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Report No. 41

Chapter XXXVI

Maintenance of wives and Children

36.1. Introductory.-

The primary justification for placing in the Criminal Procedure Code provisions relating to maintenance of wives and children, which is a civil matter, is that a remedy more speedy and economical than that available in civil courts is provided for them. It may also be said that these provisions are aimed at preventing starvation and vagrancy leading to the commission of crime.

36.2. Section 488(1).-

As the functions of Magistrates under section 488 are of a judicial character, the reference to the District Magistrate and Su.-divisional Magistrates in su.-section (1) may be omitted.

36.3. Does "child" mean a minor?.-

Section 488(1) speaks of neglecting or refusing to maintain the "wife" or "child". Some controversy1 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 suggested2 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, 19563 a child can claim maintenance only so long as the child is a minor. This was also the rule of Hindu Law regarding sons.4 According to Muslim law also, a father is bound to maintain his sons until puberty and daughters until marriage, but not adult sons unless disabled by infirmity or disease.5 But, having regard to the primary object of section 48.-namely, prevention of vagranc.-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 case6 with which we agree. Other cases on the subject are also noted7 below.

1. See Saraswati v. Madhavan, AIR 1961 Ker 297 (reviews cas.-law).

2. Amendment Bill introduced by Shri Ajit Singh Sarhadi (Lok Sabha Bill 41 of 1959) introduced on 14th August, 1959 (Discussed in Lok Sabha on .-1.-1961 and referred to the Law Commission, F. 3(2)/5.-L.C., Pt. II, S.No. 39).

3. See section 20(2).

4. Trevalyan Hindu Law, (1912), p. 200; Chanviragavda v. District Mdkistrate, AIR 1927 Born 91 (92); Bhoopati v. Basant Kumari, 1936 ILR 63 Cal 1098 (1111).

5. Mulla Mohamedan Law, (1961), p. 303; Fyzee Outlines of Mohammedan Law, (1963), p. 205.

6. Khidani v. Logan Singh, AIR 1921 Pat 379 (1).

7. Bhagat Singh v. Emp., (1910) 26 PR 1910 Cr: 6 IC 960: 11 Cr LJ 427; Krishnaswamy lyer v. Chandravadana, 1918 ILR 37 Mad 565: 25 MLJ 349; Thambuswamy Pillay v. Ma Louse, (1917) 9 LBR 37 IC 311: 10 Bur LT 209.

36.4. Married daughters.-

Another question that has arisen is, as to how far section 488 applies to married daughters. According to one view, a person who can claim maintenance from another source cannot apply under section 4881. On this reasoning, a married daughter cannot claim maintenance from her father. But a contrary view has been taken in a Bombay case,2 in which a married daughter of 15 years was awarded maintenance against the father under section 488. The Bombay case cites other cases to the same effect.3 Here again, we think that the controversy should be set at rest by amending section 488(1) so as to ensure that a married daughter can claim maintenance from her father.

No doubt, she has got her rights against the husband. A Hindu wife is entitled to be maintained by her husband during her lif.-time.4 Under Muslim law5 also, the husband's duty to maintain commences when the wife attains puberty. Section 488 also gives her a right against her husband. But there may be hard cases where the husband is not willing to maintain her, and a power to make an order against the father is desirable to meet such hard cases.

1. Chanditan v. Chakkayayyan, ILR. 39 Mad 957: AIR 1917 Mad 275.

2. Banchhod Das v. Emp., AIR 1949 Born 36 (37) (Jabagirdar and Sen JJ.).

3. AIR 1925 Mad 491: ILR 48 Mad 503 (Girl of 14 years).

4. Section 18(1), Hindu Adoptions and Maintenance etc. Act (78 of 1956).

5. Mulla Mohamedan Lou', (1961), p. 238; Fyzee Outlines of Mohammadan Law, (1964), p. 202.

36.4. Aged parents.-

A suggestion1 has been made to the effect that a provision for maintenance of parents should be made in cases where they are unable to maintain themselves. It is true, that under section 20(1) of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound to maintain his or her aged or infirm parent so far as the parent is unable to maintain himself or herself out of his or her own earning of other property. Under the Muslim law also2, there is an obligation to maintain one's parents (subject to certain exceptions not material here). We are, however, of the view that the Criminal Procedure Code is not the proper place for such a provision. There will be considerable difficulty in the amount of maintenance awarded to parents apportioning amongst the children in a summary proceeding of this type. It is desirable to leave this matter for adjudication by Civil Courts.

1. Suggestion of Shri Ajit Singh Sarhadi, vide his Amendment Bill introduced on 14th August, 1959 (Lok Sabha Bill 41 of 1959) discussed in Lok Sabha and referred to the Law Commission, F. 3(2)/5.-L.C., Pt. II, S. No. 39.

