Amirthammal vs K. Marimuthu on 29 August, 1964

Madras High Court
Amirthammal vs K. Marimuthu on 29 August, 1964
Equivalent citations: AIR 1967 Mad 77, 1967 CriLJ 205
Author: Natesan
Bench: Veeraswami, Natesan


Natesan, J.

(1) This revision case arising out of a proceeding before the Additional First Class Magistrate, Madurai, under S. 488(1), Cri P.C. comes before us, as the matter has been referred to a Bench in few of the conflict of case law and marked divergence of opinion between various High Courts and even in decisions of the same High Court on the question whether the word “child” in S. 488(1), Cri P.C. in the context means a person of tender years or a person who has not attained the age of majority, that is, person under nonage or expresses only the relationship of a person as the immediate issue of a parent, without reference to age.

(2) The application which has given rise to the proceeding was filed by one Amirthammal, the petitioner, herein, of Melapannagaram, Madurai, against her son Marimuthu claiming maintenance for two children of Marimuthu, a son named Balakrishnan and a daughter Ramanujam, both of whom are living with her. It is seen from the order of Court below that the girl Ramanujam has a twin sister Sitalakshmi who has been married away. In the petition it is alleged that the boy Balakrishnan was aged 17, sickly and was not keeping good health and Ramanujam was just 15 years old. The mother of those children died in 1947, and it is found that their father Marimuthu had married again in about 1959, and some time after that he had neglected those children. The learned Additional First Class Magistrate No. 1, Madurai, before whom the matter came up, finds that there is sufficient evidence on the side of the respondent which was not seriously shaken in cross-examination to show that the boy Balakrishnan was capable of doing some work and that he was doing work and earning Rs. 2 to 3 per day. It is found future that he was born on 23-5-1944, and had completed 20 tears of age on the date of the application under S. 488(1), Cri.P.C. As regards the girl, Ramanujam, the learned Magistrate is of the view that she was in all probability aged 18. In these circumstances, purporting to follow the latest decision of this Court in Ibrahim v. Saidani Bi, 1964-2 Mad LJ 7, the learned Magistrate held that neither of the children was entitled to claim maintenance from their father.

(3) The relevant portion of S. 488(1) runs as follows:

“If any person having sufficient means neglects or refuses to maintain…..his legitimate or illegitimate child, unable to maintain itself….. 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 such child…..”

(4) The word “child” is not defined in the Code of Criminal Procedure and the cleavage of judicial opinion is on the question whether the word “child” is a person of tender years who has not attained majority. While in some decisions the view has been taken that the word ‘child’ used in sub-clause (1) of S. 488 means a boy or girl below 18 years of age, some decisions take the view that there is no justification whatsoever to hold that the word “child” used in the sub-clause has any reference to the age of the boy or girl and that just indicates only that the claimant for maintenance should be the offspring of the person from whom maintenance is claimed.

(5) The earliest case of our Court where a limitation has been placed upon the age, is the decision of Sankaran Nair, J. in Krishnaswami Iyer v. Chandravadana, ILR 37 Mad 565 (566): (AIR 1914 Mad 594 at p. 594). The matter came up to this Curt on the application by the putative father of an illegitimate girl for alteration of the allowance on the ground that the girl was more than 16 years old and could no longer be regarded as a child unable to maintain herself. The learned Judge observed:

“The word ‘child’ has not been defined in the Criminal Procedure Code. In England it has got apparently various statutory definitions. But in the absence of any definition or anything to the contrary in the Act, I am of the opinion that a ‘child’ is a person who has not reached full age. It is only then that she becomes competent to enter into any contract or enforce her claims; as this daughter has not attained the age of majority i.e., 18 I think she is a ‘child’ within the section”.

In Subhama v. Venkata Reddi, while awarding maintenance to a son till he completed 18 years. Panchapakesa Ayyar, J. observed:

“I consider that a ‘child’ entitled to maintenance under S. 488 Cri. P. C. must be a minor…..that is, normally below 18 years, though, if he is a ward under the Court of Wards Art, or a person for whom a guardian has been appointed by Court, the age may perhaps be advanced to 21. I am unable to agree with the contention of the learned counsel for the petitioner that a ‘child’ for the purpose of S. 488, Cri P.C. may be of any age and need only be unable to maintain itself. The petitioner’s counsel urged that ‘child’ in S. 488, Cri.P.C. means only “progeny”. If that were so, a man of 77, unable, owing to senility, to maintain himself, can sue his father aged 97 for maintenance as his ‘child’. This is manifestly absurd. Though a child may mean ‘ child in the womb’ as well as this old man of 77, and a person below 14, for the purposes of Children’s Act etc., the meaning of the word in S. 488 which contains no definition of it, must be taken to be a ‘minor’ whether under the Indian Majority Act, or the Court of Wards Act, or the Guardian and Wards Act”.

