Gujarat High Court
Chinubhai Bhikhabhai Solanki vs State Of Gujarat & on 21 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1373/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1373 of 2014
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CHINUBHAI BHIKHABHAI SOLANKI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No. 1
MR YV SHAH, ADVOCATE for the Respondent(s) No. 2
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/01/2016
ORAL ORDER
1. Rule returnable forthwith. Mr. Shah, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1-State of Gujarat. Mr. Y.V. Shah, the learned advocate waives service of notice of rule for and on behalf of the respondent No.2.
2. By this application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"(A) To allow this Application.
(B) To issue writ of certiorari and to quash and set aside the order dated 14.12.2012 passed in Criminal Misc. Application No.683/2010 by the Hon'ble Chief Judicial Magistrate court, Kalol, Dist. Gandhinagar and order dated 13.09.2013 Page 1 of 14 HC-NIC Page 1 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER passed by the 3rd Additional Sessions Judge, Kalol, Dist.
Gandhinagar passed in Criminal Revision Application No.16/2013 confirming the order dated 14.12.2012 passed in Criminal Misc. Application No.683/2010 by the Hon'ble Additional Chief Judicial Magistrate, Kalol, Dist. Gandhinagar and be pleased to dismiss the Criminal Misc. Application No.683/2010 filed by Resp. no.2 before the Hon'ble Chief Judicial Magistrate court, Kalol, Dist. Gandhinagar.
(C) Pending admission final hearing and disposal of this application, to stay the order dated 14.12.2012 passed in Criminal Misc. Application No.683/2010 by the Hon'ble Chief Judicial Magistrate court, Kalol, Dist. Gandhinagar.
(D) To remand the matter for fresh consideration.
(E) To pass any other and further orders as this Hon'ble Court may deem fit and proper."
3. The applicant before me is the step father of minor Barbi @ VidhiChinubhai Solanki. As on today minor Barbi is in the care and lawful guardianship of her maternal grand- father namely, Sumanbhai Nanalal Chauhan. Barbi was born in the wedlock between her mother Bhargaviben and father Mayankkumar Dahyalal. According to the understanding arrived at, the custody of Barbi was to be kept with the father i.e. the Mayankkumar. After divorce, Bhargaviben got married with the applicant herein. In the wedlock with the applicant, a daughter was born, aged 11 years as on today. I am told that Bhargaviben has passed away. In such circumstances referred to above, Barbi prayed for maintenance through her maternal grand- father from the applicant, being her step father. The short point for my consideration is whether a step daughter is entitled to claim maintenance under Section 125 of the Cr.P.C. from her step-father.
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4. An identical issue came up for my consideration wherein the step-daughter prayed for maintenance from her step-mother under Section 125 of the Cr.P.C. This Court in the case of Manjulaben Prakashbhai Sarvaiya V. State of Gujarat, reported in 2015 (3) GLH 359 took the view that the step-daughter has no right to claim maintenance under Section 125 of the Cr.P.C. from her step-mother. The same principal would apply in the present case with the only distinction that in the case in hand, it is the step-father who is sought to be held liable to pay maintenance to his step-daughter. In Manjulaben (Supra) this Court observed as under:-
"30. Thus, the Supreme Court, in the above referred decision, held that the expression mother in Section 125(1)(d) of the Code would only mean real or natural mother and would not include stepmother. According to the Supreme Court, the stepmother is a distinct and separate entity and cannot be equated with the natural mother who has given birth to the child. However, an adoptive mother can be included in the expression mother. It further held that having regard to the purpose behind the benevolent provisions of Section 125, a childless stepmother is entitled to claim maintenance from her stepson provided she is a widow or her husband, if living, is also incapable of maintaining her. The question whether a stepson is liable to maintain his stepmother out of the inherited estate was kept open. While taking the view that a biological mother, when she claims maintenance from her natural born children, she does so in her status as their mother, the Supreme Court, considered the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956. The Supreme Court observed that to exclude altogether the personal law applicable to the parties from consideration in matters of maintenance under Section 125 of the Code may not be wholly justified. The Supreme Court ultimately concluded that no intention of the Legislature could be read in Section 125 of the Code that even though a mother has her real and natural born son or sons and her husband capable of maintaining her, she could still proceed against her stepson to claim maintenance.
