Sunday, 11 October 2015

Whether step children are entitled to get maintenance from step parents?

 In my opinion, while construing Section 125 of the Code also, in
the absence of any definition or explanation to the effect that the words
“legitimate or illegitimate child” would also include a stepchild, that
word will have to be given its natural meaning and if so construed, the
legitimate or illegitimate child would mean only a child which has been
given birth by a woman from whom the maintenance is being claimed. A
stepdaughter is not an illegitimate child but a daughter of one’s spouse
born through another spouse. Section 125 contemplates blood relation
which gives rise to moral and legal obligation to maintain a person. 
48 I am dealing with a statute which is secular in nature and is not
controlled   as   such   by   the   provisions   of   the   Hindu   Adoptions   and
Maintenance Act, 1956, although it would be apposite to keep those

provisions in view while considering the petition under Section 125 of
the Code. The language used in Section 125 of the Code is plain and
unambiguous. The words “legitimate or illegitimate” as used in Section
125 must, therefore, be presumed to carry its plain literal meaning in the
absence of any evidence that it was intended to mean something else or
include a stepchild also. 
49 It is not open to this Court to supply the omission by extending the
meaning of the word of the words “legitimate or illegitimate child” in the
guise of interpretation by analogy or implication only because this Court
feels that it will be in conformity with the principles of social justice and
equity. 
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (MAINTAINANCE) NO. 2666 of 2015

MANJULABEN PRAKSHBHAI SARVAIYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/10/2015


1 By this petition under Article 227 of the Constitution of India, the
petitioner calls in question the legality and validity of the order dated
30.03.2015   passed   below   Exhibit:6   by   the   learned   Principal   Judge,
Family   Court,   Bhavnagar   in   the   Criminal   Miscellaneous   Application
No.124 of 2014,  by which,  the  learned Judge was pleased to grant
interim maintenance in favour of the stepdaughter for an amount of
Rs.3,000/­  to be paid by the petitioner to the respondent No.2, who is
the grandfather of the stepdaughter of the petitioner. 
2 An interesting question of law arises in this petition.  Whether a
minor stepdaughter is entitled to claim maintenance under Section 125
of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) from her
stepmother on the demise of the natural father of the stepdaughter. 
3 The facts giving rise to filing of this petition may be summarized
as under:
3.1 The son of the respondent No.2 herein, namely, Prakashkumar
Sarvaiya married with one Ashaben Manjibhai on 09.02.1998 and in the
wedlock, a baby girl, namely, Jahnvi was born. On account of marital
dispute, they preferred a Hindu Marriage Petition No.32 of 2003 under
Section 13 of the Hindu Marriage Act before the Court of the learned 2nd
Joint Civil Judge (SD), Bhavnagar, for dissolution of the marriage with

consent, and pursuant to the decree of divorce  dated 16.12.2003, the
marriage   was   dissolved   and   they   both   got   separated.   However,   the
custody  of minor daughter  Jahnvi was taken by her father, namely,
Prakashkumar. 
3.2 After divorce, Prakashkumar married for the second time with the
petitioner herein on 18.12.2005 according to the Hindu rites and rituals.
Unfortunately, on 25.03.2006, the said Prakashkumar passed away and
the custody of Jahnvi remained with the petitioner herein. 
3.3 The respondent No.2, the father of Prakashkumar, preferred an
application being the Miscellaneous Criminal Application No.75 of 2008
in the   Court of the District Judge, Bhavnagar under Section 7 of the
Guardian   and   Wards   Act   for   the   custody   of   Jahnvi.   The   learned
Additional   District   Judge,   Bhavnagar   was   pleased   to   allow   the   said
application and handed over the custody of Jahnvi to the respondent
No.2 herein (the grandfather) till she attains majority. The responsibility
of her upbringing and education was agreed to be shouldered by the
respondent No.2 herein. 
3.4 Thus, after the order, referred to above, the custody of Jahnvi is
with the respondent No.2 herein (parental grandfather). 
3.5 It appears that the respondent No.2 herein filed an application on

behalf of Jahnvi being Criminal Miscellaneous Application No.124 of
2014 (Exhibit:1) before the learned Family Court at Bhavnagar under
Section  125 of the Code, praying for an amount of Rs.12,500/­ per
month for the maintenance of Jahnvi from the petitioner. Along with the
said application, the respondent No.2 herein also filed an application for
interim   maintenance   (Exhibit:6)   for   an   amount   of   Rs.11,000/­   per
month. 
3.6 The learned Principal Judge, Family Court, Bhavnagar, vide order
dated 30.03.2015, partly allowed the said application and directed the
petitioner herein to pay an amount of Rs.3,000/­ per month towards the
interim maintenance from 05.06.2014. 
3.7 Being dissatisfied with the order passed by the Court below, the
petitioner has come up with this petition. 
4 Ms.   Bhavini   Jani,   the   learned   advocate   appearing   for   the
petitioner submitted that the learned Judge committed a serious error in
passing the impugned order. She submitted that under Section 125 of
the   Code,   a   stepmother   is   not   obliged   to   maintain   or   pay   the
maintenance   to   her   stepdaughter   born   in   the   wedlock   of   the   first
marriage of her husband. Ms. Jani submitted that while handing over
the custody of Jahnvi to the respondent in the proceedings under the
Guardian and Wards Act, the learned Judge had observed that all the
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benefits, which had accrued in favour of the deceased Son, should be
given to the respondent herein, and pursuant thereto, the respondent
had received an amount of Rs.23 lac from the L.I.C. 
