Pushpinder Kaur vs Balbir Singh

Jai Singh Sekhon, J.—The sole question involved in this revision petition is whether a child born after the institution of the proceedings u/s 125 of the Code of Criminal Procedure can be granted maintenance allowance from his father. In other words it can be well said whether such application on behalf of an unborn child is maintainable.

The brief resume of facts relevant for the disposal of this petition is that Mst. Pushpinder Kaur filed an application u/s 125 of the Code of Criminal Procedure for claiming maintenance from her husband on 2nd of January, 1985 contending that he had refused and neglected to maintain her. In that application she also claimed Rs. 500/- as maintenance allowance for the unborn child. She was blessed with a male child on January 18, 1985. The Trial Court awarded maintenance allowance to the tune of Rs. 250/- per month to the wife and Rs. 150/- per month to the child. On revision filed by Balbir Singh, present respondent, the learned Additional Sessions Judge, Patiala vide his impugned order dated November 30, 1989 set aside the order of the Trial Court awarding maintenance to the unborn child by holding that the application on behalf of the child was not maintainable. Feeling aggrieved against the said order, the child through his mother Pushpinder Kaur had tiled the present revision petition inter-alia contending that the maintenance to the child having been granted from the date of his birth by the Trial Court there was no illegality or infirmity in that order. Willingness of Balbir Singh respondent, while appearing as witness before the Trial Court, to maintain the petitioner and his son was also stressed in order to over-come the technical hitch in the maintainability of the application.

I have heard the learned counsel for the parties. The provisions of Section 125(1) of the Code of Criminal Procedure, 1973 reads as under :

" 125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, 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) his father or mother, unable to maintain himself or herself,

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 purpose of this Chapter,--

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority :

(b) ''wife'' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried."

The condition precedent for awarding maintenance is if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself or his legitimate or illegitimate minor child, whether married or not unable to maintain itself.

Thus, there is a no doubt that application under this Section on behalf of an unborn child is not maintainable because no refusal or neglect on the part of father to maintain such child can be proved or inferred. Moreover, due to natural or unforeseen circumstances, the birth of a child alive cannot be taken for granted. Thus, due to such like contingencies the filing of application on behalf of the child still in the womb of the mother would introduce vagueness in such like proceedings and such was not the intention of the legislature in enacting this provision providing for speedy maintenance allowance in order to save the wives, children or parents from becoming destitute. No doubt, it will result in hardship to the minor child if the order of cancellation of his maintenance allowance is upheld, yet all the same there is no option but to do so because the application on his behalf was not maintainable till he was born, although the mother had claimed maintenance allowance on behalf of the un-born child in the original application. Moreover, the mother can file a fresh application on behalf of the minor child.

For the reasons recorded, above, there is no option but to dismiss this petition. I order accordingly