Find a Lawyer

Criminal Revision No. 281 of 1964, decided on 9th February 1965.

‑Word "child"‑‑Meaning according to context‑‑Word "child" in S. 488 used with reference to parentage and means son or daughter irrespective of age‑Only qualification imposed by section : that child must be unable to maintain itself‑[Gangaramsa v. Sishnusa 23 Cr. L J 167 ; Jambapuram Subbama v. Jambapuram Venkata Reddi A I R 1950 Mad. 394 and Ranchhoddas Narottamdas v. Emperor A I R 1949 Bom. 36 dissented from].

Gangaramsa v. Sishnusa 23 Cr. L J 167; Jambapuram Subbama v. Jambapuram Venkata Reddi A I R 1950 Mad. 394 and Ranchhoddas Narottamdas v. Emperor A I R 1949 Bom. 36 dissented from.

Mst. Khedani Rajwarin v. Lagan Singh 22 Cr. L J 336; Shaikh Ahmed Shaikh Mohamed Ashraf v. Bal Fatma A I R 1943 Bom. 48 ; T. Kanniah Naidu v. Rajammal A I R 1941 Mad. 685; W. L. Faria v. Anita Merlene Faria and another A I R 1951 Cal. 66; Purnashashi Debi v. Nagendra Nath Bhattacharjee 87 C L J 185 and Sughra Begum and others v. Muhammad Din 9 D L R Lah. 37 ref.

‑Maintenance of children‑Compromise between parties that father would maintain children till age of majority‑Magistrate directing maintenance to be paid from date of application "till law permits"‑Objection that Magistrate was not justified in awarding maintenance impliedly beyond age of majority ‑ Objection, held, not sustainable‑No agreement on behalf of minors can be valid or enforceable‑Contract Act (IX of 1872), S. 11.

‑Maintenance of children‑Mere willingness or readiness of father, at very outset of application, to maintain children‑Does not disprove refusal or negligence on behalf of father to maintain children.

Pal Singh v. Mst. Nihal Kaur A I R 1932 Lah. 349 ref.

B. N. Chowdhury for Petitioner.

B. All for the Opposite‑Party.

In this case a Rule was issued on the Deputy Commissioner of Rajshahi and the opposite party to show cause why the order made by Mr. S. Mosawwar, Magistrate 1st Class, Rajshahi directing the petitioner to pay maintenance to his four children at the rate of Rs. 15 per month till law permits from the month of February, 1964 should not be set aside.

The petitioner's case is that the opposite‑party‑ Mst. Shamsunnahar Begum filed an application under section 488 of the Code of Criminal Procedure for the maintenance of her four children and also for herself and the learned Magistrate made the following order

"2nd party Omar Ali Sheikh shall pay maintenance to his four following children namely (1) Golanahar Banu aged 7 (seven), daughter, (2) son Saiful Islam aged 5 years ; (3) son of Abdul Salam aged 3 years and (4) daughter Ferdausi, aged one year. On the date of applications a1 Rs. 15 per month till law permits from this month, i.e., February, 1964."

Mr. B. N. Chowdhury, learned Advocate for the petitioner submits that the learned Magistrate ought to have limited the payment to the children to the age of majority. Even if this contention of Mr. Chowdhury would be correct, the order as made by the learned Magistrate is sustainable. He has not said that the payment is to be made even after the children attain the age of majority. He has used the expression "till law permits". There should, therefore, be no interference with the impugned order on the ground urged by Mr. Chowdhury.

Section 488 (1) is in the following terms:

"If any person having sufficient means of neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate, a sub‑divisional Magistrate or a Magistrate of the first class may, upon proof of such neglects 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 one 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."

Mr. Chowdhury has founded his arguments on the word child' as used in the section. If the section is read as a whole it is clear that the Legislature has used the terms child' to provide that a male or a female issue, whether legitimate or illegitimate of a father, can claim maintenance if he neglects or refuses to maintain it. Had it been the intention of the Legislature to limit the right to maintenance to a certain age, it would have specifically provided for the same. The word child' has been used to mean either a daughter or a son and it is clearly laid down that on fulfillment of the conditions envisaged in the section, a child whether a daughter or a son would be entitled to maintenance. The founda tion of such a claim is based on the inability "to maintain itself" and not on his or her being within certain age‑group.

Mr. Chowdhury has placed his reliance in support of his condition on the case of Gangaramsa v. Sishnusa (23 Cr. L J 167). In that case it was held that the word child' in section 488 of the Code of Criminal Procedure means a person who has not attained the age of majority. For the reasons already indicated find myself unable to agree with the view expressed in this case.