5 Ms. Jani submitted that the Biological mother of Jahnvi is still
alive and she has also sought for the custody of Jahnvi. The Biological
mother is ready and willing to maintain Jahnvi in all respect. For some
reason or the other, Jahnvi is not ready and willing to live with her
mother by consanguinity. 
6 Ms. Jani placed reliance on the decision of the Supreme Court in
the case of  Kirtikant D. Vadodaria vs. State of Gujarat and another
[(1996 ) 4 SCC 479], wherein the Supreme Court has taken the view
that the expression “mother” in Section 125(1)(d) of the Code means
only the real or natural mother and does not include the stepmother.
The Supreme Court took the view that stepmother is a distinct and
separate entity and cannot be equated with the natural mother who has
given birth to the child. The Supreme Court ultimately ruled that having
regard to the purpose behind the benevolent provisions of Section 125,
childless stepmother is entitled to claim maintenance from her stepson
provided she is a widow or her husband, if living, is also incapable of
maintaining her. 
7 Drawing   analogy   from   the   above,   she   submitted   that   if   the
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provisions of Sub­clause (a) to (d) of Section 125(1) are read together
harmoniously,   it   is   enviable   that   a   stepdaughter   cannot   claim
maintenance from her stepmother, after the demise of the father unless
there is an obligation to maintain. In the absence of any legal obligation,
there   cannot   be   any   refusal   or   neglect   to   do   it.   In   the   case   of   a
unmarried minor daughter, there is no obligation upon her stepmother
and, therefore, the stepdaughter cannot claim any maintenance from her
stepmother under Section 125(1)(b) of the Code. 
8 Ms. Jani submitted that since maintenance is being claimed under
Section 125 of the Code of Criminal Procedure, it goes without saying
that the case of the respondent No.2 must fall within the four corner of
the said provisions. Reference to the Hindu Marriage Act or to the Hindu
Adoption   Act,   1966,   therefore,   will   not   be   appropriate,   particularly,
when there is no ambiguity in the provisions of Sub­section(1) of Section
125 of the Code of Criminal Procedure. 
9 Ms. Jani submitted that perusal of the Section 125 of the Code
reveals   that   the   legislative   stress   is   “on   his   wife,   his   legitimate   or
illegitimate child or his father or mother”. When the stress is on the
word “his”, it obviously means that it would include only the person who
procreates, begets or brings forth offspring. It will not include a child of
another father or mother of another person. 
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10 She submitted that the impugned order could be termed as a
nullity. 
11 On the other hand, this petition has been opposed by Mr. Ankur
Oza, the learned advocate appearing for the respondent No.2 and Ms.
Hansa Punani, the learned Additional Public Prosecutor appearing for
the respondent – the State of Gujarat. They both submitted that no error,
not to speak of any error law could be said to have been committed by
the Court below, warranting any interference at the hands of this Court
in   exercise   of   supervisory   jurisdiction   under   Article   227   of   the
Constitution   of   India.   They   submitted   that   along   with   the   words
“legitimate or illegitimate” the step minor child should be read in under
Sub­clause (b) of Section 125(1) of the Code. 
12 They submitted that the different Clauses of Section 125 (1) of the
Code will have to be read independently since they covered different
areas and fields. The expressions used in various the sub­clauses will
take in their ambit even a minor stepchild, if the biological father of the
child has passed away and such child is totally at the mercy of his or her
stepmother. They submitted that if the interpretation suggested by the
petitioner is accepted, then on the demise of the natural father, if the
stepmother throws out the minor stepchildren, then they could never
claim maintenance from the stepmother although the stepmother might
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have inherited everything of the biological father of the stepchildren. 
13 Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for my consideration is whether the Court below committed any error in
passing the impugned order. 
14 The issue falling for my consideration should also be looked into
keeping in mind the Hindu Law. Of course, it is true that Section 125
should be construed strictly although the same is not penal in nature.
However, in the peculiar facts of the case, I deem it necessary to look
into the same. 
15 In the  case of  Khetramani Dasi vs. Kashinath Das, (1868) 2
Bengal Law Reporter 15, the father­in­law was sued by a Hindu widow
for maintenance. Deciding the right of a widow for maintenance, the
Calcutta High Court referred to the Shastric law as under: 
"The duty of maintaining one's family is, however, ciearly laid down in the
Dayabhaga, Chapter II, Section XXIII, in these words: '
The maintenance of the family is an indispensable obligation, as MANU
positively declares.'
Sir Thomas Strange in his work on Hindu Law Vol. I page 67, says:
'Maintenance by a man of his dependants is, with the Hindus, a primary
duty. They hold that he must be just, before he is generous, his charity
beginning at home; and that even sacrifice is mockery, if to the injury of
those whom he is bound to maintain. Nor of his duty in this respect are his
children the only objects, co­extensive as it is with the family whatever be
its composition, as consisting of other relations and connexions, including
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(it   may   be)   illegitimate   offspring.   It   extends   according   to   Manu   and
Yajnavalkya to the outcast, if not to the adulterous wife; not to mention
such as are excluded from the inheritance, whether through their fault, or
their   misfortune;   all   being   entitled   to   be   maintained   with   food   and
raiment."
