Gurmit Singh vs Gurdev Kaur

P.K. Jain, J.

In present petition filed under section 401 read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''), the following interesting question of law has arisen:

"Whether an order passed under section 125 of the Code, granting maintenance to a minor child, shall cease to operate itself on the child''s attaining majority, or remains enforceable till it is cancelled under section 127 of the Code".

The backdrop giving rise to this question is that the petitionerGurmit Singh is the husband of Gurdev Kaur (respondent No. 1) and father of Narinder Pal Kaur and Beant Kaur (respondent Nos. 2 and 3). On an application filed under section 125 of the Code, the petitioner was directed to pay maintenance at a certain rate to the respondents by order dated 15.12.1990. The petitioner continued to pay the maintenance as allowed for some time. On 14.9.1992, the respondents filed an execution application for the enforcement of the order dated 15.12.1990 for the period with effect from 11.3.1992 to 10.9.1992.

On 9.7.1993, the petitioner moved an application for dismissal of the aforesaid execution application (Annexure P.1) on the grounds that his daughter Narinder Pal Kaur was major and not a minor on the date of the passing of the order dated 15.12.1990 itself and that his second daughter Beant Kaur attained majority in the year 1991, and as such he was not liable to pay maintenance allowance to his said daughters for the aforesaid period. Shri I.S. Bedi, Advocate, counsel for the applicant (petitioner herein) tendered a sum of Rs. 1800/ payable to Smt. Gurdev Kaur (respondent No. 1) on account of maintenance for the period 11.3.1992 to 10.9.1992 and made a statement that Narinder Pal Kaur and Beant Kaur (respondent Nos. 2 and 3 herein) had become major and were not entitled to get any maintenance for the said period.

Instead of deciding the objections raised by the present petitioner, the Judicial Magistrate issued conditional warrants of arrest against him on 5.2.1994 which order was set aside by a Bench of this Court in Criminal Revision Petition No. 159 of 1994 on 27.1.1995 with a direction to the said Judicial Magistrate to decide the objections raised by the present petitioner by a speaking order.

In compliance with the directions of this Court, the Judicial Magistrate, after obtaining a reply to the application and recording evidence of the parties, has come to the conclusion that Narinder Pal Kaur (respondent No. 2) attained majority on 16.8.1989 and Beant Kaur (respondent No. 3) become major in the year 1991. It has also been found that Narinder Pal Kaur and Beant Kaur are not suffering from any physical or mental abnormality. On the basis of these findings, the Judicial Magistrate has held that Narinder Pal Kaur and Beant Kaur are not entitled to claim maintenance with effect from 9.7.1993 i.e. the date on which the present petitioner had filed the application (Annexure P.1) and the petitioner has been directed to pay the arrears of maintenance allowance to his said daughters upto the period immediately preceding 9.7.1993. Feeling aggrieved, the petitioner has challenged the legality and validity of the said order in the present proceedings.

I have heard the learned counsel for the parties and have perused the impugned order and the material placed on this record.

Shri J.S. Randhawa, Advocate, learned counsel for the petitioner, has argued that after attaining majority Narinder Pal Kaur and Beant Kaur (respondents Nos. 2 and 3) were not entitled to claim or enforce maintenance in pursuance of the order dated 15.12.1990, and as such on an objection raised by the petitioner by his application dated 9.7.1993 (Annexure P.1) during the execution proceedings, the petitioner was not liable to pay any maintenance allowance to them for the period with effect from 11.3.1992 to 10.9.1992. According to the learned counsel, the original order dated 15.12.1990 granting maintenance to these respondents lapsed itself on their attaining majority and the question of the cancellation of the order could not arise at all. In support of this argument, the learned counsel has placed reliance upon a judgment of this Court rendered in Dalip Singh v. Smt. Balwinder Kaur and others, 1973 C.L.R. 162.

