 1969
SCC (3) 802
CITATOR INFO:
F 1975 SC 83 (26) RF 1979 SC 381 (8) R 1981
SC1243 (7,8) RF 1981 SC1972 (7) RF 1985 SC 945 (8)
ACT:
Criminal Procedure Code 1898 s.
488--Expression "child"Whether includes only minor children-Whether
Section impliedly repealed by s. 4 of Hindu Adoptions and Maintenance Act 78 of
1958--If educational expenses to be taken into account for determining quantum
of maintenance.
HEADNOTE:
The appellant's four children, the
respondents in the appeal, two of whom were majors and two were minors, filed
an application under s. 488 of the Criminal Procedure Code in September, 1963
for an order requiring the appellant to pay them maintenance. The Trial Court
allowed the application and fixed the monthly amounts to be paid as maintenance
to each of the children. The appellant's revision application was dismissed but
one filed by the respondents was allowed whereby the Additional Sessions Judge
submitted the case to the High Court with recommendations to enhance the
maintenance allowance. The High Court accepted, the reference and thereafter,
on an application by the appellant granted a certificate under Art. 134(1)(c)
for an appeal to this Court.
It was contended on behalf of the appellant
that (i) s. 488 Cr. P.C. was impliedly repealed by s. 4 of the Hindu Adoptions
and Maintenance Act 78 1956 insofar as it applied to Hindus; (ii) that the word
"child" in s. 488 means a minor; and (iii) that the maintenance fixed
for two of the major children was based on wrong principles and was excessive
inasmuch as expenses for education had been taken into consideration.
HELD : Dismissing the appeal :
(i)There was no inconsistency between Act 78
of 1956 and s. 488 Cr. P.C. Both could stand together. The Act of 1956 is an
Act to amend and codify the law relating to adoptions and maintenance among
Hindus. The law was substantially similar before when it was never suggested
that there was any inconsistency with s. 488 Cr. P.C. 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. [568 A-B] Ram Singh v. State, A.I.R. 1963 All. 355; Mahabir
Agarwalla v. Gita Roy, (1962) 2 Cr. L.J. 528; and Nalini Ranjan v. Kiran Rani,
A.T.R. 1965 Pat. 442; approved.
(ii)The word "child" in s. 488 does
not mean a minor son or daughter and the deal limitation is contained in the
expression "unable to maintain itself".
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. [569
F-H] 566 Shaikh Ahmad Shaikh Mahommad v. Ba Fatma, I.L.R. [1943] Bom.
38, 40; Jagir Kaur v. Jaswant Sinqh [1964] 2
S.C.R. 73, 84;
in the matter of the Petition of W.B. Todd,
(1873) 5 N.W.P.
High Court Reports 237; and Bhagat Singh v.
Emperor, 6 I.C.
960; referred to.
Sint. Purnasashi Devi v. Nagendra Nath,
A.I.R. 1950 Cal.
465; and State v. Ishwarlal, I.L.R. [1951]
Nag. 475;
approved.
Amiritliammal v. Marimuthu, A.I.R. 1967 Mad.
77;
disapproved.
(iii)While it was not necessary to decide
whether expenses for education can be given under s. 488, in the present case,
the Court below were right in taking into consideration the situation at the
time of passing the order i.e.. that the two major children were college students.
[570 G-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 6 of 1969.
Appeal from the judgment and order dated May
2, 1968 of the Delhi High Court in Criminal Revision Nos. 339-D of 1965 and
185-D of 1968.
Sardar Bahadur Saharya and Yougindra Khushalani,
for the appellant.
S. C. Mazumdar and Yogeshwar Dayal, for the
respondents.
