Karnataka High Court
Kum. L. Usharani And Others vs D.S. Lakshmaiah on 16 December, 1992
Equivalent citations: 1993(1)ALT(CRI)500, 1993CRILJ982, I(1993)DMC269, ILR1993KAR661, 1993(1)KARLJ130
ORDER
1. Though this matter appears for orders, it is taken up for final disposal by consent of both the sides.
2. The revision petitioners had filed a petition before J.M.F.C., Sidlaghatta in C.M.C. 46/88 under S. 125 of Code of Criminal Procedure against their father-respondent herein for grant of maintenance of Rs. 500/- per month to each of them. The petition so far as petitioners 1 and 2 came to be dismissed. So far as petitioner No. 3 is concerned, the learned Magistrate directed payment of separate maintenance at the rate of Rs. 150/- per month from the date of petition till 30-4-90 on which date 3rd petitioner also attained majority. Being aggrieved by this order of the learned Magistrate, the petitioners have preferred this revision petition.
3. That petitioners 1 and 2 were majors even as on the date on which they filed the petition under S. 125, Cr.P.C. is undisputed. So far as 3rd petitioner is concerned, that she also attained majority on 30-4-90 is also not disputed. The contentions urged on behalf of the revision petitioners are -
(1) The learned Magistrate was not right in holding that petitioners 1 and 2 are not entitled to maintenance because they are majors; and (2) The learned Magistrate was not right in restricting the maintenance payable to the 3rd petitioner only up to 30-4-90;
(3) Even otherwise the maintenance at the rate of Rs. 150/- per month awarded to the 3rd petitioner is very meagre and that has to be enhanced.
4. The first two contentions urged depends on the aspect whether the son or daughter of a person who has attained majority is entitled to claim maintenance when he or she is unable to maintain himself or herself. The learned Advocate for the revision petitioners invited the attention of the Court to the decision of this court in Ismail Sheriff v. Nasarin reported in 1963 (2) Mys LJ 233 : (1964 (1) Cri LJ 458) and pointed out that in that decision it has been held that the major boy or girl is also entitled to claim maintenance. It is no doubt true that it has been held so in that decision but it was with reference to a petition filed under S. 488(1) of Code of Criminal Procedure, 1898. The said section reads thus :
"If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, a Presidency Magistrate, or 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, 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 from time to time directs."
In this decision relied upon by the learned Advocate for the petitioners it has been observed as hereunder with reference to the aspect that the age of the child is not at all relevant while granting maintenance under S. 488(1) of Code of Criminal Procedure, 1898.
"The relevant point for consideration under S. 488(1), Cr.P.C. is whether the child is capable of maintaining himself or herself without the aid from the father and it has nothing to do with the age. If really the Legislature intended that the word 'child' in sub-clause (1) of S. 488, Cr.P.C. would have reference only to a boy or girl below the age of 18 years nothing prevented the Legislature for making it quite clear. As rightly pointed out by some of the learned Judges the Legislature could have made it clear by saying 'minor child'. The fact that the Legislature has not done so and has instead used the word child in sub-clause (1) of S. 488, Cr.P.C. supports the view that the Legislature did not intend to restrict the application of this provision to a boy or a girl below the age of 18 years."
5. It may be noticed that we are dealing with a case not under S. 488 of Code of Criminal Procedure, 1898, but a case arising under S. 125 of the Code of Criminal Procedure, 1973. The qualifying word minor which was not there in S. 488(1) of Cr.P.C. 1898, has been introduced in S. 125(1)(b) of Cr.P.C. 1973. Sub-sections (b) and (c) of S. 125(1) of 1973 Code, which refer to the right of a child to claim maintenance read as hereunder :
"(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"
It may be noticed that the Parliament in its wisdom has enabled only a minor child whether legitimate or illegitimate to claim maintenance under S. 125(1)(b) and only one exception has been made by enacting sub-section (c) which enables the child which has attained majority to claim maintenance. That is a case where the child by reason of any physical or mental abnormality or injury is unable to maintain itself. It is not the case of any of the petitioners that they have any physical or mental abnormality or injury or on that account they are unable to maintain themselves. Therefore, it is clear that the case of petitioners 1 and 2 does not come under either sub-clause (b) or (c) of S. 125(1) and the case of the 3rd petitioner subsequent to 30-4-90 does not also come under any of these sub-sections. In this view of the matter, the decision relied upon has no application to a case arising under S. 125(1)(b) of Code of Criminal Procedure, 1973. Therefore, the learned Magistrate was right in negativing the claim made by petitioner 1 and 2 restricting the claim of 3rd petitioner to that date.
6. So far as the third grievance regarding the quantum awarded is concerned there is material to show that the respondent is having lands which are fed by well and that he also has been growing mulbery and other crops. Further, there is also material to show that he has been running a grocery shop, the photograph of which has been produced as per Ex. P-6. No material whatsoever has been placed on record to show that the respondent has any other liability. As it is thought it is his moral obligation to maintain even petitioners 1 and 2 because they are unmarried daughters unable to maintain themselves, he is getting over that liability on account of the language employed in S. 125(1)(b) and (c) of the Code of Criminal Procedure, 1973. Therefore, this aspect cannot be lost sight of in fixing up the quantum of maintenance to be awarded to the 3rd petitioner. Having regard to all these aspects, it appears that in the interest of justice, a sum of Rs. 400/- per month would be the adequate amount to be awarded to the 3rd petitioner for the above said period.
7. In the result, the amount awarded in favour of the 3rd petitioner is enhanced from Rs. 150/- per month to Rs. 400/- per month for the abovesaid period of two years. Except this modification, the order of the learned Magistrate in other respects shall stand undisturbed. The revision petition is allowed only to the extent indicated above.
8. Order accordingly.