The next case relied on by Mr. Chowdhury is the decision of a learned single Judge of Madras High Court in the case of Jambapuram Subbama v. Jambapuram Venkata Reddi (A I R 1950 Mad. 394). In that case the learned Judge expressed himself in the following terms:

"I am unable to agree with the contention of the learned counsel for the petitioner that a "child" for the purpose of section 488, Criminal P. C., may be of any age, and need only be unable to maintain itself. The petitioner's counsel urged that child" in section 488, Criminal P. C. means only "progeny". If that were so, a man of 77, unable, owing to senility, to maintain himself, can sue his father aged 97 for maintenance, as his "child". This is manifestly absurd. Though a child may mean "a child in the womb", as well as this old man of 77, and a person below 14, for the purposes of Children's Act, etc., the meaning of the word in section 488 which contains no definition of it, must be taken to be a "minor" whether under the Indian Majority Act, or the Court of Wards Act or the Guardians and Wards Act."

The learned Judge seems to have taken the view that if no limita tion is placed in regard to age, a man of 77 will also be able to claim maintenances from his father who may be 97. Speaking with respect, I do not think why it should be considered as absurd that the Legislature would not like to give such a right to a child so that even when he is 77, he can claim maintenance from his father who is 97. For instance, in a case where the only source of income of a family is limited to immovable properties, which would be inherited by a son on the death of his father and if the practice of the family is to live on the income of these properties, the child whatever may be its age, should be maintained unless it is able to maintain itself. If the Legislature intended that this should not be so, the other view also would give rise to the absurdity. Suppose a young man of 22 pursuing his education in a college is not maintained by his father, he will have no claim for maintenance as he has already crossed the age of majority. The Legislature, to my mind does not have intend the deprivation or maintenance in case of this nature. This is why the only limita tion imposed on the claim of maintenance is inability to maintain the child itself. I, therefore, speaking again with respect, differ from the view taken by the learned Judge of the Madras High Court.

In the case of Ranchhoddas Narottamdas v. Emperor (A I R 1949 Bom. 36) a Division Bench of the Bombay High Court consisting of Sen and Jahagirdar, JJ., held as follows:

"Though the word child' has not been defined in the Code it has been, however, held that a person is a child for the purposes of this section till he attains the age of majority: Hemanta Kumar Banerji v. Manorama Debi, 62 Cal. 639. (A I R 22) 1935 Cal. 488. Under this section a daughter does not on marriage ipso facto loose her right of maintenance from the father. Th.‑ real and only test is whether that child is unable to maintain itself."

The learned Judges have said that the real and only test is whether the child is unable to maintain itself. In this case it does not appear to have been considered that the word child' may also mean a male or a female issue of a father, namely a boy or girl and for the reasons already indicated, I am unable, speaking with respect, to agree with the view expressed in this case.

It will, however, be seen that Mr. Chowdhury being conscious of the duty of an Advocate brought to my notice also the case of Mst. Khedani Rajwarin v. Lagan Singh (22 Cr. L J 330), in which Jwala Prasad, J. observed as follows:

"In the absence of any definition of the word child' in the Act, or to any limit of age placed upon it, I would accept the decision of the Punjab Court that the maintenance allowed is to continue so long as the person is unable to maintain himself. The omission to define the age was probably intentional so as to allow the maintenance to continue even throughout the life, if owing to some mental or corporeal defect the person is unable to maintain himself."

This observation is a complete answer to the absurdity visualised in the Madras case. The Legislature has intentionally limited the claim of maintenance to the inability of the person claiming it, so that it can be had without any limitation of age if circumstances required owing to "some mental or corporeal defect" in the person. Although in the case of A I R 1949 Bom. 36 the view expressed is that the child means a minor child, a different view was expressed in an earlier decision of a Division Bench of the Bombay High Court consisting of Beaumont, C. J. and Wassoodew, J. in the case of Shaikh Ahmed Shaikh Mahomed Ashraf v. Bai Fatma (A I R 1943 Born. 48). In that case Beaumount C. J. delivering the judgment of the Court discussed the question elaborately and expressed himself as follows:‑

"The word child' according to its use in the English language hah different meanings, according to the context. If used with out reference to parentage, it is generally synonymous with the word infant', and means a person who has not attained the age of majority. Sometimes it may be used in a context which shows that it refers to quite young children, for instance, a notice that children are not admitted to this enclosure' would hardly be held to apply to young persons of eighteen to twenty; it would mean children who are too young to look after themselves. Where the word child' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter, and has no reference to age."

