Father abscanded
subhash
(Querist) 25 June 2012
This query is : Resolved
My father is an N.R.I.He left us 8 years back and we kept waiting for him.,while my mother was taking care of us.We tried to contact him in many ways where we didn't find him anywhere,He didn't even spoke to us.My mother filed 498a on him knowing he came to India.,He didn't attend any of the court proceedings escaping every time with some reasons.,He doesn't send any money also for as maintenance Now my mother has expired on march 25th leaving us as ORPHANS,
Now i'm pursuing my B.Tech and i need his help to complete it.I just want him to take care of my studies whereas i'll take care of my brother and sister with my earnings..we filed maintainence case on him.,he will receive the notices and he'll quit coming by sending some excusing reasons..
I used to study with my bank loan for my studies and now it also has been cancelled due to sudden death of my mother..i need to take care of my sister nd brother but my studies are also going to be stopped..,so i just want to ask my father for the fees(becuz none other would)..kindly help me how could i approach him and get my fee atlaest.
Adv.R.P.Chugh
(Expert) 25 June 2012
Dear Mr.Subhash,
The law as it stands does not oblige the father to maintain his major children. Only a minor child or an unmarried female daughter can seek maintenance.
M/s. Y-not legal services
(Expert) 25 June 2012
yes.. you can not claim maintenance for all of you. if any minors mean you can. and your sister can ask maintenance.
if your father have any ancestral property mean you can claim partition. even since he is a n.r.i there also legally some problems for you.
just consult your near by advocate.
-y.not legal services-
Rajeev Kumar
(Expert) 25 June 2012
Yes our ld.brothers have guided you well.
Raj Kumar Makkad
(Expert) 25 June 2012
I do not agree with the advice of the aforesaid experts. A father is required to maintained even a major son if he is studying till his study completes. There are numerous citations on this point.
In the light of above said legal provision, you shall have to serve notice of the court over your father and thereafter see the order of the court. If you know any movable or immovable property of your father then bring it to the notice of the court which can recover the amount of the maintenance by selling the same through public auction, if your father do not attend the court and is proceeded with ex-parte.
M/s. Y-not legal services
(Expert) 25 June 2012
dear friend subash., i am sorry for earlier reply..
i spent my time for your case. finally i got a land mark supreme court citation that major sons also entitled to claim maintenance from their father.
the word child mean not as "untill the major age" its real mean is "till able to maintain their self"
-y.not legal services-
M/s. Y-not legal services
(Expert) 25 June 2012
just see this citation dear subash..even my advice to you just appoint an advocate. he may help you..
-y.not legal services-
M/s. Y-not legal services
(Expert) 25 June 2012
FOR MY FRIENDS WHO ARE UNABLE TO DOWNLOAD THIS USEFUL CITATION, I AM COPIED AND PASTE IT:
Supreme Court of India
Lnanak Chand vs Shri Chandra Kishore Agarwala And ... on 20 May, 1969
Equivalent citations: 1970 AIR 446, 1970 SCR (1) 565
Bench: Sikri, S.
PETITIONER:
LNANAK CHAND
Vs.
RESPONDENT:
SHRI CHANDRA KISHORE AGARWALA AND OTHERS
DATE OF JUDGMENT:
20/05/1969
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
RAMASWAMI, V.