The next decision of this Court where limitation was placed on age is the decision followed by the Court below, 1964-2 Mad LJ 70 (72). Anantanarayanan J. (as he then was) follows as one that has considered the matter in all its relevant aspects as far this Court was concerned. The learned Judge concludes the discussion with the following observations:

“The logic appears to me to be irrefutable that where a person is legally capable of entering into contracts and instituting suits, that person cannot any longer be considered a ‘child’ though a person who has not attained that status might be a child for the purpose of S. 488 Cri.P.C. even if that person is of such an age as to be ordinarily termed a ‘boy’ or ‘girl’ and not a ‘child’. I leave open the question whether a person who may be theoretically above 18, but still not merely incapable of taking care of himself or herself, but also not suit juries because of any defect such as mental infirmity, etc., would or would not be a ‘child’ for the purpose of S. 488, Cri.P.C.” The question now in issue is left open.

(6) The decision in ILR 37 Mad 565 (566): (AIR 1914 Mad 594 at p. 594) has been followed by several of the High Courts. In Gangaramma v., Vishnusa, 65 Ind Cas 631: (AIR 1922 Nag 249 (1)); a boy over 18 years was refused maintenance by the Nagpur Judicial Commissioner’s court following the above decision. In Baran Shanta v. Ma Chan Tha May, ILR 2 rang 682: (AIR 1925 Rang 197), the claim for maintenance was on behalf of a boy aged 11 and there was some evidence that the boy had occasionally been employed to tend cattle. On the question whether the boy could be considered to be a child, the learned single Judge followed the decision of this Court tin AIR 37 Mad 565: (AIR 1914 Mad 594) and observed that the father who had sufficient means was bound to maintain his child who was under the age of majority. In Mt. Shanoo Devi v. Dayaram, AIR 1933 Lah 1026, where the question was whether the boy aged about 16 years, was a child, it was observed:

“The boy is admittedly below 18 and he could be considered a child so on as he is not able to maintain himself”

In Hemanta Kumar v. Manorama Debi, AIR 1935 Cal 488 where the boy was aged 17, the claim to maintenance was upheld observing, ‘under the Majority Act, a person who has not attained the age of majority that is, 18, is incompetent to contract and is therefore, a child within the meaning of the section’. A Division Bench of the Bombay High Court in Ranchoddas Narotamdas v. Emperor AIR 1949 Bom 36 also adopts the view of the Calcutta High Court in Hemantha Kumar v. Manorama Devi, AIR 1935 Cal 488. In Saraswati v. Madhavan, the claimant for maintenance was a daughter aged 22. After pointing out that the decision in question are not uniform, the learned single Judge observed that he was in respectful agreement with the view taken by this Court in the decisions referred to above and that if the intention of the Legislature in using the word ‘child’ was different, they could have used the word ‘son’ or ‘daughter’.

(7) But there is another line of decisions in this Court indicating a different view. In Parreppath Chinna v. Sankunni Menon, 37 Mad LJ 361 at pp. 363 and 364: (AIR 1919 Mad 193 at pp. 194-195)(Ayling and Napier, JJ.) Napier J. observed:

“The section (S. 488 Cri.P.C.) is certainly old, as it is to be found in the Act of 1861. But we have to bear in mind its origin. In so far as illegitimate children are concerned it owes its origin to the old English Act 7 and 8 Vict. Ch. 101 which gave a right to a woman either before or after the birth of her illegitimate child to apply for an order against the father and it has been held that the origin of this law is the prevention of vagrancy…..

