Andhra HC (Pre-Telangana)
Ayyagari Suryanarayana Vara Prasada ... vs Ayyagari Venkatakrishna Veni And Anr. on 22 April, 1988
Author: K. Jayachandra Reddy
Bench: K. Jayachandra Reddy
JUDGMENT Jayachandra Reddy, J.
1. The concept of "maintenance" is always being favoured by all religions and corresponding laws. Under many laws in which the concept of maintenance is recognised, there are provisions insisting upon the maintenance and support of various members of family. It can be insisted where this pious duty is not being discharged dutifully. Therefore, to compel such persons to support these who are to be maintained by them, the necessity of providing some penal provisions was felt. In our Code of Criminal Procedure formerly S. 488 was introduced for compelling persons mentioned therein, having sufficient means to maintain wife, father, mother, etc. In the Code of Criminal Procedure, 1973, S. 125, on the same lines, is introduced and this section authorises the Judicial Magistrate of First Class to order under certain circumstances payment of maintenance to wife, legitimate, illegitimate minor children, father and mother who are unable to maintain themselves. The object of these proceedings regarding maintenance is to prevent the vagrancy by compelling a person to support the persons mentioned in the provisions of that law. Though these provisions are not strictly penal, yet they certainly entrust a duty, the default of which may lead to vagrancy, and these provisions are intended to check the same and ensure supply of food, clothing, etc. to the deserted wife, children and parents.
2. The question that arose in the instant case is whether a step-mother is entitled for maintenance under S. 125 of the Code of Criminal Procedure. The stepmother filed an application M.C. 18 of 1986 on the file of the II Addl. Judicial Magistrate of First Class, Eluru, against her step-son claiming maintenance. It must be mentioned that the respondent-son was born to this father through legally wedded second wife, but she died. The father married this lady, i.e., the petitioner, and by virtue of that marriage she became the step-mother to the respondent. A preliminary objection was raised by way of an application before the learned Judicial magistrate of First Class that she is not entitled to maintenance and that objection was upheld and that application was allowed, and the petition for maintenance was dismissed.
3. Against these two orders, the stepmother filed two Crl. Revision Petitions (34 and 35 of 1986) before the learned Addl. Sessions Judge, West Godavari Division at Eluru, who following a judgment of this court reported in Appayyamma v. Bondayya (1987) 2 APLJ (HC) 153, allowed the two revisions. As against those two revisions, the step-son filed these two Crl.R.Cs. which came up for hearing before Ramanujulu Naidu, J. The learned Judge doubted the correctness of the view taken in Appayyamma's case (supra) and has referred these two cases to a Division Bench. That is how these cases are before us.
4. The learned counsel appearing for the petitioner submits that step-mother does not come within the meaning of 'mother' which expression appears in S. 125 of the Code of Criminal Procedure.
5. In Appayyamma's case (1987 (2) APLJ (HC) 153) (supra) the learned Judge (Radhakrishna Rao, J.) agreed with the views taken by the Gujarat and Orissa High Courts. The decision of Gujarat High Court reported in Havaben Karimbhai v. Razakbhai, (1978) 19 Guj LR 237 was followed by Orissa High Court in Pitel Bewa v. Laxmidhar Jena, 1985 Cri LJ 1124. There it was held that the step-mother is entitled to maintenance under S. 125 of the Code of Criminal Procedure. Bombay High Court however took a different view in Ramabai v. Dinesh, 1976 Mah LJ 565.
6. Ramanujulu Naidu, J. in his order of reference, observed that there is a fundamental difference between the status of an adoptive mother and a step-mother and the view taken by the High Courts that the adoptive mother gets the status of mother for the purpose of S. 125 of the Code of Criminal Procedure is a correct proposition, particularly having reference to the principles of Hindu Law. But the same cannot be applied to a step-mother. Since the learned Judge (Ramanujulu Naidu, J.) felt this is an important question, he has referred the same to the Division Bench.
7. The first question that arises for consideration is : Whether in interpreting the expression 'wife', 'mother', 'father' and 'child' used in S. 125 of the Code of Criminal Procedure, can the Courts have recourse to the provisions of personal law to appreciate the context in which they are used ? In Yamunabai v. Anantrao, the Supreme Court held that "The attempt to exclude altogether the personal law applicable to the parties from consideration is improper. S. 125 has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties." It must be mentioned in that case a second wife claimed maintenance and the question came up whether she comes within the meaning of 'wife' for the purpose of S. 125 of the Code of Criminal Procedure. Their Lordships in that context held that the expression 'wife' must be given the meaning in which it is understood in law applicable to the parties and subject to the explanation (b) under clause (1) of S. 125 of the Code of Criminal Procedure viz., the 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. It is held that a woman who is married second time and which marriage is unlawful according to Hindu Law, cannot attain the status of wife and therefore cannot claim maintenance under S. 124 of the Code of Criminal Procedure, though she has other remedies. It can therefore be seen that in considering the question whether the step-mother gets the status of mother, the court has to consider the personal law applicable to the parties. In the Hindu Adoptions and Maintenance Act, 1956 S. 20(1) provides maintenance of children and aged parents. The explanation to this section reads thus :
"In this section "parent" includes a childless step-mother."
But this may not be of any help in interpreting the meaning of the word 'mother'. According to Hindu Law the 'mother' is one who has given birth to the child. No doubt a step-mother can be a dependent, but she cannot, as a matter of right, claim maintenance under S. 125 of the Code of Criminal Procedure. Even otherwise in the instant case the respondent-step-mother is not childless and she is having her own children. Therefore the Explanation to S. 20(1) of the Hindu Adoptions and Maintenance Act is of no help so far the respondent is concerned.
8. At this stage we may also point out that in the case of adoption it must be remembered that the son becomes "aurasa" son to the adoptive mother thereby she gets the status of 'mother'. The same analogy cannot be applied to the case of a step-mother.
9. For the above reasons to hold that the step-mother cannot attain the status of a 'mother' for the purpose of claiming maintenance under S. 125 of the Code of Criminal Procedure. She may seek the other remedies open to her in law. The Crl.R.C. is allowed.
10. Revision allowed.