Sunil Kumar Sinha, C.J.
1. This Petition is directed against the Order dated 30.06.2015 passed by the Family Court, East Sikkim at Gangtok in Case No.11/2014 filed u/S.127 of the Code of Criminal Procedure, 1973 ( in short, Cr.P.C.).
2. By the impugned order, the Family Court has enhanced the amount of monthly maintenance granted in favour of the Second Respondent, in Family (Crl.) Case No.18/2009, u/S. 125 of the Cr.P.C.
3. The facts, briefly stated, are as under: -
Petitioner is father of the Second Respondent. Presently, the Second Respondent is residing separately with his mother, the First Respondent. Earlier, the two Respondents had filed the said Family (Crl.) Case No.18/2009 u/S. 125 of the Cr.P.C., in which a sum of Rs.6,500/- was granted as monthly maintenance to the Second Respondent vide Order dated 19.02.2011. The two Respondents, thereafter, filed Case No.11/2014 u/S.127 of the Cr.P.C. for enhancement of the aforesaid amount. The learned Family Court, after recording evidence of the parties, enhanced the aforesaid amount of monthly maintenance from Rs.6,500/- to Rs.30,000/- per month. Over and above, the Family Court also granted Rs.5.00 lakhs in favour of the First Respondent towards the amount incurred by her upon admission and prosecution of studies of the Second Respondent in an Engineering College at Bengaluru.
4. Mr. A. Moulik, learned Senior Counsel appearing on behalf of the Petitioner, has argued that the Second Respondent, whose date of birth was 08.01.1994, had attained majority on 07.01.2012, therefore, he was not entitled to receive maintenance u/S. 125 Cr.P.C. after the said date, hence no enhancement u/S.127 Cr.P.C. was possible. He has also argued that grant of lump sum amount of Rs.5.00 lakhs in the above manner was also not permissible u/S. 127 Cr.P.C., therefore, the Order should be set aside.
5. On the other hand, Mr. N. B. Khatiwada, learned Senior Counsel appearing on behalf of the Respondents, has opposed these arguments. According to him, Section 125 and Section 127 of the Cr.P.C. are two different provisions providing independent jurisdiction, therefore, the question of majority attained by the Second Respondent would make no difference. So far as grant of lump sum amount is concerned, he has argued that, in fact, the First Respondent had incurred about Rs.14.00 lakhs towards education of the Second Respondent and the Family Court was right in granting the said amount because it is the moral responsibility of the Petitioner to bear the expenses, which are incurred towards education of the Second Respondent. He cited a decision of the Bombay High Court rendered in Civil Writ Petition No. 2117 of 2012; Jayvardhan Sinh Chapotkat vs. Ajayveer Chapotkat : 2014 SCC Online Bom 465.
6. I have heard Counsel for the parties.
7. A perusal of paragraph 23 of the impugned Order would show that the Family Court took into account that the Second Respondent had attained majority, but, instead of deciding as to what effect it shall cause, it simply stated that it was the moral responsibility of the Petitioner to look after the educational expenses of the Second Respondent. The Family Court then recorded a finding that entire monthly expenditure, including the educational expenses, of the Second Respondent was about Rs.30,000/-. Therefore, the monthly maintenance earlier granted was enhanced to the tune of Rs.30,000/-. On the same logic, the Family Court held that a sum of Rs.14,39,590/- was already spent by the First Respondent for prosecuting studies of the Second Respondent, therefore, the Petitioner was also required to pay Rs.5.00 lakhs to the First Respondent.
8. Sections 125 to 128 falling in Chapter IX of the Cr.P.C. make provisions for order for maintenance; procedure to be adopted for passing such order; alteration in allowance; and enforcement of such order. A proceeding drawn u/S. 125 is of summary nature. It provides a speedy remedy for maintenance of wives, children and parents. By Section 127, the Legislature has made a special arrangement for alteration in the allowance of maintenance on proof of a change in the circumstances. The language of Section 127 clearly conveys that on proof of a change in the circumstances, any person, who is receiving maintenance u/S. 125 or who has been ordered to pay maintenance under the said section, as the case may be, may file an application for alteration and if the concerned Court finds that an alteration is required, it shall make such alteration in the order passed u/S. 125.