I am therefore strongly inclined to think that the words “unable to maintain itself” cannot be confined as suggested to the tender age of the child but must also have reference to its financial dependency. This view seems to me got gain support from other words in the section. The first is the words almost directly after words are “a monthly allowance for the maintenance”. That clearly points to the object of the payment which is to be ordered and it seems to me that if the payment is required for maintenance it necessarily follows that the payment should not be ordered. Then there are the words in S. 489 ‘change in the circumstances’. If the words ‘child unable to maintain itself’ had reference only to the tender age of the child, it seems to me that so wide a word as ‘circumstances’ would not have been used in this latter section”

But it cannot be said that this decision favors an interpretation taking the age beyond 18 only. The learned Judges would not confine the expression to a person of tender years. However in In re, P. V. Moideen, 25 Mad LJ 355 at p. 356 Sadasiva Aiyar J observes though in a different context:

“I think the inability referred to in the section (S. 488 Cri.P.C.) relates to absence of sufficient maturity of physical and mental development in the child rendering it in consequence unable to earn its living by its own efforts and does not refer to inability through poverty or absence of means. This view is supported by the principle underlying the decision in the matter of the petition of W. BN. Todd. (1873) 5 NWPHCR 237 where it was held that a child deaf and dumb and unable to maintain itself is entitled to maintenance although it may have arrived at the age of majority”.

In Kent v. Kent (AIR 1926 Mad 59) Devadoss, J. relies on (1913) 25 Mad LJ 355 for the observation “even a frown up child, if unable to maintain itself, is entitled to get maintenance from the father if he has the means”. In Kanniah Naidu v. Rajammal, AIR 1941 Mad 685, Lakshmana Rao, J upheld an order of the Court below awarding maintenance in the following words:

“The girl is unable to maintain herself and S. 488 Cri.P.C. does not limit the right of maintenance to minors. The age of the fir is therefore immaterial and the revision petition is dismissed”.

Panchapakesa Ayyar, J.

In and Anantanarayanan, J. (as he then was) in 1964-2 Mad LJ 70 pointed out that the aforesaid ruling of Lakshmana Rao, J. is extremely brief and does not discuss the legal connotation of the word “child” occurring in S. 488(1), Cro.P.C. In Ramanachiappa v. Yasodammal, Cri. R.C. Nos. 100 and 99 of 1962 (Mad), before Kunhamed Kutti, J. the contention was raised that the boy aged 17 years should not be deemed to be a child with in the meaning of S. 488 Cri P.C. After referring to the conflict of views between and AIR 1941 Mad 685 the learned Judge expressed himself in respectful agreement with the view expressed in the Calcutta decisions, Purnashashi Devi v. Nagendranath, and W.L. Faria v. Anita Merlene Faria, , where the view was taken that the fact that a son is 17 or 18 or 19 is no ground for refusing maintenance.

(8) We shall now consider the cases of other High Courts, where the word “child’ has been understood as meaning simply “son” or daughter’. In Bhagat Singh v. Emperor, (1910) 6 Ind Cas 960 (Punj) a case of the Punjab High Court, claim for maintenance was made by a son aged 20. He was lame having a deformed foot. The Sessions Judge thought that the was not a ‘child’ for the purpose of S. 488 Cri.P.C. Chevis, J. stated:

“But as I understand the section the word ‘child’ as used there simply means son or daughter. In my opinion, reference to age is purposely omitted in the section, the object being that any son or daughter is entitled to claim maintenance, whatever his or her age may be, so long as he or she is unable to maintain himself or herself”.

In Mt. Rajwarin v. Lagan Singh, 61 Ind Cas 64: (AIR 1921 Pat 379 (1)), the question before the Patna High Court was whether the maintenance award to girl should be limited to breathing 14 years of age. After referring to the decisions in ILR 37 Mad 565: (AIR 1914 Mad 594) and (1910) 6 Ind Cas 960 (Punj), Jwala Prasad, J. observed:

“In the absence of any definition of the word ‘child’ in the Act, or to any limit of age placed upon it, I would accept the decision of the Punjab High Court that the maintenance allowed is to continue so long as the person is unable to maintain himself. the omission to define the age was probably intentional so as to allow the maintenance to continue even throughout life if owing to some mental or corporeal defect, the person is unable to maintain himself”.

In Ahmed Shaikh v. Bai Fatma, AIR 1943 Bom 48 the claim for maintenance considered was that of a daughter aged 21 and the contention was that the maintenance should be confined to minors. Reference was made to the decision of this Court in ILR 37 Mad 565: (AIR 1914 Mad 594) and the decision of the Calcutta High Court in the similar effect in AIR 1935 Cal 488, Beaumont, C.J. with whom Wassoodew, J. agreed held:

“The word ‘child’ accordant to its use in the English language has different meanings according to the context…..In certain contexts it may include descendants of more than remote degree, and be equivalent to ‘issue’. But,…..at any rate, where the word ‘child’ is used in conjunction with parentage. it is not concerned with age. No one would suggest that a gift ‘to all my children’ or ‘to all the children of A’ should be confined to minor children. In S. 488 Cri.P.C. the word is used with reference to his father. There is no qualification of age; has only qualification is that the child must be unable to maintain itself. In my opinion, there is no justification for saying that this section is confined to children who are under the age of majority”.

