Karnataka High Court
Smt. S.K. Chandrika vs Smt. Byamma And Others on 4 January, 1999
Equivalent citations: 1999(2)ALT(CRI)488, I(2000)DMC185, 1999(5)KARLJ183
ORDER
1. This revision petition under Section 19(4) of the Family Courts Act (as amended by Act No. 59 of 1991) arises from the judgment and order dated 15-4-1998 passed by Smt. Rathnakala, II Additional Principal Judge, Bangalore, in Miscellaneous Case No. 480 of 1996 whereby the learned subordinate Court has overruled the objections raised by the present revision petitioner to the maintainability of the application for maintenance under Section 125 of the Code of Criminal Procedure and has held that the petition under Section 125 was maintainable.
2. The facts of the case in the nutshell are that the minor children of the revision petitioner filed the claim for maintenance under Section 125 of the Code of Criminal Procedure against their mother who has been working as a woman Police Constable in Ulsoor Gate Mahila Police Station, Bangalore. A preliminary objection was raised on behalf of the present revision petitioner who was respondent before the Court below to the effect that the application for maintenance was not maintainable against the mother who is a female. The contention was to the same effect as has been raised here. The contention raised before the Court below was that Section 125 of the Code of Criminal Procedure only fastens the liability and makes the petition under Section 125 maintainable against a male and not against a female including the mother and as such, the application under Section 125 should have been rejected. The learned Court below considered the matter and opined that the contention raised on behalf of the present revision petitioner i.e., respondent before it was without substance and rejected that contention and held that there was no bar for petitioners in the matter of their proceeding against their mother. As such, the petitioners' mother has come up before this Court by revision under Section 115 of the CPC.
3. It has been contended, as a preliminary objection, on behalf of the respondents, that the petition is under Section 115 and was not maintainable.
3-A. It is one of the trite principles of law that if a petition is maintainable under a correct provision of law or powers are vested under a correct provision of law, then those powers can be exercisable by the Court and the reference to a wrong provision of law will not make the application to be not maintainable nor will make the order illegal. As such, even if revision is not maintainable under Section 115, real course open to the person affected by the order, could be under Section 19 of the Family Courts Act. I propose to deal with this question whether revision is maintainable under Section 19 itself or not. But, before I proceed, I may also make a reference to the contention raised by the learned Counsel for the revision petitioner on merits. Learned Counsel for the petitioner contended that a perusal of language of Section 125 leads to that, in Section 125 expression 'person' has to be read as referring to a male. It may refer to a husband, it may refer to a father of the minor child. But person is not to be taken as to refer to the wife or to the mother of the minor children. He made reference to use of expression "his" used in clauses (a), (b), (c) and (d) to Section 125 and to the use of expression "father" with that of expression "minor female child" used in the proviso and on that basis, learned Counsel for the petitioner Sri M.C. Ramachandra contended that a perusal of Section 125 per se reveals that application for maintenance filed by the minor children against the mother was not maintainable. He made a reference to a decision of Punjab and Haryana High Court in the case of Raj Kumari v Yashodha Devi.
4. On behalf of the respondents Sri M.B. Nanjunde Gowda submitted that the present revision petition is misconceived and is not maintainable even under Section 19 itself. Learned Counsel contended that the order in question is not a final order. It is in the nature of a interlocutory order and final order is yet to be passed in the case. Learned Counsel for the respondents placed his reliance on sub-section (5) of Section 19. While meeting his contention or preliminary objection, learned Counsel for petitioner made a reference to sub-section (4) (as amended) of Section 19 of the Family Courts Act. As regards merits of the claim, it has been contended on behalf of the respondents in reply to the arguments of the petitioner's Counsel that person herein includes the natural person, a male or female and both are to be taken to be included in this. Sri Gowda contended that Section 125 is a provision in the nature of social welfare legislation to enable the divorced wife or minor children from the vagaries of life and not to lead them to be subjected to frustration of life or destitution. Therefore, its being a social welfare legislation, it has to be interpreted in the best possible interest of the society and in the interest of social purpose keeping in view the provisions of the General Clauses Act as well.
4-A. As regards the preliminary objection, it will be appropriate at this juncture to quote the material portion of Section 19 of the Family Courts Act. For our purpose, sub-section (4) and sub-section (5) of Section 19 are material.
"Section 19. Appeal-
(1) xxx xxx xxx. (2) xxx xxx xxx. (3) xxx xxx xxx.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within the jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court".
