Gauhati High Court
Akham Joy Kumar Singh vs Akham Ibobi Singh And Ors. on 6 April, 2004
Equivalent citations: (2005)3GLR236
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. This Revision Petition has tried to invoke provisions of Article 227 of the Constitution of India as well as Section 401 of the Code of Criminal Procedure, 1973 praying for quashing the order dated 22.9.2003 passed by the Family Court in Cril. Misc. Case No. 27 of 2003 arising out of Cri. Maintenance Case No. 45 of 2002.
2. The order impugned has rejected an application for impleadment of other sons and daughters of the parents (respondent Nos. 1 and 2 herein). The petitioner herein Shri Akham Joykumar Singh who was O.P. No. 2 in the petition for maintenance has submitted that this petition is intended to interpret the phrase appearing in Section 125(1)(d) of the Criminal Procedure Code, 1973, which goes as follows:
any person, having sufficient means, neglects or refuses to maintain....
...
... his father or mother....
3. According to the petitioner, respondent Nos. 1 and 2 who are his parents filed a case in the Family Court, Manipur, seeking maintenance against two of their sons, i.e. present petitioner and pro forma-respondent No. 3. The Family Court, vide order dated 19.6.2003 passed in Cri. Misc. Case No. 4/2003, directed the present petitioner and proforma - respondent to pay in the interim maintenance at the rate of Rs. 1000 and Rs. 500 respectively to each of the respondent Nos. 1 and 2.
4. The petitioner submitted a petition before the Family Court for impleadment of all the sons and daughters of respondent Nos. 1 and 2 as all of them were having sufficient means to provide maintenance and there are as many as 7(seven) sons and daughters of respondents/ claimant Nos. 1 and 2. It was rejected by the impugned order dated 22.9.2003 by the learned Judge, Family Court and hence this petition.
5. None appeared when the case was called on for hearing. I have perused the relevant materials and contents of the revision petition and consulted the relevant laws.
6. Going particularly through the impugned order, I find that learned Judge, Family Court has discussed the contentions of revision petitioner before recording the findings and concluded as follows:
In chapter IX of the Code of Criminal Procedure there is no provision for joinder or non-joinder of necessary party; or for that matter misjoinder of parties as provided under Order 1 C.P.C. There is no provision of law under Chapter IX Cr.P.C. whereas case would failed for non-joinder of necessary parties; and nothing is contained in the said provision about who are necessary parties and who are not. Considering this, I find no ground for impleading the other sons and daughters, the petitioners as O.P. in the maintenance case. Thus, this application for impleading all the sons and daughters of the petitioners stands rejected.
7. Chapter IX of Cr.P.C, 1973 is a self-contained chapter dealing exhaustively with all the questions regarding "Order of Maintenance of Wife, Children and Parents". The question of maintenance, generally speaking, is a civil liability. But this chapter being introduced in Criminal Procedure Code has its own objective and implications. The provision is a measure for social justice and specially enacted to protect women, children and old and infirm parents in the event of their inability to maintain themselves. Sub-section (3) of Section 125 thus, makes the provision for issuance of sentence of imprisonment in case of default in payment of the allowances ordered by the Court. Section 126 gives the procedure, Section 127 makes provision of alteration in the allowance 'on proof of change of circumstances' and concluding Section 128 prescribes the manner and mode of enforcement of order passed under Section 125, Cr.P.C.
8. For the sake of convenience let us have a critical look into the words and language of the first section of the Chapter, i.e., Section 125, relevant part of which goes as hereunder:
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 authority or injury unable to maintain itself, or
(d) his father or mother unable to maintain himself or herself.
A plain reading of the law shows that Legislature has intentionally used the word 'any person' thereby definitely meaning that any of the several persons may be chosen and it is not obligatory on the part of the claimant seeking maintenance to name all the persons 'having sufficient means' to be proceeded against, or in other words, it is optional for a claimant to seek an order of maintenance from any of the several persons, if there are more than one, having sufficient means, 'having sufficient means' is the qualifying phrase for 'any person' notwithstanding. I repeat, from the reading of the law, it appears that there is nothing obligatory either on the part of the Magistrate or on the part of the person seeking relief under Section 125 Cr.P.C. to include all sons and daughters when the parents are claimants. It appears the claimant has an option to choose.
9. I am tempted to reproduce the excerpts from citation , Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajaram Sawai and Anr., which makes the position clear. In that case Hon'ble Apex Court observed/held as hereunder -
6. There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian Society casts a duty of the children of a person to maintain their parents also their duty to look after their parents when they become old and infirm.
7...
8. We are unable to accept this contention. It is true that Clause (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 Section 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 Section 8, IPC read with Section 2(y), Cr.P.C. the pronoun 'his' in Clause (d) of Section 125(1), Cr.P.C. also indicates a female. Section 13(1) of the General Clauses Act lays down that in al 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 Clause (d) of Section 125(1), 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 as 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.
9. Much reliance has been placed by the learned counsel for the appellant on a decision of the Kerala High Court in Raj Kumari v. Yashodha Devi, 1978 Cri LJ 600. In that case it has been held by a learned Single Judge of the Kerela High Court, mainly relying upon the report of the Joint Committee on the Criminal Procedure Code Bill, 1973, that a daughter is not liable to maintain her parents who are unable to maintain themselves. The Joint Committee in their report made the following recommendations (para 5):
The committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recognised by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means. If there are two or more children the parents may seek the remedy against any one or more of them.
(emphasis supplied)
10. The learned Judge of the Kerala* High Court did not refer in his judgment to the sentence which has been adicised. It is true that in the first part of the report the word 'son' has been used, but in the later part which has been underlined the recommendation is that if there are two or more children the parents may seek the remedy against any one or more of them. If the recommendation of the Joint Committee was that the liability to maintain the parents, unable to maintain themselves, would be on the son only, in that case, in the later portion of the report the Joint Committee would not have used the word 'children' which admittedly include sons and daughters. In our opinion, as we read the report of the Joint Committee, it did not place the burden of maintaining the parents only on the sons, but recommended that the liability to maintain the parents should be of the sons and daughters as well. We have referred to the report of the Joint Committee inasmuch as the same has been relied upon in Raj Kumari's case (supra) by the Kerala High Court and also on behalf of the appellant in the instant case. When the statute provides that the pronoun 'his' not only denotes a male but also a female, we do not think it necessary to refer to the Report of the Joint Committee for the interpretation of Clause (d) of Section 125(1), Cr.P.C. The father or mother, unable to maintain himself or herself, can claim maintenance from their son or daughter. The expression 'his' father or mother" is not confined only to the father or mother of the daughter (sic). In other words, the expression "his father or mother" should also be construed as "her father or mother".
10. Here in this revision petition no counsel appeared and after going through the contents of the petition, I find no law has been referred to substantiate the contention of the petitioner that all sons and daughters are to be joined in such proceedings and should be treated as having joint liability to provide maintenance. Therefore, examining from all available corners, I find no infirmity in the impugned order and accordingly, the allegation of illegality and impropriety is without any substance.
11. In the result, petition is rejected. Send back the LCRs, called for, immediately.