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Abdul Hai Qadir Bux Vs. Km. Azra Sikander - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 155 of 1964
Judge
Reported inAIR1965All125; 1965CriLJ269
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488
AppellantAbdul Hai Qadir Bux
RespondentKm. Azra Sikander
Advocates:S.B.L. Ast sic
DispositionRevision application dismissed
Excerpt:
criminal - meaning of child - section 488 of criminal procedure code, 1898 - does not mean minor - criteria is 'unable to maintain itself' - it changes with different circumstances of different communities. - - 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 presents......s. b. l. asthana, for the petitioner.2. the only question raised is regarding the meaning of the word 'child' in section 488 of the code of criminal procedure. that section provides.'if any person having sufficient means neglects or refuses to maintain ... . . . his legitimate orillegitimate child, unable to maintain itself ....a magistrate of the first class may . . .... ordersuch person to make a monthly allowance for the maintenance of . . . such child........'the argument of the learned counsel is that the word 'child' can refer only to a minor. in support of his contention the learned counsel has relied on subbama v. venkata reddi : air1950mad394 . then a learned single judge of the madras high court in paragraph 5 considered the case of a person who might become senile and owing.....
Judgment:

D.N. Nigam, J.

1. The petitioner Chowdhry Abdul Rai was ordered to pay maintenance to his daughter, Km. Azra Sikander alias Malka, at the rate of Rs. 20/- per mensem. Subsequently this amount at maintenance was increased to Rs. 25/- per mensem. On 18th July, 1963 he presented an application under Section 489, Code of Criminal Procedure seating that Kumari Azra Sikandar having attained majority was no longer entitled to a maintenance. The learned Magistrate rejected this application. The matter was taken in revision to the Sessions Judge, Lucknow. It came up for hearing before the learned Additional Sessions Judge, Lucknow who rejected the application by judgment dated 23-11-1963. Now Chowdhry Abdul Hai has come up in revision to this Court. I have heard the learned counsel, Mr. S. B. L. Asthana, for the petitioner.

2. The only question raised is regarding the meaning of the word 'child' in Section 488 of the Code of Criminal Procedure. That section provides.

'If any person having sufficient means neglects or refuses to maintain ... . . . his legitimate orillegitimate child, unable to maintain itself ....a Magistrate of the first class may . . .... ordersuch person to make a monthly allowance for the maintenance of . . . such child........'

The argument of the learned counsel is that the word 'child' can refer only to a minor. In support of his contention the learned counsel has relied on Subbama v. Venkata Reddi : AIR1950Mad394 . Then a learned single Judge of the Madras High Court in paragraph 5 considered the case of a person who might become senile and owing to senility might be unable to maintain himself and yet may have a father living and may call upon his father to maintain himself as his child. That would, in my humble opinion, be carrying the matters a little too far. I cannot persuade myself to agree with the contention of the learned counsel that a person, as soon as he or she attains the age of 18, ceases to be entitled to maintenance. In my opinion the key to this provision is furnished in the ease of the child by the words 'unable to maintain itself' 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. On the other hand, regard being ad to the circumstances of the family of the petitioner it cannot be said that a girl aged 19 studying in the Intermediate classes is able to maintain herself. It is not even suggested before me that Kumari Azra Sikandar is persisting in demanding an education in excess of either the average education given to girls or the education to which she would be entitled as being the daughter of the petitioner. I am, therefore, of opinion that there is no force in the contention that the word 'child' means a minor. In that view I have the support of a decision of the Nagpur High Court in the case of State v. Ishwarlal AIR 1950 Nag 231, In paragraph 3 it was held:

'The question whether the age of the child is material for determining the point of a father's liability to maintain that child is one in which there is a conflict of judicial decisions in this country. On the one hand, it has been held that the word 'child' used in Section 488, Criminal 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 herself. On the other hand, it has been held that the word 'child' used in the section means one who has not attained majority.'

Then after noticing the different decisions, the learned Judge came to the conclusion:

'It seems to me that the view in the first set of cases is the correct one and should be accepted in preference to that taken in the second set of cases for two reasons. 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 Muhammad Yar v. Ali Muhammad, AIR 1941 Lah 92: 42 Cri LJ 439. According to the learned Judge:

'........ 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 presents.'

Then in paragraph 5 it was stated:

'No doubt, the question whether a person is a major or minor is not wholly irrelevant in a proceeding under Section 488, for, in my opinion if a person is a minor there can be no presumption against him that he is able to maintain himself. On the contrary, if it is shown that he is a major there would be a presumption against him that he is able to maintain himself that is, there would be the kind of presumption raised by Prideaux A. J. C. in the decision just cited.'

If I may say so, I respectfully agree with this view, I am of opinion that the Legislature purposely omitted reference to any particular age. The emphasis is on the words 'unable to maintain itself' It is a question to be decided on the evidence of each case whether a particular child is or is not able to maintain itself. For that, regard must be had to the particular circumstances obtaining in each family and its status. Regard being had to these considerations, I am of opinion that it can by no stretch of imagination be said that Kumari Azra Sikandar is able to maintain herself I am therefore, of opinion that the revision application was rightly rejected.

3. I, therefore, see no force in this revision application and dismiss it summarily.


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