At page 21, the learned Judges have also referred to a situation where
there is nothing absolutely for the Hindu widow to maintain herself from
the   parents­in­law's   branch   by   referring   to   the   following   texts   from
NARADA:
"In Book IV, Chapter I Section I, Art. XIII of Celebrooke's Digest, are the
following texts from NARADA:
'After  the death of her husband,  the nearest kinsman  on his side has
authority over a woman who has no son; in regard to the expenditurte of
wealth,   the   government   of   herself,   and   her   maintenance,   he   has   full
dominion. If the husband's family be extinct, or the kinsman be unmanly,
or destitute of means to support her, or if there is no Sapindas, a kinsman
on   the   father's   side   shall   have   authority   over   the   woman;   and   the
comment  on this passage is : "'Kinsman on the husband's side; of his
father's or mother's race in the order of proximity. 'Maintenance' means
subsistence. Thus, without his consent, she may not give away anything to
any person, nor indulge herself in matters of shape, taste, small, or the
like,  and if the means of subsistence  be wanting  he must  provide  her
maintenance. But if the kinsman be unmanly (defecient in manly capacity
to discriminate right from wrong) or destitute of means to support her, if
there be no such person able to provide the means of subsistence, or if
there   be   no   SAPINDAS,   then   any   how,   determining   from   her   own
judgment on the means of preserving life and duty, let her announce her
affinity in this mode : 'I am the wife of such a man's uncle; 'and if that be
ineffectual,  let her revert to her father's kindred; or in failure of this,
recourse may be had even to her mother's kindered" (Empha­sis supplied.)
In Book III, Chapter II, Section II, Art. CXXII, of Colebrooke's Digest, we
have the following texts and comments:
"She who is deprived of her husband should not reside apart from her
father, mother, son, or brother, from her husband's father or mother, or
from hermaternal uncle; else she becomes infamous.""
As per the above texts and comments, a Hindu widow if the parents­inlaw's
branch is unmanly or destitute of means to support her is entitled to
be with the father or the kinsman on the father's side.”
16 In  Janki v. Nand Ram, (1889) ILR 11 All 194 (FB), a Hindu
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widow after the death of her father­in­law sued her brother­in­law and
her father­in­law's widow. The Full Bench of the Allahabad High Court
held   that   the   father­in­law   was   under   a   moral,   though   not   legal,
obligation not only to maintain his widowed daughter­in­law during his
life time, but also to make provision out of his self­acquired property for
her maintenance after his death; and that such moral obligation in the
father became by reason of his self­acquired property having come by
inheritance   into   the   hands   of   his   surviving   son,   a   legal   obligation
enforceable   by   a   suit   against   the   son   and   against   the   property   in
question. While so deciding, the learned Judges at page 210 made a
reference to a passage from Dr. Gurudas Banerjee's Tagore Law Lectures,
thus:
"We have hitherto been considering the claim of a widow for maintenance
against  the   person   inheriting   her   husband's   estate.   The   questio'n  next
arises how far she is entitled  to be maintained  by the heir when her
husband leaves no property and how far she can claim maintenance from
other relatives. The Hindu sages emphatically enjoin upon every person the
duty of maintaining the dependant members of his family. The following
are a few of the many texts on the subject:­­
MANU: 'The ample support of those who are entitled to maintenance is
rewarded with bliss in heaven; but hell is the portion of that man whose
family is afflicted with pain by his neglect: therefore let him maintain his
family with the utmost care.'
NARADA: 'Even they who are born, or yet unborn and they who exist in
the   womb,   require   funds   for   subsistence;   deprivation   of   the   means   of
subsistence is reprehended.'
BRIHASPATI: 'A man may give what remains after the food and clothing
of his family, the giver of more who leaves his family naked and unfed,
may taste honey at first, but still afterwards find it poison.'"
The text of MANU as added reads:
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"He who bestows gifts on strangers, with a view to worldly fame, while he
suffers his family to live in distress, though he has power to support them,
touches his lips with honey, but swallows poison; such virtue is counterfeit:
even what he does for the sake of his future spiritual body, to the injury of
those whom he is found to maintain, shall bring him ultimate misery both
in this life and in the next."
Having so quoted the texts,  the Full Bench  based its judgment  on the
proposition:
"......under the Hindu law purely moral obligations imposed by religious
precepts   upon   the   father   ripen   into   legally   enforceable   obligations   as
against the son who inherits his father's property."
17 In Kamini Dassee v. Chandra Pode Handle, (1890) ILR 17 Cal
373, it is held by the Calcutta High Court that the principle that an
heir succeeding to the property takes it for the spiritual benefit of the
late proprietor, and is, therefore, under a legal obligation to maintain
persons whom the late proprietor was morally bound to support, has
ample basis in the Hindu law of the Bengal School and accordingly
decreed the suit for maintenance laid by a widowed brother against
her husband's brothers.
18 In Devi Prasad v. Gunvati Koer, (1894) ILR 22 Cal 410, deciding
an   action   brought  for   maintenance   by   a   Hindu   widow   against   the
brothers and nephew of her deceased husband after the death of her
father­in­law, the Calcutta High Court held that the plaintiff's husband
had a vested interest in the ancestral property, and could have, even
during his father's life time, enforced partition of that property, and as
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the Hindu law provides that the surviving coparceners should maintain
the   widow   of   a   deceased  coparcener,   the   plaintiff   was   entitled   to
maintenance.
19 In   Bai   Mangal   v.   Bai   Rukmini,   (1899)   ILR   23   Bom   291,   the
statement of law of MAYNE that 
"After marriage, her (meaning the daughter's) maintenance is a charge
upon her husband's family, but if they are unable to support her, she must
be provided for by the., family of her father." 
was understood to have been one of monetary character than laying down
any   general   legal   obligation.   The   learned   Judge,   Ranede,   J.,   after
examining   all   the   authorities   has   broadly   laid   down   the   law,   as   he
understood, thus:
"In fact, all the text writers appear to be in agreement  on this point,
namely, that it is only the unmarried daughters who have a legal claim for
maintenance from the husband's family. If this provision fails, and the
widowed daughter returns to live with her father or brother, there is a
moral and social obligation, but not a legally enforceable right by which
her maintenance can be claimed as a charge on her father's estate in the
hands of his heirs." (page 295).”