(9) In state v. Ishwarlal, AIR 1950 Nag 231, Mudholkar, J. referring to the conflict of case law on the question whether the age of the child is material for determining the point of a father’s liability to maintain the child stated:

“On the one hand it has been held that the word ‘child’ used in S. 488, Cri.P.C. means son or daughter and that reference to age is purposely omitted from it because the object of the section is to confer a right on any son or daughter to obtain maintenance from the father so long as he or she is unable to maintain himself or hereof. On the other hand, it has been held that the word ‘child’ used in the section means one who has not attained majority”.

The learned Judge expressed himself in favor of the decision which gave a wider meaning to the word “child” observing:

“In the first place the section itself omits reference to the age of the child and so to hold that a child means only a minor person would be reading something into the section which is not there. The second reason is the one given by Ram Lall. J. in his referring order in Mahomed Yar v. Ali Mohammad, AIR 1941 Lah 92. According to the learned Judge, ‘………If the word ‘child’ is to be restricted a person who has not yet attained the age of majority, cripple or an imbecile would be left without any legal remedy against his well-to-do parents”.

In , Das Gupta, J. with whom Lahiri, J. agreed rejected the contention that a son aged 17 or 18 or 19 will not come within the meaning of ‘child’ under S. 488 Cri.P.C. observing:

“It seems to me that the word ‘child’ has been deliberately used to leave the Courts fee to order maintenance for such sons and daughters as are unable to earn livelihood for themselves, having due regard to their class of society to which they belong and other surrounding circumstances. The fact, therefore, that the son is 17 or 18 or 19 is, in my opinion, no ground for refusing maintenance on his account”.

In the question was whether the daughter aged 18 years could be awarded maintenance as child. The earlier decision in was followed, and the right to maintenance was upheld. In Bakshi Monilal v. M.T. Ram Lubbai, AIR 1953 J and K 16, maintenance was claimed on behalf of a daughter over 18 years of age. Differing from the decision of this Court in and the decision of the Rangoon High Court in U Ba Thaung v. Ma Aye, AIR 1932 Rang 94 and following the decision in , it was held that the deciding consideration is whether the child or son is able to maintain himself or herself and not the age. In Thambuswami v. Ma Lone, 37 Ind Cas 311: (AIR 1917 Low Bur 84), the Lower Burma Chief Court was hesitant to adopt the view taken y this court in ILR 37 Mad 565: (AIR 1914 Mad 594) as it appeared to that Court that the legislature “may have intended to make a father liable for the maintenance of his child throughout its life if owing to some mental or corporeal defect it is unable to maintain itself”.

(10) In AIR 1932 Rang 94 the question did not arise directly for consideration. But the learned Judges were hesitant to lay down as rigid rule that no order could be made in favour of a child if it has become a major. In Ma E Mya v. U Ko Ko Gyi, AIR 1937 Rang 370 at p. 372 Mackney, J. observes:

“It appears to me that the word ‘child’ merely expresses a relationship which may exist whether the child is under the age of majority or over the age of majority. A child which has reached majority may for some reason be unable to maintain itself, in which case the parent will under S. 488 Cri.P.C. be liable to maintain it”.

In AIR 1941 Lah 92 at p. 94 in view of the conflict of opinion on the question Ram Lall, J. referred the matter to a Bench. But the Division Bench did not consider it necessary to define the word ‘child’ on the facts of the case before the Bench. It was observed:

“It is clear the whatever view is taken, that is to say, whether the word ‘child’ means a human being under any particular age or whether it is used in the statute in the more general sense as meaning any offspring however old, of a human being, it is qualified by the phrase “unable to maintain itself”. In this case the person for whose maintenance allowance was sought was at the time of the proceedings aged 18 and we are informed is now 20. The learned Magistrate has found positively that he is healthy and does not suffer from any illness. Such a person must be presumed to be capable of maintaining himself”.

