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Havaben Karimbhai Belim Vs. Razakbhai @ Bachubhai Kartmbhai Belim and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR237
AppellantHavaben Karimbhai Belim
RespondentRazakbhai @ Bachubhai Kartmbhai Belim and ors.
Cases ReferredG.M. Balraj v. Dinesh
Excerpt:
.....code of criminal procedure, 1973 (code) and the question is, whether that expression includes a 'step-mother'.2. the facts are very brief. one of the grounds on which the claim of the petitioner was contested was that the petitioner being step-mother does not fall within the expression 'mother' and, therefore, irrespective of the merits of the case, the petition is likely to fail. both of them rendered valuable 'assistance to the court by referring to the provisions of personal law of hindus and mohmedans as well as the dictionary meanings. provided that the magistrate may order the father of a minor fatale 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..........or nationality.he, therefore, came to the view that the word 'mother' does not include the 'stepmother'. the result was that the petition for maintenance came to be dismissed. being aggrieved, the petitioner has invoked the revisional jurisdiction of this court.3. as the question involved was of general importance in so far as the remedy provided by section 125 of the code was concerned, the members of the bar were permitted to intervene and m/s. a.d. shah and b.c. patel intervened. both of them rendered valuable 'assistance to the court by referring to the provisions of personal law of hindus and mohmedans as well as the dictionary meanings. the court is beholden to them for the assistance rendered.4. in interpreting the provisions of section 125 of the code, we must, in the.....
Judgment:

D.P. Desai, J.

1. This revisional application raises an interesting question as to interpretation of the word 'mother' occurring in Section 125(1) of the Code of Criminal Procedure, 1973 (Code) and the question is, whether that expression includes a 'step-mother'.

2. The facts are very brief. The parties are Mohmedans and the petitioner who is the step-mother of the opposite parties, instituted a proceeding for maintenance under Section 125 of the Code, being Criminal Miscellaneous Application No. 85 of 1975 before the Judicial Magistrate. First Class at Rajkot, making the necessary averments entitling her to maintenance. One of the grounds on which the claim of the petitioner was contested was that the petitioner being step-mother does not fall within the expression 'mother' and, therefore, irrespective of the merits of the case, the petition is likely to fail. The learned trial Magistrate raised several issues. However, he determined issue No. 1 as a preliminary issue. That issue was, whether the application was maintainable? The learned Magistrate accepted the contention observing as under:

The plain natural dictionary meaning of the word 'Mother' is a female parent. Parent means one who be gets or brings forth; that which produces or that from which anything springs, there are other extended meanings of the word 'mother'; but we are not concerned with them. If the legislature really intended to extend the provision to the step-mother, it could have specified the step-mother as has been done in the case of illegitimate child and divorced wife who has not remarried. The Court has to interpret particular section according to its plain words and without doing violence to the language used by the Legislature. The fact that under the provisions of Mohmmedan Law step-mother is entitled to maintenance can be of no help here because Section 125 of the Act is applicable to all people irrespective of caste, creed, community or nationality.

He, therefore, came to the view that the word 'mother' does not include the 'stepmother'. The result was that the petition for maintenance came to be dismissed. Being aggrieved, the petitioner has invoked the revisional jurisdiction of this Court.

3. As the question involved was of general importance in so far as the remedy provided by Section 125 of the Code was concerned, the members of the bar were permitted to intervene and M/s. A.D. Shah and B.C. Patel intervened. Both of them rendered valuable 'assistance to the Court by referring to the provisions of personal law of Hindus and Mohmedans as well as the dictionary meanings. The Court is beholden to them for the assistance rendered.

4. In interpreting the provisions of Section 125 of the Code, we must, in the first place, bear in mind that the main object of this provision was to prevent vagrancy. Secondly, the provision has a social purpose to fulfil irrespective of the personal law of the parties. Keeping these two considerations in mind, it is obvious that no interpretation should be adopted which will aim at defeating the main object of the legislation. It is not uncommon to find that a man having begotten children marries again after the death of his first wife, the children get up and become major. Still, the father, the sons and daughters and a step-mother all live in the same family under the same roof as a unit. This state of affairs even continues after the father's death so that the step-mother and her children continue to remain under the same roof. These are common place occurrences of human existence so far as this country is concerned. The affinity brought about by the father's marriage between the step-mother and the step-children is not sapped by father's death. If, in a given case, therefore, difference is developed between the step-mother and the step-sons, with the result that the step-mother is uncared for, would a strict interpretation of such a beneficial provision of law be justified? Such a strict interpretation would rather encourage vagrancy and thus defeat the main purpose of the provision. In fact, the provision makes erring husband and erring children fulfil its social purpose where such husband and children neglect or refuse to maintain the wife or parents respectively. All these considerations would, therefore, inevitably call for a purposeful interpretation of the language of Section 125. Any interpretation, which would defeat, even, to an extent, the main object of the provision, should be avoided by a Court of a Law.

