PATHUMMA Vs. CHOLAMARAKKAR

JUDGEMENT

(1.) VAGRANCY is the fruit of a sin and the sin is capital where the root is the parent. It is this painful thought that lingers in the background while analysing the facts of these cases.

(2.) ONE of the main questions arising for consideration is whether legitimate or illegitimate child who has attained majority is entitled to maintenance. There cannot be any dispute that the said question can be tackled only under S.125 of the Code of Criminal Procedure, 1973. To the extent relevant, the provision reads as follows: S.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: Provided that the Magistrate may order the father of a minor female 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: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person Explanation.-- For the purposes of this Chapter,-- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 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. ((2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.)

(3.) THE provision in contradistinction to S.125(1)(b) makes no difference as whether the child is minor or major, again because no person who is physically or mentally challenged or injured and thus unable to maintain himself or herself shall not suffer on account of the neglect or refusal on the part of the father. The only precondition under S.125(1)(c) is that the major and unmarried child, excluding a married daughter, is unable to maintain himself or herself owing to any physical or mental abnormality or injury. There may not be much of a dispute or lack of clarity regarding physical or mental abnormality or physical injury. But what exactly is the scope and ambit of mental injury is yet a grey area under law in the matter of entitlement for maintenance. For analysing the above position, we have to refer to the facts.