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Minor Differences

In an important ruling, the Uttarakhand High Court has decreed that despite a minor living with his father, it was the duty of the mother to contribute to the maintenance and education of the minor when she had the financial means to do so

The Uttarakhand High Court has decreed that a “person” under Section 125 of the Code of Criminal Procedure (CrPC), which deals with the award of maintenance, would include both male and female, in reference to a minor child, whether legitimate or illegitimate. If the mother or father has sufficient means yet neglects and refuses to maintain such a minor child, they would be held liable to pay for the maintenance of such a child. 

A single bench of Justice Pankaj Purohit while dismissing a criminal revision petition against the order of 2013, passed by judge, Family Court, Udham Singh Nagar—whereby the petition made by the minor son of the revisionist (mother of the minor) for maintenance under Section 125 CrPC was allowed partly and the revisionist was directed to pay a sum of Rs 2,000 as maintenance to the minor from the date of filing of the petition for maintenance till the minor attained majority—ruled that a minor child can claim maintenance from a mother provided the mother has enough means. The petition for maintenance was filed in March 2011 by the minor through his natural guardian against the mother.

The facts of the case is that the minor was born in December 2000 out of wedlock. The parents were married in May 1999 as per Hindu rites and rituals. In September 2006, the marriage between the minor’s parents was dissolved, due to their differences. After the dissolution of the marriage, the minor was living with his father. It was alleged in the petition for maintenance that after the dissolution of marriage, the mother never visited the minor, which deprived him of the love and affection of a mother. The financial condition of the father of the minor deteriorated and he had no means to provide quality education and food to the minor. According to the minor, it is the duty of the mother along with the father to maintain her child. The minor’s mother was a government teacher and was getting at the time of filing of the petition for maintenance, about Rs 25,000 to Rs 30,000 per month at a primary school in Ramnagar.

The petition for maintenance was contested by the mother by filing an objection in March 2012. According to her, as per the terms of compromise, the marriage between parents of the minor was dissolved and the son’s father had taken up the responsibility to maintain and bring him up. After the dissolution of marriage, the minor’s mother married again and out of the second marriage, a son was born to her, but unfortunately, her second husband died in an accident. The mother claimed that she has to maintain her son who was born from her second marriage and also her in-laws. Apart from this, it was contended that the father of the minor was a rich man and the petition for maintenance was moved only to harass her.

Both the mother and minor produced their evidence before the Family Court. The minor stated that his mother is a government teacher and received Rs 30,000 salary; this fact was told to him by his father. He also stated that his father ran a tempo and could not provide for his education in a good school and he wanted Rs 10,000 from his mother for his all-round development, which she could easily afford. During cross-examination, the minor stated that his father spent Rs 1,000 on him for his upbringing, but he could not give pay his school fees. During cross-examination, the mother admitted that she was getting Rs 27,000 per month as salary. She further admitted in her cross-examination that she did not file any document of education of the son born out of the second marriage and also regarding the shop and properties of her first husband.

The Family Court judge after hearing both the parties decided the claim petition by the order dated March 30, 2013. The judge recorded the findings on the basis of the oral and documentary evidence that the minor was living with his father. It was also recorded by the Family Court that parents of the minor were competent enough to maintain the minor, but since he was living with his father, it was the duty of the minor’s mother to contribute for maintenance and education of the minor. It was also opined by the judge that the minor’s parents cannot enter into an agreement about the rights of the minor. Having considered the case of the mother—that she equally has the responsibility to maintain her minor son born out of second marriage and other expenses—the judge directed her to pay only a sum of Rs 2,000 for the maintenance of the minor.

This order was challenged in the High Court mainly on the ground that under the provisions of Section 125 CrPC, a duty to maintain the minor children is only upon the father and not on the mother, therefore, the mother was wrongly fastened with the liability to pay the maintenance for her minor son.

The provisions of Section 125 (1) CrPC say:

“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.”

The High Court noted from the provisions of Section 125(1) CrPC that the liability to maintain a minor child is always on “any person”. If he/she has sufficient means, but neglects and refuses to maintain a minor child, such “person” is directed to give the monthly allowance as maintenance at the rate deemed fit to the magistrate.

“The person” word denotes not only the male but a female gender and the Court held that it cannot be said that such a person can only qualify as father and not the mother.

Section 2 (y) of CrPC provides as under:

“(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code. ”

According to Section 2(y) of CrPC, the words and expressions used in the CrPC but have not been defined in the CrPC, shall have the same meanings assigned to them as defined in the Indian Penal Code. 

Section 8 of IPC says:

“8. Gender—The pronoun “he” and its derivatives are used of any person, whether male or female.”

This definition of gender gives an indication to the High Court that “he” and its derivatives are used of any person whether male or female.

Under Section 11 of the IPC, the “person” has also been defined, which includes any company or association or body of persons, whether incorporated or not.

From the meticulous examination of these words having been defined in the Indian Penal Code, the bench ruled that any “person” used in the provisions of Section 125(1) CrPC includes both mother and father. The Court considered the case laws referred by counsel for the minor’s mother as in the case of Raj Kumari vs Yashodha Devi and another decided on July 20, 1977. However, it observed that the facts being different, the case law is of no assistance to the revisionist.

In the case of Mst Dhulki vs State (1960) decided on May 14, 1959, the reliance was placed on sub-Section (6) of Section 488 CrPC (old CrPC) wherein it was provided that “all evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be.” According to this provision of sub-Section (6) of Section 488 CrPC, the Rajasthan High Court arrived at a conclusion that the action contemplated under Section 488 of CrPC is only against the husband or the father and not against the mother. But now after the new CrPC 1973 was enacted, there is no such sub-Section (6) in Section 125 CrPC. The “Procedure” is given under Section 126 of the CrPC, in place of sub-section (6) of Section 488 of old CrPC. Section 126 (2) appears to have been replaced which is quoted below:

“(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases.”

It was clear to the High Court that under sub-Section (2) of Section 126 CrPC, there is no such word “father” or “husband” in the aforesaid sub-section, as it was there in the old CrPC Section 488 sub-Section (6). Now, in place of “father” or “husband”, “person” has been incorporated and it is provided that “all evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made….”

Further, the High Court observed that there is yet another aspect for not relying upon these case laws as both the judgments had been passed in the backdrop of the time when women were mostly uneducated and unemployed. The judgment in the case of Mst. Dhulki vs State Raj (supra) was passed on May 14, 1959, while the judgment in the case of Kumari vs Yashodha Devi and another (supra) was passed on July 20, 1977. “Now, there is a sea-change in the educational and economic status of women. In the 21st century, most of the women now are well educated and are in gainful employment,” the Court said. 

—By Shivam Sharma and India Legal Bureau

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