Supreme Court Judgment
Dr. Vijaya Manohar Arbat Vs. Kashi Rao Rajaram
Sawai & Anr [1987] INSC 48 (18 February 1987)
Dutt, M.M. (J) Dutt, M.M. (J) Oza, G.L. (J)
CITATION:
1987 AIR 1100 1987 SCR (2) 331 1987 SCC (2) 278 JT 1987 (3) 46 1987 SCALE
(1)379
ACT:
Code
of Criminal Procedure, 1973, section 125(1)(d), scope of-Interpretation of the
pronoun 'his'---Whether includes 'her'--Section 2(y) of Criminal Procedure Code
read with section 8 of Indian Penal Code and section 13(1) of the General
Clauses Act Maintenance of father/mother by a daughter--Whether a claim by a
father under section 125(1) (d) Criminal Procedure Code maintainable.
HEAD
NOTE:
The
appellant, a medical practitioner at Kalyan, District Thane, is the married
daughter of Respondent No. 1, Kashirao Rajaram Sawai, by his first wife, who
died in 1948.
Thereafter,
Respondent No. 1 remarried and he is living with his second wife. He filed an
application before the Judicial Magistrate, First Court Kalyan claiming
maintenance from the appellant at the rate of Rs.500 per month on the ground
that he was unable to maintain himself.
A
preliminary objection raised to the effect, that an application under section
125(1)(d) Criminal Procedure Code by a father to claim maintenance from his
daughter was not maintainable was overruled by the Trial Magistrate and upheld
by the High Court in revision. Hence the daughter's appeal by Special leave.
Dismissing
the appeal, the Court,
HELD:
1.1 An application under section 125(1)(d) of the Code of Criminal Procedure,
1973, by a father claiming maintenance from his married daughter is perfectly
maintainable. [337C]
1.2
Section 125(1)(d) of the Code (a new provision) 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. [337F]
1.3
The object of section 125 Criminal Procedure Code is to provide a summary
remedy to save dependents from destitution and vagrancy and thus to serve a
social purpose. There can be no doubt that it is the moral obligation of a son
or a daughter to maintain his or her 332 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. [335B-C] Bhagwan Dutt v. Kamla Devi, [1975] 2 SCC 386, referred
to.
2.1
It is true that clause (d) has used the expression 'his father or mother' but,
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 a 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. [335E-H;
336A-B]
2.2
When the statute provides that the pronoun 'his' not only denotes a male but
also a female, it is not necessary to refer to the report of the Joint
Committee on Criminal Procedure Code Bill for the interpretation of clause (d)
of section 125(1) Criminal Procedure Code. The father or mother, unable to
maintain himself or herself, can claim maintenance from their son or daughter.
The expression 'his father or mother, is not confined only to the father or
mother of the son but also to the father or mother of the daughter. In other
words, the expression 'his father or mother' should also be construed as 'her
father or mother'. [336H; 337A-B] 333
2.3
A daughter after her marriage does not cease to be a daughter of the father or
mother. If it is not so, parents having no son but only daughters and unable to
maintain themselves, would go destitute, if the daughters even though they have
sufficient means refuse to maintain their parents.
[337D-E]
Raj Kumari v. Yashodha Devi, [1978] Cr. L.J. 608, overruled.
M.
Areera Beevi v. Dr. K.M. Sahib, [1983] Cr. L.J. 412 and Repalli Masthanamma v.
Thota Sriramulu, [1982] An. W.R. 393, approved.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 378 of 1986.
From
the Judgment and Order dated 11.10. 1985 of the Bombay High Court in
Crl. Revision Appln. No. 167 of 1985.
V.N.
Ganpule for the Appellant.
A.M.
Khanwilkar, A.S. Bhasme and G.B. Sathe for the Respondents.
The
Judgment of the Court was delivered by 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(1)(d) Cr. P.C.
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.
At
the outset, the appellant raised a preliminary objection to the maintainability
of the application on the ground that section 125(1)(d) Cr.P.C. does not
entitle a father to claim maintenance from his daughter. The preliminary objection
was overruled by the learned Magis334 trate, 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.