On the other hand Shri S.C. Khungar, Advocate, learned counsel for the respondents, has argued that an order granting maintenance under Section 125 of the Code remains in force till it is varied, modified or cancelled as provided by Section 127 of the Code. It has been urged by the learned counsel that since the order dated 15.12.1990, granting maintenance to respondents Nos. 2 and 3 has been cancelled by order dated 5.10.1995, the original order dated 15.12.1990 is enforceable till such time. In support of this contention the learned coursed has placed reliance upon a judgment of the Kerala High Court in K.P. Bhargavi Amma v. Kuttikrishnan, AIR 1967 Kerala 54. It has also been pointed out by the learned counsel that against the impugned order dated 5.10.1995, respondents Nos. 2 and 3 Narinder Pal Kaur and Beant Kaur have also filed a revision which is pending before the Session Court on the ground that the original order dated 15.12.1990 could not be cancelled with effect from 9.7.1993 and was legally enforceable till 5.10.1995.

Section 125 of the Code, so far as it is relevant for our purposes, reads as under:

"125. JUDGMENT for Maintenance of wives, children and parents : (1) If any person having sufficient means neglects or refuses to maintain:

(a) xxx xxx xxx

or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(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, or

(d) xxxx xxxx xxxx xxxx xxxx

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, father or mother, at such monthly 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 may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation : For the purposes of this Chapter:

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (19 of 1875) is deemed not to have attained his majority.

(b) xxxx xxxx xxxx xxxx xxxx

(2) xxxx xxxx xxxx xxxx

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person, for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:"

Section 127 of the Code furnishes the grounds on which the Court passing an order under Section 125 of the Code can modify, vary or cancel the order. This section, so far as it is relevant for our purposes reads as under:

"127. Alteration in allowance: (1) On proof of a change in the circumstances of any person, receiving under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that:

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of remarriage;

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce, cancel such order:

(i) in the case where such sum was paid before such order, from the date on which such order was made;

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof."

The question formulated above is to be answered in the light of the provisions of the two Sections of the Code.

From a bare reading of Section 125 of the Code, it is evident that a father is under a legal obligation to maintain his legitimate or illegitimate minor child, whether married or not, who is unable to maintain itself, or 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. In other words, maintenance to children cannot be granted beyond the age of their attaining majority in the absence of any physical or mental abnormality or injury. It may be clarified that under section 488 of the Code of Criminal Procedure, 1898, the only expression "child" was used without any prefix as "minor". However, that ambiguity has been resolved while reenacting the provision in Section 125 by using the word "minor child".

The provisions of Section 125 (3) of the Code can be invoked if the person ordered to pay maintenance fails without sufficient cause to comply with the order. The Legislature has deliberately used the expression "fails without sufficient cause", obviously intending that the Magistrate, before whom the matter comes up, should be in a position to use his judicial discretion, having regard to all the circumstances and that such judicial discretion should not be fettered or limited by any definite rules. It is, therefore, open to the opposite party by way of defence to show sufficient cause why the order should not be enforced under section 125(3) of the Code. This provision does not impose a liability on the father to file a separate petition and seek cancellation of the order. An objection that the order has become inexecutable can be taken by the father in execution proceedings to show sufficient cause for not complying with the order of the Magistrate.

From a careful perusal of the provisions of Section 127, it is clear that the expression ''change in the circumstances'' used therein means change in the existence of the circumstances of the party paying or receiving the allowances, which would justify an increase or decrease of the amount of the monthly payment originally fixed, and not a change in the status of the party, which would entail stoppage of the allowances. The words ''alteration in the allowances'' clearly indicate that this section refers to such change of the circumstances as would necessitate only an alteration in the amount of allowance and not to circumstances which entail the discontinuance of the allowances altogether.

In view of the law discussed above, it becomes evident that in defence to an application for the enforcement of an order of maintenance against the father in respect of his minor child, it is open to him to set up the majority of his such child as a sufficient cause within the meaning of Section 125(3) of the Code.

