iminal Appeal No 6 of 1969
Appeal from the judgment and order dated May 2 1968 of the Delhi High Court in Criminal Revision Nos
339 D of 1965 and 185 D of 1968
Sardar Bahadur Saharya and Yougindra Khushalani for the appellant
section C Mazumdar and Yogeshwar Dayal for the respondents
The Judgment of the Court was delivered by Sikri J
This appeal by certificate of fitness granted by the High Court of Delhi arises out of an application under section 488 Cr
PC filed on September 4 1963 in the Court of Magistrate 1st Class Delhi by four children of the respondent Nanak Chand
The first applicant Chandra Kishore was born on January 23 1942 the second Ravindra Kishore was born on September 23 1943 the third Shashi Prabha was born on February 23 1947 and the fourth Rakesh Kumar was born on September 21 1948
The first two applicants were thus majors at the time of the appli cation the third though a minor at the time of the application was a major on the date of the order passed by the Magistrate ie on March 26 1965
The learned Magistrate allowed the application and ordered the respondent Nanak Chand to pay Rs 35 pm to Chandra Kishore for four months only Rs 36 pm to Ravindra Kishore for 3 years only in case he continued his medicine studies Rs 45 pm to Shashi Prabha as her maintenance allowance and education expenses and Rs 45 pm to Rakesh Kumar as his maintenance allowance and education expenses from March 26 1965
Both the applicants and the respondent Nanak Chand filed revisions against the order of the Magistrate to the Additional Sessions Judge who dismissed the revision petition filed by the respondent Nanak Chand and accepted the revision petition of the 567 applicants
The Additional Sessions Judge submitted the case to the High Court with the recommendation to enhance the maintenance allowance of the applicants in terms of the proposals made by him
The Additional Sessions Judge observed that the maintenance under section 488 did not include the costs of college education and therefore he did not propose to allow Chandra Kishore and Ravindra Kishore the expenses of their college education
But taking into consideration the income of the respondent and the status of the family the Additional Sessions Judge proposed to allow Chandra Kishore and Ravindra Kishore Rs 100 pm each as maintenance allowance until they finished their courses of MCom
and MBBS respectively
He further proposed to allow to Rakesh Kumar and Shashi Prabha each a monthly maintenance allowance of Rs 50 until Shashi Prabha was able to earn or was married whichever was earlier and until Rakesh Kumar was able to maintain himself The High Court accepted the reference made by the learned Additional Sessions Judge and dismissed the criminal revision filed by the respondent
The High Court granted the certificate under article 1341 c of the Constitution because there is conflict of opinion on the question of the interpretation to be given to the word child  in section 489 Cr
The learned counsel for Nanak Chand has raised three points before us  first that section 488 Cr
PC stands impliedly repealed by section 4 of the 78 of 1956 hereinafter referred to as the Maintenance Act insofar as it is applicable to Hindus secondly that the word child  in section 488 means a minor and thirdly that the maintenance fixed for Chandra Kishore and Ravindra Kishore was based on wrong principles and was excessive inasmuch as expenses for education have been taken into consideration
Section 4 of the Maintenance Act reads 4
Save as otherwise expressly provided in this Act a  b any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act
 The learned counsel says that section 488 Cr PC insofar as it provides for the grant of maintenance to a Hindu is inconsistent with Chapter III of the Maintenance Act and in particular section 20 which provides for maintenance to children
We are unable to Sup
Cl69 7 568 see any inconsistency between the Maintenance Act and section 488 Cr
PC Both can stand together
The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus
The law was substantially similar before and nobody ever suggested that Hindu Law as in force immediately before the commencement of this Act insofar as it dealt with the maintenance of children was in any way inconsistent with section 488 Cr
The scope of the two laws is different
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties
Recently the question came before the Allahabad High Court in Ram Singh vs State1 before the Calcutta High Court in Mahabir Agarwalla vs Gitia Roy 2 and before the Patna High Court in Nalini Ranjan vs Kiran Ran3
The three High Courts have in our view correctly come to the conclusion that section 4b of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488 Cr
On the second point there is sharp conflict of opinion amongst the High Court and indeed amongst the Judges of the same High Court
In view of this sharp conflict of opinion we must examine the terms of section 488 ourselves
Section 4881 reads as follows 4881
If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate a Presidency Magistrate a Sub divisional Magistrate or 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 at such manthly 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 from time to time directs
 We may also set out sub section
8 of section 488 because some courts have placed reliance on it  4888
Proceedings under this section may be taken against any person in any district where he resides or is or where he last resided with his wife or as the case may be the mother of the illegitimate child
 The word Child  is not defined in the Code itself
This word has different meanings in different contexts
When it is used in 1 AIR 1963 All 355
2 1962 2Cr
LJ528
3 AIR 1965 Pat
569 correlation with father or parents according to Shorter Oxford Dictionary it means  As correlative to parent
The offspring male or female of human parents
 Beaumont CJ in Shaikh
Ahmed Shaikh Mahomed vs Fatma1 observed  The word child according to its use in the English language has different meanings according to the context
If used without reference to parentage it is generally synonymous with the word infant  and means a person who has not attained the age of majority where the word child  is used with reference to parentage it means a descendant of the first degree a son or a daughter and has no reference to age