The Judgment of the Court was delivered by
Sikri, J. This appeal by certificate of fitness granted by the High Court of
Delhi arises out of an application under S. 488, Cr. P.C. filed on September 4,
1963, in the Court of Magistrate, 1st Class, Delhi, by four children of the
respondent, Nanak Chand. The first applicant, Chandra Kishore, was born on
January 23, 1942, the second, Ravindra Kishore, was born on September 23, 1943,
the third Shashi Prabha, was born on February 23, 1947, and the fourth, Rakesh
Kumar, was, born on September 21, 1948. The first two applicants were thus
majors at the time of the application, the third though a minor at the time of
the application was a major on the date of the order passed by the Magistrate,
i.e., on March 26, 1965. The learned Magistrate allowed the application and
ordered the, respondent, Nanak Chand, to pay Rs. 35 p.m. to Chandra Kishore for
four months only, Rs. 36 p.m. to Ravindra Kishore for 3 years only in case he
continued his medicine studies, Rs. 45 p.m. to Shashi Prabha as her maintenance
allowance and education expenses and Rs. 45 p.m. to Rakesh Kumar as his
maintenance allowance and education expenses, from March 26, 1965.
Both the applicants and the respondent, Nanak
Chand, filed revisions against the order of the Magistrate, to the Additional
Sessions Judge, who dismissed the revision petition filed by the respondent,
Nanak Chand, and accepted the revision petition of the 567 applicants. The
Additional Sessions Judge submitted the case to the High Court with the
recommendation to enhance the maintenance allowance of the applicants in terms
of the proposals made by him. The Additional Sessions Judge observed that the
maintenance under s. 488 did not include the costs of college education, and
therefore he did not propose to allow Chandra Kishore and Ravindra Kishore the
expenses of their college education. But taking into consideration the income
of the respondent and the status of the family, the Additional Sessions Judge
proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100 p.m. each as
maintenance allowance until they finished their courses of M.Com. and M.B.B.S.,
respectively. He further proposed to allow to Rakesh Kumar and Shashi Prabha
each a monthly maintenance allowance of Rs. 50 until Shashi Prabha was able to
earn or was married, whichever was earlier, and until Rakesh Kumar was able to
maintain himself.
'The High Court accepted the reference made by
the learned Additional Sessions Judge, and dismissed the criminal revision
filed by the respondent. The High Court granted the certificate under art.
134(1) (c) of the Constitution because there is conflict of opinion on the
question of the interpretation to be given to the word 'child' in s. 489, Cr.
P.C.
The learned counsel for Nanak Chand has
raised three points before us : first, that s. 488, Cr. P.C. stands impliedly
repealed by s. 4 of the Hindu Adoptions and Maintenance Act, 1956 (78 of
1956)--hereinafter referred to as the Maintenance Act--insofar as it is
applicable to Hindus;
secondly, that the word 'child' in s. 488
means a minor; and thirdly, that the maintenance fixed for Chandra Kishore and
Ravindra Kishore was based on wrong principles and was excessive inasmuch as
expenses for education have been taken into consideration.
Section 4 of the Maintenance Act reads
"4. Save as otherwise expressly provided in this Act,(a)........
(b) any other law in force immediately before
the commencement of this Act shall cease to apply to Hindus insofar as it is
inconsistent with any of the provisions contained in this Act." The
learned counsel says that s. 488 Cr. P.C., insofar as it provides for the grant
of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance
Act, and in particular, s. 20, which provides for maintenance to children. We
are unable to Sup. Cl/69-7 568 see any inconsistency between the Maintenance
Act and S.
488, Cr. P.C. Both can stand together. The
Maintenance Act is an act to amend and codify the law relating to adoptions and
maintenance among Hindus. The law was substantially similar before and nobody
ever suggested that Hindu Law, as in force immediately before the commencement
of this Act, insofar -as it dealt with the maintenance of children, was in any
way inconsistent with s. 488, Cr. P.C. 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(1), before the Calcutta High Court in Mahabir Agarwalla v. Gitia
Roy (2) and before the Patna High Court in Nalini Ranjan v. Kiran Ran(3). The three
High Courts have, in our view, correctly come to the conclusion that s. 4(b) of
the Maintenance Act does not repeal or affect in any manner the provisions
contained in S. 488, Cr. P.C.
