The author has discussed the law of maintenance under Section 125(1)(d) CrPC with reference a judgment delivered by Bombay High Court

PANDURANG v. BABURAO [Maintenance]

Bench- M. N. Chandurkar and P. B. Sawant, JJ.

For petitioner- S. R. Chitnis For respondent- J. A. Barday, Public Prosecutor

Introduction 

The case Pandurang v. Baburao is in relation to S.125 of the Criminal Procedure Code. Section 125 of CrPC deals with order for maintenance of wives, children and parents. This provision ensures the delivery of social justice and hence is covered under Article 39 of the Indian constitution which portrays the socialistic feature of the Indian constitution. This provision also falls within the constitutional sweep of Article 15(3) of the Indian constitution. The case at hand deals specifically with Section 125 (1) (d) of the CrPC i.e. the non-maintenance of parents by son or daughter having sufficient means.

Summary of Facts 

Baburao Bhaurao Dabhade (hereafter referred to as the respondent) was the father of Pandurang Baburao Dabhade (hereafter referred to as petitioner). The petitioner was a well-placed person in the employment of the central government in the customs department and his total monthly salary was Rs 1200, (which after adjusting with inflation is equal to Rs 30000 in today’s time) and yet refused to pay any maintenance to his father who due to old age and physical infirmity could not work and had no source of income.

Arguments 

Petitioner argued that the respondent had not cared the least about the petitioner and his younger brother after their mother died. The petitioner in his argument said that he and his younger brother were brought up firstly by their maternal grandfather and then by their aunt. Therefore, as the father failed to fulfil the parental obligation of bringing up the petitioner and his younger brother, the father did not have any right now to claim maintenance. This argument was the basis of petitioner’s whole case and was presented before all three courts.

Procedural History 

The proceedings before the trial magistrate commenced on an application by Baburao Dabhade, claiming that he was entitled to maintenance allowance of Rs 150 from Pandurang Dabhade as he had no source of income and on account of old age and physical infirmity, he was not able to earn any living. Judicial Magistrate, First Class, 9th court, Pune directed Pandurang Dabhade to pay Rs. 75 per month by way of maintenance to Baburao Dabhade. This order was challenged by the petitioner in the present case by a revision application before the Additional Sessions Judge, Pune. Order of the trial magistrate was confirmed by the Additional Sessions Judge, Pune. Pandurang Dabhade then under Section 482 of the Code of Criminal Procedure filed a petition in the Bombay high court challenging the order of the trial magistrate. Bombay high court also confirmed the order of the trial magistrate and dismissed the petition. However, the high court did not look into the quantum of the maintenance which had been determined by the trial court.

Section 125 of CrPC – Order for Maintenance of Wives, Children and Parents

Prior to 1973, there was no provision for maintenance of parents under the Code of Criminal Procedure. The provision for maintenance was introduced in for the first time in Section 125 of the Code of Criminal Procedure in 1973. However, in 2007, the Maintenance and Welfare of Parents and Senior Citizens Act was passed which has provided for maintenance to support elderly parents and senior citizens. Parents can claim maintenance either under Section 125 of Code of Criminal Procedure, 1973 or under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 but they cannot claim maintenance under both the acts. Even though there is an overlap between Section 125 of CrPC and Maintenance and Welfare of Parents and Senior Citizens Act there are considerable differences between the two.

Section 125 of CrPC Maintenance and Welfare of Parents and Senior Citizens Act, 2007
No provision for maintenance of a childless senior citizen without any source of income. A childless senior citizen without any income can claim maintenance under the provisions of this act.
Only magistrate has the power to decide the claim. Power has been conferred in maintenance tribunal
Proceedings might go on for an indefinite period of time. A time limit of 90 days under which the procedure must be concluded.
Advocate represents his or her client in the matter. Participation of the advocate in the proceedings is barred.

There are only two essentials which have to be looked into to decide a claim under Section 125(1)

  1. The father or mother must be unable to maintain himself or
  2. The person against whom the order is sought must have sufficient means to maintain father or mother and yet neglects or refuses to maintain him or her.

Section 125 of CrPC gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. Provisions of this section are general and hence are enforceable irrespective of the personal law.2 The Supreme court in Vijaya Arbat v. Kashirao has held that the word “his” in clause (d) of Section 125(1) of CrPC includes both male and female children. In the case of Kirtikant D. Vadodaria v. State of Gujarat  it was held that a childless stepmother may claim maintenance from her stepson provided she is a widow or her husband.

Further even under Hindu personal law and Muslim personal law children have an obligation to maintain their parents. However, neither Parsi personal law nor Christian personal law provide for maintenance for the parents.

Scope of Section 125 CrPCThe provisions of Section 125 CrPC go beyond providing protection to parents who cannot maintain themselves. This section also protects women and children. In Ramesh Chandra Kaushal v Veena Kaushal it was held that this provision also falls within the constitutional sweep of Article 15(3) of the Indian constitution reinforced by Article 39. The  Supreme Court in Mohd Ahmed Khan v. Shah Bano Begum had held Section 125 CrPC is applicable to all irrespective of their religion. It was therefore applicable to Muslim women also. To dilute the effect of this judgement in furtherance of political motives an act was passed The Muslim Women (Protection of Rights on Divorce) Act 1986. The validity of the act was challenged in Daniel Latifi v. UOI. The court upheld the validity of the act. In the said case by reading down the provisions of the Act, the validity of the Act was upheld and it was observed that under the Act itself when parties agree, the provisions of section 125 CrPC could be invoked as contained in section 5 of the Act and even otherwise, the Magistrate under the Act has the power to grant maintenance in favor of a divorced woman, and the parameters and considerations are the same as those in section 125 CrPC. In Shamima Farooqui v. Shahid Khan  it was held that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises.

Ratio Propounded

The court was of the opinion that the argument put forth by the petitioner that he was not liable to maintain his aged and infirm father because his father never fulfilled his parental obligation is an argument which stems from a moral indignation. The court said in the judgement

However, effect must be given to the intention of the legislature which must be found from the words of Section 125(1) alone, and the petitioner cannot ask to be relieved from the said statutory obligation on any moral consideration.

While delivering the judgment even the report of Joint Committee of Parliament was taken into consideration and the relevant part which was observed was,

TheCommittee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recognized by making a provision that where father or mother is unable to maintain himself or herself, the 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.

In this case it was also observed that a Hindu has an obligation to maintain his aged and infirm parents under the Section 20 of the Hindu Adoptions and Maintenance Act, 1956. It was further noted by the Hon’ble court that law laid down under the Hindu Adoptions and Maintenance Act, 1956 covers not only a male Hindu but a female Hindu as well. The court rejecting the argument of the petitioner said that it is not possible to read anything more in Section

Conclusion

John Austin the founder of the legal positivism theory famously said, “A law, which actually exists, is a law, though we happen to dislike it, or though it
varies from the text, by which we regulate our approbation and disapprobation.” The judges followed the law to the hilt while clearly disregarding any and all moral consideration. This indicates the positivist point of view taken by the court while deciding the case. It can be concluded that in the cases of §125 of CrPC the court has no scope to take any moral considerations whatsoever while deciding the case.


About the Author: Dharmvir [2018-23 GNLU] is pursuing B.Com.LL.B from Gujarat National Law University, Gandhinagar.


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