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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.