Dr (Mrs) Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai and anr. - Court Judgment

Excerpt:
criminal - maintenance - section 125 of criminal procedure code, 1973 - whether respondent entitled to claim maintenance from appellant being married daughter - daughter after marriage does not cease to be daughter of parents - moral obligation of children to maintain their parents - section 125 (1) (d) imposed liability on both son and daughter to maintain their father or mother who is unable to maintain themselves - order of high court for maintenance of parents upheld. - [k. subba rao, c.j.,; j.m. shelat,; m. hidayatullah,; r.s. bachawat, jj.] between may 1961, and may 1962, consolidation proceedings were taken under the east punjab holdings (consolidation and prevention of fragmentation) act, 1948, in an estate in which the appellant was a small proprietor holding land within the ceiling limit. the scheme for consolidation provided for taking of a fraction of each proprietor's land and throwing into a common pool which was added to the land already in the possession of the gram panchayat. but no portion of the common pool apart from what was already owned by the panchayat, was reserved for providing income to the panchayat. the ownership of the common pool was to vest in the proprietary body consisting of the several proprietors, and the gram panchayat was to manage and use it for the common needs and benefits of the estate, under r. 16(ii) of the punjab holdings (consolidation and prevention of fragmentation) rules, 1949, so that, the proprietors and non-proprietors would share in the benefits. the appellant filed a writ petition in 1965, contending that : (1) the consolidation officer was not appointed till after the repartition was concluded, that he could not be appointed retrospectively, that he had no legal authority when he commenced the proceedings, and therefore, the scheme was invalid; and-(2) the scheme amounted to "acquisition by the state" within the meaning of the second proviso to art. 31a(1) of the constitution, with the result that compensation to the proprietor at the market rate was payable. the high court dismissed the petition. on appeal, held: (per subba rao, c. j., sikri and bachawat jj.) (1) the consolidation officer had no authority to act as such before he was appointed and what he did, purporting to act as such officer, had no binding effect on the owners. further, the state government could not appoint him and clothe him with authority retrospectively. but, as the appellant was guilty of laches and no manifest injustice was done to him, the high court was right in rejecting the contention. [147 b-d] (per hidayatullah and shelat, jj.) : as the petition was filed more than three years after the completion of the repartition of holdings. the contention should not be entertained in the face of the presumption under s. 114, indian evidence act, namely, that the officer must have been appointed to act is such, as without such appointment he would not have acted. [154 b] (2) (per subba rao, c. j. sikri and bachawat, jj.). the words acquisition by the state" in the second proviso to art. 31a(1) do not have any technical meaning. in the context of art. 31a the expression must have the same meaning as it has in art. 3 1a(1) (a). the essential difference between "acquisition by the state" on the one hand and "modification or extinguishment of rights" on the other, is that in the first case the beneficiary is the state while in the second the beneficiary is not the state. therefore, if the state has in substance acquired all the rights in the land for its own purposes, even if the title -remains with the owner, it cannot be said that it is not acquisition within the proviso. [149 b-d; 150 g] state of west bengal v. subodh gopal bose [1954] s.c.r. 587,dwarkadas shriniwas v. the sholapur spinning and weaving co. ltd., 11954] s.c.r. 674, saghir ahmad v. state of u.p. [1955] 1 s.c.r. 707 and bombay dyeing and mfg. co. ltd. v. state of bombay, [1958] s.c.r. 1122, followed. but on the facts of this case, the beneficiary of the modification of rights was neither the state nor the panchayat; and therefore, there was no acquisition by the state within the second proviso. as a result of the scheme the title to the small fraction of land which was taken away for forming the common pool remained in the proprietary body of the holders in the estate and in the revenue records, the land would be shown as belonging to all the owners in proportion to their areas. the gram panchayat would manage it on behalf of the proprietary body and use it for common purposes,and the proprietors would enjoy the benefits. even the satisfaction and advancement of the non-proprietors who derived benefits from the common pool would enure to the advantage of the proprieters who would from a more efficient agricultural community. [152 e-g] altar singh v. state of u.p. [1959] supp. 1 s.c.r. 928, followed. per hidayatullah and shelat, jj. (dissenting) : article 31a deals with the special subject of "estates" and its intention is to give protection to state action against arts. 14, 19 and 31 so long as the acquisition is by the state of any estate, or of any rights therein or the extinguishment or modification of any -such rights. to this protection there is an exception, namely, the second proviso, under which land under the personal cultivation of any estate-holder of any kind, which is within the ceiling limit applicable to him, shall not be acquired unless the market value of the land is given as compensation. the word "acquisition" used in the proviso must take its colour