(11) In Ismail Sheriff v. Nasarin, 1965 MLJ Cri 83 at p. 85 the question was whether a daughter who was minor at the time of petition could claim maintenance subsequent to the period she completed 18 years. Hombe Gowda, Offg. C.J. expressed the view that the Legislature did not intend restricting the scope of S. 488 Cri.P.C. to a boy or girl below the age of 18 years with the following observations:

“There is therefore no justification to interpret the word ‘child’ in sub-clause (1) of S. 488 Cri.P.C. to mean a child below 18 year of age. I am of the opinion that age is purposely omitted from the section because the object of the legislature was to provide maintenance as long as the son or the daughter is not capable of maintaining himself or herself….. The relevant point for consideration under S. 488(1) Cri.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 Cri.P.C. would have reference only to a boy or a girl below the age of 18 years, nothing prevented the legislature from 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’ ”

In Abdul Hai v. Azra Sikandar, , the question was whether a daughter who had become major was entitled to be maintained thereafter under the provisions of S. 488 Cri.P.C. Nigam, J. rejected the contention that a person as soon as he or she attained the age of 18 years ceases to be entitled to maintenance. In the learned Judge’s opinion the key to the provision is furnished in the case of the child by the words “unable to maintain itself” The learned Judge observes:

“In different communities and different circumstances these words may mean different things. Among the labouring classes it may even be possible to hold that a healthy boy aged 16 is not unable to maintain himself… I am of opinion that the Legislature purposely omitted to refer to any particular age. The emphasis is on the words “unable to maintain itself” ”

(12) Having given our careful consideration to the discussion of the matter in the several decisions, with respect we are unable to agree with the view expressed in some of the decision that the provisions of S. 488, Cri.P.C. could be availed of by a person irrespective of his age, the only requirement being that he should be unable to maintain himself or herself as the case may be, and the father having sufficient means has neglected or refused to maintain. Nor do we find reason for restricting the meaning of the word “child” to a person of tender years. The words of a statute went here is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. The meaning of a word, when doubtful, should not be sought for so much in a strictly grammatical or etymological propriety of the language nor in its popular meaning. But it must be sought for in the subject or on the occasion in which the word has been used, the object which the statute seeks to attain. This provision has been in the statute book from 1856, and the object of the provision, it will be seen, is not to publish a parent for his past neglect but to prevent vagrancy by compelling the parent who can dose to support the children who are unable to maintain themselves and have at least a moral claim to be so supported. See Nagendramma v. Ramakotayya. . The section more or less in its present form is to be found originally in two parallel enactment; one, statutes governing he Presidency Towns and the other applicable to the territories outside. The corresponding provision in S. XLIII of Act XIII of 1856 passed by the Legislative Council of India for regulating the police of the Towns of Calcutta, Madras and Bombay had certain settlements. The relevant part of S. XLIII runs thus:

“If any person, having sufficient means, neglects or refuses to maintain his wife or any legitimate or illegitimate child unable to maintain himself, it shall be lawful for a Magistrate, upon due proof thereof to order such person to make a monthly allowance….”

The next section in that Act, S. XLIV penalising taking or enticing away woman or female children runs thus:

“Whoever unlawfully takes away, or detains against her will any woman or female child; or unlawfully taken, or entices away or detains, any female child under the age of fourteen years, out of possession…..”

One thing is clear. When the two sections are read together, the word “child” is not limited to a child of tender years. Otherwise there is no necessity for limiting the age in S. XLIV to fourteen. The corresponding provision in the Criminal Procedure Code of the Courts of criminal jurisdiction not established by Royal Charter, Act XXV of 1861 passed by the Legislative Council of India, was S. 316. The language is similar to the one in S. XLIII of Act XIII of 1856. Here also the word “himself” is found after the words “unable to maintain”. This provision in Act XXV of 1861 comes under Ch. XXI headed “Of the Maintenance of Wives and Children”. The arrangement of the Chapters in that Code is also significant. Chapter XIX deals with security for good behavior. Ch. XX with local nuisance and Ch. XXII, with disputes relating to the possession of land or rights of use of any land or water which are found in the current Criminal Procedure Code Act V of 1898 under Part IV, that is, prevention of offences. Act XIII of 1856 relating to Courts established by Royal Charter and Presidency Towns was replaced in 1867 by Act VIII of 1867 and there also while referring to the child the word used is “himself” in the phrase “unable to maintain himself”. In Act X of 1872, which replaced Act XXV of 1861 the corresponding Section is S. 536 and the words in regard to the ability of the child are the same “unable to maintain himself”. Section 536 is found under Part XI headed “Preventive Jurisdiction of Magistrates”, whereas provisions are found for dispersal of unlawful assembly, security for keeping peace, security for keeping peace, security for good behavior, disputes relating to possession of land or water and local nuisance. The change in the word “himself” to itself is first found in Act IV of 1877. Presidency Magistrate Act, in Section 234. When the consolidating and amending Act relating to Criminal Procedure Act X of 1862 was passed the provision relating to maintenance of wives and children took its present place under the Code, in Ch. XXXVI, under part VIII headed “Special Proceedings” and the words “unable to maintain himself” were amended as “unable to maintain itself”. There is no material change in the current Criminal Procedure Code(Act V of 1898) in regard to the provision now under consideration.

