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PETITIONER: KIRTIKANT D. VADODARIA

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR

DATE OF JUDGMENT:       26/04/1996

BENCH: A.S. ANAND, FAIZAN UDDIN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin.J 1    This appeal  has been  directed against the order dated April 12,  1993 passed  by a learned single judge of Gujarat High Court in a Special Criminal Application No. 496 of 1993 dismissing the  petition of  the  appellant,  affirming  the judgment dated  march 23,  1993 passed  by the City Sessions Judge, Ahmedabad in Criminal Revision Application No. 338 of 1992, arising  out of  an  order  dated  October  16,  1992, arising out of an order dated October 16, 1992 passed by the Metropolitan magistrate. Court. No. 7, Ahmedabad in Criminal Miscellaneous  Application   No.  163   of   1989   awarding maintenance to  respondent no. 2, Smt. Manjulaben, the step- mother of the appellant. 2)   Before  dealing  with  the  rival  contentions  of  the parties, it  would  be  appropriate  to  set-out  the  facts briefly. 3)   The  appellant   is  the   son  of  Danyalal  Hirachand Vadodaria from  his first  wife. When  the appellant  was  a child of  tender age,  his mother expired and after about an year,  Danyalal   Hirachand  took   respondent  No.2.   Smt. Manjulapen as  his second  wife, from  whom  5  sons  and  2 daughters were  born. all  the 5 sons and daughters from the above named  wife second  wife  are  major.  first  of  all, Dayalal Hirachand,  the father of the appellant alone made a Miscellaneous Application  No. 190  of 1984  in the Court of Judicial Magistrate,  Ist Class,  Surendra  Nagar,  claiming maintenance from his son, the appellant, contending that the appellant was  serving as a Manager in Central Bank of India and was  earning Rs. 5,000/- per month in addition to rental income of  Rs.1,000/- per month. The appellant contested the said application  by pleading  that besides  the 5 sons from the second  wife who  are all  earning members,  his  father himself was  a person  of sufficient  means and  assets and, therefore,  the   appellant  was   not  liable  to  pay  any maintenance allowance. 4)   The learned  Magistrate on evaluation of evidence found that Dilip,  one of  the natural born sons of the respondent No. 2  herein, had  contested the  Municipal Election, while the other  two natural  born sons  of  respondent  No.  2  -

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Niranjan and  Bharat -  were carrying on business of selling clothes and books respectively on the payments of Bombay and appellant’s father Danyalal Hirachand was engaged in selling Rasna Chemicals,  Detergent  Powder,  Cello-tape,  Readymade frocks etc.  and was giving Rs. 180/- per month as salary to his servant and was also getting Rs. 108/- per month as rent from tenants and that he had shown his monthly income of Rs. 550/- per month in the Ration Card. He had received 52,000/- as consideration  for sale  of his houses and possessed some jewellery etc.  and on  that basis recorded the finding that Danyalal Hirachand  was a  wealthy and  rich person  and the main dispute between them was with regard to distribution of shares in the properties and, therefore, he was not entitled for  any   maintenance  from   the  appellant,  The  learned Magistrate consequently  dismissed his maintenance petition, In the revisional Court. a settlement was arrived at between the father and the appellant. 5)   Subsequently, another  maintenance petition was jointly filed by  appellant’s  father  Danyalal  Hirachand  and  his second wife Smt. Manjulaben (respondent No.2) claiming a sum of Rs.  500/- per  month as  maintenance from the appellant. out of which the present appeal arises. The respondent No. 2 Smt. Manjulaben  and her  husband Danyalal Hirachand claimed maintenance  from  the  appellant  by  contending  that  the appellant was  brought up  and  educated  by  them  and  was drawing a  handsome salary  as the  Manager of  the Bank and since they are not possessed of sufficient means to maintain themselves and  that their  3  sons  from  Smt.  Manjulaben, respondent No. 2 herein, have meagre income from their small business and  the 2  youngest sons  had  recently  completed their  studies  but  were  unemployed  and.  therefore,  the appellant was  liable for  their maintenance.  The appellant contested  by   denying  that   the  natural  born  sons  of respondent no. 2 had meagre income and were not possessed of sufficient means  to maintain  themselves and  their parents and  pleaded,  inter  alia,  that  they  were  well-of  with sufficient means  to provide maintenance. The appellant took the plea that his father Danyalal Hirachand was an expert in the formula  for preparing  Snuff and was earning Rs.1,500/- to Rs.2,000/- per month from the sale thereof, besides receiving the  rental income  from immovable  properties, He also took plea that the maintenance petition against him had been filed  only to harass the appellant leaving out all the 5 natural born sons of respondent No. 2 who are well-off and capable of maintaining their parents. 6)   The  learned   Magistrate  recorded  the  finding  that Danyalal Hirachand,  the father of the appellant, had agreed to receive  a sum of Rs.3,250/- in full and final settlement of his  future maintenance  allowance  in  revisional  court arising out  of the earlier maintenance petition and that he having sufficient  means to support himself was not entitled for any  maintenance allowance  from the appellant. However, the  trial   Magistrate  took   the  view  that  inspite  of respondent No.  2 being  a step-mother of the appellant, she had right  to  claim  maintenance  from  the  appellant  and awarded  a  sum  of  Rs.  400/-  per  month  as  maintenance allowance to  her from  the date of the petition. This order has been  upheld by  the learned  City Session Judge and the High Court  as stated  earlier against  which this appeal by leave of  this Court  has been  preferred. Thus,  the  short question that  arises for  consideration of  this  Court  is whether the  expression "mother"  used in clause (d) of sub- section (1)  of Section  125 of the Criminal Procedure Code, 1973 (in short the Code), includes "step-mother. 7)   The counsel  for the appellant urged that the appellant

