AMIRTHAMMAL Vs. K. MARIMUTHU

JUDGEMENT

(1.) This revision case arising out of a proceeding before the Additional First Glass Magistrate, Madurai, under Sec. 488(11) Criminal Procedure Code, comes before us, as the matter has been referred to a Bench in view of the conflict of case -law and marked divergence of opinion between various High Courts and even in decisions of the same High Court on the question whether the word 'child' in Sec. 488(1), Criminal Procedure Code, in the context means a person of tender years or a person who has not attained the age of majority, that is, person under non -age Or expresses only the relationship of a person as the immediate issue of a parent, without reference to age.

(2.) The application which has given rise to the proceeding was filed by one Amirthammal, the petitioner herein, of Melaponnagaram, Madurai, against her son Marimuthu claiming maintenance for two children of Marimuthu, a son named Balakrishnan and a daughter Ramanujam, both of whom are living with her. It is seen from the order of the Court below that the girl Ramanujam has a twin sister Sitalakshmi who has been married away. In the petition it is alleged that the boy Balakrishnan was aged 17, sickly and was not keeping good health and Ramanujam was just 15 years old. The mother of these children died in 1947, and it is found' that their father Marimuthu had married again in about 1959, and sometime after that he had neglected these children. The learned Additional First Class Magistrate No. 1, Madurai before whom the matter came up, finds that there is sufficient evidence on the side of the respondent which, was not seriously shaken in cross -examination to show that the boy Balakrishnan was capable of doing some work and that he was doing work and earning Rs. 2 to Rs. 3 per day. It is found further that he was born on 23rd May, 1944 and had completed 20 years of age on the date of the application under Sec. 488(1), Criminal Procedure Code. As regards the girl Ramanujam, the learned Magistrate is of the view that she was in ill probability aged 18. In these circumstances, purporting to follow the latest decision of this Court in Ibrahim v/s. Saidani Bi, (1964) 2 M.L.J. 70 :, (1964) M.L.J. 402 the learned Magistrate held that neither of the children was entitled to claim maintenance from their father.

(3.) The relevant portion of Sec. 488(1) runs as follows: