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W.L. Faria Vs. Anita Merlene Faria and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 794 of 1950
Judge
Reported inAIR1951Cal66
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 488 and 488(1)
AppellantW.L. Faria
RespondentAnita Merlene Faria and anr.
Appellant AdvocateS.C. Talukdar and ;B.B. Das Gupta, Advs.
Respondent AdvocateBenode Lal Ghose, Adv.
Cases ReferredM. Purnasashi Debi v. Nagendra Nath Bhattacharjee
Excerpt:
- .....488, criminal p. c. directing the petnr. to pay maintenance at the rate of rs. 50 per month to his daughter anita merlene faria. the petnr. is the husband, opposite party no. 2 mrs. mevis faria is the wife, & opposite party no. 1 anita merlene faria is the daughter. the appln. under section 488, criminal p. c. was made by opposite party no. 2 on behalf of heraelf & the daugther anita merlene faria. the chief presidency mag. dismissed, the appln. so far as the wife was concerned on the finding that she had separated from her husband by mutual consent & had agreed not to claim any maintenance from him. the appln. made by the wife on behalf of the daughter was allowed & upon his finding that the petnr.'s income was roughly rs. 200 per month, the learned mag. on a consideration of all the.....
Judgment:

P.N. Mookerjee, J.

1. In this Rule the petnr. has challenged an order passed by the Chief Presidency Mag. of Calcutta under Section 488, Criminal P. C. directing the petnr. to pay maintenance at the rate of Rs. 50 per month to his daughter Anita Merlene Faria. The petnr. is the husband, opposite party no. 2 Mrs. Mevis Faria is the wife, & opposite party No. 1 Anita Merlene Faria is the daughter. The appln. under Section 488, Criminal P. C. was made by opposite party no. 2 on behalf of heraelf & the daugther Anita Merlene Faria. The Chief Presidency Mag. dismissed, the appln. so far as the wife was concerned on the finding that she had separated from her husband by mutual consent & had agreed not to claim any maintenance from him. The appln. made by the wife on behalf of the daughter was allowed & upon his finding that the petnr.'s income was roughly Rs. 200 per month, the learned Mag. on a consideration of all the circumstances, fixed the amount of maintenance at Rs. 50 per month.

2. Three main points have been urged by Mr. Talukdar the learned counsel for the petnr. in support of this Rule. The first is that the appln. on 'behalf of the daughter by the mother is not maintainable in law. Nothing has been shown to us in support of this proposition contended for by Mr. Talukdar. We find that neither on authority nor on principle nor on any provision of the Criminal P. C. or any statute whatsoever, can this proposition be maintained that an appln. under Section 488, Criminal P. C. cannot be made by the mother on behalf of the daughter. We accordingly reject this contention advanced by Mr. Talukdar.

3. The second point urged by Mr. Talukdar involves an interpretation of the word 'child' in Section 488, Criminal P. C. Mr. Talukdar contends that on the finding of the learned Mag., the daughter Anita is aged above 18 years. In such circumstances, Mr. Talukdar argues, she cannot satisfy the definition of a child within the meaning of Section 488, Criminal P. C. Dealing with this point the learned Chief Presidency Mag. has observed in his judgment as follows :

'It was contended that being a major she was not a child who could demand maintenance. It appears on a clear reading of Section 488 (1) that the word 'child' has been used simply to mean the son or the daughter. Any reference to age has been purposely omitted. The deciding consideration is whether the child is or is not able to maintain himself or herself.'

4. We entirely agree with the observation of the learned Mag. The same view was taken by a Bench decision of this Ct. in the case of SM. Purnasashi Debi v. Nagendra Nath Bhattacharjee, : AIR1950Cal465 where the matter was fully discussed & the law was clearly laid down. Nothing has been shown to induce us to take a view different from that taken in the Bench decision referred to above. We would accordingly overrule this contention advanced by Mr. Talukdar.

5. The third point raised is that there is nothing on the record to show that Anita is unable to maintain herself. We have gone through the records & we find, as observed by the learned Chief Presidency Mag. in his judgment, that the daughter Anita is still in the school & she is unable to maintain herself, She is a Bruce scholar but though her other necessary expenses are covered by the scholarship her mother has to find for her breakfast & dinner. This contention of Mr. Talukdar is also accordingly overruled.

6. We thus find that, on the materials on record, the girl Anita satisfies all the ingredients required under Section 488, Criminal P. C., to entitle her to maintenance from her father.

7. On behalf of the petnr. a further submission has been made that the amount of maintenance granted is excessive, & Mr. Talukdar has contended that the learned Mag. was not right in holding that the petnr.'s income was in the neighbourhood of Rs. 200 per month. We find nothing on the record to interfere with this finding of the learned Chief Presidency Mag. We accordingly hold that the amount of maintenance fixed by the learned Ohief Presidency Mag. viz., at the rate of Rs. 50 per month, for the daughter Anita is quite fair. We uphold this finding of the learned Mag. & reject the petnr.'s contention that the rate of maintenance fixed by the learned Mag. is excessive.

8. As all the points raised by Mr. Talukdar fail, this appln. must be dismissed. The Rule is accordingly discharged.


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