Surjeet Kour and Another vs Bachhitar Singh

S.K. Gupta, J.—This criminal reference arises out of proceedings u/s 488 read with section 489 of the Code of Criminal Procedure.

It appears that on an application made by Smt. Surjeet Kour, on her behalf and on behalf of her minor children, claiming maintenance allowance

u/s 488 Cr.P.C., the learned Judicial Magistrate 1st Class, R. S. Pura, after hearing the parties, awarded an amount of Rs. 550/- p.m. as

maintenance allowance in favour of the petitioners.

In view of un-precedent escalation in prices and standard of living, the petitioner Surjeet Kour, approached the Munsiff, Judicial Magistrate, R.

S. Pura, by making a motion u/s 489 Cr.P.C. on 08/12/2000 seeking enhancement of the maintenance allowance granted in their favour. Surjeet

Kour, further contended that the daughter of the respondent, living with her, is studying in B.A. Part-II and the maintenance allowance already

granted u/s 488 Cr. P. C. has become insufficient to pursue the studies of the daughter in college, both on account of increase in prices and the

expenditure incurred on the purchase of books and being a student of college, to meet her requirements. The application was, however, transferred

to the Court of Munsiff, Judicial Magistrate, Jammu, for disposal.

Upon notice to the respondent, objections were filed before the learned Magistrate. Bachitar Singh, respondent, however, took a preliminary

objection to the maintainability of the application. It was urged before the Magistrate that since the daughter had attained the age of majority on the

basis of Date of Birth Certificate produced by him, she was not entitled to the maintenance allowance in view of the amendment of section 488 Cr.

P. C. His further submission was that in view of the amended provision of section 488 Cr. P.C. when the daughter attains majority, she is not

entitled to claim maintenance allowance. There cannot be alteration and enhancement in the maintenance allowance in favour of the daughter. That

Smt. Surjeet Kour, having suppressed this fact viz. her daughter having attained majority, her application for enhancement of maintenance

allowance is not maintainable.

The learned Magistrate, however, in ignoring the assertion of Bachitar Singh, respondent, held that the father is under an obligation and bound to

maintain the daughter till she is married. After having considered the objections raised by Bachitar Singh and the evidence let in by the parties, the

Magistrate enhanced the maintenance allowance from Rs. 550/- to Rs. 2,000/- per month w.e.f. the date of order.

Aggrieved by the aforesaid order dated 20/12/2001 passed by the learned Magistrate, two revisions came to be preferred. One by Surjeet

Kour, seeking the setting aside of the order as it has restricted the enhancement of the maintenance upto Rs. 2,000/- p.m. and the same has been

allowed from the date of order instead of from the date of petition. It was further prayed that the maintenance allowance be enhanced from Rs.

2,000/- to Rs. 4,000/- per month i.e. Rs. 2,000/- each viz. in her favour as well as in favour of her unmarried daughter who is a college going

student and the same be paid from the date of petition. The second revision was preferred by Bachitar Singh, husband, for setting aside the order

impugned passed by the Magistrate dated 20/12/2001 on the ground that the daughter has become major as per Date of Birth certificate produced

by him before the Magistrate and, thus, is not entitled to claim maintenance in view of the amended provision of section 488 Cr.P.C, and,

consequently, sought the quashment of the order allowing enhancement u/s 489 Cr.P.C. of the maintenance allowance from Rs. 550/- to Rs.

2,000/- p.m. to the wife and the daughter.

The Revisional Court, however, declined the prayer of Surjeet Kour for further modification of the enhancement order from Rs. 2,000/- to Rs.

4,000/- p.m., to be effective from the date of filing of application instead of from the date of order, for want of any reasons and justification.