A reading of sub-sections (4) and (5) clearly reveals from the orders passed under the Code of Criminal Procedure, revision may lie to this Court subject to certain conditions namely that order impugned should be an order of final nature and not an interlocutory order. It has to be taken note of no revision is maintainable from the interlocutory order even if order is passed under the Criminal Procedure Code. Further, the purpose of this power is that Court has to satisfy itself as to the correctness, legality or propriety of the order and as to the regularity of these proceedings. But, apart from the orders of final nature and apart from orders passed under Chapter IX of the Code of Criminal Procedure, no revision is entertainable under Section 19(4). But, if the order passed under Criminal Procedure Code itself is of interlocutory nature, then it is not revisable under Section 19(4) of the Act and no such order is revisable under Section 19(4) nor is appealable in view of Section 19(5). It means that orders if passed under the provisions of other Act, may be under Section 24 of the Hindu Marriage Act or otherwise, revision may not be maintainable. Anyway, I am not expressing any final opinion on revisibility of orders passed under Section 24 or Section 25 of Hindu Marriage Act or the like under Section 19(4). But, it clearly indicates that orders under the Criminal Procedure Code may be revisable. In the present case, a preliminary objection was raised as to the maintainability of the application against the order. The Court has prima facie held that application is maintainable, but the final order has yet to be passed granting maintenance. No doubt, if revision would have been maintainable under Section 115, such an order could be said to have amounted to a case decided under the CPC, it means order being case decided could be challenged under Section 115. But, in view of express language of sub-section (5) of Section 19, revision under Section 115 would not have been maintainable from such an order. The final order could have been passed, after disposing of the objections as to maintainability of application, after determining the quantum of maintenance to be awarded. No such order is there. The present order being of interlocutory nature and not a final order, the revision from the present order could not be maintainable, no doubt, had the order granting maintenance been passed as well after overruling the objections, revision under Section 19(4) would have been maintainable. If the application for maintenance would have been rejected holding that application for maintenance was not maintainable against the mother and so the claim for maintenance is rejected, definitely revision under Section 19(4) would have been maintainable as that order would have amounted to a final order rejecting the claim for maintenance under Section 125 on the ground that the application was not maintainable. A nice question of law has been raised as to the question of maintainability of the maintenance application. It would be appropriate to refer to Section 125 of the Code of Criminal Procedure.
"Section 125. 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 purposes of this Chapter.-
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (19 of 1875), is deemed not to have attained his majority.
(b) "wife" includes 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 month's 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:
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 grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.--If a husband has contracted marriage with another woman or keeps 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 allowance 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".
In sub-section (1) expression used is "any person having sufficient means". "Person" is a term of wider connotation. It may include natural person or juristic person if context so requires. At this stage, it will be appropriate and proper to refer to the provisions of the General Clauses Act, 1897 as the General Clauses Act applies to the interpretation of Central Act. Section 3 of the General Clauses Act contains the definition clauses. Section 3 reads as under.-
"Section 3. Definitions.--In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,--
3(42) "person" shall include any company or association or body of individuals, whether incorporated or not".
This definition is inclusive and illustrative. It means that it may include in itself a natural person as well as a juristic person. Natural person means an individual without distinction of male or female and as such, person may include a female as well. Section 13(1) of the General Clauses Act, 1897 reads as under.-
"Section 13. Gender and number.--In all Central Acts and Regulations, unless there is anything repugnant in the subject or context.-
(1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa".
5. Learned Counsel for the petitioner invited my attention to the definition clause given in the Code of Criminal Procedure and in particular to clause (y) of Section 2 of the Code of Criminal Procedure and with reference to that he invited my attention to certain provisions of the Indian Penal Code. Section 2(y) of the Criminal Procedure Code reads as under.-
"2. Definitions.--In this Code, unless the context otherwise requires.-
(y) 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".
Chapter 2 of the Indian Penal Code deals with general explanation. Learned Counsel for the revision petitioner made reference to Section 8 which reads as under.-
"Section 8. Gender.--The pronoun 'he' and its derivatives are used of any person, whether male or female".
It means "he" may be read as "she" also and "his" may be read as "her" as well. Section 10 of the Indian Penal Code specifically points out the meaning of man and woman. Section 10 defines "man" and "woman" as under.-
"Section 10. "Man" and "Woman".--The word "man" denotes a male human being of any age; the word "woman" denotes a female human being of any age".
