Madras High Court
T.P.S.H. Selva Saroja vs T.P.S.H. Sasinathana on 23 March, 1989
ORDER
1. 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, Tirunelvelli. 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.
2. The death of the respondent's father appears to be when she was small child. The petitioner brought up the respondent and the respondent studied up to 10th Standard. Consequent to the status of the petitioner's family the daughter of the respondent was brought up in comfort.
3. 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 under S. 125 Cr.P.C., before the Chief Judicial Magistrate, Tirunelveli in M.C. No. 79 of 1988 claiming maintenance for herself from her mother.
4. 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. Thus the respondent objected to such interference, it is her case that she was illtreated. 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.
5. The petitioner seeks to invoke the inherent powers under S. 482 Cr.P.C., to quash the proceedings in M.O. No. 79 of 1988 on the file of the Chief Judicial Magistrate, Tirunelveli on the ground that S. 125 Cr.P.C. 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 ab initio void and without jurisdiction necessitating striking down.
6. Mr. I. Subramaniam, learned counsel for the petitioner, in the context of S. 125(1)(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 under 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 S. 488 Cr.P.C., was the corresponding section. S. 488(1) read 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 a Magistrate of the Ist 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". Section 125(1) Cr.P.C. reads as hereunder : "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, 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 sections 488 and 125 Cr.P.C. learned counsel would contend that though a child in 488 did not mean a minor son or daughter, the rule of limitation being the expression "unable to maintain itself", Under 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.
7. 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 under 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 S. 43 of the said Code since injury had not been defined in the Criminal Procedure Code and in terms of S. 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. S. 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 S. 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".
8. Both counsel have 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.
9. Though there were conflicting judicial decisions when S. 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 v. Chandra Kishore Aggrawal, wherein it was held that the child referred to in S. 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, S. 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 IX 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 of (1) Physical or mental abnormality; or (2) injury.
10. 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 under S. 125(1)(c) of the Code.
11. The question to be considered next will be, whether 'injury' mentioned in S. 125(1)(c) of the Code will take its meaning assigned in S. 44, I.P.C.S. 2(y) of the Criminal Procedure Code 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 S. 125(1)(c) of the Code does not, to my mind, require reference to sections 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 S. 125(1)(c) from S. 44 I.P.C. 'Injury' need not necessarily denote physical injury, for, it can be mental as well. 'Injury' contemplated under 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 S. 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 S. 44 I.P.C., were to be attracted, this person will have to be taken out of the purview of S. 125(1)(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 S. 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 S. 125(1)(c) does not require reference to the definition of 'injury' rendered in S. 44 I.P.C. The words "physical or mental abnormality" will prima facie take in congenital defects while 'injury' leading to inability to maintain itself can have reference be at 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 had referred to Emperor v. Fazlur Rahman, AIR 1930 Patna 593 : (1931 (32) Cri LJ 87) 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 AIR 1921 Patna 379 (1) : (1921 (22) Cri LJ 336) (Mst. Khedani Rajwarin v. Lagansingh) the Patna High Court while dealing with S. 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 corporeal 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 v. Chander Kishore) 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 S. 125(1)(c) Cr.P.C. We have already seen earlier that the Supreme Court has affirmed this view of the Delhi High Court in the context of S. 488 Cr.P.C. In Jagir Singh v. Ranbir Singh observation has been made that under 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 AIR 1950 Nagpur 231 (The State v. Ishwarlal) 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 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, in the new Code as well but for the limitation prescribed for the entitlement of major children to obtain maintenance from the parent.
12. 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 under S. 125 Cr.P.C. 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 S. 125(1)(b) or (c). The Supreme Court in Dr. (Mrs.) Vijaya Manohar Arbat v. Kashe Rao Rajaram Sawai , while considering the obligation of a married daughter to maintain her father, has held that in view of the provisions of S. 2(y) of the Criminal Procedure Code read with section 8 of the Indian Penal Code and S. 13(1) of the General Clauses Act the pronoun 'his' as used in clause (d) of S. 125(1) Cr.P.C., includes both male and a female.
13. The net result of the analysis leads to the conclusion that the word 'injury' used in S. 125(1)(c) Cr.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 under S. 125(1)(c) Cr.P.C.
14. I am of the view that the respondent cannot invoke the provisions of S. 125 Cr.P.C., to claim maintenance from her mother, the petitioner.
15. 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.
16. Petition allowed.