IMPORTANT POINT
Petition for maintenance by a minor child against mother is maintainable.

JUDGMENT (ORAL)

S.P. Garg, J.—Present Revision Petition has been preferred by the petitioner-Sarita Jain to challenge the legality and correctness of a judgment dated 26.02.2014 of learned Additional Principal Judge, Family Courts, Dwarka, whereby she was ordered to pay maintenance under Section 125 Cr.P.C. @ Rs. 1,000/- each to both the respondents from the date of filing of the petition till the age of majority. The revision petition is contested by the respondents.

2. Learned counsel for the petitioner urged that the impugned order passed by the learned Trial Court is unsustainable as the petitioner, being ‘mother’, is not liable to pay ‘maintenance’ under Section 125 Cr.P.C. to her ‘children’. Section 125 Cr.P.C. fastens the liability to maintain children only upon the ‘father’. It is submitted that in Section 125 Cr.P.C. the word ‘his’ has been used by the legislature and Clause (b) of Section 125 Cr.P.C. specifically mentions ‘his’ legitimate or illegitimate minor child and first proviso to Section 125 Cr.P.C. makes it amply clear that in clause (b) of Section 125 Cr.P.C. ‘his’ means only ‘father’ as the proviso specifically states that ‘father of the minor female child referred to in clause (b). It was further urged that in Section 125 Cr.P.C. legislature in its own wisdom used the phrase ‘wife or such child’ meaning thereby that it was only ‘father’ who was liable to maintain the minor child as word ‘wife’ has been used in conjunction with ‘such child’. On merits, it was further urged that the petitioner having meager income is unable to maintain herself and is not in a position to shoulder the expenses of her children living with their father. Learned counsel for the respondents urged that the petitioner has sufficient income of Rs. 10,000/- owing to her employment as Data Entry Operator with Prasar Bharti, Directorate of Doordarshan, New Delhi.

3. Admitted position is that the petitioner and Amit Jain (father of the respondents), were married on 25.07.1996. Out of this wedlock, two children, Respondent No.1-Rishabh Jain and Respondent No.2-Sarthak Jain were born on 25.05.1997 and 26.05.1998 respectively. Both the children are studying in St.Francis School, Janakpuri, New Delhi and are in the custody of their father-Amit Jain. Both the petitioner and Amit Jain are living separate and various civil/criminal proceedings are pending between the two in the courts. Amit Jain has also filed divorce proceedings.

4. The Trial Court in the impugned judgment after discussing provisions of Section 125 Cr.P.C. and relying on Vijay Manohar Arbat v.Kashi Ram Raja Ram Sawai AIR 1987 SC 1100 gave positive findings that the petition filed by the ‘children’ against their ‘mother’ to claim maintenance was maintainable. It reads as under:

“24. The cursory look at this Section poses a question whether a mother can be asked to pay for the maintenance for the children as the term used in Clause (b) is ‘his’.

25. The first impression that emerges is that only a father is liable to pay for the maintenance for the children and the mother is not liable, and the children cannot file a claim for maintenance against their mother under Section 125 Cr.P.C. But such interpretation would create a anomalous situation, when the mother is equally bound morally and socially to maintain her children. In the context of Section 125 (1) (d) Cr.P.C., which is similarly worded in regard to the parents, while interpretating the said clause in Vijaya Manohar Arbat v.Kashi Ram Raja Ram Sawai, AIR 1987, SC 1100, it was observed by the Apex Court as under:

“Although the word ‘his’ has been used in clause (d) of Section 125 (1) but the use of this word does not exclude the liability of a daughter to maintain her parents. Section 2(y) of the Code provides, that the words and expressions used herein and not defined but defined in the Indian Penal Code have the meaning respectively assigned to them in that Code. Section 8 of the Indian Penal Code lays down that the pron