In certain contexts it may include descendants of more remote degree and be equivalent to issue
But at any rate where the word child is used in conjunction with parentage it is not concerned with age
No one would suggest that gift to all my children or to all the children of A should be confined to minor children
In section 488 of the Criminal Procedure Code the word is used with reference to the father
There is no qualification of age the only qualification is that the child must be unable to maintain itself
In my opinion there is no justification for saying that this section is confined lo children who are under the age of majority
 We agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word
As observed by Subba Rao J as he then was speaking for the Court in Jagir Kaur vs Jaswant Singh 2 Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose
 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 not imported no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself
The older a person becomes the more difficult it would be to prove that he is unable to maintain himself
It is true that a son aged 77 may claim maintenance under the section from a father who is 97
It is very unlikely to happen but if it does happen and the father is 1 TLR  40
2   84
570 able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under section 488
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
As long ago as 1873 Pearson J
In the matter of the Petition of W B Todd1 had to deal with a major son who was deaf and dumb and he had no hesitation in granting an order of maintenance
The same conclusion was arrived at by Chevis J in 1910 in Bhagat Singh vs Emperor2 and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot
We have seen no case in which a man of 77 has claimed maintenance and we think with respect that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance
It is not necessary to review all the case law
The latest judgment which was brought to our notice is that of the Madras High Court in Amirithammal vs Marimuthu3 in which Natesan J has written a very elaborate judgment
He has referred to all the Indian cases and a number of English cases and statutory provisions both in England and in India
We are unable to derive any assistance from the statutory provisions referred to by him or from the English Law on the point
He relied on the use of the word itself in section 488 as showing that what was meant was a minor child
We are unable to attach so much significance to this word
It may well be that it is simpler or more correct to use the word itself rather than use the words himself or herself
 We may mention that Das Gupta J in Smt
Purnasashi Devi vs Nagendra Nath 4 and Mudholkar J in State vs Ishwarlal5 came to the same conclusion as we have done
In view of the reasons given above we must hold that 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 Coming to the third point raised by the learned counsel we are of the view that the learned Additional Sessions Judge and the High Court were right in taking into consideration the existing situation  the situation being that at the time the order was passe Chandra Kishore was a student of MCom
and Ravindra Kishore was a student of MBBS course
We need not decide in this 1 1873 5 NWP High Court Reports 237
2 3 AIR 1967 Mad 77
4 ATR 5 TLR 571 case whether expenses for education can be given under section 488 because no such expenses have been taken into consideration in fixing the maintenance in this case
It has not been shown to us that the amount fixed by the learned Additional Sessions Judge and confirmed by the High Court is in any way excessive or exorbitant
In the result the appeal fails and is dismissed
RKPS Appeal dismissed


Summary:
The appellant s four children the respondents in the appeal two of whom were majors and two were minors filed an application under section 488 of the Criminal Procedure Code in September 1963 for an order requiring the appellant to pay them maintenance
The Trial Court allowed the application and fixed the monthly amounts to be paid as maintenance to each of the children
The appellant s revision application was dismissed but one filed by the respondents was allowed whereby the Additional Sessions Judge submitted the case to the High Court with recommendations to enhance the maintenance allowance
The High Court accepted the reference and thereafter on an application by the appellant granted a certificate under article 1341c for an appeal to this Court
It was contended on behalf of the appellant that i section 488 Cr
PC was impliedly repealed by section 4 of the Hindu Adoptions and Maintenance Act 78 1956 insofar as it applied to Hindus ii that the word child in section 488 means a minor and iii that the maintenance fixed for two of the major children was based on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration
HELD  Dismissing the appeal  iThere was no inconsistency between Act 78 of 1956 and section 488 Cr
PC Both could stand together
The Act of 1956 is an Act to amend and codify the law relating to adoptions and maintenance among Hindus
The law was substantially similar before when it was never suggested that there was any inconsistency with section 488 Cr
The scope of the two laws is different
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties
568 A B Ram Singh vs State AIR 1963 All 355 Mahabir Agarwalla vs Gita Roy  and Nalini Ranjan vs Kiran Rani ATR 1965 Pat 442 approved
iiThe word child in section 488 does not mean a minor son or daughter and the deal 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 not imported no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself
The older a person becomes the more difficult it would be to prove that he is unable to maintain himself
569 F H 566 Shaikh Ahmad Shaikh Mahommad vs Ba Fatma ILR 1943 Bom
38 40 Jagir Kaur vs Jaswant Sinqh   84 in the matter of the Petition of WB Todd 1873 5 NWP High Court Reports 237 and Bhagat Singh vs Emperor 6 IC 960 referred to
Purnasashi Devi vs Nagendra Nath AIR 1950 Cal 465 and State vs Ishwarlal ILR  approved
Amiritliammal vs Marimuthu AIR 1967 Mad 77 disapproved
iiiWhile it was not necessary to decide whether expenses for education can be given under section 488 in the present case the Court below were right in taking into consideration the situation at the time of passing the order ie that the two major children were college students
570 G H