20 However, the same learned Judge, Ranede, J., in a later case in
Yamuna Bai v. Manubai, (1899) ILR 23 Bom 608, expressed his absolute
concurrence with the law laid down by the Allahabad High Court in
Janaki's case, (1889 ILR 11 All 194) (supra), as regards the right of the
widow of a predeceased son to maintenance against the estate of the
deceased father­in­law in the hands of his heirs.
21 The view of Ranede, J., in Bai Man­gal's case, (1899 ILR 23 Bom
291) (supra), was further conditioned by Ammer Ali, J., in Mokhoda
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Dassee v. Nundo Lall Haldar, (1900) ILR 27 Cal 555, by holding that the
right of maintenance is again subject to the satisfaction of the fact that
the widowed sonless daughter must have been at the time of her father's
death maintained by him as a dependant member of the family.
22 But, both the views of Ranede, J., in Bai Mangal's case, (1899 ILR
23 Bom 291) (supra), and Ameer Ali, J., in Mokhode Dassee's case,
(1900 ILR 27 Cal 555) (supra), did not find acceptance of A. K. Sinha,
J., of the Calcutta High Court in Khanta Moni v. Shyam Chand. The
learned Judge held that a widowed daughter to sustain her claim for
maintenance need not be a destitute nor need be actually maintained by
the father during his life time... All that she is required to prove to get
such maintenance, the learned Judge held, is that at the material time
she is a destitute  and she could not get any maintenance from her
husband's family. 
23 The next important case on the subject is that of the Madras High
Court in Venkatrazu v. Kotayya, (1912) 23 Mad LJ 223. In this the view
of Ranede, J., in Bai Mangal's case, (1899 ILR 23 Bom 291) (supra) was
dissented from by holding that there is a legal obligation on the father
and his family to support a destitute daughter (though she had been
married   away)   if   she   could   not   get   sufficient   provision   from   her
deceased   husband's   family   for   her   maintenance.   The   learned   Judge,
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Sadasiva Aiyar, J., also noted that according to Bhattacharya under the
Hindu Law Texts widowed daughters are entitled to maintenance and 
'justice requires that their right should be recognised'.
Referring   to   the   argument   that   'by   marriage   she   becomes   member   of
another  family and becomes  so to say, "dead"  to her own family,  the
learned Judge held, is merely carrying legal fictions to absurd lengths. The
learned Judge illustrated this absurdity thus:
"A wife is half her husband's body but you cannot on that ground give
double rations to the husband for his meals and give none to the wife; nor
does the daughter lose her consan­guineness, blood relationship to her
father and her right of inheritance to him and other similar rights, simply
because   she   becomes   attached   by   Pinda,   Gotra   and   Sootake   to   her
husband's family by marriage."
Adverting to the question, namely 'has not a widowed destitute daughter
whose husband's family is unable to give her anything has she not a legal
claim on her father for her maintenance atleast when she lives with him as
a member of his family? Has she not, at least, a social and moral claim
against her father which ripens into a legal right against his estate after
his death just as in the case of a daughter­in­law who has only a social
and moral claim against her father­in­law if he has no ancestral property
and whose moral claim becomes a legal claim after his death?'
the learned Judge, Sadasiva Aiyar, J., observed:
"The authorities are all in favour of the existence of such a right in the
destitute married daughter except one doubtful decision in Bai Mangal v.
Bai Rukhmini, (1899 ILR 23 Bom 291), J. C. Ghose says (Hindu Law
pages 295 and 296) "The law of Narada is clear, that when the husband's
family is in destitute circumstances, the father's family has to maintain a
female. It is difficult to see how it is only a moral duty. .. .. When the
father's family marry a girl to a poor man... how can it be said that when
she becomes helpless on account of the indigence of the husband's family
the father's family can turn her out without a maintenance?.... According
to the strict letter of the Hindu Law and also according to the nature of the
Constitution of Hindu Society, it is a clear legal duty on the part of the
father's   family   to   maintain   a   woman   under   the   circumstances   noted
above."
24 In Mt. Bholi Bai v. Dwarka Das, AIR 1925 Lahore 32, the Lahore
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High Court held that the sister is entitled to maintenance against the
properties of her deceased father in the hands of her brother.
25 In the decision of the Full Bench of the Madras High Court in
Ambu Bai v. Soni Bai, AIR 1940 Madras 804, the daughter filed a suit
against her step­mother for her maintenance from out of the property of
her father inherited by her step­mother, on the ground that she is a
widow with no means and that her husband's family is unable to support
her.   Considering   the   claim   the   Full   Bench   examined   whether   the
principle laid down in Janki v. Nand Ram's case, (1889 ILR 11 All 194)
(supra) of the Allahabad High Court could be extended to the case of a
widowed   daughter,   who   has   no   means   of   subsistence.   While   so
examining, it recalled that the Allahabad High Court held that the father
was   under   a   moral,   though   not   a   legal,   obligation   to   maintain   his
widowed daughter­in­law during his life time and to make provision out
of his self­acquired property for her maintenance after his death. This
moral obligation becomes legal one by reason of the fact that the son
inherits the property. The basis for this change of character into legal
one was that the son took the estate, not for his own benefit but for the
spiritual benefit of his father as has been stated in Khetramani Dasi's
case, (1868­2 Bengal LR 15) (supra). The Full Bench also referred to two
cases reported by Strange (1830 Edition pages 83 and 90) and one case
in Macnaghten (Vol. II pp. 117 and 118). 