from the same word used earlier in the same article, and not from the word as used in an earlier article in juxtaposition with the word "requisition". it denotes not only the acquisition of ownership, that is, the entire bundle of rights, but also acquisition of some rights which leaves the owner, an owner in name only [162 e-163 a] in the present case the 'result of the scheme would be that (i) the proprietor was deprived of his property though only of a small portion; (ii) though the ownership was vested in the proprietary body ill rights with 'regard to the management and income therefrom were vested in the gram panchayat established under punjab gram panchayat act, 1953; (iii) the ownership was therefore transferred to another body, the gram panchayat, which is an entity different from the proprietor. it is a local authority included within the definition of "state" in art. 12, and (iv) the benefit of the income of such lands goes not to the proprietor only, but to all proprietors and non-proprietors in the panchayat area. therefore, although the property is not actually vested in the state government or the panchayat, the panchayat acquires almost the entire bundle of rights. hence, it is "acquisition" by the state within the meaning of the second proviso and compensation at market value must be given. [163 d-h; 164 a] moreover, the fact that what was acquired was a small bit has no significance. what is small is vague and uncertain, and the safer rule is, that, if the land of the tenant cultivating it is below the ceiling fixed by law, and if a portion of it is acquired, no matter for what purpose the acquisition takes place, compensation at -a 'rate not lower than the market value must be paid to him. when the constitution speaks of market value, it is not possible to find compensation in advantages which might accrue indirectly. [164 b-c] - 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. 5. sub-section (1) of section 125 confers power on the magistrate of the first class to order a person to make a monthly allowance for the maintenance of some of his close relations like wife, children, father and mother under certain circumstances. counsel submits that if the legislature had intended that the maintenance can be claimed by the parents from the daughter as well, it would not have used the pronoun 'his'.8. we are unable to accept this contention. before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself. in our opinion, as we read the report of the joint committee, it did not place the burden of maintaining the parents only on the son, but recommended that the liability to maintain the parents should be of the sons and the daughters as well. 13. after giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself. section 488 of the old criminal procedure code did not contain a provision like clause (d) of section 125(1). the legislature in enacting criminal procedure code, 1973 thought it wise to provide for the maintenance of the parents of a person when such parents are unable to maintain themselves.murari mohan dutt, j.1. the only point that is involved in this appeal by special leave is whether the respondent no. 1 is entitled to claim maintenance from the appellant, his married daughter, under section 125(1)(d) cr.p.c.2. the appellant dr. mrs. vijaya arbat, a medical practitioner at kalyan, district thane, is the married daughter of the respondent no. 1 kashirao rajaram sawai, by his first wife. her mother died in 1948. thereafter, the respondent no. 1 remarried and is living with his second wife. the respondent no. 1 filed an application before the judicial magistrate, first court, kalyan, claiming maintenance from the appellant, his daughter, at the rate of rs. 500 per month on the ground that he was unable to maintain himself.3. at the outset, the appellant raised a preliminary objection to the maintainability of the application on the ground that section 125(1)(d) cr.p.c. does not entitle a father to claim maintenance from his daughter. the preliminary objection was overruled by the learned magistrate, and it was held by him that the application was maintainable. being aggrieved by the order of the learned magistrate, the appellant moved the bombay high court in revision. the high court affirmed the order of the learned magistrate and held that the application of a father for maintenance who is unable to maintain himself is maintainable against his married daughter having sufficient means. in that view of the matter the high court dismissed the revisional application of the appellant. hence this appeal by special leave.4. sub-section (1) of section 125 cr.p.c. provides as under:-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 not exceeding five hundred rupees in the whole, 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.5. sub-section (1) of section 125 confers power on the magistrate of the first class to order a person to make a monthly allowance for the maintenance of some of his close relations like wife, children, father and mother under certain circumstances. it has been observed by this court in bhagwan dutt v. kamla devi : 1975crilj40 that the object of section 125 cr.p.c. is to provide a summary remedy to save dependents from destitution and vagrancy and thus to serve a social purpose.6. there can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. it is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. apart from any law, the indian society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. it is also their duty to look after their parents when they become old and infirm.7. the learned counsel, appearing on behalf of the appellant, has urged that under clause (d) of section 125(1) a father is not entitled to claim maintenance from his daughter whether married or not. our attention has been drawn to the use of the pronoun 'his' in clause (d) and it is submitted that the pronoun indicates that it is only the son who is burdened with the obligation to maintain his parents. counsel submits that if the legislature had intended that the maintenance can be claimed by the parents from the daughter as well, it would not have used the pronoun 'his'.8. we are unable to accept this contention. it is true that clause (d) has used the expression 'his father or mother' but, in our opinion, the use of the word 'his' does not exclude the parents claiming maintenance from their daughter. section 2(y) cr.p.c. provides that words and expressions used herein and not defined but defined in the indian penal code have the meanings respectively assigned to them in that code. section 8 of the indian penal code lays down that the pronoun 'he' and its derivatives are used for any person whether male or female. thus, in view of section 8 ipc read with section 2(y) cr.p.c., the pronoun 'his' in clause (d) of section 125(1) cr.p.c. also indicates a female. section 13(1) of the general clauses act lays down that in all central acts and regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. therefore, the pronoun 'his' as used in clause (d) of section 125(1) cr.p.c. includes both a male and a female. in other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.9. much reliance has been placed by the learned counsel for the appellant on a decision of the kerala high court in raj kumari v. yashodha devi [1978] cr.l.j. 600. in that case it has been held by a learned single judge of the kerala high court, mainly relying upon the report of the joint committee on the criminal procedure code bill, 1973, that a daughter is not liable to maintain her parents who are unable to maintain themselves. the joint committee in their report made the following recommendations:-the committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recognised by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means. if there are two or more children the parents may seek the remedy against any one or more of them.(emphasis supplied)10. the learned judge of the kerala high court did not refer in his judgment to the sentence which has been underlined. it is true that in the first part of the report the word 'son' has been used, but in the latter part which has been underlined the recommendation is that if there are two or more children the parents may seek the remedy against any one or more of them. if the recommendation of the joint committee was that the liability to maintain the parents, unable to maintain themselves, would be on the son only, in that case, in the latter portion of the report the joint committee would not have used the word 'children' which admittedly includes sons and duaghters. in our opinion, as we read the report of the joint committee, it did not place the burden of maintaining the parents only on the son, but recommended that the liability to maintain the parents should be of the sons and the daughters as well. we have referred to the report of the joint committee inasmuch as the same has been relied upon in raj kumari's case (supra) by the kerala high court and also on behalf of the appellant in the instant case. when the statute provides that the pronoun 'his' not only denotes a male but also a female, we do not think it necessary to refer to the report of the joint committee for the interpretation of clause (d) of section 125(1) cr.p.c. the father or mother, unable to maintain himself or herself, can claim maintenance from their son or daughter. the expression 'his father or mother' is not confined only to the father or mother of the son but also to the father or mother of the daughter. in other words, the expression 'his father or mother' should also be construed as 'her father or mother'.11. in m. areefa beevi v. dr. k.m. sahib [1983] cr.l.j. 412, and repalli masthanamma v. thota sriramulu [1982] w.r. 393, another single bench of the kerala high court and the andhra pradesh high court have respectively taken the view that the parents who are unable to maintain themselves can claim maintenance also from their daughters under section 125(1)(d) cr.p.c.12. we are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves. it has been rightly pointed out by the high court that a daughter after her marriage does not cease to be a daughter of the father or mother. it has been earlier noticed that it is the moral obligation of the children to maintain their parents. in case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, in that case, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents.13. after giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself. section 488 of the old criminal procedure code did not contain a provision like clause (d) of section 125(1). the legislature in enacting criminal procedure code, 1973 thought it wise to provide for the maintenance of the parents of a person when such parents are unable to maintain themselves. the purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain their parents.14. the judgment of the high court is affirmed and this appeal is dismissed. there will, however, be no order as to costs.15. the learned magistrate will now dispose of the application under section 125(1)(d) cr.p.c. of the respondent on merits in accordance with law, we make it clear that we have not expressed any opinion on the merits of the case.