CITATION:
1970 AIR 446 1970 SCR (1) 565
1969 SCC (3) 802
CITATOR INFO :
F 1975 SC 83 (26)
RF 1979 SC 381 (8)
R 1981 SC1243 (7,8)
RF 1981 SC1972 (7)
RF 1985 SC 945 (8)
ACT:
Criminal Procedure Code 1898 s. 488--Expression "child"- Whetherincludes only minor children-Whether
Section impliedly repealed by s. 4 of Hindu Adoptions and Maintenance Act 78 of 1958--If educational
expenses to be taken into account for determining quantum of maintenance HEADNOTE:
The appellant's four children, the respondents in the appeal, two of whom were majors and two were minors,
filed an application under s. 488 of the Criminal Procedure Code in September, 1963 for an order requiring
the appellant to pay them maintenance. The Trial Court allowed the application and fixed the monthly
amounts to be paid as maintenance to each of the children. The appellant's revision application was dismissed
but one filed by the respondents was allowed whereby the Additional Sessions Judge submitted the case to the
High Court with recommendations to enhance the maintenance allowance. The High Court accepted, the
reference and thereafter, on an application by the appellant granted a certificate under Art. 134(1)(c) for an
appeal to this Court. It was contended on behalf of the appellant that (i) s. 488 Cr. P.C. was impliedly repealed
by s. 4 of the Hindu Adoptions and Maintenance Act 78 1956 insofar as it applied to Hindus; (ii) that the word
"child" in s. 488 means a minor; and (iii) that the maintenance fixed for two of the major children was based
on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration.
HELD : Dismissing the appeal :
(i)There was no inconsistency between Act 78 of 1956 and s. 488 Cr. P.C. Both could stand together. The Act
of 1956 is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. The law
was substantially similar before when it was never suggested that there was any inconsistency with s. 488 Cr.
P.C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all
persons belonging to all religions and has no relationship with the personal law of the parties. [568 A-B]
Ram Singh v. State, A.I.R. 1963 All. 355; Mahabir Agarwalla v. Gita Roy, (1962) 2 Cr. L.J. 528; and Nalini
Ranjan v. Kiran Rani, A.T.R. 1965 Pat. 442; approved. (ii)The word "child" in s. 488 does not mean a minor
son or daughter and the deal limitation is contained in the expression "unable to maintain itself". If the
concept of majority is imported into the section, a major child who is an imbecile or otherwise handicapped
will fall outside the purview of this section. If this concept is not imported, no harm is done for the section
itself provides a limitation by saying that the child must be unable to maintain itself. The older a person
becomes the more difficult it would, be to prove that he is unable to maintain himself. [569 F-H]
566
Shaikh Ahmad Shaikh Mahommad v. Ba Fatma, I.L.R. [1943] Bom. 38, 40; Jagir Kaur v. Jaswant Sinqh
[1964] 2 S.C.R. 73, 84; in the matter of the Petition of W.B. Todd, (1873) 5 N.W.P. High Court Reports 237;
and Bhagat Singh v. Emperor, 6 I.C. 960; referred to.
Sint. Purnasashi Devi v. Nagendra Nath, A.I.R. 1950 Cal. 465; and State v. Ishwarlal, I.L.R. [1951] Nag. 475;
approved.
Amiritliammal v. Marimuthu, A.I.R. 1967 Mad. 77; disapproved.
(iii)While it was not necessary to decide whether expenses for education can be given under s. 488, in the
present case, the Court below were right in taking into consideration the situation at the time of passing the
order i.e.. that the two major children were college students. [570 G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 6 of 1969.
Appeal from the judgment and order dated May 2, 1968 of the Delhi High Court in Criminal Revision Nos.
339-D of 1965 and 185-D of 1968.
Sardar Bahadur Saharya and Yougindra Khushalani, for the appellant.
S. C. Mazumdar and Yogeshwar Dayal, for the respondents. The Judgment of the Court was delivered by
Sikri, J. This appeal by certificate of fitness granted by the High Court of Delhi arises out of an application
under S. 488, Cr. P.C. filed on September 4, 1963, in the Court of Magistrate, 1st Class, Delhi, by four
children of the respondent, Nanak Chand. The first applicant, Chandra Kishore, was born on January 23,
1942, the second, Ravindra Kishore, was born on September 23, 1943, the third Shashi Prabha, was born on
February 23, 1947, and the fourth, Rakesh Kumar, was, born on September 21, 1948. The first two applicants
were thus majors at the time of the appli- cation, the third though a minor at the time of the application was a
major on the date of the order passed by the Magistrate, i.e., on March 26, 1965. The learned Magistrate
allowed the application and ordered the, respondent, Nanak Chand, to pay Rs. 35 p.m. to Chandra Kishore for
four months only, Rs. 36 p.m. to Ravindra Kishore for 3 years only in case he continued his medicine studies,
Rs. 45 p.m. to Shashi Prabha as her maintenance allowance and education expenses and Rs. 45 p.m. to Rakesh
Kumar as his maintenance allowance and education expenses, from March 26, 1965.
