T.P.S.M. Seha Saraia(sic) vs T.P.S.M. Sasithana

Arunachalam, J.—The Petitioner is the mother of the Respondent. The Petitioner''s husband, T.P.S. Hariram Sait, who is the father of the

Respondent, died necessitating the Petitioner taking over as Managing Director of M/s. T.P. Sokkalal Beedi Factory Private Limited, Tirunelveli.

The Petitioner and late T.P. S. Hariram Sait have five children born out of the wedlock of whom the Respondent is a daughter aged about 31

years.

The death of the Respondent''s father appears to be when she was a small child. The Petitioner brought up the Respondent and the Respondent

studied upto 10th Standard. Consequent to the status of the Petitioner''s family the daughter of the Respondent was brought up in comfort.

Due to certain misunderstandings between the mother and the daughter, the Respondent is now living away from the Petitioner for over two

years. The. Respondent has chosen to file a petition u/s 125, Crl P.C.. before the Chief Judicial Magistrate, Tirunelveli in M.C. No. 79 of 1988,

claiming maintenance for herself, from her mother.

The averments in the petition for maintenance indicate that one Thomas Fernando, a Chartered Accountant, often visited the family house and

moved very closely with the Petitioner. It is also averred that the said Thomas Fernando interfered with the family affairs which was not to the liking

of the Respondent. When the Respondent objected to such interference, it is her case that she was mistreated. Further, the Respondent was driven

out of the house since she was deemed to be a hindrance to the close relationship between the Petitioner and the said Thomas Fernando. The

Respondent claims, that the movements between Thomas Fernando and the Petitioner had caused great damage to the reputation of the family of

the Respondent and has also caused injury for her mind. The Respondent states that she has no source of income and she has been suffering for

her livelihood and clothing, by staying separately for over two years. She requires, in her estimate Rs. 500 per month, to maintain herself. It is also

her grievance that though the Petitioner is getting sufficient income she is not maintaining the Respondent, who is admittedly aged 31 years, though

unmarried.

The Petitioner seeks to invoke the inherent powers u/s 482 Cr.P.C, to quash the proceedings in M.C. No. 79 of 1988 on the file of the Chief

Judicial Magistrate, Tirunelveli. on the ground that Section 125 Code of Criminal Procedure will not take within its fold, award of maintenance to a

daughter, who had attained majority and who does not suffer from any physical or mental abnormality or injury by reason of which she was not

able to maintain herself. The proceedings in the trial court are challenged as ah initio void and without jurisdiction, necessitating striking down.

Mr. I. Subramaniam, learned Counsel for the Petitioner, in the context of Section 125(I)(c) Cr.P.C, would contend that a child, who had

attained majority (not being a married daughter) can claim maintenance only if it is unable to maintain itself by reason of any physical or mental

abnormality or injury. If the Respondent will not come within this category, the remedy for her will not be u/s 125, Cr.P.C, but could be only in the

civil court. He has Brought to my notice similar provisions in the Code of Criminal Procedure, 1898 when Section 488, Crl. P.C., was the

corresponding section. Section 488(1) reads as under:

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 Magistrate of the I 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 monthly rate, not exceeding Rs. 500 in the

whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

S. 125(1), Cr. P.C, reads as hereunder:

Order for maintenance of wives, children and parents:(I) 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, 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.

Basing on the difference of wording in Ss. 488 and 125, Cr.P.C, learned Counsel would contend that though a child in Section 488 did not mean a

minor son or daughter, the rule of limitation being the expression ""unable to maintain itself"". u/s 125, Cr.P.C, inability to maintain itself must be by

reason of any physical or mental abnormality or injury in the case of children, who had attained majority (not being a married daughter). On the

facts of this case, he would contend that the Respondent is admittedly a major aged 31 years and there is no averment in the petition of any

physical or mental abnormality or injury which could be related to her inability to maintain herself.

