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PETITIONER: DR. (MRS.) VIJAYA MANOHAR ARBAT

       Vs.

RESPONDENT: KASHI RAO RAJARAM SAWAI AND ANR.

DATE OF JUDGMENT18/02/1987

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1100            1987 SCR  (2) 331  1987 SCC  (2) 278        JT 1987 (3)    46  1987 SCALE  (1)379

ACT:     Code  of  Criminal Procedure, 1973,  section  125(1)(d), scope  of-Interpretation  of  the  pronoun   ’his’---Whether includes ’her’--Section 2(y) of Criminal Procedure Code read with section 8 of Indian Penal Code and section 13(1) of the General  Clauses  Act   Maintenance of  father/mother  by  a daughter--Whether  a claim by a father under section  125(1) (d) Criminal Procedure Code maintainable.

HEADNOTE:     The  appellant, a medical practitioner at  Kalyan,  Dis- trict  Thane, is the married daughter of Respondent  No.  1, Kashirao Rajaram Sawai, by his first wife, who died in 1948. Thereafter, Respondent No. 1 remarried and he is living with his second wife. He filed an application before the Judicial Magistrate, First Court Kalyan claiming maintenance from the appellant at the rate of Rs.500 per month on the ground that he was unable to maintain himself.     A  preliminary objection raised to the effect,  that  an application under section 125(1)(d) Criminal Procedure  Code by  a father to claim maintenance from his daughter was  not maintainable  was  overruled  by the  Trial  Magistrate  and upheld  by the High Court in revision. Hence the  daughter’s appeal by Special leave. Dismissing the appeal, the Court,     HELD: 1.1 An application under section 125(1)(d) of  the Code  of  Criminal  Procedure, 1973, by  a  father  claiming maintenance from his married daughter is perfectly maintain- able. [337C]     1.2 Section 125(1)(d) of the Code (a new provision)  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. [337F]     1.3 The object of section 125 Criminal Procedure Code is to provide a summary remedy to save dependents from destitu- tion and vagrancy and thus to serve a social purpose.  There can be no doubt that it is the moral obligation of a son  or a daughter to maintain his or her 332 parents.  It  is not desirable that even though a son  or  a daughter  has  sufficient means, his or  her  parents  would

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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. [335B-C] Bhagwan Dutt v. Kamla Devi, [1975] 2 SCC 386, referred to.     2.1  It is true that clause (d) has used the  expression ’his  father or mother’ but, the use of the word ’his’  does not  exclude  the parents claiming  maintenance  from  their daughter. Section 2(y) Criminal Procedure Code provides that words  and expressions used herein and not defined  but  de- fined in the Indian Penal Code have the meanings respective- ly  assigned to them in that Code. Section 8 of  the  Indian Penal  Code lays down that the pronoun ’he’ and its  deriva- tives are used for any person whether male or female.  Thus, in  view  of section 8 Indian Penal Code read  with  section 2(y)  Criminal Procedure Code, the pronoun ’his’  in  clause (d) of section 125(1) Criminal Procedure Code 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  import- ing the masculine gender shall be taken to include  females. Therefore,  the pronoun ’his’ as used in clause (d) of  sec- tion 125(1) Criminal Procedure Code 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  ful- filled. 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. [335E-H; 336A-B]     2.2 When the statute provides that the pronoun ’his’ not only  denotes a male but also a female, it is not  necessary to  refer to the report of the Joint Committee  on  Criminal Procedure Code Bill for the interpretation of clause (d)  of section 125(1) Criminal Procedure Code. The father or  moth- er, unable to maintain himself or herself, can claim mainte- nance 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’. [336H; 337A-B] 333     2.3 A daughter after her marriage does not cease to be a daughter  of the father or mother. If it is not so,  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. [337D-E] Raj Kumari v. Yashodha Devi, [1978] Cr. L.J. 608, overruled.     M.  Areera Beevi v. Dr. K.M. Sahib, [1983] Cr. L.J.  412 and Repalli Masthanamma v. Thota Sriramulu, [1982] An.  W.R. 393, approved.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 378 of 1986.     From  the  Judgment and Order dated 11.10. 1985  of  the Bombay High Court in Crl. Revision Appln. No. 167 of 1985. V.N. Ganpule for the Appellant.     A.M.  Khanwilkar,  A.S. Bhasme and G.B.  Sathe  for  the

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Respondents. The Judgment of the Court was delivered by     DUTT, J. 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  daugh- ter, under section 125(1)(d) Cr. P.C.     The  appellant Dr. Mrs. Vijaya Arbat, a medical  practi- tioner 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.     At the outset, the appellant raised a preliminary objec- tion 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  objec- tion was overruled by the learned Magis- 334 trate,  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  maintain- able  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.     Sub-section  (1)  of  section  125  Cr.P.C.  provides  as under:-               "If  any person having. sufficient  means  ne-               glects 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  at-               tained  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  allow-               ance,  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."     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

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335 maintenance of some of his close relations like wife,  chil- dren, father and mother under certain circumstances. It  has been  observed by this Court in Bhagwan Dutt v. Kamla  Devi, [1975]  2 SCC 386 that the object of section 125 Cr.P.C.  is to provide a summary remedy to save dependents from destitu- tion and vagrancy and thus to serve a social purpose.     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  chil- dren  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.     The  learned Counsel, appearing on behalf of the  appel- lant,  has urged that under clause (d) of section  125(1)  a father is not entitled to claim maintenance from his  daugh- ter whether married or not. Our attention has been drawn  to the use of the pronoun ’his’ in clause (d) and it is submit- ted  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’.     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  daugh- ter.  Section 2(y) Cr.P.C. provides that words  and  expres- sions 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  fe- male.  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  import- ing the masculine gender shall be taken to include  females. Therefore,  the pronoun ’his’ as used in clause (d) of  sec- tion  125(1) Cr.P.C. includes both a male and a  female.  In other  words, the parents will be entitled to claim  mainte- nance  against their daughter provided, however,  the  other conditions as mentioned in the section are fulfilled. Before ordering maintenance in 336 favour of a father or a mother against their married  daugh- ter,  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.     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  recog-

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             nised  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).     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 daughters. 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 337 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".     In  M.  Areera Beevi v. Dr. K.M. Sahib,  [1983]  Cr.L.J. 412,  and  Repalli Masthanamma v.  Thota  Sriramulu,  [1982] An.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  them- selves can claim maintenance also from their daughters under section 125(1)(d) Cr.P.C.     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 daugh- ter  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 desti- tute,  if  the daughters even though  they  have  sufficient means refuse to maintain their parents.     After giving our best consideration to the question,  we are of the view that section 125(1)(d) has imposed a liabil- ity  on  both  the son and the daughter  to  maintain  their father  or mother who is unable to maintain himself or  her- self. Section 488 of the old Criminal Procedure Code did not contain  a provision like clause (d) of section 125(1).  The

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legislature  in  enacting  Criminal  Procedure  Code,   1973 thought  it wise to provide for the maintenance of the  par- ents  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.     The  judgment  of the High Court is  affirmed  and  this appeal is dismissed. There will, however, be no order as  to costs. 338     The learned Magistrate will now dispose of the  applica- tion  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. S.R.                                            Appeal  dis- missed. 339