P L D 1967 Dacca 575 (PLP)

In the case of Ranchhoddas Narottamdas v. Emperor (A I R 1949 Bom. 36) a Division Bench of the Bombay High Court consisting of Sen and Jahagirdar, JJ., held as follows: "Though the word `child' has not been defined in the Code it has been, however, held that a person is a child for the purposes of this section till he attains the age of majority: Hemanta Kumar Banerji v. Manorama Debi, 62 Cal. 639. (A I R 22) 1935 Cal.

488. Under this section a daughter does not on marriage ipso facto loose her right of maintenance from the father. Th.‑ real and only test is whether that child is unable to maintain itself." The learned Judges have said that the real and only test is whether the child is unable to maintain itself. In this case it does not appear to have been considered that the word `child' may also mean a male or a female issue of a father, namely a boy or girl and for the reasons already indicated, I am unable, speaking with respect, to agree with the view expressed in this case. It will, however, be seen that Mr. Chowdhury being conscious of the duty of an Advocate brought to my notice also the case of Mst. Khedani Rajwarin v. Lagan Singh (22 Cr. L J 330), in which Jwala Prasad, J. observed as follows: "In the absence of any definition of the word `child' in the Act, or to any limit of age placed upon it, I would accept the decision of the Punjab Court that the maintenance allowed is to continue so long as the person is unable to maintain himself. The omission to define the age was probably intentional so as to allow the maintenance to continue even throughout the life, if owing to some mental or corporeal defect the person is unable to maintain himself." This observation is a complete answer to the absurdity visualised in the Madras case. The Legislature has intentionally limited the claim of maintenance to the inability of the person claiming it, so that it can be had without any limitation of age if circumstances required owing to "some mental or corporeal defect" in the person. Although in the case of A I R 1949 Bom. 36 the view expressed is that the child means a minor child, a different view was expressed in an earlier decision of a Division Bench of the Bombay High Court consisting of Beaumont, C. J. and Wassoodew, J. in the case of Shaikh Ahmed Shaikh Mahomed Ashraf v. Bai Fatma (A I R 1943 Born. 48). In that case Beaumount C. J. delivering the judgment of the Court discussed the question elaborately and expressed himself as follows:‑ "The word `child' according to its use in the English language hah different meanings, according to the context. If used with?out reference to parentage, it is generally synonymous with the word `infant', and means a person who has not attained the age of majority. Sometimes it may be used in a context which shows that it refers to quite young children, for instance, a notice that `children are not admitted to this enclosure' would hardly be held to apply to young persons of eighteen to twenty; it would mean children who are too young to look after themselves. Where the word `child' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter, and has no reference to age." The learned Chief Justice further observed "In certain contexts it may include descendants of more remote degree, and be equivalent to `issue.' But, at any rate, where the word `child' is used in conjunction with parentage, it is not concerned with age. No one would suggest that a gift 'to all my children' or 'to all the children of A' should be confined to minor children. In section 488, Criminal P. C., the word is used with reference to the father. There is no qualification of age; the only qualification is that the child must be unable to maintain itself. In my opinion, there is no justifica?tion for saying that this section is confined to children who are under the age of majority." Even an earlier Madras case also expressed a view contrary to one expressed in A I R 1950 Madras cited above. In the case of T. Kanniah Naidu v. Rajammal (A I R 1941 Mad. 685), Lakshmana Rao, J. observed that "The girl is unable to maintain herself and S. 488, Criminal P. C. does not limit the right of maintenance to minors. The age of the girl is therefore immaterial and the revision petition is dismissed". In two recent, Calcutta cases also the view expressed is that the word `child' used in section 488 of the Code, means a son or a daughter irrespective of age. The two cases are W. L. Faria v. Anita Merlene Faria and another (A I R 1951 Cal. 66), Purnashashi Debi v. Nagendra Nath Bhattacharjee (87 Cal. L J 185). In the case of Purnashashi Debi, K. C. Das Gupta, J. delivering the judgment of the Division Bench observed as follows: "It seems to me that the word `child' has been deliberately used to leave the courts free to order maintenance for such sons and daughters as are unable to earn livelihood for themselves, having due regard to their class or society to which they belong and other surrounding circumstances. The fact, therefore, that the son is 17 or 18 or 19 is, in my opinion, no ground for refusing maintenance on his account. In the case of W. L. Faria, agreement was expressed with the principle laid down in the case of Purnashashi Debi referred to above. In a recent decision of the Lahore High Court in the case of Sughra Begum and others v. Muhammad Din (9 D L R Lah. 37) relied on by Mr. Behetar Ali, learned Advocate appearing for the opposite?-party, Shabir Ahmad, J., observed as follows:‑ "But whether or not the child should be granted maintenance would depend on the other consideration envisaged in section 488 of the Code of Criminal Procedure, namely, that the child should be unable to support itself and the mere fact that the age of the child happens to be 18 years or more cannot dissentitle him to maintenance. If, for example, the son of a well‑to‑do father cannot earn his living because of some ailment, I do not see why he cannot claim maintenance under section 488 of the Code of Criminal Procedure though be may be over 18 years of age." I have already said that there is no limitation of age laid down in the section and as such the contention of Mr. Chowdhury has no substance. The next point urged by the learned Advocate for the petitioner is that the petition of compromise tiled in the case indicates that it was agreed that the maintenance would be paid to the children till they attained the age of majority. That being so it is argued that the learned Magistrate could not give the direction for payment of a period, in excess of one agreed to between the parties. It has also been seen that the law permits the children to claim maintenance even after attainment of the age of majority, if they are unable to maintain themselves. In this case, all the children are minors and an agreement made on their behalf depriving the children of their statutory right is not enforceable. The contention raised in this behalf cannot be entertained on this ground alone. The last point raised by the learned Advocate for the petitioner is that the very fact that the father agreed to pay maintenance to the children indicates that there was no unwilling?ness on his part to maintain them. That being so, the learned Magistrate had no jurisdiction to order payment of maintenance. It is true that the law gives authority to a Magistrate to direct payment of maintenance on proof of the negligence or refusal to, maintain the children by the father or the wife by the husband. In this case, Mr. Chowdhury claims that there is no refusal because of agreement. But the view expressed by Addison and Dalip Singh, JJ. in the case of Pal Singh v. Mst. Nihal Kaur (A I R 1932 Lah. 349) is a complete answer to this argument which is as follows. "If at the hearing the husband at once stated that he was willing to pay a specified sum that also might amount to an implied admission that he bad been neglecting or refusing to maintain his wife." In this case on the materials placed before me I am satisfied that this petition for maintenance had to be filed on the refusal of the petitioner to maintain his children. For the reasons stated above, 'I am of opinion that there should be no interference with the impugned order and the rule is accordingly discharged. K. B. A. Rule discharged.