31 In the case in hand, the following facts are not in dispute:
(1) The Son of the respondent No.2, late Shri Prakashkumar Sarvaiya, had married with Ashaben Manjibhai on 09.02.1998, Page 3 of 14 HC-NIC Page 3 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER and in the wedlock, Jahnvi was born. Jahnvi, as on today, is fifteen years old. I am told that she is studying at Vadodara. (2) On account of matrimonial dispute, the biological parents of Jahnvi decided to dissolve the marriage, and therefore, they filed a Hindu Marriage Petition No.32 of 2003 under Section 13 of the Hindu Marriage Act in the Court of the learned 2 nd Joint Civil Judge (SD), Bhavnagar, for dissolution of marriage with consent.
(3) The marriage was dissolved and a decree of divorce was passed on 16.12.2003.
(4) Late Prakashkumar thereafter married with the petitioner herein on 18.12.2005 according to the Hindu rites and rituals.
After divorce, Jahnvi remained in the care and custody of her father late Prakashkumar.
(5) On 25.03.2006, Prakashkumar i.e. the father of Jahnvi died.
(6) For a period of three years thereafter, the custody of Jahnvi remained with the petitioner.
(7) One Miscellaneous Civil Application No.75 of 2008 was filed in the Court of the learned Principal District Judge, Bhavnagar by the respondent No.2 herein under Section 7 of the Guardian and Wards Act for the custody of Jahnvi. (8) The learned Additional District Judge, Bhavnagar, vide order dated 04.09.2010, was pleased to allow the said application and handed over the custody of Jahnvi to the respondent No.2 i.e. her parental grandfather. (9) The above referred events would suggest that from 2005 onwards till 2010, Jahnvi remained with the petitioner. (10) The natural mother of Jahnvi, namely, Ashaben Manjibhai is alive as on today. She is also serving. I am told that Ashaben Manjibhai has also claimed the custody of Jahnvi being the biological mother and is ready and willing to take care of Jahnvi. For some reason or the other, Jahnvi may not be ready and willing to live with her mother, namely, Ashaben. It is also not in dispute that Jahnvi has not thought fit to claim any maintenance from her biological mother, namely, Ashaben.
(11) Jahnvi has claimed maintenance through her grandfather i.e. the respondent No.2 on the premise that the petitioner had married with her father, and at the time of marriage, she had undertaken or rather it is presumed that she had undertaken the responsibility of Jahnvi. Further, the petitioner has inherited some of the assets of late Prakashkumar, and therefore, the petitioner is duty bound to maintain Jahnvi, although Jahnvi may not be her own daughter.
32 Having regard to the above referred facts, I have no hesitation in coming to the conclusion that the petitioner should not be saddled with the responsibility of maintaining Jahnvi, more particularly, when the natural mother of Jahnvi, is very much alive and is ready and willing to take care of Jahnvi. Besides the same, it appears that a huge amount of Rs.23 lac was received by the respondent No.2 from the L.I.C. on the demise of Prakashkumar i.e. the father of Jahnvi.
33 However, the larger issue still remains to be addressed.
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What would have been the position if there was none to look after and take care of Jahnvi except the petitioner being her stepmother.
34 For properly appreciating the larger controversy raised in this case, I may once again refer to the provisions of Section 125 of the Code which reads as follows:
125 (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 10 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 is deemed not to have attained his majority (9 of 1875);
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:Page 5 of 14
HC-NIC Page 5 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any ground of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just grounds for so doing.
Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an d [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be], from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
35 Prima facie though section 125 of the Code corresponds to section 488 of the old Code of Criminal Procedure it is obvious that it has brought about major and substantial changes. It is further clear that the said decision creates a statutory liability irrespective of the personal law of the parties. As observed by the Supreme Court in Nanak Chand v. Chandra Kishore [AIR 1970 SC 446] there is no inconsistency between the Maintenance Act and Section 488, Criminal Procedure Code. While dealing with this aspect of the matter under the old Code of Criminal Procedure, the Supreme Court observed as under:
The learned Counsel says that Sec. 488, Criminal Procedure Code, in so far as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, Section 20, which provides for maintenance to children. We are unable to see any inconsistency between the Maintenance Act and Section 488, Criminal Procedure Code. Both can stand together. The Maintenance Act is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, in so far as it dealt with the maintenance of children was in any way inconsistent with Section 488, Criminal Procedure Code. The Page 6 of 14 HC-NIC Page 6 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State, AIR 1963 All 355, before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy, 1962 (2) Cri LJ 528 (Cal), and before the Patna High Court in Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three High Courts have, in our view, correctly come to the conclusion that Section 4 (b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in Section 488, Criminal Procedure Code.
36 The Supreme Court had also an occasion to consider the scope of proceedings under section 488 of the old Code of Criminal Procedure in Mst. Jagir Kaur v. Jaswant Singh [AIR SC 1521]. In this context, the Supreme Court observed as follows:
"The proceedings under this section are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So the words should be liberally construed without doing any voilence to the language........
