ORDER
C.H.S.R.K. Prasad, J.
1. This is a classic case where the parents have maintenance against their daughter by presenting M.C. 5 of 1998 before the IV Addl. Judicial Magistrate of 1st Class, Warangal, by invoking Section 125 of Cr.P.C. which leads to granting of maintenance at the rate of Rs. 400/- p.m. each against the parents from the date of presentation of the petition. The petitioner having aggrieved by the order of the learned Magistrate preferred a revision before the I Addl. Sessions Judge, Warangal, in Crl.R.P. No. 53/2001 and the Revisional Court confirmed the said order. Thereafter, the petitioner has invoked the jurisdiction of this Court Under Section 482, Cr.P.C. by presenting this criminal petition.
2. The learned Counsel for the petitioner mainly assails the order of the learned Magistrate about granting of maintenance and its quantum which has been confirmed by the Revisional Court. It is also contended by him that the respondents 1 and 2 are having ancestral property and running small Kirana business and also getting income to a tune of Rs. 600/- p.m. The learned Counsel for the respondents has not disputed about owning of house property and running of Kirana business. What all he contends is the amount being earned by them is meagre and hardly sufficient towards their maintenance. It is also contended by him that it is not a fit case to exercise the inherent powers of this Court to quash the proceedings.
3. Adverting to the said contentions, it is necessary to have a glance at Sections 125 and 126 of Cr.P.C. before proceeding further. Section 125 of Cr.P.C. reads as follows :
“125. Order for maintenance of wives, children and parents.-(1) 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 *[***] 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.
‘Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding :
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person’.
Explanation-For the purposes of this Chapter.-
(a) ‘Minor’ means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority.
(b) (b) ‘Wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarry 3[‘(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be’.
(3) If any person so ordered fails without sufficient cause to comply with – the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance ‘[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made :
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be. made to the Court to levy such amount within a period of one year from the date on which it became due :
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an ‘[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”
It is clear from Section 125 of Cr.P.C. that the parents who are unable to maintain themselves can claim maintenance against their daughter. Section 126 of Cr.P.C. lays down the procedure to be followed in conducting the inquiries. Section 126 of Cr.P.C. reads as follows :
“126. Procedure.-(1) Proceedings Under Section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife or as the case may be, with the mother of the illegitimate child.
(2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases :
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may thinks just and proper.
(3) The Court in dealing with applications Under Section 125 shall have power to make such order as to costs as may be just.”
It is clear from Section 126 of Cr.P.C. that evidence has to be recorded in the manner prescribed for summons case in the presence of the person against whom the order for maintenance is proposed to be made. The only exception given in the section is that when the personal attendance is dispensed with, then evidence can be recorded in the presence of a lawyer. The same need not be followed if the Court proceeds ex-parte. The right of the parents to claim maintenance has been upheld while considering the provisions of Section 125(l)(d) of Cr.P.C. by the Supreme Court in a decision reported in Dr. Mrs. Vijaya Manohar Arbat v. Kashirao Rajram Saivai and Anr., AIR 1984 Supreme Court 1100. The relevant portions at paras 6, 8,10,12 and 13 read as follows :
“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 parents when they become old and infirm.
8. 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, I.P.C. 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 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.
10. The learned Judge of the Punjab and Haryana 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 case 1978 Cri. LJ 600 : (1971) 79 Punj. LR 568 : (1977) 4 Cri. LT 292 : ILR (1977) 2 P&H 738 :1978 Hindu LR 711], by the Punjab and Haryana 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 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’.
12. 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 ceases 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, 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.
13. After giving our best consideration to the question, we are of the view that Section 125(l)(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 daughters should be excluded from such obligation to maintain their parents.”
4. In view of the interpretation put on by the Supreme .Court it is clear that the daughter is under statutory obligation by virtue of Section 125(l)(d) of Cr.P.C. to maintain her parents. The question that falls for consideration is whether the evidence is recorded in the presence of a lawyer after dispensing with the presence of the person by the Court. A close scrutiny of the record discloses that such a thing has not been done in this case. The depositions does not throw much light about that aspect. Therefore, it is clear that the procedure laid down Under Section 126 of Cr.P.C. is not scrupulously followed by the lower Court. The order passed by it is bad due to failure to follow the procedure and the same is liable to be set aside.
5. Coming to the aspect of maintenance, the lower Court and the Revisional Court have failed to look at the matter in a proper perspective. Obviously, the mother is said to be aged 50 years and father is said to be aged 60 years on the date of filing of the application for maintenance. They are said to be running Kirana business and eking their livelihood..They have not given any share in the house to the daughter which she is entitled as the daughter gets right by birth. It appears that the son has attained majority and he has got property namely share in the Kirana business as well as in the house property. Whenever, a petition, for maintenance is filed the Courts have to take into consideration all these aspects namely, share of the persons who claim maintenance. Moreover, the relationship of the daughter with parents appear to be strained. She has already joined with her husband and gave birth to a child. The marriage ceremony is said to be not performed by her parents due to differences and due to her marrying against their wishes. The entire matter has to be reconsidered by the lower Court in the light of the principles enunciated by the Supreme Court and the discussion made by me supra. Hence, the matter is sent back to the lower Court with the following directions :
(1) The lower Court shall record the evidence of parents once again and the witnesses in the presence of the daughter by following the procedure mentioned Under Section 126 of Cr.P.C.
(2) If in case the presence of the daughter is being dispensed with the Court shall pass a judicial order and thereafter record the evidence in the presence of the lawyer.
(3) Whenever, the daughter is absent, the procedure prescribed for ex parte has to be followed.
(4) The lower Court shall take into consideration of the business run by the parents. It shall also take into consideration of admitted incomes and also the house property as well as the son’s liability to maintain parents.
(5) It shall give a separate finding in respect of father and mother regarding their inability to maintain themselves.
(6) It shall keep in mind about the daughter’s social obligation to maintain her children before fixing the compensation.
(7) The lower Court shall reconsider the entire matter afresh and dispose of the same in accordance with law.
In the result, this petition is allowed and the proceedings in M.C. No. 5 of 1998 on the file of IV Addl. Judicial Magistrate of I Class, Warangal, are hereby set aside and the matter is sent back to the Magistrate’s Court for disposal.