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In one of the two cases reported by Strange: 
A Hindu left two widows, a widowed sister who had lived with him after
the death of her husband, and his mother. The question was to whom
should  his estate  go.  The  answer  given  was that  the  mother  must  be
maintained and so must be the sister, if left destitute by her husband.
In the second case:
A Hindu left two wives, his mother and sister. The answer was that the
mother of the deceased Hindu, being otherwise unprovided for, sufficient
allowance must be set apart from his estate for her maintenance, and if
the deceased's sister derived nothing from her husband, the widows should
jointly contribute towards her support.
In the case reported in Macnaghten:
The deceased left two sons by one wife (who died before him), and a
widow and her two daughters. Subsequent to his death, one of the two
sons died. There thus were (i) a son of his first wife, (ii) a widow and (iii)
two daughters of the widow. The question there was if the widow received
no portion of the property from her step­son, whether she is entitled to any
share   in   the   estate.   The   answer   was   that   the   widow   was   entitled   to
maintenance from her step­son; and if her two daughters have not been
disposed of in marriage, they will also have some share of their father's
wealth to defray their nuptial expenses. Should they, after marriage, be in
want   of   maintenance,   in   consequence   of   their   husband's   inability   to
support them, they must be provided with food and raiment by their halfbrother.
This is conformable to Dayabhaga and other authorities. 
If the sister of a deceased Hindu is entitled to maintenance from out of his
estate, the Full Bench held, it is impossible to imagine on what principle
maintenance can be denied to his daughter. Having also referred to the
decision of Sadastva Aiyar, J., in Venka­trazu's case, (1912­23 Mad LJ
223) (supra), the Full Bench found no difficulty in extending the principle
embodied in Janki v. Nand Ram's case (1889 ILR 11 All 194) (supra) to
the case of a daughter. The Full Bench accordingly concluded that a Hindu
widow is bound to maintain out of her husband's estate her husband's
widowed daughter when the daughter is without means and her husband's
family is unable to support her.
26 In   Appavu   Udayan   v.   Nallamrnal,   AIR   1949   Madras   24,   the
Madras   High   Court   had   to   deal   with   the   rights   of   daughter­in­law
against her father­in­law and his estate in the hands of his heirs. There it
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is held that the father­in­law is under a moral obligation to maintain his
widowed daughter­in­law out of his self­acquired property and that on
his death if his self­acquired property descends by inheritance to his
heirs, the moral liability of the father­in­law ripens into a legal one
against his heirs.
27 A Full Bench of the Andhra Pradesh High Court in T.A. Lakshmi
Narasamba v. T. Sundaramma held: 
"The moral obligation  of a father­in­law possessed of separate or selfacquired
property to maintain the widowed daughter­in­law ripens into a
legal obligation in the hands of persons to whom he has either bequeathed
or made a gift of his property. Under the Hindu law there is a moral
obligation on the father­in­law to maintain the daughter­in­law and the
heirs who inherit the property are liable to maintain the dependants. It is
the   duty  of  the  Hindu  heirs  to  provide  for   the  bodily   and  mental  or
spiritual needs of their immediate and nearer ancestors to relieve them
from bodily and mental discomfort and to protect their souls from the
consequences of sin. They should maintain the dependants pf the persons
of property they succeeded. Merely because the property is transferred by
gift or by will in favour of the heirs the obligation is not extinct. When
there is property in the hands of the heirs belonging to the deceased who
had a moral duty to provide maintenance, it becomes a legal duty on the
heirs. It makes no difference whether the property is received either by way
of succession or by way of gift or will, the principle being common in either
case." [See – Kota Varaprasada Rao vs. Kota China Venkaiah (1992
AIR (AP)1]
28 A Full Bench of the Andhra Pradesh High Court in the case of
Kota Varaprasada Rao vs. Kota China Venkaiah [1992 AIR (AP)1]
observed as under: 
[22] We  must  before   proceeding  further  mention   that   we  have  been
conscious that the  case law mostly referred to above relates to matters
pertaining to the rights of the daughter­in­law against her father­in­law
and his estate. The reason, still, for their reference is the unusual paucity
of case­law governing the rights of daughter against her father, brothers,
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etc.'for her maintenance. This scantiness of case law is more due to the
devotional character and spiritual belief of the Hindu population and also
due to the fact that the law­abiding nature of the Hindus have precluded
brothers from disputing the right of maintenance of their widowed sister.
More over, the analogy in the case­law with reference to the daughter­inlaw
can be and in fact has been also extended to the destitute widowed
daughter by the Full Bench of the Madras High Court in Ambu Bai's case
(AIR 1940 Madras 804) (supra). 
It is also interesting to note that MANU says:
"The support of the group of persons who should be maintained
ej.ka iks";oxZL;
is the approved means of attaining heaven, but hell is the man's
portion if they suffer; therefore, he should carefully maintain them.'
(Cited in DAYABHAGA, II, 23)
MANU goes on to describe the group of persons to be maintained:
"The   father,   the   mother,   the   Guru,   a   wife,   an   off­spring,   poor
dependents fnuk% lekfJrk%
a guest and a religious mendicant are declared to be the group of
persons   who   are   to   be   maintained"   (cited   in   Sri   Krishna's
commentary on the DAYABHAGA.)