As regards the petition filed by Bachitar Singh, in which the sole ground taken was that the daughter having attained majority is not entitled to

maintenance under the amended provision of section 488 Cr.P.C, the Revisional Court found that the stand taken by Bachitar Singh has not been

considered by the learned Magistrate under the amended provision of section 488 Cr.P.C. This provision has been amended on 19/05/1998. It is

further seen that the learned Sessions Judge found that the Magistrate too has landed in error when he stated that minority or majority of the girl

has nothing to do with the merits of the case and allowed the enhancement of maintenance allowance from Rs. 550/- to Rs. 2,000/- p.m. in favour

of the mother and the major daughter without making any classification as to the quantum of amount in favour of the respective respondents viz.

mother and the daughter. The Revisional Court found the order passed by the Magistrate bad in law, as there was enhancement of maintenance

allowance in favour of the daughter and their being no classification as to the quantum of amount enhanced in favour of the respondents, i.e. mother

and daughter, and recommended the quashment of the order and setting aside of the enhancement of the maintenance allowance, allowed by the

Magistrate vide order dated 20/12/2001.

I have heard learned counsel appearing for the respective parties at length and also perused the record of the file meticulously in context with the

relevant provisions of law, touching the matter in controversy.

Chapter XXXVI of the Code of Criminal Procedure is comprised of sections 488, 489 and 490 and pertains to the maintenance of wives,

children and parents. A plenary reading of the aforesaid provisions indicates that these are intended to serve a social purpose. This Chapter

provides complete procedure and the object sought to be achieved in enacting these provisions. The object is to provide social justice to the

destitute wives, children and parents, neglected by the person under an obligation for affording due attention to them. For facility of reference, the

amended provisions of section 488 Cr. P. C. may be quoted here under:-

Order for maintenance of wives, children and parents:- 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 two thousand 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.

Under the 1898 Code, the criterian to pay maintenance to the child was not whether it was minor or major; whether it was able to maintain

itself in case it was a major. Child, however, did not mean below 18 years under the same old Code. However, the position has now been made

clear. A minor under the Chapter would mean [Explanation (a) to sub-section (1)] a person who is deemed under' the provisions of the Indian

Majority Act, 1875, not to have attained majority. In matters relating to the right to claim maintenance while a minor child, whether married or

unmarried, would be entitled to claim maintenance from his or her father, if unable to maintain itself, restrictions have been placed on the right of a

child who has attained majority to claim maintenance.

Mr. Karanjeet Singh, learned counsel appearing for Bachiter Singh, vehemently urged that major son whether married or unmarried and a

major daughter who is married would be entitled to maintenance from his or her father only if he or she is unable to maintain itself by reasons of

physical or mental infirmity or injury. Mr. Karanjeet Singh further emphasized that barring such limited cases in which a major child is unable to

maintain itself because of such physical or mental infirmity, he or she will have no right to claim maintenance from the father. He further bitterest his

arguments that the child may not be able to maintain itself, but if that inability is not due to any mental or physical infirmity or injury, it will not be

entitled to claim maintenance. Mr. Singh further submitted that the cases in which it is held that the age of the child had no relevance, is no more a

good law. In view of the amended provision of section 488 Cr. P. C. a married daughter, who has attained majority, will not be entitled to claim

maintenance from her father at all.

Mr. B. L. Kalgotra, learned counsel appearing for mother and the daughter namely Surjeet Kour and Manpreet Kour, in controverting the

contentions, submitted that maintenance, may be granted to a child not- withstanding the fact that she has attained majority, for her education

especially when, from the circumstances and status of the family, a reasonable course of education is indispensable in order to earn living. He also

stated that word ""maintenance' has not restricted meaning to boarding and lodging, and some sort of education. Maintenance u/s 488 Cr. P. C.

does include the cost of education of a child and not a bare maintenance. The object of the social legislation to advance social justice to be

accomplished under chapter XIV is to ensure that the wife or children who are unable to maintain itself are taken away from the ambit of vagrancy.

According to Mr. Kalgotra, the words ""unable to maintain itself cannot be confined to tender age only but must also a reference to financial

dependence after the attainment of majority.

