Ved Parkash vs Leena Kahar

P.K. Jain, J.—The short question which falls for decision in these proceedings is: "Whether u/s 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), the parents-in-law can be made liable to pay maintenance to their widowed daughter-in-law and grand children?"

The backdrop in which the aforesaid question is to be answered is that Smt. Leena Kahar respondent No. 1 was married with Anil Kumar in the year 1991 and out of this wedlock a male child respondent No. 2 herein, was born. Unfortunately Shri Anil Kumar died in July, 1993. After his death, the petitioners who are the parents of the deceased, harassed and turned out their widowed daughter-in-law Smt. Leena Kahar and their grand son Gaurav, the respondent herein.

On an application filed by Smt. Leena Kahar and her minor son u/s 125 of the Code, the Judicial Magistrate, Patiala by the impugned order dated 28.4.1995 directed the petitioners jointly to pay Rs. 400/- per month as maintenance to their said widowed daughter-in-law and Rs. 200/- per month to the grand son. It has been held that the respondent herein were unable to maintain themselves and the petitioners being the parents-in-law, are liable to pay maintenance to the respondents herein. While fixing the quantum of maintenance as stated above, the petitioners have been directed to pay the same with effect from the date of filing of the application.

Feeling aggrieved the parents-in-law i.e. Shri Ved Parkash and his wife Smt. Chander Kanta, the petitioners have approached this Court by way of revision u/s 401 of the Code. The impugned order has been challenged solely on the ground that under the aforesaid provision of law, they cannot be directed to pay any maintenance to the respondents and as such the impugned order is bad in law.

The answer to the question turns on the construction of Section 125 of the Code which is a reincarnation of Section 488 of the old Code except for the fact that the parents are also brought into the category of persons eligible for maintenance and legislative cognizance is taken of the devaluation of the rupee and the escalation of living costs by raising the maximum allowance for maintenance from Rs. 100/- to Rs. 500/-. The relevant portion of this section 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 purposes 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 re-married."

This section is intended to provide a cheap and speedy, but limited, relief, for deserted wives and neglected children and parents, so that they are not left beggared and destituted on the scrap-heap of the society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.

The provisions of the above section are independent of personal law or any custom governing the parties and the latter cannot be imported into it. The right of maintenance in this section is distinct statutory right which the Legislature has recognised irrespective of the nationality or creed of the party. The entire scheme of the section is self contained. The scope of this section is limited in respect of the persons who are entitled to claim maintenance and the persons who are liable to pay such maintenance thereunder. It is by no means, however the only, or indeed the most satisfactory remedy open to the original claimants. They may file a regular suit for maintenance in which case there is no limit to the award of the maintenance and the scope of the persons who are entitled to claim maintenance and those who are liable to pay is widened.

From a bare reading of Section 125 of the Code reproduced above, it is evident that only wife, legitimate or illegitimate children and the parents are entitled to claim maintenance. No provision has been made therein whereby a widowed daughter-in-law or grand children can claim maintenance. Further, the husband of the wife, father of the children and son or daughter of the parents can be directed to pay maintenance under certain circumstances mentioned therein. But there is no provision in the entire scheme of this section whereby parents-in-law can be directed to pay maintenance to their widowed daughter-in-law or the grand-children.

It is true that the respondents herein are entitled to claim maintenance under Sections 19 and 22 of the Hindu Adoptions and Maintenance Act, 1956, but, as already stated the provisions of the personal law of the parties cannot be imported into the present section. The consistent view taken by the Punjab Chief Court and the Lahore High Court has also been that u/s 488 of the old Code (Section 125 of the present Code) a father-in-law cannot be made liable to pay maintenance to his daughter-in-law. Reference in this regard may be made to Emperor v. Miran (1903) 26 P.L..R. 1903, Emperor v. Waryam Singh and Anr. AIR 1914 Lah 339 and Sohna Singh v. KartarKaur AIR 1931 Lah 532. Faced with the express provisions of the law and the precedents cited above, the learned Counsel did not make any attempt to support the legality of the impugned order passed by the Magistrate. It appears that the pointed attention of the Judicial Magistrate was not drawn to this legal aspect of the case vis-a-vis the provisions of Section 125 of the Code.

As a result of the above discussions, it is held that the petitioners cannot be made liable u/s 125 of the Code to pay maintenance to the respondents herein, since neither the petitioners nor the respondents fall within the categories enivsaged by the said provisions of the Code. As a consequence, this petition is accepted and the impugned order dated 28.4.1995 passed by the Judicial Magistrate, Patiala is hereby set aside, being bad in law.