To summarize: Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief. Proceedings under the section can be taken against the husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he happens to be at the time the proceedings are initiated.
36.1 Therefore, it is quite obvious that the object of the proceedings is to prevent vagrancy by compelling the husband or the father to support his wife or child unable to support itself. In a sense the provisions are not penal in nature, but are only intended for enforcement of a duty, a default of which is made penal. It is also clear that such a provision has been made to serve a social purpose for providing a speedy remedy in a summary manner to a person who is ordinarily helpless. Therefore, as observed by the Supreme Court in Ms. Jagir Kaurs case the words will have to be liberally construed without doing any violence to the language, of course within the permissible limits. It is well settled that a word which is not defined in the Act, but which is a word of everyday use must be construed in its popular sense. While construing a Statute, which is secular in nature and dealing with the matter relating to general public, the Legislature is presumed to use the words used in the Statute in the popular sense as understood in common parlance and, therefore, normally they should be their ordinary, natural and Page 7 of 14 HC-NIC Page 7 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER familiar meaning.
37 Let me first test the argument of the learned advocate appearing for the petitioner that the Legislature has specifically mentioned the words his legitimate or illegitimate minor child. The question, therefore, raised by the petitioner is whether the word his would include her. According to the learned advocate, having regard to the word his even a biological mother does not seem to have been included within Section 125 of the Code.
38 Clause (a) deals with the right of the wife who is unable to maintain herself, to claim maintenance from her husband. Clause (b) deals with the right of the children, who are minor, to get maintenance from their parents. Within the import of clause (b) even a married daughter is included. Clause (c) deals with a disabled child who has attained majority. The bracketed portion "not being a married daughter" covers only clause (c) and not the other sub-clauses of Section 125 (1) of the Code. This is obvious from the use of specific expression "whether married or not" in sub-clause (b) of Section 125(1). Then comes sub-cause (d) which confers a right upon a father or mother unable to maintain himself or herself to claim maintenance. The word "person" is not defined in the Code, nor the expression "his" is defined. However, by Section 2(y) of the Code it is laid down that the words and expressions used therein and not defined but defined in the Penal Code have the meanings respectively assigned to them in that Code. Section 8 of the Penal Code reads as under:-
"Gender. The pronoun 'he' and its derivatives are used of any person, whether male or female."
38.1 Section 11 defines the word "person", which includes any Company or Association, or body of persons, whether incorporated or not. The definition of the word "person" is inclusive and, therefore, obviously not exhaustive. Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. The word "person" is defined in Section 3(42) of the General Clauses Act and the definition is akin to the definition in Section 11 of the Penal Code. Further, by Section 2(y) of the Cr. P.C. it is provided that the words and expressions used in the Code are to be understood as defined by the Penal Code. Therefore, it is quite clear that the pronoun "he" and its derivatives as used in Section 125 of the Cr. P.C. would include in its import, both a male or a female.
39 In the aforesaid context, I may quote with profit the decision of the Supreme Court in the case of Dr. Ms. Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai [AIR 1987 SC 1100]. The point involved before the Supreme Court was whether the respondent No.1 therein was entitled to claim Page 8 of 14 HC-NIC Page 8 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER maintenance from the appellant, his married daughter, under Section 125(1)(d) of the Cr. P.C. The Supreme Court affirming the judgment of the Bombay High Court held as under:
8. We are unable to accept this contention. It is true that Cl.
(d) has used the expression "his father or mother" but, in our opinion, the use of the word 'his' does not exclude the parents claiming maintenance from their daughter. Section 2(y), Cr. P.C. provides that words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. S. 8 of the Indian Penal Code lays down that the pronoun 'he' and its derivatives are used for any person whether male or female. Thus, in view of S. 8, IPC read with S. 2(y), Cr. P.C. the pronoun 'his' in Cl. (d) of S. 125(l), Cr. P.C. also indicates a female. Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Therefore, the pronoun 'his' as used in Cl. (d) of S. 125(l) Cr. P.C. includes both a male and a female. In other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions a mentioned in the section are fulfilled. Before ordering maintenance in favour of a father or a mother against their married daughter, the Court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
40 In the case of Rajathi vs. C. Ganeshan [AIR 1999 SC 2374(1)], the Supreme Court made the following observations in para 8 as under:
8. We may also have a look at the provisions of the Hindu Adoptions and Maintenance Act 1956, which provides for maintenance to a Hindu wife. Under Section 18 of this Act a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life-time. Under sub-section (2) she will be entitled to live separate from her husband without forfeiting her claim to maintenance,- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; and (g) if there is any other cause justifying her living separately. Under sub-section (3) a Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or ceases to Page 9 of 14 HC-NIC Page 9 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER be Hindu by conversion to another religion. It will be apposite to keep these provisions in view while considering the petition under Section 125 of the Code.