Section 488 Cr. P. C., as enacted, has to be read and construed having regard to its beneficent nature and cause of social justice embedded

therein. Where a son or daughter reaches the age of majority, it does not mean that as from that date he or she has to starve. That is not the law. It

only means that as from the age of majority, the law takes note of the fact that he has capacity to earn. But if he or she still depends on his or her

mother either for study or for shelter, that fact will have to be taken into account, when a mother (or wife) is given maintenance. It, therefore,

follows that all persons eligible to claim maintenance must be unable to maintain himself or herself.

It is not understandable that the child who even though attained the age of majority is not given any maintenance but the one who looks-after him or

her gets it. The emphasis is on the phrase ""neglect and refusal to maintain"" and inability of the child to maintain itself not on the reason for inability to

maintain. Therefore, simple and plain meaning has to be assigned as is implied in the provision. The provision is aimed at not only to remedy the

neglect and refusal to maintain but also to prevent the evil consequence of such neglect or refusal to maintain. That being so, it cannot be so the

intention of the legislation that a girl child who first develops a mental injury on account of neglect or refusal so as to fall within the exceptional

clause of section 488 (l)(c) of Cr. P.C. and then the preventive measures would operate. Therefore, the word ""neglect"" used in the provision not

only means a tacit non-performance of such a duty by father but also embraces the duty of a father to maintain his unmarried major daughter. It

clearly postulates not only the existence of absolute nature of such duty and responsibility of a father, but also corresponding legally enforceable

right of such a daughter. It is, thus, abundantly clear from the aforesaid discussion, that when an unmarried major daughter, taking education in the

college, claims maintenance, taking education in the college, what is required to be proved is the financial dependence of the mother. As the word

Neglect"" has not to be construed in a limited sense but in a broader prospect and needs of the children includes affection, due care, education etc.

When a child suffers neglect in context with all these basic things, she is sure to be emotionally hit and amounts to mental injury reflecting upon her

mental faculty. This also causes an intense mental suffering where children are left to suffer mental suffering and then permitted to claim maintenance

from her father who is under statutory obligation to maintain them who are unable to maintain itself would amount to wilful and unjustifiable infliction

of pain and would amount to put clogs on the word ""maintenance"" which itself is very eloquent to express that it is a summary remedy given to

serve the wife, children, parents so that they may not go stray and oppose to the very purpose for which this enactment is made. In other words,

section 488 of the Code is designed to prevent vagrancy and destitute, and provides summary and speedy summary. It starts with the word

maintenance"". The very meaning of maintenance is not to provide breathing spur to live but includes clothes, food education etc.

This leads to the irresistible conclusion that any child who has attained majority does not automatically cease to claim maintenance and allowed

to starve if he is unable to maintain himself/herself. So long as the major unmarried daughter is dependent upon the mother, particularly pursuing

study in the college and unable to maintain herself, would be entitled to claim maintenance from her father, cannot be allowed first wait to suffer

mental injury so as to come within the ambit of sub-section (l)(c) and then ask for maintenance. In this case, admittedly, Manpreet Kour though she

has attained majority but still pursuing her studies in the college and dependent on the mother, and unable to maintain herself, would be entitled to

claim maintenance from her father. This I say so particularly when the one who looks-after her gets it. The reference Court has not taken all these

aspect into consideration and landed into error in construing in narrow meaning to the words ""neglect or refusal to maintain a child unable to

maintain itself and ignored the beneficent nature and social purpose for which section 488 Cr. P.C. has been enacted.

Reference is, accordingly, rejected and the order granting maintenance allowance at enhanced rate from Rs. 550/- to Rs. 2,000/- p.m. from

the date of order, is maintained. Ordinarily, the maintenance is to be ordered from the date of the passing of the order. Where there are

circumstances justifying, it can be ordered from the date of the application. The discretion lies with the Magistrate and no interference is warranted

in this context. However, I leave the petitioners namely Surjeet Kour and Manpreet Kour, free to approach the learned Magistrate, as and when

they feel any change in the circumstances, necessitating further enhancement in the maintenance allowance. The record be sent forthwith to the Trial

Court.