Both the applicants and the respondent, Nanak Chand, filed revisions against the order of the Magistrate, to
the Additional Sessions Judge, who dismissed the revision petition filed by the respondent, Nanak Chand, and
accepted the revision petition of the
567
applicants. The Additional Sessions Judge submitted the case to the High Court with the recommendation to
enhance the maintenance allowance of the applicants in terms of the proposals made by him. The Additional
Sessions Judge observed that the maintenance under s. 488 did not include the costs of college education, and
therefore he did not propose to allow Chandra Kishore and Ravindra Kishore the expenses of their college
education. But taking into consideration the income of the respondent and the status of the family, the
Additional Sessions Judge proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100 p.m. each as
maintenance allowance until they finished their courses of M.Com. and M.B.B.S., respectively. He further
proposed to allow to Rakesh Kumar and Shashi Prabha each a monthly maintenance allowance of Rs. 50 until
Shashi Prabha was able to earn or was married, whichever was earlier, and until Rakesh Kumar was able to
maintain himself. 'The High Court accepted the reference made by the learned Additional Sessions Judge, and
dismissed the criminal revision filed by the respondent. The High Court granted the certificate under art.
134(1) (c) of the Constitution because there is conflict of opinion on the question of the interpretation to be
given to the word 'child' in s. 489, Cr. P.C.
The learned counsel for Nanak Chand has raised three points before us : first, that s. 488, Cr. P.C. stands
impliedly repealed by s. 4 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956)--hereinafter
referred to as the Maintenance Act--insofar as it is applicable to Hindus; secondly, that the word 'child' in s.
488 means a minor; and thirdly, that the maintenance fixed for Chandra Kishore and Ravindra Kishore was
based on wrong principles and was excessive inasmuch as expenses for education have been taken into
consideration.
Section 4 of the Maintenance Act reads "4. Save as otherwise expressly provided in this Act,-
(a)........
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus
insofar as it is inconsistent with any of the provisions contained in this Act."
The learned counsel says that s. 488 Cr. P.C., insofar as it provides for the grant of maintenance to a Hindu, is
inconsistent with Chapter III of the Maintenance Act, and in particular, s. 20, which provides for maintenance
to children. We are unable to Sup. Cl/69-7 568
see any inconsistency between the Maintenance Act and S. 488, Cr. P.C. Both can stand together. The
Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus.
The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately
before the commencement of this Act, insofar -as it dealt with the maintenance of children, was in any way
inconsistent with s. 488, Cr. P.C. The scope of the two laws is different. Section 488 provides a summary
remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law
of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State(1), before
the Calcutta High Court in Mahabir Agarwalla v. Gitia Roy (2) and before the Patna High Court in Nalini
Ranjan v. Kiran Ran(3). The three High Courts have, in our view, correctly come to the conclusion that s. 4(b)
of the Maintenance Act does not repeal or affect in any manner the provisions contained in S. 488, Cr. P.C.
On the second point there is sharp conflict of opinion amongst the High Court and indeed amongst the Judges
of the same High Court. In view of this sharp conflict of opinion we must examine the terms of s. 488
ourselves. Section 488(1) reads as follows
"488(1). If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or
illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional
Magistrate or 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, at such manthly 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 from time to time directs."
We may also set out sub-s. (8) of S. 488 because some courts have placed reliance on it :
"488(8). Proceedings under this section may be taken against any person in any district where he resides or is,
or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child." The word
'Child' is not defined in the Code itself. This word has different meanings in different contexts. When it is
used in (1) A.I.R. [1963] All. 355.
(2) [1962] 2Cr.L.J.528.
(3) A.I.R. [1965] Pat. 442.
569
correlation with father or parents, according to Shorter Oxford Dictionary it means : "As correlative to parent.