MANU further says:
"A father is bound to maintain his unmarried daughters. On the
death of the father they are entitled to be maintained out of his
estate.   A  daughter   on   marriage   ceases   to   be   a   member   of   her
father's family, and becomes a member of her husband's family.....
If she is unable to obtain maintenance from her husband, or after
his death from his family, her father, if he has got separate of his
own, is under a moral, though not a legal, obligation to maintain
her."
(MULLA's Principles of Hindu Law, 9th Edn. p. 584).
[23] KAMALAKARA, as cited by Dr. Jolly, in his VIVADATANDAVA says:
"It is incumbent on the sons and grandsons to maintain indigent
widows and
daughter­in­law   though   no   wealth   of   the   father   may   be   in
existence."
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According to him :
"In reality the claim of the female family members of maintenance
does not become extinct either through the absence of assets, or in
the somewhat analogous case of a separation of the coparceners
having taken place."
[24] Even GHOSE states that a female is entitled to be maintained by her
father's
family,   if  her   husband's  family  is  extinct,   or   incapable   on  account   of
extreme poverty, to support her. (Principles of Hindu Law, 10th Edn. Page
305).
[25]  Again according to MEDHATITHI as cited by GHOSE at page 310,
the sonless widowed daughter and grand­daughter and sister come back to
the family of the father. MEDHATITHI's work as observed by M A YNE is
the earliest commentary extant on MANU and is frequently referred to as
of high authority.
[26] SARKAR expresses the opinion that a married daughter is ordinarily
to   be   maintained   in   her   husband's   family,   but   if   they   are   unable   to
maintain her, she is entitled to be maintained in her father's family. (8th
Edn. p. 534).
[27] In view of the different texts cited and the case­law noted, we hold
that a destitute widowed daughter has a right of maintenance against her
brothers after the death of her father when she could not get sufficient
provision from her deceased husband's family for her maintenance.”
29 I shall now look into the decision of the Supreme Court in the case
of Kirtikant D. Vadodaria (supra). In this case, the appellant was a child
of   tender   age   when   his   mother   expired   and   his   father   took   the
respondent   No.2   as   his   second   wife   from   whom   five   sons   and   two
daughters were born. All of them were major and at least three of them
were well­to­do and capable of maintaining their daughters. The father
was also possessed of sufficient means. The respondent No.2 claimed
maintenance from stepson, the appellant, living out all her natural born
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sons and husband who were well­to­do. The Magistrate took the view
that in spite of the respondent No.2 being a stepmother of the appellant,
she had a right to claim maintenance from the appellant and awarded a
sum of Rs.400/­ per month as the maintenance allowance. This order
was upheld by the City Sessions Judge and the High Court. The matter
reached to the Supreme Court. Allowing the appeal, the Supreme Court
made the following observations:
“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, 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.­
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     (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)­ (5)   xx    xx       xx
  
11. Admittedly, the   expressions "mother" and "step­mother" 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 step­mother. 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 "step­mother" 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 "stem­mother"  is a  relative by affinity and 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 "step­mother" 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 "stem­mother" 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 "step­mother" in various
dictionaries, it  clearly emerges  that there is inherent distinction  between
the status of  a  mother  and 'step­mother'  and   they  are two  distinct
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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.
11. 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 stepmother.   As  discussed
above, a step­mother 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 step­mother. 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 'mata­pitrau'  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 "step­mother". 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 step­mother. 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
woman had been included in the expression wife to be entitle to claim
maintenance, who  were not  so included in Section 488 of the   "stepfather"
 or "step­mother" are not included in the expression "his­father" or
mother" occuring in clause (d) of Section 125(1) of the code giving a clear
indication of the legislative intent.
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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 stepmother
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 step­mother,
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   step­mother   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 step­son 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 step­mother may  claim maintenance from her step­son 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
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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   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
step­son 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
step­son to maintain the step­mother, out of the inherited family estate by
the step­son 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    "step­mother'
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 step­mother respondent No.2 preferred  to
claim   the maintenance  only  from the   step­son.  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 do. Prima
facie it appears that respondent No. 2 proceeded against her step­son 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  step­son, 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.”
30 Thus, the Supreme Court, in the above referred decision, held that
the expression “mother” in Section 125(1)(d) of the Code would only
mean   real   or   natural   mother   and   would   not   include   stepmother.
According   to   the   Supreme   Court,   the   stepmother   is   a   distinct   and
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separate entity and cannot be equated with the natural mother who has
given birth to the child. However, an adoptive mother can be included in
the   expression   “mother”.   It   further   held   that   having   regard   to   the
purpose behind the benevolent provisions of Section 125, a childless
stepmother is entitled to claim maintenance from her stepson provided
she is a widow or her husband, if living, is also incapable of maintaining
her. The question whether a stepson is liable to maintain his stepmother
out of the inherited estate was kept open. While taking the view that a
biological mother, when she claims maintenance from her natural born
children, she does so in her status as their “mother”, the Supreme Court,
considered   the   explanation   attached   to   Section   20   of   the   Hindu
Adoptions and Maintenance Act, 1956. The Supreme Court observed
that 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. The Supreme Court ultimately concluded
that no intention of the Legislature could be read in Section 125 of the
Code that even though a mother has her real and natural born son or
sons and her husband capable of maintaining her, she could still proceed
against her stepson to claim maintenance.
31 In the case in hand, the following facts are not in dispute:
(1) The Son of the respondent No.2, late Shri Prakashkumar Sarvaiya,
had   married   with   Ashaben   Manjibhai   on   09.02.1998,   and   in   the
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wedlock, Jahnvi was born. Jahnvi, as on today, is fifteen years old. I am
told that she is studying at Vadodara. 