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had already paid a sum Rs. 3.250/- to his father in full and final settlement  of his  future maintenance  claim  in  the earlier proceedings  and the  subsequent application  by him along with  the step-mother  of the appellant was filed with motive to  narras the appellant and to deter and deprive him from claiming  his share  in  the  ancestoral  property.  He submitted  that   the  appellant   being  the   step-son  of respondent No.  2, alone  was chosen to be proceeded against for grant  of maintenance  despite the  fact that  all the 5 real and  natural born  sons  of  the  respondent  No.2  are earning will  and possessed  of sufficient means to maintain their mother,  the respondent  No. 2,  besides  her  husband himself  being  capable  of  maintaining  her.  The  learned counsel asserted  with great  force that  the step-mother is not and  cannot be  included in  the expression  "mother" in Section 125  of  the  Code  and  relying  on  the  decisions rendered by  Bombay, Madhya  Pradesh and Andhra Pradesh High Courts, submitted that the appellant cannot be fastened with the  liability  for  the  maintenance  of  his  step-mother, respondent no.  2 herein,  under Section  125 of  the  Code, specially when  her husband  Dahyalal Hirachand  and 5 major natural born  sons aged  between 44  to 29 years are earning well and  capable of  maintaining respondent  No.2.  It  was contended that the Courts below miserably failed to consider that the appellant’s father Dahyalal Hirachand was possessed of jewellery  and had  sold out  four houses  for a  sum  of Rs.52,000/- and in addition had an independent income of his own which  is sufficient  to maintain  himself and his wife, respondent No,2  the step-mother  of the  appellant, It  was further contended that a person may be bound to maintain the dependents  out   of  the   estate  or  ancestoral  property inherited, in  which event   the right to maintenance exists against the  property by  virtue of  which he  may  be  held liable for the maintenance of his step-mother. 8)    we have given serious thought and consideration to the submissions made  above  by  the  learned  counsel  for  the appellant and notice that Dhayalal Hirachand, the Husband of respondent No.  2 Smt.  Manjulaben, has  been  found  to  be person of  sufficient means and income. It is also true that there  are 5 natural born sons of respondent No. 2 besides 2 daughters, who  are all  major. It is also a fact that Dalio one of the sons had contested the Municipal Election and two other sons  are carrying  on various  business, According to the Law  of the Land with regard to maintenance, there is an obligation of  the husband  to maintain  his wife which does not arise  by reason  of any contract - express or implied - but cut of jural relationship of husband and wife consequent to the  performance of  marriage. Such  an obligation of the husband to maintain his wife arises irrespective of the fact whether he  has or  has no  property, as it is considered an imperative duty  and a  solemn obligation  of the husband to maintain his  wife. The  husband cannot be heard saying that he is  unable to  maintain due  to financial  constraints so long  as   he  is  capable  of  earning.  Similarly,  It  is obligatory on  the part  of son  to maintain his aged father and mother  by reason  of personal obligation. Under the old Hindu Law. this obligation was imposed on the son alone, but now the  present day  Hindu Law extends this obligation both on sons and daughters, In this connection, it is relevant to point out that according to sub-section (1) of section 18 of the Hindu  Adoptions and Maintenance Act, 1956, a Hindu wife is entitled  to the  maintenance from her husband so long as she is  chaste subject  to the  conditions laid down in sub- section (2) of section 18 of the said Act. Under the present Law, as  said earlier,  both son  and daughter are liable to