The question directly arose before a Division Bench of the Rangoon High Court in U Ba Thaung v. Ma Aye, AIR 1932 Rangoon 94, and the same was replied in the following words:

"The words "sufficient cause" are very wide to justify the raising of a plea that the order of maintenance passed under Section 488 in favour of a child has become spent owing to the child having attained majority and being able to maintain itself. Consequently if the Court finds on defence raised that the child has attained the age of majority and is able to maintain itself during the period for which arrears are claimed, it should refuse to grant those arrears."

This view was reiterated by the same High Court in a subsequent case reported as Ma E Shi v. U San Kai, AIR 1939 Rangoon 67. This view of the Rangoon High Court was followed with approval by the Allahabad High Court in Ram Kishore v. Smt. Bimla Devi and another, AIR 1957 Allahabad 658. The question also directly arose before this Court in Dalip Singh''s case (supra), wherein, while placing reliance upon the aforesaid views expressed by the Rangoon and Allahabad High Courts, the following observations were made:

"The words ''sufficient cause'' are very wide to justify the raising of a plea that the order of maintenance passed under Section 488 in favour of a child has become spent owing to the child having attained majority and being able to maintain itself. Consequently if the Court finds on defence raised that the child has attained the age of majority and is able to maintain itself during the period for which arrears are claimed, it should refuse to grant those arrears. The Magistrate should have decided the objections raised by the petitioner in his objection petition."

Therefore, an order granting maintenance to a child can be opposed by the father on the ground of the child having attained majority in execution proceedings launched under section 125(3) of the Code.

The decision of the Kerala High Court in K.P. Bhargavi Amma''s case (supra) relied upon by the learned counsel for the respondents does not help the respondents at all. In that case, after a petition for maintenance was granted, the husband filed an application for dissolution of marriage under the Hindu Marriage Act and obtained an ex parte decree of divorce. Thereafter on the basis of the decree of divorce, he applied under section 489 of the Old Code for cancellation of the maintenance order. The Magistrate cancelled the maintenance order retrospectively. On these facts, the following observations were made:

"The declaratory decree was obtained by the respondent only 4.4.63 and on 30.9.63 he applied under section 489(2) Cr.P.C. and the learned Magistrate passed the order on 30.12.63. Section 489(2) enjoins that where after an order for maintenance passed in favour of the wife under section 488 the husband obtains a decree necessitating the cancellation of the order the Court shall cancel or vary the order. The legislature under section 488(2) has given power to the Magistrate to date back the order of maintenance in the first instance to the date of the application, but does not give any such power under section 489(2) Cr.P.C. We cannot read a power into the Code which is not there. Support for this view may be had be from the decision of the Calcutta High Court in Amroon v. Sassoon, AIR 1949 Cal. 384. In the case in Satteyya v. Malsoor, AIR 1954 Hyd. 53 also it was held that the order of cancellation of maintenance always operates prospectively and not retrospectively. I regret, I am unable to subscribe to the view taken in the decision in 1962 (1) Cr. L.J. 681 (All.) which has been followed by the learned Magistrate. So the order of cancellation will take effect only with effect from 30.12.1963."

An identical provision has been enacted in Section 127(2) of the present Code. Thus, the nature and scope of Section 125(3) and Section 127 are quite different.

For the foregoing reasons, I hold that an order passed under section 125 of the Code granting maintenance to a minor child itself ceases to operate on the child''s attaining majority, provided such child is, not by reason of any physical or mental abnormality or injury unable to maintain itself. It is open to a father to raise such a plea in defence to the enforcement of the order of maintenance in execution proceedings, and he is not obliged to apply under section 127 of the Code for cancellation of the maintenance order.

As a result of the above discussion, this petition is allowed. The impugned order dated 5.10.1995, passed by the Sub Divisional Judicial Magistrate, Phul, being contrary to law is hereby quashed.