Vijaya Manohar Arbat vs Kashirao Rajaram Sawaii

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(SC) 213

SUPREME COURT OF INDIA
G.L. OZA AND M.M. DUTT, JJ.
Dr. Mrs. Vijaya Manohar Arbat, Appellant
Versus
Kashirao Rajaram Sawai and another, Respondents.
Criminal Appeal No. 378 of 1986, D/- 18-2-1987.
Advocates appeared :
Mr. V. N. Ganpule, Advocate, for Appellant; Mr. A. M. Khanwilkar, Mr. A. S. Bhasme and Mr. G. B. Sathe, Advocates, for Respondents.

Advocates:
A.M.KHANWILKAR, A.S.BHASME, G.B.SETHI, V.N.GANPULE

Headnote:Criminal Procedure Code 1973 - section 125(1)(d) - Application for maintenance. maintenance filed by father against his married daughter- Preliminary objection - Whether use of expression "his" in section 125(1)(d) excludes a father to claim maintenance from daughter? (No)
Held, 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) Criminal Procedure Code 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 Indian Penal Code read with section 2(Y) Criminal Procedure Code, the pronoun his in clause (d) of Section 125(1) Criminal Procedure Code also indicates a female. Section 13(1) of the General Clauses Act lays down that in all 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) Criminal Procedure Code includes both a male and 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. (Para 8)
Consequently held, after giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself. Section 488 of the old Criminal Procedure Code did not contain a provision like c1ause (d) of section 125(1). The legislature in enacting Criminal Procedure Code, 1973 thought it was to provide for the maintenance of the parents of a person when such parents are unable to maintain themselves. The purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain her parents. (Para 11) - Criminal Procedure Code, 1973 - Section 125(1)(d) - Claim of maintenance by parents from son or daughter - Father claiming maintenance from his married daughter – Whether maintainable? (Yes, if other conditions for such claim are satisfied) (Para B) -Duty of children to parents - Not only statutory but also there is moral obligation on married daughter to maintain her parents from her own income (Para 6) - Expression his father or mother or he used in section 125(1)(d) whether includes both male and female children? (Yes) (Paras 8 and 10)

Judgement

DUTT, J. :- The only point that is involved in this appeal by special leave is whether the respondent No. 1 is entitled to claim maintenance from the appellant, his married daughter, under Section 125(l)(d), Cr. P.C.

2. The appellant Dr. Mrs. Vijaya Arbat, a medical practitioner at Kalyan, District Thane, is the married daughter of the respondent No. 1 Kashirao Rajaram Sawai, by his first wife. Her mother died in 1948. Thereafter, the respondent No. 1 remarried and is living with his second wife. The respondent No. 1 filed an application before the Judicial Magistrate, First Court, Kalyan, claiming maintenance from the appellant, his daughter, at the rate of Rs. 500/- per month on the ground that he was unable to maintain himself.

3. At the outset, the appellant raised a preliminary objection to the maintainability of the application on the ground that Section 125(l)(d), Cr. P.C. does not entitle a father to claim maintenance from his daughter. The preliminary objection was overruled by the learned Magistrate and it was held by him that the application was maintainable. Being aggrieved by the order of the learned Magistrate, the appellant moved the Bombay High Court in revision. The High Court affirmed the order of the learned Magistrate and held that the application of a father for maintenance who is unable to maintain himself is maintainable against his married daughter having sufficient means. In that view of the matter, the High Court dismissed the revisional application of the appellant. Hence this appeal by special leave.

4. Sub-section (1) of Section 125, Cr. P.C. provides as under :-

"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."

5. Sub-section (1) of Section 125 confers power on the Magistrate of the First Class to order a person to make a monthly allowance for the maintenance of some of his close relations like wife, children, father and mother under certain circumstances. It has been observed by this Court in Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 385 that the object of Section 125, Cr. P.C. is to provide a summary remedy to save dependents from destitution and vagrancy and thus to serve a social purpose.

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 on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm.

7. The learned Counsel, appearing on behalf of the appellant, has urged that under Clause (d) of Section 125(1) a father is not entitled to claim maintenance from his daughter whether married or not. Our attention has been drawn to the use of the pronoun his in Clause (d) and it

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1987 Supreme(SC) 213

Cases Referred (2)