The offspring, male or female, of human parents."
Beaumont, C.J., in Shaikh. Ahmed Shaikh Mahomed v. Fatma(1) observed :
"The word "child" according: to its use in the English language has different meanings according to the
context. If used without reference to parentage, it is generally synonymous with the word 'infant' and means a
person who has not attained the age of majority.... 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. 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
gift "to all my children" or "to all the children of A" should be confined to minor children. In s. 488 of the
Criminal Procedure Code 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 justification for
saying that this section is confined lo children who are under the age of majority."
We agree with these observations and it seems to us that there is no reason to depart from the dictionary
meaning of the word.
As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v. Jaswant Singh (2)
"Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends
to serve a social purpose." If the concept of majority is imported into the section a major child who is an
imbecile or otherwise handicapped will fall outside the purview of this section. If this concept is not imported,
no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain
itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain
himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is
very unlikely to happen but if it does happen and the father is
(1) T.L.R. [1943] Bom. 38, 40.
(2) [1964] 2 S.C.R. 73, 84.
570
able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate
order under s. 488. We cannot view with equanimity the lot of helpless children who though major are unable
to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases
have not arisen. As long ago as 1873, Pearson, J. In the matter of the Petition of W. B. Todd(1) had to deal
with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance. The
same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor(2) and he allowed
maintenance to a young man of about 20 who was very lame having a deformed foot. We have seen no case in
which a man of 77 has claimed maintenance and -we think, with respect, that unnecessary emphasis has been
laid on the fact that it might be possible for a man of 77 to claim maintenance. It is not necessary to review all
the case law. The latest judgment which was brought to our notice is that of the Madras High Court in
Amirithammal v. Marimuthu(3) in which Natesan, J. has written a very elaborate judgment. He has referred to
all the Indian cases and a number of English cases and statutory provisions both in England and in India. We
are unable to derive any assistance from the statutory provisions referred to by him or from the English Law
on the point. He relied on the use of the word "itself" in s. 488 as showing that what was meant was a minor
child. We are unable to attach so much significance to this word. It may well be that it is simpler or more
correct to use the word "itself" rather than use the words "himself or herself." We may mention that Das
Gupta, J., in Smt. Purnasashi Devi v. Nagendra Nath (4) and Mudholkar, J., in State v. Ishwarlal(5) came to
the same conclusion as we have done. In view of the reasons given above we must hold that the word "child"
in s. 488 does not mean a minor son or daughter and the real limitation is contained in the expression "unable
to maintain itself."
Coming to the third point raised by the learned counsel we are of the view that the learned Additional
Sessions Judge and the High Court were right in taking into consideration the existing situation' the situation
being that at the time the order was -passe Chandra Kishore was a student of M.Com. and Ravindra Kishore
was a student of M.B.B.S. course. We need not decide in this
(1) [1873] 5 N.W.P. High Court Reports 237. (2) 6 T.C. 960.
(3) A.I.R. [1967] Mad. 77.
(4) A.T.R. [1950] Cal. 465
(5) T.L.R. [1951] Nag. 474.
571
case whether expenses for education can be given under s. 488 because no such expenses have been taken into
consideration in fixing the maintenance in this case. It has not been shown to us that the amount fixed by the
learned Additional Sessions Judge and confirmed by the High Court is in any way excessive or exorbitant. In
the result the appeal fails and is dismissed. R.K.P.S. Appeal dismissed.
572
Lnanak Chand vs Shri Chandra Kishore Agarwala And ... on 20 May, 1969
Indian Kanoon - http://indiankanoon.org/doc/757378/ 6
SAINATH DEVALLA
(Expert) 26 June 2012
The question here is the father disappeared 8 years back leaving behind the wife and 3 minor children,who had to fend for themselves.Even now they have every right to claim maintenance from the cruel husband and father by the wife and children.
M/s. Y-not legal services
(Expert) 26 June 2012
dear sainath sir, here the wife, who is mother of this author expired recently..
-y.not legal services-