Per contra, Mr. S. Ashok Kumar, learned Counsel for the Respondent, would refer to paragraph 6 of the maintenance petition where the

following averment has been made;

The movements with Thomas Fernando by the Respondent has caused a grave damage to the reputation of the family of the Petitioner and also

caused injury in the mind of the Petitioner.

and contend that the injury mentioned therein would fall within the injury contemplated u/s 125(1)(c) of the Code. He would seek to substantiate

his contention, that the meaning of injury will have reference to Section 44 of the Indian Penal Code read with Section 43 of the said Code since

injury had not been defined in the Code of Criminal Procedure and in terms of Section 2(y) of the Code of Criminal Procedure, the words and

expressions used and not defined but defined in the Indian Penal Code will have meanings respectively assigned to them in that Code. Section 44

of the Indian Penal Code defines injury as under:

The word ''injury'' denotes any harm whatever, illegally caused to any person in body, mind, reputation or property.

The word ''illegal'' is defined in Section 43 of the Indian Penal Code as follows:

The word ''illegal'' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a

person is said to be ""legally bound to do"" whatever it is illegal in him to omit.

Both counsel has referred to a few decisions rendered by various Courts, though none of them have touched this controversy in question.

Reference will be made to the cases cited by the counsel in the relevant context.

Though there were conflicting judicial decisions when Section 488 Cr.P.C, ruled the field, regarding the scope and meaning of the expression

''child'' vis-a-vis majority, the matter was set at rest by the Supreme Court in Nanak Chand Vs. Chandra Kishore Aggarwal and Others, wherein it

was held that the child referred to in Section 488 of the old Code did not mean a minor son or daughter and that the only limitation was contained

in the expression ''unable to maintain itself''. However, Section 125 of the new Code has made a departure and defines the expression ''minor'' and

limits the condition under which a child who has attained majority can claim maintenance. A minor has been explained to mean a person who,

under the provisions of the Indian Majority Act 1875 (Act XI of 1875) is deemed not to have attained his majority. For the child who has attained

majority, S. 125(1)(c) places certain limitations. The liability to maintain a child, who has attained majority, can arise only-

a) if that child is not a married daughter;

b) if it is unable to maintain itself on account

(1) physical or mental abnormality; or

(2) injury.

It is, therefore, seen that the Act makes it clear that any child, who has attained majority is not automatically entitled to claim maintenance, even

if he is unable to maintain himself, as was the case in the old Code, but inability to maintain should arise out of physical or mental abnormality or

injury. In the past as well as in the present, the limitation is the inability to maintain itself. This inability to maintain in the case of a major must be by

reason of any physical or mental abnormality or injury. A mere physical or mental abnormality or a mere injury, which does not make the child

unable to maintain itself, will not be covered u/s 125(1)(c) of the Code.

The question to be considered next will be, whether ''injury'' mentioned in Section 125(1)(c) of the Code will take its meaning, assigned in

Section 44, I.P.C. Section 2(y) of the Code of Criminal Procedure reads, in this code unless the context otherwise requires ""words and

expressions"" used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in

that code. This clause naturally must be read as qualified by the words unless the context otherwise requires. The context of ''injury'' used in

Section 125(1)(c) of the Code does not, to my mind, require reference to Section 44 and 43 of the Indian Penal Code, since it is correlated to the

inability to maintain itself. However, let us test the need for importing the meaning of ''injury'' to Section 125(I)(c), from Section 44, I.P.C, ''Injury''

need not necessarily denote physical injury, for, it can be mental as well. ''Injury'' contemplated u/s 44, I.P.C, is harm whatever illegally caused to

any person etc. This illegal causation of injury in the context of this petition-is stated to be covered by that part of Section 44, I.P.C. which reads

or which furnishes ground for a civil action"". For example, let us take a case of a major, who falls down unexpectedly without intervention of any

one else and sustains a bodily injury which results in inability to maintain himself. The injury sustained by him cannot be said to have been caused

illegally. If the definition of injury in Section 44, I.P.C, were to be attracted, this person will have to be taken out of the purview of Section 125(I)

(c), Cr.P.C, since the injury which has resulted in inability to maintain, had not been illegally caused. That cannot be the object of Section 125,