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." 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 335 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 386 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.
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.
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 is submitted that the pronoun indicates
that it is only the son who is burdened with the obligation to maintain his
parents.
Counsel
submits that if the legislature had intended that the maintenance can be
claimed by the parents from the daughter as well, it would not have used the
pronoun 'his'.
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) Cr.P.C. 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 IPC read with section 2(y)
Cr.P.C., the pronoun 'his' in clause (d) of section 125(1) Cr.P.C. 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) Cr.P.C. includes both
a male and a 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 336
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.
Much
reliance has been placed by the learned Counsel for the appellant on a decision
of the Kerala High Court in Raj Kumari v. Yashodha Devi, [1978] Cr.L.J. 600. In
that case it has been held by a learned Single Judge of the Kerala High Court,
mainly relying upon the report of the Joint Committee on the Criminal Procedure
Code Bill, 1973, that a daughter is not liable to maintain her parents who are
unable to maintain themselves. The Joint Committee in their report made the
following recommendations: "The committee considers that the right of the
parents not possessed of sufficient means, to be maintained by their son should
be recognised by making a provision that where the father or mother is unable
to maintain himself or herself an order for payment of maintenance may be
directed to a son who is possessed of sufficient means. If there are two or
more children the parents may seek the remedy against any one or more of
them" (Emphasis supplied).
The
learned Judge of the Kerala High Court did not refer in his judgment to the
sentence which has been underlined.
It
is true that in the first part of the report the word 'son' has been used, but
in the latter part which has been underlined the recommendation is that if
there are two or more children the parents may seek the remedy against any one
or more of them. If the recommendation of the Joint Committee was that the
liability to maintain the parents, unable to maintain themselves, would be on
the son only, in that case, in the latter portion of the report the Joint
Committee would not have used the word 'children' which admittedly includes
sons and daughters. In our opinion, as we read the report of the Joint
Committee, it did not place the burden of maintaining the parents only on the
son, but recommended that the liability to maintain the parents should be of
the sons and the daughters as well. We have referred to the report of the Joint
Committee inasmuch as the same has been relied upon in Raj Kumari's case
(supra) by the Kerala High Court and also on behalf of the appellant in the
instant case. When the statute provides that the pronoun 'his' not only denotes
a male but also a female, we do not think it necessary to refer to the report
of the Joint Committee for the 337 interpretation of clause (d) of section
125(1) Cr.P.C. The father or mother, unable to maintain himself or herself, can
claim maintenance from their son or daughter. The expression "his father
or mother" is not confined only to the father or mother of the son but
also to the father or mother of the daughter. In other words, the expression
"his father or mother" should also be construed as "her father
or mother".
In
M. Areera Beevi v. Dr. K.M. Sahib, [1983] Cr.L.J. 412, and Repalli Masthanamma
v. Thota Sriramulu, [1982] An.W.R. 393, another Single Bench of the Kerala High
Court and the Andhra Pradesh High Court have respectively taken the view that
the parents who are unable to maintain themselves can claim maintenance also
from their daughters under section 125(1)(d) Cr.P.C.
We
are unable to accept the contention of the appellant that a married daughter
has no obligation to maintain her parents even if they are unable to maintain
themselves. It has been rightly pointed out by the High Court that a daughter
after her marriage does not cease to be a daughter of the father or mother. It
has been earlier noticed that it is the moral obligation of the children to
maintain their parents. In case the contention of the appellant that the
daughter has no liability whatsoever to maintain her parents is accepted, in
that case, parents having no son but only daughters and unable to maintain
themselves, would go destitute, if the daughters even though they have
sufficient means refuse to maintain their parents.
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 clause
(d) of section 125(1). The legislature in enacting Criminal Procedure Code,
1973 thought it wise 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 their parents.
The
judgment of the High Court is affirmed and this appeal is dismissed. There
will, however, be no order as to costs.
338
The learned Magistrate will now dispose of the application under section
125(1)(d) Cr.P.C. of the respondent on merits in accordance with law. We make
it clear that we have not expressed any opinion on the merits of the case.
S.R.
Appeal dismissed.