On the second point there is sharp conflict
of opinion amongst the High Court and indeed amongst the Judges of the same
High Court. In view of this sharp conflict of opinion we must examine the terms
of s. 488 ourselves. Section 488(1) reads as follows "488(1). If any
person having sufficient means neglects or refuses to maintain his wife or his
legitimate or illegitimate child unable to maintain itself, the District
Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or 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, at such manthly 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 from time to time directs." We may also set out sub-s. (8) of
S. 488 because some courts have placed reliance on it :
"488(8). Proceedings under this section
may be taken against any person in any district where he resides or is, or
where he last resided with his wife, or, as the case may be, the mother of the
illegitimate child." The word 'Child' is not defined in the Code itself.
This word has different meanings in different contexts. When it is used in (1)
A.I.R. [1963] All. 355.
(2) [1962] 2Cr.L.J.528.
(3) A.I.R. [1965] Pat. 442.
569 correlation with father or parents,
according to Shorter Oxford Dictionary it means :
"As correlative to parent. The
offspring, male or female, of human parents." Beaumont, C.J., in Shaikh.
Ahmed Shaikh Mahomed v. Fatma(1) 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 gift "to all my
children" or "to all the children of A" should be confined to
minor children. In s. 488 of the Criminal Procedure 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 justification for saying that this section is confined lo
children who are under the age of majority." We agree with these
observations and it seems to us that there is no reason to depart from the
dictionary meaning of the word.
As observed by Subba Rao, J., as he then was,
speaking for the Court in Jagir Kaur v. Jaswant Singh (2) "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 (1) T.L.R. [1943] Bom. 38, 40.
(2) [1964] 2 S.C.R. 73, 84.
570 able to maintain while the son is unable
to maintain himself no harm would be done by passing an appropriate order under
s. 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 the Petition of W. B. Todd(1) 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(2) 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.
It is not necessary to review all the case
law. The latest judgment which was brought to our notice is that of the Madras
High Court in Amirithammal v. Marimuthu(3) in which Natesan, J. has written a
very elaborate judgment. He has referred to all the Indian cases and a number
of English cases and statutory provisions both in England and in India.
We are unable to derive any assistance from
the statutory provisions referred to by him or from the English Law on the
point. He relied on the use of the word "itself" in s. 488 as showing
that what was meant was a minor child. We are unable to attach so much
significance to this word. It may well be that it is simpler or more correct to
use the word "itself" rather than use the words "himself or
herself." We may mention that Das Gupta, J., in Smt. Purnasashi Devi v.
Nagendra Nath (4) and Mudholkar, J., in State v.
Ishwarlal(5) came to the same conclusion as
we have done.
In view of the reasons given above we must
hold that the word "child" in s. 488 does not mean a minor son or
daughter and the real limitation is contained in the expression "unable to
maintain itself." Coming to the third point raised by the learned counsel
we are of the view that the learned Additional Sessions Judge and the High
Court were right in taking into consideration the existing situation' the
situation being that at the time the order was passe Chandra Kishore was a
student of M.Com. and Ravindra Kishore was a student of M.B.B.S. course. We
need not decide in this (1) [1873] 5 N.W.P. High Court Reports 237.
(2) 6 T.C. 960.
(3) A.I.R. [1967] Mad. 77.
(4) A.T.R. [1950] Cal. 465 (5) T.L.R. [1951]
Nag. 474.
571 case whether expenses for education can
be given under s. 488 because no such expenses have been taken into
consideration in fixing the maintenance in this case. It has not been shown to
us that the amount fixed by the learned Additional Sessions Judge and confirmed
by the High Court is in any way excessive or exorbitant.
In the result the appeal fails and is
dismissed.
R.K.P.S. Appeal dismissed.
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