5. The provisions of Section 125 of the Code in so far as they are relevant for our purpose may now be reproduced:

125.(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 not exceeding five hundred rupees in the whole, 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 fatale 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.

Explanation-For the purpose of this Chapter,

(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 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. XX XX XX XXXX XX XX XX

Clause (a) and (d) of Sub-section (1) of Section 125 postulate status created by a lawful marriage. Thus, the wife contemplated is a lawfully married wife and an extended meaning is given to that word by Explanation (b) so as to include a woman who has been divorced or has obtained a divorce from her husband and has not remarried. In case of father or mother also, the reference is to status created by a lawful marriage. If the underlying idea of these two clauses, viz. Clauses (a) and (d) is, to deal with status created by a lawful marriage, it follows, as a necessary consequence, that in case of a son whose natural mother is dead, a lawful marriage contracted by the father with another woman gives status to that woman equal to that of a mother, which in law, or, common parlance, is termed as 'step-mother'. Therefore, 'mother' contemplated by the provision contained in Clause (d) will fall under two categories, viz, (i) the natural mother, that is, the mother who has given birth to the son who is proceeded against under Section 125(1); and (ii) the step-mother who has obtained a status as such by virtue of lawful marriage with the father of that son. The status of a step-mother has been recognised vis-a-vis the step-son as creating filial relationship even by the personal law of Hindus and Mohmedans as in force now. Thus, Section 20 of the Hindu Adoptions and Maintenance Act, 1956, while providing, inter alia, for the obligation of a Hindu to maintain his aged parents, states in its Explanation that the word 'parent' occurring in the section includes a childless step-mother. Where the Legislature thought of excluding this filial status, created as a result of a Valid marriage, it has provided so, for instance, in Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides for natural guardians of a Hindu minor, the Explanation states that the expressions 'father' and 'mother' do not include a step father and a step-mother. This status is also recognized under Hindu Succession Act, 1956. Section 8 of the Schedule attached thereto dealing with general rules of succession in the case of males. Class I contemplates a mother, and Class II, Entry No. 2, includes father's widow which, in the context, would mean 'step-mother'.

6. In Muslim Law by Tyabji 1968 Edition, we find in paragraph 345 the obligation of a Muslim to maintain a step-mother in certain specified circumstances. That obligation does not arise unless the father is weak and infirm and without the means to maintain the step-mother. Therefore, if we construe the expression 'mother' occurring in Clause (d) widely so as to include 'step-mother', we are not doing any violence to the language employed. In Chambers Twentieth Century Dictionary, 1976 Edition, we find in the definition of 'mother' that the expression is extended to a 'step-mother' also. The Oxford English Dictionary in its 1970 Edition, in Vol. VI defines 'mother' as 'A female parent', as well as 'a woman who has given birth to a child'. The same dictionary in its definition of 'step-mother' defines her as 'A woman who has married one's father after one's mother's death.' This dictionary meaning would also show that so far as filial relationship is concerned, each of the two parents can be one of the two categories, viz., in case of mother, a natural mother and stepmother, and in case of father, a natural father and a step-father. Of course, in respect of a given function to be discharged by such mother in accordance with law, she may not be considered competent, as for instance, a Hindu step-mother cannot give her step-son in adoption, vide Dhanraj v. Smt. Suraj Bai : AIR1975SC1103 . But, that factor cannot revolt against the interpretation to be given to the word 'mother' so as to include a 'step-mother'.

7. The need for wider interpretation of the word 'child' occurring in old Section 488 was felt by the Supreme Court also in Nanak Chand v. Chandra Kishore Aggarwala : 1970CriLJ522 . The word 'child' which was not defined in the Code was interpreted not only to mean a minor son or daughter, but also a major son or daughter who was unable to maintain himself or herself. It was observed in paragraph 9 of that judgment by taking certain illustrations that by importing the concept of a major child being included in the word 'child', no harm was done for the section itself provided a limitation by saying that the child must be unable to maintain himself. The following observations in paragraph 9 may well be apposite in connection with a step-mother, who having lived with her husband and step-children throughout the life of the husband, is subsequently driven out by the step-children and is left to fend for herself:

We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen.

In the same way, it can be said that it is not as if such cases of neglect of obligation after the father's death of step-son to maintain step-mother have not arisen. There is nothing in the section to indicate that the expression 'mother' is confined to natural mother only and the legislative intent is to exclude the 'stepmother' from that expression.