(13) Reference to Regulation I of 1813 applicable to the Island of Bombay in regard to parents’ liability to maintain their children is of some interest. This Regulation under the title compelling parents and others to maintain their families by a Art. 1 provided that the father, grandfather, mother and children of impotent poor in the town and factory of Bombay, being of sufficient ability, shall relieve and maintain them, according touch rate and such manner as by the Justices of the said town and Factory of Bombay, at their Petty Sessions shall be assessed and directed. In England, where the father’s obligation to maintain his children, though recognised by both courts of law and equity, was considered only as a duty of imperfect obligation. In Simpson on the Laws of Infants, 4th Edn, at page 121, it is stated:

“A series of statutes, generally known as the Poor Laws, has been passed to enforce some extent the obligations in question….. The first statute was that of 43 Elis. C, 2(Poor Relief Act 1600), By Section 7 it was enacted that the father and grandfather, the mother and grandmother, and the children of every poor, old, blind, lame and impotent person, or other poor person not able to work, being of sufficient ability, should at their own charges relieve and maintain every such poor person in the manner therein mentioned.”

By 31 and 32 Vict. C. 122, Section 37, any parent wilfully neglecting to provide adequate food, clothing, medical aid, or lodging for his child, begin in his custody, under the age of fourteen years, was punishable with imprisonment. Provision for bastards or illegitimate children was made only in 1844 by an Act which gave woman a right to apply for an order against the father. This however limited the period till the child reached 13 years or upto the marriage of the mother. The liability in respect of children ceased at 16 years. The law in England sufficient for our purpose may be summed up in the following passages found in Halsbury’s Laws of England, Simonds Edn. Vol. 21, at pages 189 and 190:

“At Common law there is no actual legal obligation, on a father or mother to maintain a child, unless the neglect to do so would bring the case within the criminal law. By statute a parent who neglects, abandons, or exposes or causes to be neglected, abandoned, or exposed an infant under the age of sixteen in a manner likely to cause him unnecessary suffering or injury to health commits an offence…..Under the old poor Law the father and the mother, after the death of the father, and also the grandfather and grandmother, if able to do so, were bound to maintain a child, who could not support himself. A man was liable to maintain his wife’s children as part of his family until they attained the age of sixteen or until the death of their mother….. Now under the National Assistance Act 1948 each spouse is liable to maintain his or her children under the age of 16 years and may be required to repay any assistance given to such child under the Act.”

(13-A) Under the Hindu law, every Hindu has been udder the legal obligation to maintain his aged parents, his wife, his minor sons, whether legitimate or illegitimate, and unmarried daughters. This obligation has been personal in character and arose from the very existence of their relation between the parties. Since, under the Hindu Adoption and Maintenance Act of 1956 there is a special provision, Sec. 20, providing for the maintenance of children and aged parents. Under the Section a legitimate or illegitimate child may claim maintenance from his or her father or mother as long as the child is a minor. By sub-clause (3) the obligation of a person to maintain his or her daughter who is unmarried extends in so far as the unmarried daughter is unable to maintain herself out of her own earnings or other property. Under the Muhammadan law, also, a father is bound to maintain his sons until they attain the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. See Mullah’s Muhammadan law, 15th Edn. at page 303. It is pointed out in the Law relating to Minors by Trevelyan 5th Edn at page 206, that according to the Hindu Mahomedan and English Laws, alike, it is the duty of a father to support such of his minor children as are incapable of supporting themselves.

