Full Judgment Text
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PETITIONER:
LNANAK CHAND
Vs.
RESPONDENT:
SHRI CHANDRA KISHORE AGARWALA AND OTHERS
DATE OF JUDGMENT:
20/05/1969
BENCH:
SIKRI, S.M.
BENCH:
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"-
Whetherincludes 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impliedly repealed by s. 4 of Hindu Adoptions and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 P.C. was impliedly repealed by s. 4 of the Hindu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
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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]
JUDGMENT:
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 appli-
cation, 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
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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
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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
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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."
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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.
572