Deivasigamani vs Geetha and another

Ratnavel Pandian, J.—The Petitioner, who was the Respondent before the lower court has preferred this revision petition against the order

passed by the Judicial First Class Magistrate, Chidambaram in M.C. 331 of 1973 of his file awarding maintenance of Rs. 30/- each to

Respondents 1 and 2 herein u/s 488, Cr.P.C.

The petition was filed before the lower court on behalf of the Respondents for maintenance, alleging that both of item were born of the lawful

wedlock between Meenakshi Ammal and the Petitioner. The Petitioner did not evince any interest in the welfare of the Respondents; but be had

totally neglected and refused to maintain them. The Petitioner was an employee in the Neyveh Lignite Corporation getting Rs. 200/- per mensem

and in addition was owning four acres of land yielding an annual income of Rs. 2000/-. Hence the petition was filed praying for maintenance at Rs.

50/- each per mensem.

In the course of the trial, the second Respondent was representee by her next friend viz., the grand-mother D. Sundarambal.

The claim of the respondents was resisted by the Petitioner who denied the allegation that the Respondents were born to him of a lawful

wedlock with Meenakshi ammal. According to him, though Meenakshi Ammal was married by him, she was having illicit intimacy with one

Kuppuswami Naidu, both before and after the said marriage. Since the said Meenakshi Ammal expressed her desire to live only with Kuppuswami

Naidu, the Petitioner has completely severed his connection with her. Both the Respondents were not born to him.

Two witnesses were examined on the side of the Respondents herein including their grand-mother Sundaramabal. Exs.A-1 to A-5 were marked

on their side. The Petitioner examined one Dervasigamani as D.W.1 and marked Ex. B-1, a release deed purported to be a divorce deed. The

learned Judge, after considering the evidence, ordered the Petitioner to pay a maintenance of Rs. 30/- per mensem to each of his daughters, the

Respondents herein. Aggrieved by the said order, the Petitioner has filed the present revision petition.

Admittedly, the first Respondent Geetha was a major as she was aged about 18 on the date when the petition was filed. The second

Respondent was aged about 16 as on the date of the petition, and therefore, by today she has completed 18 years and she is also a major. The

order by the trial court was passed on 9th April 1974, though the petition was filed on 5th Match, 1973 under the Old Cr. P.C. The revision

petition was admitted under the new Code. It admits of no doubt that the provisions of the new Code alone would be applicable to the present

petition. According to S. 133 of the new Code, the children who attain majority would be entitled to maintenance only if they are, by reason of any

physical or mental abnormality or injury, unable to maintain themselves. Admittedly, in this case, there is no evidence to show that the Respondents

are suffering from any such physical or mental abnormality or injury making them unable to maintain themselves. Though the Petitioner would raise

the contention even regarding the right of legitimacy of these Respondents, I do not propose to go into that question at this stage as the revision

petition has to be allowed on the ground that both the Respondents are now majors and they have not let in evidence justifying the award of

maintenance to them on the grounds mentioned above.

Mr. Balasubramaniam appearing for the Petitioners, would bring to my notice the decision of the Supreme Court in Nanak Chand v. Chandra

Kishore wherein it has been observed by their Lordships that the word ""child"" in Section 488 Cr.P.C., does not mean a minor son or daughter;

that (he real limitation is contained in the expression ""unable to maintain itself"", that the word ""child"" is not defined in the Cr.P.C., itself; that the said

word has different meanings in different contexts and that while the word ""child"" is used in conjunction with parentage, it is not concerned with the

age. According to the decision, in Section 488 Cr.P.C., 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. There is no justification for saying that this Section is confined to children who are

under the age of majority.

Relying on this decision, it was contended that both the Respondents have not proved that they are unable to maintain themselves, and therefore,

even u/s 488 of the old Code, they would not be entitled to any maintenance. I agree with this contention.

Accordingly, this petition is allowed and the order of the Magistrate in M.C. 335 of 1973 is set aside.

I place on record my appreciation for the assistance rendered by Mr. Rajamohan, the amicus curiae appointed in this case.