8. However, reliance has been placed on a decision by a learned single Judge of the Bombay High Court in Ramabai w/o G.M. Balraj v. Dinesh s/o G. M. Balraj and Anr. 1976 Maharashtra L.J. 565, where it was held that the word 'mother' occurring in Section 125 does not include 'step-mother'. In arriving at this conclusion, the word 'his' occurring inclause (d) as well as occurring with regard to children, legitimate and illegitimate, was emphasized to suggest that the word 'mother' means 'natural mother' and not 'step-mother'. Definitions of 'father' and 'son' contained in Section 2 (20) and 2 (57) of the General clauses Act were also referred to. These definitions only say that 'father' and 'son' in the case of any one whose personal law permits adoption, shall include an adoptive father or an adoptive son respectively. The dictionary meaning of the word 'mother' was also referred to and reference was made to Chambers Twentieth Century Dictionary as well. However, it appears that the extended meaning attached to that word by Chambers Twentieth Century Dictionary mentioned earlier in the present judgment was not referred to. Then provisions of Explanation to Section 20 of the Hindu Adoptions and Maintenance Act, 1956, was also referred to. Decisions of the Supreme Court and other High Courts in different contexts were considered. The leaned Judge said that Section 125 contemplates blood relationship which gives rise to moral and legal obligation to maintain a person and also observed that it cannot be forgotten that while making such a provision in the new Code, though the Legislature was aware of the Explanation added to Section 20 of the Hindu Adoptions and Maintenance Act, no such Explanation is added to Section 125 of the new Code, nor the term 'mother' is defined in the said Code.

9. Coming to the emphasis on the word 'his', I feel, speaking with great respect, that word is not used to emphasise the natural or blood relationship with mother or father, because if that was so, that very word would be quite in-appropriate in respect of the word 'wife' mentioned in Clause (a) which also speaks of 'his wife'. It seems, therefore fairly clear that this word 'his' which is common to all the four clauses of the main part of Sub-section (1) refers to the person who is made liable under the main part of Sub-section (1) for the maintenance of different categories of persons mentioned in Clauses (a) to (d). The definitions of the words 'father' and 'son' contained in the General clauses Act do not render any assistance on the present question. It is an inclusive definition and the inclusion has to be made because of the peculiar feature of the personal law of party like Hindus where the status of 'father' and 'mother' who are not natural father and mother can be created by adoption. As regards Section 20 of the Hindu Adoptions and Maintenance Act, 1956, it can as well be said that, inabsence of Explanation, even the 'step-mother' would have been entitled to maintenance as she was entitled to under the general Hindu law as it stood prior to enactment of that Act if the son inherited the estate of the father. Therefore, in order to see that the obligation is limited to a childless step-mother only, the Explanation has to be added. It has already been mentioned earlier that the Supreme Court in Nanak Chand's case (supra) gave a wider expression to the word 'child' of the old Code which would justify wider meanings to be given to the words 'father' and 'mother' in view of the normal living conditions of this country as pointed out earlier. Speaking with great respect, therefore it is not possible to agree with the view of the Bombay High Court in Ramabai's case (supra).

10. So far as the contention that in a given case, a 'step-mother' having her natural sons would proceed against the step-sons and make them liable for maintenance and not proceed against the natural sons, which seems to be the case before the Bombay High Court, all that can be said is that the Court would not be powerless to act in the interest of justice in such a situation. What action, if any, the Court can take in such a situation being not the subject-matter of the present case, need not be referred to. But, one thing may be pointed out that Section 125 confers a discretion, on the Court which has to be exercised having regard to the facts and circumstances before it.

11. No other decision of any High Court taking a contrary view on this question of interpretation has been pointed out at the bar even though all the learned advocates appearing in this case, made good efforts to trace any decision which can be helpful. In fact, this case had to be adjourned for enabling them to do so and also for enabling Advocates who wanted to intervene to prepare.

12. In view of the reasons given above, the conclusion is that the word 'mother' occurring in Clause (d) of Section 125(1) includes a woman who has the status of a 'step-mother' by reason of her lawful marriage with the father of the person sought to be made liable for maintenance under Section 125.

12.1 As the learned Magistrate has disposed of this matter only on a preliminary point and that decision is being set aside, the matter will have to go back to him now for decision on merits with regard to the claim of the petitioner-mother for maintenance.

13. In the result, the petition is allowed, the order passed by the learned Magistrate is set aside and the matter is sent back to the learned Magistrate with a direction to dispose of the petition on merits so far as the claim of petitioner to maintenance is concerned. Rule is made absolute to that extent.


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