(14) It is in this background we have to examine the scope and content of the world “child” as used in Section 488 Cr. P.C. whether it is used in the sense of progeny without reference to age, or whether the state of childhood or the idea of immaturity or infancy is also implied in the expression. While interpreting this provision we cannot lose sight of the fact that the object of introducing this provision in the Criminal Procedure Code was prevention of vagrancy on the analogy of the Poor Laws and Bastardy Acts in the United Kingdom. The facts remains no doubt that there has been no definition of the word “Child” nor is there limitation on the age of the child. Minority is not specifically referred to, as found in the Hindu Adoption and Maintenance Act 1956 or marriage indicated as the upper limit in the case of a daughter. The omission of the age of the child in the Act has of course to be taken as deliberate. “Child” normally means an infant, though it has also been used in several Act as referring to issue or progeny. As indicated in some of the decision ‘Child” can also mean descendant of the second and third degrees. In Webster’s New 20th Century dictionary the meanings given to the word “child” are (1) an infant, a baby; (2) an unborn offspring; (3) a boy or girl in the period before puberty; (4) a son or daughter, a male or female descendant in the first degree; in law a legitimate son or daughter…. a descendant however remote. In Halsbury’s Laws of England, Simonds Edn. Vol. 21, at page 135 it is stated-

“In statutes passed for the protection of persons of immature years or dealing with their criminal acts the word “child” is usually employed, instead of “infant” to denote such a person the term being thus applied to persons of varying age and contrasted with the expression “young persons” which is used to denote a somewhat more advanced age. In the Children and Young Persons Act 1933, which repealed and consolidated many of the previous statutes “child” is defined generally as a person under the age of fourteen years and “young persons” as a person who has attained the age of 14 years and is under the age of 17 years. For the purpose of the Children Act, 1948 ‘child’ means a person under 18 years of age. For the purpose of any enactment relating to the prohibition or regulation of the employment of children or young persons, any person who is not over compulsory school age is deemed to be a child within the meaning of that enactment”

Under the Family Allowance Act 1945, the National Insurance Act 1946, and the National Insurance(Industrial Injuries) Act, 1946 a person is treated as a child whilst he is under the upper limit of compulsory school age and during any period before his 18th birth day. In English law, apart from statute, infancy is the term applied to the period of life, whether in males or females, which precedes the completion of the twenty first year, and persons under that age are called infants. An infant does not possess full legal competence and is regarded as of immature intellect and imperfect discretion; see page 134 in Halsbury’s Laws of England, Simonds Edn. Vol. 21. But in English law, also the expression “Child” can be found defined in Statutes in respect of relationship as born to certain persons.

(15) Here in India in the Factories Act (Act 53 of 1948) “child” is defined as a person who has not completed the 15th year. In the Women and Children’s Institution Licensing Act (Act V of 1956) ‘child’ means a boy or girl who has not completed 18 years. In the Tea District Emigrant Labour Act (Act 22 of 1932) “adult” means a person who has completed his 16th year and a “child” means a person who is not an adult. In the Plantation Labour Act (Act 69 of 1951) “child” means a person who has not completed his 15th year. In the Child Marriage Restrain Act (Act 19 of 1929) ‘child’ means a person who if male is under 18 years of age and if a female under 15 years of age. In Orphanages and other Charitable Homes(Supervision and Control) Act (Act 10 of 1960) “child” means a boy or a girl not completing 18 years. But our attention has not been drawn to any enactment where a ‘child’ has been defined to include a person above 21 years or even over 18 years.

(16) Though Section 488 itself does not define a child or limit the age of a child, there are certain indication in the section, apart from the object of the enactment, which are significant and give a clue for interpretation. The words “child unable to maintain itself” read together in the context discussed above leave the impression of a human being which by reason of its state of growth has to depend on some one for its support and required another to take up its care and protection, a minor who normally cannot be expected to embark on his own. We have also to bear in mind that the corresponding provision in England at the time the law was introduced here, provided support only till 16. The use of the word “itself” in relation to “child” cannot be passed over. It must be noticed that originally the word was “himself”. Instead of using “himself” or “herself” a neutral word “itself” is used. As noticed in the referring order it is a pertinent matter to take note of Anantanarayanan J. (as he then was) observes in his order:

“If the legislature had intended that the word ‘child’ applies strictly to issue without any reference to age, it would have been natural to expect that words like “himself” or “herself” would have been used”.