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maintain aged  or infirm  parents including  childless step- mother, when  the later is unable to maintain herself. It is well  settled   that  such   has  to   maintain  his  mother irrespective of the fact whether he inherits any property or not from  his father,  as on  the basis  of the relationship alone he  owns a duty and an obligation, legal and moral. to maintain his  mother who  has given  birth to  him. further, according  to   Section  20   of  the  Hindu  Adoptions  and Maintenance Act,  1956, a Hindu is under legal obligation to maintain his  wife, minor sons, unmarried daughters and aged or infirm  parents.  the  obligation  to  maintain  them  is personal, legal  and absolute  in character  and arises from the very  existence of the relationship between the parties. But the  question before  us is  whether a  step-mother  can claim maintenance from the step-son under section 125 of the code includes within its fold the step-mother also as one of the persons to claim maintenance from her step-son. 9)   There is a serious controversy and conflict of judicial decisions amongst  various High  Courts with  regard to  the status and  claim of  maintenance by  a step-mother from her step-son and  it is  his conflict of judicial decision which has given  rise to the present Karimbhai Beline v. Razakbhai @ Bachubhai Karimbhai Belin & Ors (1978 Gujarat Law Reporter 237); Orissa  High Court  in Petei  Bewa v.  Laxmidhar  Jena (1985) Criminal  Law Journal  1124) and  the High  Court  of Allahabad in Ganga Sharan Varshney v. Smt. Shakuntala Devi & anr. (1990  Criminal law  Journal 128),  have taken the view that the  word "mother"  occuring in  clause (d)  of Section 125(1) of the Code includes a "step-mother" or woman who has the status  of a  "step-mother"  by  reason  of  her  lawful marriage with  the father  of the  person sought  to be made liable for  maintenance under  section 125  of the  Code and such a  woman or  a step-mother  can  file  application  for maintenance from  the  Step-son.  However,  as  against  the aforementioned  decisions,  the  High  Court  of  Bombay  in Ramabai v.  Dinesh (1976  Maharashtra Law Journal 565); High Court of  Madhya Pradesh  in Rewalal  Arjun Babu  & anr.  v. Kamlabai Arjun  Babu (1985  Madhya Pradesh  Law Journal 541) and High  Court of  Andhra Pradesh In Ayyagari Suryanarayana Vara Prasad Rao v. Ayyagari Venkatakrishna Veni & anr. (1989 Criminal Law Journal 673), have taken a consistent view that the word  "mother" in  Section 125  (1)(c) of  the Code will have to  be given  its natural meaning and so considered, it will mean  only the  natural mother and will not include the "Step-mother"  who   in  common  parlance  is  distinct  and separate entity and cannot be equated with one’s won mother. 10)  To resolve  the controversy, it would be appropriate to reproduce the relevant part of Section 125 of the Code which reads as under:-       "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 of illegitimate      child (not  being married daughter)      who has  attained  majority,  where      such child  is, by  reason  of  any      physical or  mental abnormality  or      injury unable  to maintain  itself,

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    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      maintains  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      my order  the  father  or  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.      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. Such  allowance shall be payable      from the  date of the order, on, if      so ordered,  from the  date of  the      application for maintenance.      3. xx                 xx         xx      xx      4. xx                 xx         xx      xx      5. xx                 xx         xx      xx 11)  Admittedly, the  expressions "mother" and "step-mother" have not  been defined  either in the Code or in the General Clauses Act. These expressions have also not been defined by the Hindu  Law or  the Hindu  Adoptions and Maintenance Act, 1956 or  by any  other Law.  As stated earlier. all that the explanation attached  to Section  20 of  the Hindu Adoptions and Maintenance  Act, 1956  provides is  that the Expression "parent" includes  a childless  step-mother. His  being  the position, we  have to  resort to  the dictionary meaning and the  meaning   in  which   these  expressions  are  commonly understood in  the popular  sense . In the Permanent Edition or WORDS  AND PHRASES,  VOLUME 27A,  at page  348, the  word "mother" has  been given  the meaning  to denote a woman who has borne  a child or a female parent, especially one of the human race.  In Volume  40 of  the said Permanent Edition of WORDS AND  PHRASE. at page 145. the expression "step-mother" has been  given the  meaning as  to be  the ’wife  of  one’s father by  virtu of marriage subsequent to that of which the person spoken  of is  the offspring.  It  has  been  further stated that  a "stem-mother"  is a  relative by affinity and