(2) On   account   of   matrimonial   dispute,   the   biological   parents   of
Jahnvi decided  to  dissolve  the  marriage, and therefore, they  filed a
Hindu Marriage Petition No.32 of 2003 under Section 13 of the Hindu
Marriage   Act in the Court of the learned 2nd  Joint Civil Judge (SD),
Bhavnagar, for dissolution of marriage with consent. 
(3) The marriage was dissolved and a decree of divorce was passed on
16.12.2003. 
(4) Late Prakashkumar thereafter married with the petitioner herein
on 18.12.2005 according to the Hindu rites and rituals. After divorce,
Jahnvi   remained   in   the   care   and   custody   of   her   father   late
Prakashkumar. 
(5) On 25.03.2006, Prakashkumar i.e. the father of Jahnvi died. 
(6) For   a   period   of   three   years   thereafter,   the   custody   of   Jahnvi
remained with the petitioner. 
(7) One Miscellaneous Civil Application No.75 of 2008 was filed in
the   Court   of   the  learned  Principal   District   Judge,  Bhavnagar   by  the
respondent No.2 herein under Section 7 of the Guardian and Wards Act
for the custody of Jahnvi. 
(8) The   learned   Additional   District   Judge,   Bhavnagar,   vide   order
dated 04.09.2010, was pleased to allow the said application and handed
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over the  custody of Jahnvi to the respondent No.2 i.e. her parental
grandfather. 
(9) The above referred events would suggest that from 2005 onwards
till 2010, Jahnvi remained with the petitioner. 
(10) The natural mother of Jahnvi, namely, Ashaben Manjibhai is alive
as on today. She is also serving. I am told that Ashaben Manjibhai has
also claimed the custody of Jahnvi being the biological mother and is
ready and willing to take care of Jahnvi. For some reason or the other,
Jahnvi may not be ready and willing to live with her mother, namely,
Ashaben. It is also not in dispute that Jahnvi has not thought fit to claim
any maintenance from her biological mother, namely, Ashaben. 
(11) Jahnvi has claimed maintenance through her grandfather i.e. the
respondent No.2 on the premise that the petitioner had married with her
father, and at the time of marriage, she had undertaken or rather it is
presumed that she had undertaken the responsibility of Jahnvi. Further,
the petitioner has inherited some of the assets of late Prakashkumar, and
therefore, the petitioner is duty bound to maintain Jahnvi, although
Jahnvi may not be her own daughter. 
32 Having regard to the above referred facts, I have no hesitation in
coming to the conclusion that the petitioner should not be saddled with
the responsibility of maintaining Jahnvi, more particularly, when the
natural mother of Jahnvi, is very much alive and is ready and willing to
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take care of Jahnvi. Besides the same, it appears that a huge amount of
Rs.23 lac was received by the respondent No.2 from the L.I.C. on the
demise of Prakashkumar i.e. the father of Jahnvi. 
33 However, the  larger  issue  still remains to be  addressed. What
would have been the position if there was none to look after and take
care of Jahnvi except the petitioner being her stepmother. 
34 For   properly   appreciating   the   larger   controversy   raised   in   this
case, I may once again refer to the provisions of Section 125 of the Code
which reads as follows:
“125   (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 or illegitimate child (not being a married daughter) who
has attained 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 10 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 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.
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Explanation :­For the purposes of this chapter,­
(a)   "minor"  means   a  person   who,   under   the   provisions   of  the   Indian
Majority Act, 1875 is deemed not to have attained his majority (9 of
1875);
(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, or, if so
ordered, from the date of the application for maintenance. 
(3) If any person so ordered fails without sufficient cause to comply with
the order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for levying
fines, and may sentence such person, for the whole or any part of each
month’s allowance remaining unpaid after the execution of the warrant, to
imprisonment   for   a   term   which   may   extend   to   one   month   or   until
payment if sooner made: 
Provided that no warrant shall be issued for the recovery of any
amount due under this section unless application be made to the
Court to levy such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to maintain his wife on
condition of her living with him, and she refuses to live with him,
such Magistrate may consider any ground of refusal stated by her,
and may make an order under this section notwithstanding such
offer, if he is satisfied that there is just grounds for so doing.
Explanation.­ If a husband has contracted marriage with another woman
or keeps a mistress, it shall be considered to be just ground for his wife's
refusal to live with him.
(4)   No   wife   shall   be   entitled   to   receive   an   d   [allowance   for   the
maintenance or the interim maintenance and expenses of proceeding, as
the case may be], from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under
this section is living in adultery,  or that without sufficient reason she
refuses to live with her husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order.”
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35 Prima facie though section 125 of the Code corresponds to section
488 of the old Code of Criminal Procedure it is obvious that it has
brought about major and substantial changes. It is further clear that the
said decision creates a statutory liability irrespective of the personal law
of the parties. As observed by the Supreme Court in  Nanak Chand v.