41 Section 20(2) of the Hindu Adoptions and Maintenances Act 1956 reads as under:
A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
42 Thus, the Act of 1956 also makes it very clear that a legitimate or illegitimate child can claim maintenance from his or her father or mother. Therefore, the maintenance can be claimed from the mother also. In such circumstances, there is no difficulty in reading Section 125(1)(b) accordingly. However, the question in the present case is with regard to the right of the stepdaughter to claim maintenance from her stepmother.
43 The present Legislation is secular in nature and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. The Supreme Court had again an occasion to consider this aspect of the matter in Bhagwan Dutt vs. Smt. Kamla Devi [AIR 1975 SC 83]. In the said decision a reference was also made to section 125 of the new Code and then it was observed by the Supreme Court as under:
The question therefore resolves itself into the issue whether there is anything in Section 488 which is inconsistent with Section 23 or any other provisions of the Act ? This matter is no longer res integra . In Nanak Chand v. Chandra Kishore Aggarwal, this Court held that there is no inconsistency between Act 78 of 1956 and Section 488, Criminal P. C. Both could stand together. The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus. The law was substantially similar before when it was never suggested that there was any inconsistency with Sec.
488. Criminal P. C. The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
44 Therefore, it is quite obvious that the provisions of Section 125 as such are neither inconsistent nor are controlled by the provisions of Hindu Adoptions and Maintenance Act, 1956. Thus, the provisions of Section 125 of the Code will have to be construed having regard to the phraseology used in the section itself.
45 The Supreme Court in the case of Gulraj Singh vs. Mota Singh [AIR 1965 SC 608] had the occasion to consider the import of the word son or daughter which occurred in the Page 10 of 14 HC-NIC Page 10 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER Punjab Pre-emption Act, 1913, as amended by Act 10 of 1960. It was contended therein that the expression son or daughter should be so construed so as to include illegitimate children also. A further contention was also raised before the Supreme Court that the Pre-emption Act must be read in conjunction with the Hindu Succession Act, 1956 which made a provision for devolution of the property. Negativing this contention the Supreme Court observed as under:
We have, therefore, to ascertain whether by the expression son or daughter only the legitimate issue of such female is comprehended or whether the words are wide enough to include illegitimate children also. That the normal rule of construction of the words "child'', "son" or "daughter" occurring in a statute would include only legitimate children i.e., born in wedlock, is too elementary, to require authority. No doubt, there might be express provision in the statute itself to give these words a more extended meaning as to include also illegitimate children and S. 3 (j) of the Hindu Succession Act (Act XXX of 1956) furnishes a goods illustration of such a provision. It might even be that without an express provision in that regard the context might indicate that the words were used in a more comprehensive sense as indicating merely a blood relationship apart from the question of legitimacy.Section 15 with which we are concerned contains no express provision and the context, so far as it goes, is not capable of lending any support to such a construction. In the first place, the words "son or daughter" occur more than once in that Section. It was fairly conceded by Mr. Bishan Narain that where the son or daughter of a male vendor is referred to as in S. 15 (1), the words mean only the legitimate issue of the vendor. If so, it cannot be that in the case of a female vendor the words could have a different connotation. Even taking the case of a female vendor herself, there is a reference in S. 15(2) (a) (i) to the brother's son of such vendor. It could hardly be open to argument that a brother's illegitimate son is comprehended within those words. The matter appears to us to be too clear for argument that when S. 15 (2) (b) (i) uses the words "son or daughter" it meant only a legitimate son and a legitimate daughter of the female vendor.
46 In Mallappa v. Shivappa [AIR 1962 Mys 140] a question arose as to whether the term son as used in section 15(1)(a) of the Hindu Succession Act, 1956 will include a step- son. In this context a Division Bench of the Mysore High Court observed as under:
In the absence of any definition or explanation to the effect that the word 'son' would also include a step-son, that word should be given its natural meaning; if so, a son of a deceased female would mean a male issue of the body of that deceased female.(It may also include a boy taken in adoption, who, in law, stands on the same footing as a natural son; but, with this question, we are not at present concerned).The position, therefore, is that the plaintiff who is a son of the step-son of the defendant No.4, cannot claim to be a son of the deceased Page 11 of 14 HC-NIC Page 11 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER 4th defendant. As the son of a step-son, he may have the right to succeed under Section 15 (1) (b) of the Hindu Succession Act, as the heir of the husband of the deceased defendant No.4; but, defendant No.1 being the son of the deceased defendant No.4, has the right to succeed under Section 15 (1) (a) and would be the preferential heir. In the 12th Edition of Mulla's 'Principles of Hindu Law',it is stated, with reference to S.15 of the Hindu Succession Act, at page 984, as follows:
''A 'step-son' is not entitled as 'son' to inherit to his stepmother as one of the heirs under this Entry. But he can succeed to her property as an heir of her husband under Entry
(b)".