9. It is, thus, clear that the provisions of Section 127 are not independent as they provide for a consequential order upon proof of a change in the circumstances of any person receiving maintenance or directed to pay maintenance u/S. 125. The change in the circumstances of the concerned person, therefore, has to be judged in the light of the provisions of Section 125 and a Court, considering an application for alteration u/S. 127, cannot say goby to the provisions of Section 125, which are basic provisions for grant of maintenance to the person concerned.
10. In Bhagwan Dutt vs. Smt. Kamla Devi and Anr. : AIR 1975 SC 83, it was held with regard to Chapter XXXVI of the Code of 1898 that Sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption, Of the maintenance of wives and children . This Chapter, in the words of Sir James Fitzstephen, provides a mode of preventing vagrancy, or at least of preventing its consequences . These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destitute on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson s case 6 NWP 205 the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub-section (2) of Section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a Civil Court between the parties regarding their status and civil rights .
11. In Chaturbhuj vs. Sita Bai : (2008) 2 SCC 316, it was further held that Section 125 Cr.P.C. is a measure of social justice specially enacted to protect women and children and falls within constitutional sweep of Art. 15(3) reinforced by Art. 39. The object is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The Supreme Court further reiterated that the object of maintenance proceeding is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The case of Bhagwan Dutt (supra) was also taken note of.
12. In Jagir Singh vs. Ranbhir Singh and Ors. : (1979) 1 SCC 560, considering the scope of Section 484(2)(b) of the old Code of 1898 and Sections 125 and 127 of the Code of 1973, it was held that Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding the fact that under the new Code a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father. Once an order under Section 488, CrPC, 1898, is deemed to be under Section 125, CrPC, 1973 it will also be subject to Section 127 of the new Code. The change in the law in respect of maintenance, as much as other factual change of circumstances, are circumstances to be considered under Section 127 .
13. It is, therefore, clear that provisions of Section 127 are always subject to the provisions of Section 125 and if a person ceases to be entitled to receive maintenance u/S. 125, he cannot seek an order of enhancement u/S. 127.
14. Section 125 Cr.P.C. reads as under: -
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 which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
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) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(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 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.
15. A bare perusal of Section 125 would make it clear that a legitimate or illegitimate minor child, whether married or not, unable to maintain itself, and a 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, are entitled to get maintenance and for the purpose of this Section, as per Explanation, 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.
16. Thus, if a child whether legitimate or illegitimate has attained majority as per the aforesaid Act of 1875 and is not suffering by any physical or mental abnormality or injury, thereby unable to maintain itself, would not be entitled to receive maintenance u/S. 125.
17. The same view was taken in the cases, namely, (i) K. Sivaram vs. K. Mangalamba and Ors. : 1990 CRI. L. J. 1880; (ii) Md. Ashan Ali vs. Musstt. Junagar Begum and Ors. : 1999 CRI. L.J. 4214; (iii) Nitha Ranjan Chakraborty vs. Smt. Kalpana Chakraborty : 2002 CRI. L. J. 4768 and (iv) Amarendra Kumar Paul vs. Maya Paul and Ors. : (2009) 8 SCC 359.
18. Admittedly, the date of birth of the Second Respondent was 08.01.1994. He attained majority, as per the above provisions, on 07.01.2012. Thus, the Second Respondent was not entitled to receive any maintenance u/S. 125 after 07.01.2012. Therefore, his Petition for enhancement filed u/S. 127 on 29.08.2014 was not maintainable.
19. So far as judgment cited by Mr. Khatiwada is concerned, it is distinguishable on facts. There the matter was not u/S. 125 Cr.P.C. It was a civil dispute and the Writ Court has held that the Petitioner therein had made out a specific claim for educational expenses which can be availed by him even after attaining the age of 18 years and that it was not maintenance in strict sense as contemplated u/S. 125 Cr.P.C.
20. For all these reasons, the Petition is allowed. The impugned Order dated 30.06.2015 passed by the Family Court is set aside.