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the relationship  continues after  the death  of the faster. BLACK’S LAW  DICTIONARY, 5th Edition, at page 913, has given the meaning  of "mother" as a woman who has borne a child, a female parent.  Further, at page 1268, the meaning of "step- mother" is stated to mean the wife of one’s father by virtue of a  marriage subsequent to that of which the person spoken of is  the  offspring.  Similarly,  in  THE  SHORTER  OXFORD ENGLISH DICTIONARY,  volume II, at page 1360, the meaning of the word "mother" is given as a woman who has given birth to a child  or a  female parent,  and at page 12122, expression "stem-mother" has  been assigned  the meaning as The wife of one’s father  by a subsequent marriage. According to Webster Dictionary (international  Edition), the expression "mother" means a  female parent  and that which was produced or given birth to  anyone. Thus.  on a  conspectus view of dictionary meaning of  the two expressions - "mother" and "step-mother" in various  dictionaries, it  clearly emerges  that there is inherent distinction  between the  status of  a  mother  and ’step-mother’  and   they  are  two  distinct  and  separate entities and  both could  not be assigned the same meaning . The expression  "mother"  clearly  means  only  the  natural mother who  has given birth to the child and not the one who is the wife of one’s father by another marriage. 12)  It may  be mentioned  here that  in The General Clauses Act though  the expression  "father"  has  been  defined  in clause 20  of Section  3, out the expression "mother has not been defined.  The expression  "father" as  defined  in  the General Clauses  Act, 1656 means in the case of anyone whose Personal Law  permits adoption,  shall include  an  adoptive father’. Applying  the said  analogy, at  best. an  adoptive mother may also be included in the expression mother but not a step  mother. As discussed above, a step-mother is one who is taken as a wife by the father of the child other than the one from  whom the is born or who has given birth to the one from whom  he is  born or  who has  given birth to him. This clearly goes  to show  that the  woman who  gives birth to a child and  another woman  who is  taken by the father as his other wife are tow distinct and separate entities in the eye of Law  and who in common balance are know and recognized as real ’mother’  and step-mother. That being so, another woman who is  taken as a wife by the father of the child cannot be given the  status of  mother to  the child born from another woman as there is no blood relation between the two. 13)  We may  also here  usefully refer to an old decision of an Division  Bench of  Bombay High Court in Baidaya v. Natha Govindalal [  (1885) 9  Indian Law  Report 279], it was held that the  term ’mata’  stands for  ’janani’ "genitrix",  and sapatnamata "  noverca". It has been further observed in the said decision  that ’mata’  and ’mata-pitrau’  are  Sanskrit words which  are used  in the  text by  Manu, Mitaksnara and Salamphatta and  in both  the cases  discussion  proceeds on the supposition  that the  primary  meaning  of  ’mata’  was ’natural mother’  and that  it was  only  in  secondary  and figurative sense  that it could mean a "step-mother". It is, therefore, clear that even under the old Hindu Law also, the expression mother  was referable  only to the natural mother who has given birth to the child and not the step-mother. It would be  difficult  to  assume  that  the  legislature  was unmindful  of   the  social  fabric  and  the  structure  of relationship in the families. The existence of various kinds of relatives  in our society was not some thing of which the Parliament may  be said to ignorant when it thought to enact the New  Code of  1973 and  for the  first time not only the parents were  included amongst the persons entitled to claim maintenance under  Section 125  (1)(d) but even the divorced