47 In my opinion, while construing Section 125 of the Code also, in the absence of any definition or explanation to the effect that the words legitimate or illegitimate child would also include a stepchild, that word will have to be given its natural meaning and if so construed, the legitimate or illegitimate child would mean only a child which has been given birth by a woman from whom the maintenance is being claimed. A stepdaughter is not an illegitimate child but a daughter of ones spouse born through another spouse. Section 125 contemplates blood relation which gives rise to moral and legal obligation to maintain a person.
48 I am dealing with a statute which is secular in nature and is not controlled as such by the provisions of the Hindu Adoptions and Maintenance Act, 1956, although it would be apposite to keep those provisions in view while considering the petition under Section 125 of the Code. The language used in Section 125 of the Code is plain and unambiguous. The words legitimate or illegitimate as used in Section 125 must, therefore, be presumed to carry its plain literal meaning in the absence of any evidence that it was intended to mean something else or include a stepchild also.
49 It is not open to this Court to supply the omission by extending the meaning of the word of the words legitimate or illegitimate child in the guise of interpretation by analogy or implication only because this Court feels that it will be in conformity with the principles of social justice and equity.
50 In the aforesaid context, a reference could usefully be made to the observations of the Supreme Court in Commission of Sales Tax, Uttar Pradesh vs. M/s. Parson Tools and Plants, Kanpur [AIR 1975 SC 1039]. If the legislature wi1fu11y, omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity.
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"To do so" - (at p. 65 in Prem Nath L. Ganesh v. Prem Nath L. Ram Nath AIR 1963 Punj 62. Per Tek Chand J.) "would be entrenching upon the preserves of Legislature", the primary function of a court of law being jus dicere and not jus dare.
51 Therefore, it is not possible for me to accept the contentions of Ms. Punani, the learned Additional Public Prosecutor as well as Mr. Ankur Oza, the learned advocate appearing for the respondent No.2.
52 The analogy explained by the Supreme Court in the case of Kirtikant (supra) would apply in the present case. The children of another have not been mentioned in the entire Section 125 of the Cr. P.C. nor any right has been conferred on them to claim maintenance. There was an enactment in the United Kingdom known as the Family Relations Act, which, of course, now stands repealed and substituted with a new enactment. The provisions therein provided that where step parent or common law partner of someone with a child had been standing in the role of parent, known as in loco parentis, the Court would order that person to pay child support, even though they were not biologically related to the child.
53 However, child support could also be ordered where the person was found to be a parent, which was defined under the Family Relations Act as under:
A parent includes
(a) a guardian or guardian the person of a child, or
(b) a stepparent of a child if i. the stepparent contributed to the support and maintenance of the child for at least one year, and ii. the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;
54 Section 1(2) of the Act stated as under:
(2) For the purpose of paragraph (b) of the definition of parent in subsection (1), a person is the stepparent of a child if the person and a parent of the child
(a) are or were married, or
(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.
55 Thus, the Court could order a step-parent to pay child support in three contingencies:
The step-parent:
was either in a marriage-like (common law) relationship with the childs parent for at least two years OR married to the Page 13 of 14 HC-NIC Page 13 of 14 Created On Sat Jan 23 01:52:44 IST 2016 R/SCR.A/1373/2014 ORDER childs parent for any length of time; AND contributed to the childs support or maintenance for at least one year; AND last contributed to the childs maintenance or support within one y ear of the date that the child support claim was filed with the court.
56 However, it is for the Legislature to look into this issue in the interest of a helpless child who is thrown out by his stepfather or stepmother and there is none to take care of such child. "
5. I am told that according to the understanding arrived at, at the time of dissolution of the marriage, the natural father i.e. Mayankkumar had undertaken to maintain his daughter namely Barbi. I am sure that the natural father would take care of the interest to his own daughter Barbi.
6. In view of the settled position of law, this application succeeds and is allowed. The impugned order passed by the Court below is hereby ordered to be quashed. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) Manoj Page 14 of 14 HC-NIC Page 14 of 14 Created On Sat Jan 23 01:52:44 IST 2016