ISMSIL SHERIFF Vs. NASARIN

JUDGEMENT

(1.) This revision petition is directed against the order of the City Magistrate, Mysore in Criminal Miscellaneous No. 5 of 1962 directing the petitioner to pay a sum of Rs. 20/- per month towards the maintenance of the respondent.

(2.) One Khairunnisa, the wife of the petitioner, filed an application tinder Section 488 of the Code of Criminal Procedure claiming maintenance for herself and her daughter, the prasent respondent who was 3 minor at the time of the petition, against the present petitioner. She alleged that the petitioner had neglected to maintain them and therefore, it is necessary that he should be directed by the Court to pay maintenance to both of them. The petitioner resisted the application. In his objection statement, he contended that he had divorced Khairunnisa long before the' petition was filed by her and therefore, she was not entitled to claim any maintenance from him Under Sub-clause (1) of Section 488 of the Code of Criminal Procedure and the petition was liable to be dismissed. As regards the claim of the respondent he contended that he was prepared to take her Into his custody and maintain her and denied that she had been neglected by him. He further contended that the respondent was capable of maintaining harseif without any help from him and therefore she was not entitled to claim maintenance. The learned Magistrate who recorded the evidence adduced by the parties, held that the petitioner had divorced khairunnisa long before) she filed the petition for maintenance and negatived her claim for maintenance. As regardjs the claim of the respondent Nasarin, who is admittedlyj the daughter of the petitioner, the learned Magistrate rejected the objections raised by the petitioner and held that she was entitled to claim and get maintenance from the petitioner, and taking into consideration the Incorrje of the petitioner and several other circumstances, his held that a Sum of Rs. 20/- per month is fair and reasonable amount that should be paid by the petitioner jtoiwards the maintenance of the respondent and ordered accordingly. It is the legality and correctness of this order; that is challenged in this revision petition,

(3.) It I is urged by Sri Rangaswami the learned Counsel for the petitioner, that the claim of the respondent for maintenance after she attained the age of 18 years cannot at all; be supported Under Section 488 of the Code of Criminal Procedure. In other words. he argues that the/ respondent was entitled to claim and get maintenance from the petitioner upto the date she attained majority and that Sines she is now over 18 years of age, she is not entitled to claim and get any maintenance by him Under Section 488, Cr.PC and therefore, the order passed by j the learned Magistrate directing the1 petitioner to pay maintenance to her at the rate of twenty rupees per month even after she attained majority is illegal and cannot be supported. Mr. Rangaswami lyengar further contends that the respondent was entitled to claim and get maintenance from the petitioner from' the date of the petition upto she attained the age of majority, i. e., 18 years only and not thereafter as she ceased to be a 'child'. In support of his contention he relied upon several High Courts which have taken the view that the word 'child' in Sub-clause (1) of Section 488, Cr.PC means a person who has not attained the age of majority and that a boy or a girl who crossed the age of IS ceased to b a child for the purpose of claiming maintenance Under Section 488 of the Code of Criminal Procedure. There is sharp cleavage in the judicial opinion on the question as to whether the word 'child' used in Sub-clause (1) of Section 488 of the Cr.PC means a person who is under the age of: 18 or who has not attained majority. Some High Courts have taken the, view that the word "child" used in Sub-clause (1) of Section 488 means a boy or n girl who is i below 18 years of age. Some other High Courts have taken the view that there is no justification, whatsoever, to hold that the word 'child' used in the said sub-clause Has any reference to the age of the boy or girl and that it only means the> 'offspring' of the person from whom maintenance is claimed and it has reference only to the question whether the child is capable of maintaining himself or herself. The word 'child' has not been defined in the Code of Criminal Procedure. Age appears to have been purposely omitted in Section 488 of the Code of Criminal Procedure. Their is therefore, no justification' to interpret the word 'child' in Sub-clause (1) of Section 488 of the Code of Criminal Procedure to mean a child below IS yews of age. I am of the opinion that age is purposelyomitted from the section because the object of the Legislature was to provide maintenance as long as the son or the daughter is not capable of maintaining himself or herself. I am, therefore, inclined to agree with the view taken by the learned Judges of the several High Courts that the word 'child' means only offspring of a person from whom he or she claims maintenance and has nothing to do with the age. The relevant point for consideration Under Section 488 (1), Cr.PC is whether the child is capable of maintaining himself or herself without the aid from the father and it has nothing to do with the age. If really the Legislature intended that the word 'child' in Sub-clause (1) of Section 488, Cr.PC would have reference only to a boy or a girl bestow the age of 18 years nothing prevented the Legislature for making it quite clear. As rightly pointed out by some of the learned Judges the Legislature should have made it clear by saying 'minor child1. The fact that the Legislature has not don so and has instead used the word child used in Sub-clause (1) of Section 488, Cr.PC supports the view that the Legislature did not intend to restrict the application of this provision to a boy or a girl below the age of 18 years. The first contention of Sri Raj igaswami linear is, therefore rejected.