2. Mulla Mohamedan Law, (1968), paras. 37.-372; Fyzee Outlines of Mohammedan Law, (1964), p. 206.

36.5. Appeals.-

Several persons have suggested that an order under section 488 should be made appealable. A right of appeal will, however, result in unduly protracted proceedings and defeat the primary object of this section, which is to provide a speedy for destitute wives and children. The aggrieved party has the remedy of moving the Civil Court to get the order modified or verified1. Hence, a right of appeal is not desirable.

1. Section 489(2).

36.6. Section 488(1) amended.-

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 illegitimate 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 su.-section)."

36.7. Section 488(3).-

It has been suggested by two High Court Judges with reference to section 488(3), that if the husband suffers from any contagious venereal disease it should be considered just ground for the wife's refusal to live with him, and this should be expressly mentioned in the section. We do not consider it necessary or desirable to enumerate exhaustively the various grounds which would justify a wife's refusal to live with her husband. These may be left to the decision of the courts. The Madras decision1 noted below may be seen in this connection.

1. Sellammal v. Muthuvira, AIR 1943 Mad 647 (Kuppuswamy Ayyar J.)

36.8. Section 488(4).-

A suggestion has been made1 that the words "or if they are living separately by mutual consent" occurring in section 488(4) should be omitted, but we do not think this can be accepted. If the parties are living separately by mutual consent, they may be expected to make the necessary arrangement regarding their maintenance, and if the husband does not carry out the arrangement, the remedy in the Civil Court should be sufficient.

In section 488(4), the words "living in adultery" have been almost uniformly interpreted as indicating an adulterous course of life, as distinguished from a single lapse from virtue. It has been suggested2 that a single act of adultery should be enough to disentitle the wife to maintenance. We are unable to accept the suggestion. Hardships are bound to arise if the wife is totally debarred from the remedy under this section because of a single lapse from virtue. Further, to deprive her of maintenance for an occasional lapse may force her to lead a sinful life and give her no chance to redeem herself.

1. Suggestion of Shri S.S. More, received through the Home Ministry.

2. Amendment Bill introduced by Shri Ajit Singh Sarhadi (Lok Sabha Bill 41 of 1949); introduced on 14th August, 1959 (referred to Law Commission, F. 3(2)/5.-L.C., Pt. II, S. No. 39).

39.9. Section 488(5).-

Section 488(5) requires the Magistrate to cancel his order in certain contingencies. The question whether in a case where the wife has obtained an extr.-judicial divorce sanctioned by custom, the Magistrate can cancel his order at the instance of the husband has arisen. Conflicting decisions of High Courts on this point are mentioned below1. To resolve this controversy, we suggest that the Magistrate should decide the question under section 488(5). For this purpose after the words "live with her husband" in this section, the words "or has been lawfully divorced by her husband otherwise than by order of a Court" may be inserted.

1. Shah Abu v. Ulfat Bibi, (1896) ILR 19 All 50 (55) (FB); Punjalal (in re:), AIR 1928 Born 224; Janni Bibi, AIR 1955 AP 1; Mohammed Rahimulla (in re:), AIR 1947 Mad 46; Mohomed Ismail v. Sarammal, AIR 1960 Ker 262.

36.10. Section 488(8).-

Under su.-section (8), the place where the wife resides after desertion by the husband is not material as regards the venue of the proceedings, though the place where the husband reside.-even temporaril.-is relevant. Often deserted wives are compelled to live with their relative far away from the place where the husband and wife last resided together. They would be put to great harassment and expenditure, unless the venue of the proceeding is enlarged so as to include the place where they may be residing on the date of the application.

With reference to su.-section (8), there is the following controversy. Is it sufficient if the husband resides in the district in which the proceedings are taken, or is it further necessary that the court in which the proceedings are instituted must itself be one having jurisdiction over the place where the husband resides? The Bombay view1 is, that a proceeding under section 488 instituted in any competent court within the district in which the husband resides, or is, or in which he last resided with his wife.

This is also the Patna view2 and the Kerala view3. The Madras High Court4 has, however, taken a different view. In our opinion, the Bombay view is correct, as the wording of the su.-section does not seem to justify the addition of any further restriction. We think that the language is clear and needs no amendment on this point.

Su.-section (8) of section 488(8) may be redrafted as follows.-

"(8) Proceedings under this section may be taken against any person in any distric.-

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife or, as the case may be, with the mother of the illegitimate child."

1. Shantabai v. Vishnupant Atmaram, AIR 1965 Born 107 (108), para. 4 (Kotval J.).

2. Baleshwari Devi v. Bikram Singh, AIR 1968 Pat 383 (384), para. 2 (K.K. Dutta J.).

3. ILR (1961) 2 Ker 702: (1962) 1 Cr 1_J 40 (41).

4. Sakuntala v. Thirtimalayya, (1966) 2 Mad LJ 326.

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