Where expression where "he" or "she" is used or "his" or "her" is used, that will not be controlled by Section 10, but that may be controlled by definition given in Section 8 of the IPC. Section 11 of the IPC defines "Person". "
"Section 11. Person.--The word "person" includes any Company or Association or body of persons, whether incorporated or not".
Again the definition of "person" is distinguished from "man" and "woman". "Person" may include a natural person, may be "male" or "female", it will also include a juristic person as given in the General Clauses Act. But where Legislature specifically intends to refer to male human being, it may use as "man" or "woman". Taking into view these definitions and explanations in the IPC as well as the General Clauses Act for the purpose of Section 125 when Section 125 uses the word "person", it has to be taken to include both "male" and "female". It means that if any "male" or "female" having sufficient means neglects or refuses to accept "his" or "her" liability to maintain then if other conditions of either clause (a), (b) or (c) of Section 125 are shown to exist, liability may be fastened to maintain. Here, the case is not of the husband making a provision for maintenance. So, I don't express any opinion on that. I leave it for consideration at appropriate stage when any such problems or question arises before the Court in that context. But, no doubt, as regards child, legitimate or illegitimate child, male or female, unable to maintain itself has got the right to be maintained by his parents male and female, and expression "his" has to be read as "her" also. In the same way, under clause (c) expression used is legitimate or illegitimate child, exception has no doubt been made to it clearly, by expressions not being a married daughter which is clearly indicative of the fact that the person who has sufficient means if he has got legitimate or illegitimate child, male or female, who has attained majority who has physical or mental abnormality and is unable to maintain himself or herself, liability is of the person concerned to maintain with exception to the case of a married daughter who has attained majority. But, in case of minor children, no exception has been provided. In view of Section 8, when "he" or "his" is used, it has to be read including in itself "she" or "her". If we look to sub-section (3) as well, the Legislature has used the word, "if any person so ordered" means where a person having sufficient means be a father or mother neglects to maintain his or her children, legitimate or illegitimate, minor or major, with exception to clause (c) and he has been ordered to maintain them without any sufficient cause, fails to comply with the order, the Magistrate has been given power to issue warrant. When Legislature has not used the expression of "man" but used "person", it includes "male" and "female" and it cannot be read to be referring to "man" only. The provisions of Section 125 are social welfare legislation. The object of such a provision has been considered to be that such persons who are not able to maintain them-
selves, they should not be left to the agony of starvation, frustration or of destitution and in case of female destitution, which may lead to prostitution. To avoid such a situation, the legislature has enacted this provision. A social welfare legislation has to be interpreted keeping in view the object of the provision. If a female person is earning and she has got minor children to maintain and she refuses to maintain the minor children, be it be male or female, then definitely she is liable to maintain them as the legislature has not used the expression "man" or "woman", but "person", it has to be taken that person includes both male and female, "his" may also be interpreted as "her" in view of the above provisions of the General Clauses Act as well as provisions of the IPC referred to above. In sub-section, again the legislature has used the expression "any person". So, in my opinion, the petition for maintenance under Section 125, no doubt, is maintainable against the mother irrespective of the fact that mother belongs to feminine gender. In the decision given by the Punjab and Haryana High Court referred by the revision petitioner's Counsel, the question involved was question of liability of maintaining the father and mother, and the question was whether son is only liable or daughter is also liable. In that decision, no doubt, reference has been made to Section 11 of the IPC, but neither Section 8 of the CPC nor Section 13 of the General Clauses Act nor illustrative nature of the section has been considered. Anyway, I am unable to agree with the view expressed by the Punjab and Haryana High Court in the case of Raj Kumari, supra. The question of maintenance of old parents if a person has no son and parents are old aged, question is whether they should be left to die of starvation or frustration or destitution, to vagaries of life particularly when daughters are given share in the property of the father, then why they should not be held liable to maintain their old parents. Anyway, I have observed earlier, I am unable to accept the view expressed by that decision by Punjab and Haryana High Court. I agree with the decision of Andhra Pradesh High Court in the case of Repalli Masthanamma v Thota Sriramulu and Another, in which Single Judge of the Andhra Pradesh High Court has taken the same view as I have taken that here "person" includes both "male" and "female" and "his" is to be read as "her" also.
6. Thus considered in my view, the learned Court below was justified in holding that the application under Section 125 filed by the children against their mother was maintainable. There was no error of law committed on the part of the Court below in holding the application to be maintainable.
7. Thus considered, present revision petition is without merits and it is hereby dismissed with costs. Let the subordinate Court proceed with the matter of considering and determining the question of maintenance and its quantum.