ORDER
P.C. Agarwal, J.
1. Head Mr. D.C. Mahanta, learned counsel for the petitioner ad Mr. S. Ali, learned counsel for the respondents.
2. The petitioner Ashan Ali was directed to pay maintenance to his wife and son vide order dated 24-4-79 by the Chief Judicial Magistrate, Kamrup, Guwahati in case No. 29/78. The petitioner paid the maintenance in compliance of the said order. Thereafter on 23-3-96 petitioner filed an application claiming exemption from paying maintenance to his son Merjul Ali on the ground that the said son has attained majority and vide order dated 30-6-97 passed in F.C. (Criminal) 91/92, learned Principal Judge, Family Court rejected the prayer. Hence the present revision.
3. The only question which has arisen in this case is whether a father is liable to pay maintenance of his child who has attained majority. Learned counsel for the respondents submitted that that the son Merajul is prosecuting his studies in higher secondary class and as he is unable to maintain himself he is entitled to maintenance. In support of his submission learned counsel has referred to a decision of the Apex Court in the case of Nanak Chand v. Chandra Kishore Agarwala AIR 1970 SC 446 : (1970 Cri LJ 522) the Apex Court observed:
The word ‘child’ in Section 488 does not mean a minor son or daughter and the real limitation is contained in the expression unable to maintain itself.
If the concept of majority is imported into the section, a major child who is an imbecile or otherwise handicapped will fall outside the purview of this Section If this concept is hot imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The order a person becomes the more difficult it would be to prove that he is unable to maintain himself.
4. The above referred decision is in respect of Section 488 Cr.P.C. (old) which stands re-cast under Section 125 of the Code of Criminal Procedure, 1973. In Section 488 of the old Code, the word ‘child’- was used; whereas Section 125 of the new Code reads as follows :
125…
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(a)…
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(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
5. Thus under the new Code only minor children unable to maintain themselves would come under this Section and in the case of major children only those who are suffering from some mental or physical defect or injury and are unable to maintain themselves are eligible to get the benefit under Section 125 Cr.P.C.
6. In view of the specific provisions of law enacted under Section 125 Cr.P.C. as stated above, the decision in Nanak Chand (supra) will have no use.
7. In the caseof K.Sivaramv.K.Mangalamba 1990 Cri LJ 1880, Hon’ble Andhra Pradesh High Court took a similar view and observed :
As per Section 125, Cri.P.C, it is clear that the maintenance can be awarded only to minor children under Section 125, Cr.P.C, whether married or not, when they are not able to maintain themselves. Only in special circumstances the maintenance can be awarded even after attaining the majority where such child is, by reason of any physical or mental abnormality or injury unable to maintain herself.
8. I am in respectful agreement to the view taken by the Andhra Pradesh High Court and held that under Section 125 Cr.P.C. only minor child is entitled to get maintenance. The impugned order rejecting the prayer of the petitioner is therefore set aside. The matter is sent back to the Family Court to decide the matter afresh. The petitioner will be at liberty to adduce evidence or produce document to show the date when the child attained majority before the learned Judge of the Family Court who shall pas’s necessary order in the light of the observation made above. The revision stands disposed.