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woman had been included in the expression wife to be entitle to claim  maintenance, who  were not  so included in Section 488 of  the "step-father"  or "step-mother" are not included in the expression "his-father" or mother" occuring in clause (d) of  Section 125(1) of the code giving a clear indication of the legislative intent. 14)  In view  of the  above discussion  it follows  that the expression mother, in clause (d) of section 125 (1) of Code, means and  is referable  only to the real or natural mother, who has  actually given birth to the child and if that be so the view taken by the Gujarat High Court in Havaben Beline’s case (supra)  that the  word ’mother’ occuring in clause (d) of Section  125(1) includes  a woman who has the status of a step-mother by reason of her lawful marriage with the father of the person sought to be made liable for maintenance under Section 125.  cannot be  accepted. This  assumption  of  the meaning of the expression mother by legal fiction would mean some thing  which is not so intended by the legislature. For the same  reasons the view taken by the Orissa High Court in Petei Bewa’s  case (supra).  cannot also  be accepted  as it adopts the reasoning of the Gujarat High Court in preference to Bombay  High Court  which took  the view  that  the  word ’mother’ used in Section 125(1)(d) of the Code, will have to be given  its natural  meaning and so construed it will mean only the  natural mother  and will  not  include  the  step- mother, who  in common  parlance is  a distinct and separate entity and   cannot  be equated  with one’s  own mother. The High Court  of Allahabad  in case  of Ganga  Saran  Varshney (supra)  was   mainly  concerned   with  the   question   of jurisdiction with  reference to  the place where maintenance petition could be filed and there is no elaborate discussion on the  question whether  a step-mother would include in the expression "mother’  in Section 125(1)(d) of the Code is the correct view  and the  contrary view  of  the  Gujarat  High Court, Orissa  High  Court  and  the  Allahabad  High  Court (supra) in not the correct view. 15)  The pint  in controversy before us however is whether a ’stepmother’ can claim maintenance from the step-son or not, having regard  to the aims and objects of Section 125 of the Code.  While  dealing  with  the  ambit  and  scope  of  the provision contained in Section 125 of the Code, it has to be borne in  mind that  the dominant  and primary  object is to give social  justice to  the woman, child and infirm parents etc. and  to  prevent distitution and vagrancy by compelling those who  can support  those  who  are  unable  to  support themselves  but   have  a   moral  claim  for  support.  The provisions in  section 125  provide a speedy remedy to those women. children  and destitute  parents who are in distress. The provisions  in Section  125 are intended to achieve this special purpose.  The dominant purpose behind the benevolent provisions contained  in Section  125 clearly  is  that  the wife, child  and parents  should not  be left  in a helpless state of distress, destitution and starvation, Having regard to this  social object  the provisions of Section 125 of the Code have  to be  given a liberal construction to fulfil and achieve this  intention of the Legislature. consequently, to achieve this  objective, in  out opinion,  a childless step- mother may  claim maintenance from her step-son provided she is widow  or her  husband, if  living, is  also incapable of supporting and maintaining her. The obligation of the son to maintain his  father, who  is unable to maintain himself, is unquestionable, When she claims maintenance from her natural born children,  she does so in her status as their ’mother’. such  an   interpretation  would   be  in  accord  with  the explanation attached  to Section  20 of  the Hindu Adoptions

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and maintenance  Act.1956 because  to exclude altogether the personal Law applicable to the parties from consideration in matters of  maintenance under  Section 125  of the  Code may not  be   wholly  justified.   However,  no   intention   of Legislature can be read in Section 125 of the Code that even though a  mother has  her real  and natural born son or sons and a  husband capable  of maintaining  her, she could still proceed against her step-son to claim maintenance. Since, in this case  we are not concerned with, we express no opining, on the  question of  liability, if  any, of  the step-son to maintain the step-mother, out of the inherited family estate by the  step-son and leave that question to be decided in an appropriate  case.   Our  discussion   is  confined  to  the obligations under Section  125 Cr.P.C. only. 16)  In the  present case,  as discussed  above, the  "step- mother’ respondent No. 2 has got 5 natural born sons who are all major  and atleast  3 of them are well to do and capable of maintaining their mother. This apart, as already noticed, the  husband   of  respondent  No.2  is  also  possessed  of sufficient means  and property  besides the  monthly  income that the  derives from the business of Snuff anabling him to maintain and  support his  second wife.  yet the step-mother respondent No.  2 preferred  to claim  the maintenance  only from the  step-son. the appellant herein leaving out all her natural born  sons (from whom she could claim maintenance as their mother) and husband who are well to co. Prima facie it appears that respondent No. 2 proceeded against her step-son with a view to punish and cause harassment to the appellant, which is  wholly unjustified. In the facts and circumstances of this  case, we  are of  the view that respondent No. 2 is not entitled  to claim  any maintenance  from the  step-son, appellant herein.  In the  result the appeal succeeds and is hereby allowed.  The impugned  orders of  the High Court and the Courts  below  are  set  aside  and    the  petition  of respondent No.2  for maintenance  is dismissed,  but without any orders as to costs. We, however, wish to clarify that in the interest  of justice  and to  balance the  equities, the amount  already  received  by  respondent  No.  2  from  the appellant shall not be refundable by her to the appellant.