Under the new Act of Cr.P.C., 1973, it has been expressly provided for the liability of the father or parents to maintain the child even when has attained majority where such child is by reason of physical or mental abnormality unable to maintain itself. The physical condition of the child in the present case, viz., Muddsar Nazar is to the extent that there is nil mobility and we can say that it is 100% physical disability of the child. Under the circumstances, there is hardly any scope for the child to maintain himself. It was not even contended by the appellant that the child is in a position to maintain himself.
Under
the circumstances, we find that in a case where the child on account of physical disability, is unable to maintain himself, even if he attains majority, the case would be covered under the provisions of section 125(1)(c) of Cr.P.C. and the Court would be within its power to order maintenance if it was satisfied that there is neglect to maintain the child.
Gujarat High Court
Yasinbhai vs Rizvanbanu on 12 October, 2011
appeal is finally heard with the consent of the learned advocates appearing for both the sides.
The
present appeal arises against the order passed by the Family Court dated 10.03.2009, whereby the appellant has been directed to pay the maintenance of Rs.2000+Rs.1000 towards medical expenses, total Rs.3000 per month to the respondent.
The
short facts are that the appellant is the husband and the respondent is the wife. Initially, she had moved an application under section 125 of the Cr.P.C. for maintenance being Cr. Misc. Application No.166/08 and in the said proceeding, the learned Magistrate had passed the order for paying maintenance for Rs.400 per month to wife and Rs.300 per month to the minor son. Thereafter, on account of the increase in the price of essential commodities and increase in the expenses of the medical treatment of the son, etc. she moved an application under section 127 of the Cr.P.C. before the Family Court being Cr.Misc. Application No.26/05 for enhancement of maintenance. The learned Judge of the family court at the conclusion of the proceeding enhanced the amount of maintenance by making it Rs.1000 for the respondent wife and Rs.1000 for the son + Rs.1000 towards medical expenses, total Rs.3000 per month by the impugned order. Under the circumstances, the present appeal before this Court.
We
have heard Mr.Belsare, learned counsel appearing for the appellant and Ms. Vora, learned counsel appearing for the respondent.
As
such, if the quantum of the amount of maintenance is considered, it cannot be said that the same is on higher side inasmuch as with Rs.1000 per month, it may not be even in normal circumstances possible for one person to have the bare necessity of the life. Still however, as the respondent is not in cross appeal, we leave the matter at that stage. The attempt was made by Mr.Belsare, learned counsel appearing for the appellant that in addition to the amount of maintenance of R.1000 to the wife and to the son, the Family Court has also additionally awarded Rs.1000 towards medical expenses and therefore, it was submitted that this Court may consider the aspect of reduction of the amount of maintenance.
We
are unable to accept the contention because the amount of maintenance which has been awarded by no stretch of imagination said as on the higher side. On the contrary, at the most, it may meet with the bare necessity of wife and son and even bare medical expenses and not beyond that. Hence, we are not inclined to accept the contention of the learned counsel for the appellant that the quantum of compensation awarded by the Family Court is on higher side.
Mr.Belsare
next contended that the child is of major age and therefore, the liability of the maintenance of the father may not survive after he attains majority. However, he conceded the physical position of the child that he has physical inability and is having 100% disability for movement and therefore, he submitted that the child may be said as with physical inability but the liability of maintenance to such child when he attains majority can be fastened upon the father under section 125 of Cr.P.C or not is an aspect which may be considered by this Court. In his submission, if the child has attained majority, such liability may not continue.
Section
125 (1)(c) of the Cr.P.C. reads as under:
"(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"
The
aforesaid makes it clear that if any person neglects or refuses to maintain the legitimate or illegitimate child who has attained majority (except married daughter) where such child is by reason of any physical or mental abnormality is unable to maintain itself, the section would operate for the power of the Court to order maintenance in favour of such child. At this stage we may record that prior to the enactment of Cr.P.C., 1973, under the earlier code of Cr.P.C., section 488 did provide for maintenance to the child and the Apex Court had an occasion to consider the aspects of the meaning of the word child so as to include the liability of the father or the parents to maintain. It was observed by the Apex Court at paras 7 to 11 as under -
"7. The
word 'Child' is not defined in the Code itself. This word has different meanings in different contexts. When it is used in correlation with father or parents, according to Shorter Oxford Dictionary it means :
"As
correlative to parent. 1. The offspring male or female, of human parents."
Beaumont,
C.J., in Shaikh Ahmed Shaikh Mahomed v. Fatma(1) observed :
"The
word "child" according: to its use in the English language has different meanings according to the context. If used without reference to parentage, it is generally synonymous with the word 'infant' and means a person who has not attained the age of majority.... 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. 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 gift "to all my children" or "to all the children of A" should be confined to minor children. In s. 488 of the Criminal Procedure Code 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 justification for saying that this section is confined lo children who are under the age of majority."
8. We
agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word.
9. As
observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v. Jaswant Singh(2) "Chapter XXXVIof the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose." If the concept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is very unlikely to happen but if it does happen and the father is able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under s. 488. We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen. As long ago as 1873, Pearson, J. In the matter of the Petition of W. B. Todd(1) had to deal with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance. The same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor(2) and he allowed
maintenance
to a young man of about 20 who was very lame having a deformed foot. We have seen no case in which a man of 77 has claimed maintenance and -we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance.
10. It
is not necessary to review all the case law. The latest judgment which was brought to our notice is that of the Madras High Court in Amirithammal v. Marimuthu(3) in which Natesan, J. has written a very elaborate judgment. He has referred to all the Indian cases and a number of English cases and statutory provisions both in England and in India. We are unable to derive any assistance from the statutory provisions referred to by him or from the English Law on the point. He relied on the use of the word "itself" in s.488 as showing that what was meant was a minor child. We are unable to attach so much significance to this word. It may well be that it is simpler or more correct to use the word "itself" rather than use the words "himself or herself."
11. We
may mention that Das Gupta, J., in Smt. Purnasashi Devi v. Nagendra Nath (4) and Mudholkar, J., in State v. Ishwarlal(5) came to the same conclusion as we have done."
Thereafter,
under the new Act of Cr.P.C., 1973, it has been expressly provided for the liability of the father or parents to maintain the child even when has attained majority where such child is by reason of physical or mental abnormality unable to maintain itself. The physical condition of the child in the present case, viz., Muddsar Nazar is to the extent that there is nil mobility and we can say that it is 100% physical disability of the child. Under the circumstances, there is hardly any scope for the child to maintain himself. It was not even contended by the appellant that the child is in a position to maintain himself.
Under
the circumstances, we find that in a case where the child on account of physical disability, is unable to maintain himself, even if he attains majority, the case would be covered under the provisions of section 125(1)(c) of Cr.P.C. and the Court would be within its power to order maintenance if it was satisfied that there is neglect to maintain the child. Hence, the said contention of Mr.Belsare cannot be accepted.
In
view of the above, the appeal is meritless. Hence, deserves to be dismissed.
The
learned counsel appearing for the respondent submitted that the arrears of maintenance is not being regularly deposited. Considering the facts and circumstances, we direct that if the arrears is not deposited, the same shall be deposited on or before 21.10.2011 and it is further ordered that the appellant shall continue to deposit as per the order of the Family Court.
Hence,
the appeal being meritless, is dismissed. Considering the facts and circumstances, the appellant shall pay the cost of Rs.3500 to the respondent and such amount of cost shall be paid and deposited with the Family Court within one month and upon such deposit, the respondent shall be at the liberty to withdraw the same.
No comments:
Post a Comment