Cr.P.C., which provides a summary remedy for neglected wives and children. The object of the maintenance proceedings is not to punish a parent

but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to

support. This section is a measure of social justice and is enacted to protect certain category of children contemplated therein. To my mind, it

appears that the context of Section 125(1)(c) does not require reference to the definition of ''Injury'' rendered in Section 44, I.P.C. The words

physical or mental abnormality"" will prima facie lake in congenital defects while ''injury'' leading to inability to maintain itself can have reference 10

any point of time, even after the. attaining of majority. It may even be possible to take in all cases of physical or mental abnormality which need not

necessarily be congenital. The keynote of the section appears to be on the phrase ''unable to maintain itself. Mr. Ashok Kumar has referred to

Emperor v. Fazlur Rahman, AIR 1930 Pat 593, to contend that the word ''illegal'' has the same meaning as unlawful. This decision will not help him

in view of my discussion on this aspect earlier. In Mst. Khedani Rajwarin v. Lagansingh, AIR 1921 Pat 379, the Patna High Court, while dealing

with Section 488, Cr.P.C, observed that the omission to define the age was probably intentional so as to allow the maintenance to continue even

throughout the life if owing to some mental or corporal defect the person is unable to maintain himself. The Law Commission in its 41st report

observed that the said decision, had lucidly explained the position as aforementioned, with which they agreed. In Nanak Chand Benarsi Das and

Others Vs. Chander Kishore and Others, , the Delhi High Court held that a fully grown up person, who is suffering from a crippling disease or

some physical or mental affliction and is, therefore, unable to earn for himself, nor has he any independent means of his own, is as much a child

entitled to speedy and immediate relief from his parent as the person of tender years or one who has not yet attained majority. This observation will

correctly fit in to the provisions of Section 125(l)(c) Code of Criminal Procedure We have already seen earlier that the Supreme Court has

affirmed this view of the Delhi High Court in the context of Section 488 Code of Criminal Procedure In Jagir Singh Vs. Ranbir Singh and Another,

an observation has been made, that u/s 125, Cr.P.C, a child, who has attained majority is not entitled to be awarded maintenance unless such child

is unable to maintain itself by reason of any physical or mental abnormality or injury. In The State v. Eshwarlal, AIR 1950 Nag 231, while

considering the word ''child'' in S. 488 Cr.P.C, it was held that reference to age had been purposely omitted from it, because the age object of the

section was to confer a right on any son or daughter to obtain maintenance from the father so long as he or she is unable to maintain himself and

herself That inability to maintain was the prime factor fits in the new Code as well, but for the limitation prescribed for the entitlement of major

children to obtain maintenance from the parent.

An argument was advanced by Mr. I. Subramaniam that a mother cannot be directed to pay maintenance to her daughter since such course

does not appear to be contemplated u/s 125 Code of Criminal Procedure This question need not have to be gone into in this petition. However,

one cannot overlook that in the context of the social purpose and the moral obligation cast on the mother she could be easily excluded from her

liability, once it is shown that she has sufficient means of her own, independent of the father and the child would come within the purview of Section

125(l)(b) or (c). The Supreme Court in Dr (Mrs) Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai and Another, , while considering the

obligation of a married daughter to maintain her father, has held that in view of the provisions of Section 2(y) of the Code of Criminal Procedure

read with Section 8 of the Indian Penal Code and S. 13(1) of the General Clauses Act the pronoun ''his'' as used in Cl.(d) of Section 125(1),

Crl.P.C, includes both male and a female.

The net result, of the analysis leads to the conclusion that the word ''injury'' used in Section 125(l)(c), Crl. P.C, will have to be read in the

context of inability to maintain, which does not require recourse to the definition of injury in the Indian Penal Code. Paragraph 6 of the maintenance

petition where the word ''injury'' in the mind of the Petitioner has been used does not really come within the scope of the injury contemplated u/s

125(l)(c), Crl. P.C.

I am of the view that the Respondent cannot invoke the provisions of Section 125, Crl. P.C., to claim maintenance from her mother, the

Petitioner.

In the result, the petition is allowed and the proceedings in M.C No. 79 of 1988 on the file of the chief Judicial Magistrate, Tirunelveli are

quashed.