The learned Chief Justice further observed

"In certain contexts it may include descendants of more remote degree, and be equivalent to issue.' But, at any rate, where the word child' is used in conjunction with parentage, it is not concerned with age. No one would suggest that a gift 'to all my children' or 'to all the children of A' should be confined to minor children. In section 488, Criminal P. C., the word is used with reference to the father. There is no qualification of age; the only qualification is that the child must be unable to maintain itself. In my opinion, there is no justifica tion for saying that this section is confined to children who are under the age of majority."

Even an earlier Madras case also expressed a view contrary to one expressed in A I R 1950 Madras cited above.

In the case of T. Kanniah Naidu v. Rajammal (A I R 1941 Mad. 685), Lakshmana Rao, J. observed that "The girl is unable to maintain herself and S. 488, Criminal P. C. does not limit the right of maintenance to minors. The age of the girl is therefore immaterial and the revision petition is dismissed".

In two recent, Calcutta cases also the view expressed is that the word child' used in section 488 of the Code, means a son or a daughter irrespective of age. The two cases are W. L. Faria v. Anita Merlene Faria and another (A I R 1951 Cal. 66), Purnashashi Debi v. Nagendra Nath Bhattacharjee (87 Cal. L J 185).

In the case of Purnashashi Debi, K. C. Das Gupta, J. delivering the judgment of the Division Bench observed as follows:

"It seems to me that the word child' has been deliberately used to leave the courts free to order maintenance for such sons and daughters as are unable to earn livelihood for themselves, having due regard to their class or society to which they belong and other surrounding circumstances. The fact, therefore, that the son is 17 or 18 or 19 is, in my opinion, no ground for refusing maintenance on his account.

In the case of W. L. Faria, agreement was expressed with the principle laid down in the case of Purnashashi Debi referred to above.

In a recent decision of the Lahore High Court in the case of Sughra Begum and others v. Muhammad Din (9 D L R Lah. 37) relied on by Mr. Behetar Ali, learned Advocate appearing for the opposite -party, Shabir Ahmad, J., observed as follows:‑

"But whether or not the child should be granted maintenance would depend on the other consideration envisaged in section 488 of the Code of Criminal Procedure, namely, that the child should be unable to support itself and the mere fact that the age of the child happens to be 18 years or more cannot dissentitle him to maintenance. If, for example, the son of a well‑to‑do father cannot earn his living because of some ailment, I do not see why he cannot claim maintenance under section 488 of the Code of Criminal Procedure though be may be over 18 years of age."

I have already said that there is no limitation of age laid down in the section and as such the contention of Mr. Chowdhury has no substance.

The next point urged by the learned Advocate for the petitioner is that the petition of compromise tiled in the case indicates that it was agreed that the maintenance would be paid to the children till they attained the age of majority. That being so it is argued that the learned Magistrate could not give the direction for payment of a period, in excess of one agreed to between the parties. It has also been seen that the law permits the children to claim maintenance even after attainment of the age of majority, if they are unable to maintain themselves. In this case, all the children are minors and an agreement made on their behalf depriving the children of their statutory right is not enforceable. The contention raised in this behalf cannot be entertained on this ground alone.

The last point raised by the learned Advocate for the petitioner is that the very fact that the father agreed to pay maintenance to the children indicates that there was no unwilling ness on his part to maintain them. That being so, the learned Magistrate had no jurisdiction to order payment of maintenance. It is true that the law gives authority to a Magistrate to direct payment of maintenance on proof of the negligence or refusal to, maintain the children by the father or the wife by the husband.

In this case, Mr. Chowdhury claims that there is no refusal because of agreement. But the view expressed by Addison and Dalip Singh, JJ. in the case of Pal Singh v. Mst. Nihal Kaur (A I R 1932 Lah. 349) is a complete answer to this argument which is as follows. "If at the hearing the husband at once stated that he was willing to pay a specified sum that also might amount to an implied admission that he bad been neglecting or refusing to maintain his wife."

In this case on the materials placed before me I am satisfied that this petition for maintenance had to be filed on the refusal of the petitioner to maintain his children.

For the reasons stated above, 'I am of opinion that there should be no interference with the impugned order and the rule is accordingly discharged.

K. B. A.

Rule discharged.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.