In using the word “itself” it appears to us that the legislature was emphasising the absence of a developed personality. It conveys the idea that the child is not possessed of full legal competence. It connotes immaturity of intellect and imperfect discretion and it looks as if the legislature considered it is not proper to give a distinctive personality to the child in the work-a-day world, and termed it “himself” or herself. In our view, the word “child” is intended to convey in the context apart from the relationship an idea of in fancy. This view of ours finds confirmation if reference is made to clause 8 of Section 488, which indicates the forum for initiation of proceedings under the section. Clause 8 runs thus:

“Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with this wife, or as the case may be the mother of the illegitimate child”

For the proceeding only the residence of the wife or mother of the illegitimate child is referred to. It seems as if the framers of the Code thought that the child contemplated in the section is one under tutelage; they do not assign it a residence and take notice of only the residence of the mother. It may be that in certain circumstances and among some class of people depending on environment, mode of life, habits, scale of living and opportunities for employment, even very bound persons may be precocious and capable of maintaining and protecting himself. But in our view these are special cases where a person shown to be a child under 18 may not be able to claim maintenance being in a position to maintain himself. A person who has become a major and is legally capable of entering into contracts may be presumed to be capable of a maintaining himself.

(17) There is another aspect of the matter that will have to be borne in mind. Complications are likely to arise when a man is called upon to maintain another over whose actions he has no control, over whom no personal guardian could even be got appointed and whose person the court cannot commit to the custody of any guardian. Under the Guardians and Wards Act, guardianship over a person in the case of testamentary or natural guardian ceases on the minor becoming a major, that is, on the completion of 18 years. Personal guardianship can be continued till 21 if a guardian is appointed through court.

(18) In this connection we may usefully refer to the following passage in Corpus Juries Secudum Vol. 14, 1109, giving the meaning of the word “child”.

“The term has a second well understood meaning irrespective of parentage, and imports minority, infancy, of the early years of life……….In laws for the protection of children, the term “child” means generally the young under the age of puberty and in this age sense the word has been defined as meaning an infant, a young person, a youth, or one of tender years………. one not old enough to dispense with material aid and care”.

Viewed in the light of the above provision the observation of Panchapakesa Ayyar J. in that if age is not criterion a man of 77 unable owing to senility to maintain himself can claim maintenance from his father aged 97 as his child, cannot be considered to be carrying the matter a little too far as considered by Nigam J. in . The reasoning of Ram Lall J. in AIR 1941 Lah 92 that if the word ‘child’ is to be restricted to a person who has not yet attained the age of majority, a cripple or an imbecile would be left without any legal remedy against his well to do parents, does not with respect appeal to us. Section 488 Cri. PC. is a summary and cheap remedy and the original object was to prevent vagrancy. It is not as if the personal laws may not provide for maintenance of adult sons if they are disabled by infirmity or disease. We have already referred to the provision under the Mohamedan law and Hindu law in regard to the same. The fact that such an interpretation would be expedient and convenient is not always a sure guide, as the legislature, if necessary, can intervene to fill up any lacuna. In our view the expression “child” in Section 488 Crl. P. C. while it postulates the immediate relationship of the claimant for maintenance with the person who is called upon to pay maintenance, by the closely following neutral pronoun “itself” signifies and emphasis’s the infancy of the claimant. The inability to maintain “itself” looks to us to be related to infancy.

(19) The expression “child” of course cannot be confined to a child of tender years, a person below 14 or 16, as has been contended for in some cases, since in that case there can be no doubt about its inability to maintain itself. The question of ability to maintain one-self can arise only in the case of young persons during adolescence.

(20) In the light of the above discussion we are inclined to agree with the view of Panchapakesa Ayyar J. in that the meaning of the word ‘child’ in Section 488 must betaken to be a minor whether under the Indian Majority Act or the Court of Wards Act or the Guardians and Wards Act and, with respect differ from the decisions which have taken the view that any person who is unable to maintain himself or herself of whatever age, without limit would be a child under S. 488, because he is a child of his father. The result would be a son or daughter under 18 would be a child under the Act and where a guardian is appointed by court, the childhood for the purpose of S. 488 would continue during the nonage or legal infancy, that is, till the completion of 21 years.

(21) Examining the facts of the present case in the light of the above conclusion it follows that the boy Balakrishnan is not entitled to any relief. He has not only completed his 20th year, but there is a clear finding of the court below that he is capable of doing some work and that he was doing some work and earning Rs. 2 to Rs. 3 per day. The rejection of his claim for maintenance by the Court below has therefore to stand. As regard the girl Ramanujam the position is different. She is an unmarried girl, and there is no clear finding by the lower court that she has completed 18 years on the date of the application. It must be noticed that even if she completes 18 years pending disposal of the petition, the court can order her maintenance from the date of the application till she attains the age of 18. In the circumstances the order against Ramanujam is set aside and the matter is sent back to the lower court for fresh disposal in the light of the above observations. The revision is ordered accordingly.

(22) Order accordingly.

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