Entitlement to claim maintenance under Section 125 of the Code of Criminal Procedure is restricted to minor children, with an exception for children who have attained majority due to physical or mental abnormality or injury.

( 1 ) THOUGH this matter appears for orders, it is taken up for final disposal by consent of both the sides.

( 2 ) THE revision petitioners had filed a petition before J. M. F. C. , Sidlaghatta in C. M. C. 46/88 under S. 125 of Code of criminal Procedure against their father respondent herein for grant of maintenance of Rs. 500/- per month to each of them. The petition so far as petitioners 1 and 2 came to be dismissed. So far as petitioner No. 3 is concerned, the learned Magistrate directed payment of separate maintenance at the rate of Rs. 150/- per month from the date of petition till 30-4-90 on which date 3rd petitioner also attained majority. Being aggrieved by this order of the learned Magistrate, the petitioners have preferred this revision petition.

( 3 ) THAT petitioners 1 and 2 were majors even as on the date on which they filed the petition under S. 125, Cr. P. C. is undisputed. So far as 3rd petitioner is concerned; that she also attained majority on 30-4-90 is also not disputed. The contentions urged on behalf of the revision petitioners are (1) The learned Magistrate was not right in holding that petitioners 1 and 2 are not entitled to maintenance because they are majors; and (2) The learned Magistrate was not right in restricting the maintenance payable to the 3rd petitioner only up to 30-4-90; (3) Even otherwise the maintenance at the rate of Rs. 150/- per month awarded to the 3rd petitioner is very meager and that has to be enhanced.

( 4 ) THE first two contentions urged depends on the aspect whether the son or daughter of a person who has attained majority is entitled to claim maintenance when he or she is unable to maintain himself or herself. The learned Advocate for the revision petitioners invited the attention of the Court td the decision of this Court in Ismail Sheriff v. Nasarin reported in 1963 (2) Mys LJ 233 : (1964 (1) Cri LJ 458) and pointed out that in that decision it has been held that the major boy or girl is also entitled to claim maintenance. It is no doubt true that it has been held so in that decision but it was with reference to a petition filed under S. 488 (1) of Code of Criminal Procedure, 1898. The said Section reads thus : "if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, a Presidency Magistrate, or 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, 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 from time to time directs. " (Emphasis is supplied) in this decision relied upon by the learned Advocate for the petitioners it has been observed as hereunder with reference to the aspect that the age of the child is not at all relevant while granting maintenance under S. 488 (1) of Code of Criminal Procedure, 1898. "the relevant point for consideration under S. 488 (1), Cr. P. C. is whether the child is capable of maintaining himself or herself without the aid from the father and it has nothing to do with the age. If really the Legislature intended that the word 'child' in sub-clause (1) of S. 488, Cr. P. C. would have reference only to a boy or girl below the age of 18 years nothing prevented the Legislature for making it quite clear. As rightly pointed out by some of the learned Judges the Legislature could have made it clear by saying 'minor child'. The fact that the Legislature has not done so and has instead used the word child in sub-clause (1) of S. 488, Cr. P. C. supports the view that the Legislature did not intend to restrict the application of this provision to a boy or a girl below the age of 18 years. "

( 5 ) IT may be noticed that we are dealing with a case not under S. 488 of Code of Criminal Procedure, 1898, but a case arising under S. 125 of