Chandra Kishore [AIR 1970 SC 446] there is no inconsistency between
the Maintenance Act and Section 488, Criminal Procedure Code. While
dealing with this aspect of the matter under the old Code of Criminal
Procedure, the Supreme Court observed as under:
“The learned Counsel says that Sec. 488, Criminal Procedure Code, in so
far as it provides for the grant of maintenance to a Hindu, is inconsistent
with Chapter III of the Maintenance Act, and in particular, Section 20,
which provides for maintenance to children. We are unable to see any
inconsistency  between  the Maintenance  Act  and Section  488,  Criminal
Procedure Code. 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, in so far as it dealt with the maintenance of
children   was   in   any   way   inconsistent   with   Section   488,   Criminal
Procedure   Code.   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, AIR 1963 All 355, before the Calcutta High Court in Mahabir
Agarwalla v. Gita Roy, 1962 (2) Cri LJ 528 (Cal), and before the Patna
High Court in Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three
High   Courts  have,   in  our   view,   correctly   come   to   the   conclusion   that
Section 4 (b) of the Maintenance Act does not repeal or affect in any
manner   the   provisions   contained   in   Section   488,   Criminal   Procedure
Code.”
36 The Supreme Court had also an occasion to consider the scope of
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proceedings under section 488 of the old Code of Criminal Procedure in
Mst. Jagir Kaur v. Jaswant Singh [AIR SC 1521]. In this context, the
Supreme Court observed as follows:
"The proceedings under this section are in the nature of civil proceedings,
the remedy is a summary one and the person seeking that remedy, as we
have pointed out, is ordinarily a helpless person. So the words should be
liberally construed without doing any voilence to the language........
To   summarize:   Chapter   XXXVI   of   the   Code   of   Criminal   Procedure
providing for maintenance of wives and children intends to serve a social
purpose. Section 488 prescribes alternative forums to enable a deserted
wife or a helpless child, legitimate or illegitimate,  to get urgent relief.
Proceedings under the section can be taken against the husband or the
father, as the case may be, in a place where he resides, permanently or
temporarily, or where he happens to be at the time the proceedings are
initiated.”
36.1 Therefore, it is quite obvious that the object of the proceedings is
to prevent vagrancy by compelling the husband or the father to support
his wife or child unable to support itself. In a sense the provisions are
not penal in nature, but are only intended for enforcement of a duty, a
default of which is made penal. It is also clear that such a provision has
been made to serve a social purpose for providing a speedy remedy in a
summary manner to a person who is ordinarily helpless. Therefore, as
observed by the Supreme Court in Ms. Jagir Kaur’s case the words will
have   to   be   liberally   construed   without   doing   any   violence   to   the
language, of course within the permissible limits. It is well settled that a
word which is not defined in the Act, but which is a word of everyday
use must be construed in its popular sense. While construing a Statute,
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which   is   secular   in   nature   and   dealing   with   the   matter   relating   to
general public, the Legislature is presumed to use the words used in the
Statute in the popular sense as understood in common parlance and,
therefore, normally they should be their ordinary, natural and familiar
meaning.
37 Let me first test the argument of the learned advocate appearing
for the  petitioner  that the Legislature has specifically mentioned the
words   “his   legitimate   or   illegitimate   minor   child”.   The   question,
therefore,  raised   by   the   petitioner   is   whether   the   word   “his”   would
include “her”. According to the learned advocate, having regard to the
word   “his”   even   a   biological   mother   does   not   seem   to   have   been
included within Section 125 of the Code. 
38 Clause (a) deals with the right of the wife who is unable to
maintain herself, to claim maintenance from her husband. Clause (b)
deals with the right of the children, who are minor, to get maintenance
from  their  parents.  Within  the   import of  clause  (b) even a  married
daughter is included. Clause (c) deals with a disabled child who has
attained majority. The bracketed portion "not being a married daughter"
covers only clause (c) and not the other sub­clauses of Section 125 (1) of
the Code. This is obvious from the use of specific expression "whether
married or not" in sub­clause (b) of Section 125(1). Then comes subPage
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cause (d) which  confers a right upon a father or mother unable to
maintain himself or herself to claim maintenance. The word "person" is
not defined in the Code, nor the expression "his" is defined. However, by
Section 2(y) of the Code it is laid down that the words and expressions
used therein and not defined but defined in the Penal Code have the
meanings respectively assigned to them in that Code. Section 8 of the
Penal Code reads as under:­
"Gender.  The  pronoun  'he' and its derivatives  are used of any  person,
whether male or female."
38.1 Section   11   defines   the   word   "person",   which   includes   any
Company or Association, or body of persons, whether incorporated or
not.  The  definition  of  the  word  "person" is  inclusive  and,  therefore,
obviously not exhaustive. 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  importing  the  masculine
gender shall be taken to include females. The word "person" is defined in
Section 3(42) of the General Clauses Act and the definition is akin to the
definition in Section 11 of the Penal Code. Further, by Section 2(y) of
the Cr. P.C. it is provided that the words and expressions used in the
Code are to be understood as defined by the Penal Code. Therefore, it is
quite clear that the pronoun "he" and its derivatives as used in Section
125 of the Cr. P.C. would include in its import, both a male or a female.
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39 In the aforesaid context, I may quote with profit the decision of
the Supreme Court in the case of  Dr. Ms. Vijaya Manohar Arbat vs.
Kashirao Rajaram  Sawai  [AIR 1987  SC 1100].   The   point   involved
before the Supreme Court was whether the respondent No.1 therein was
entitled to claim maintenance from the appellant, his married daughter,
under Section 125(1)(d) of the Cr. P.C. The Supreme Court affirming
the judgment of the Bombay High Court held as under: 
“8. We are unable to accept this contention. It is true that Cl. (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 daughter. Section 2(y), Cr. P.C. provides that words and expressions
used herein and not defined but defined in the Indian Penal Code have the
meanings respectively assigned to them in that Code. S. 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 S. 8, IPC read with S.
2(y),  Cr. P.C. the pronoun  'his' in Cl.  (d) of S. 125(l),  Cr. P.C.  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 importing the masculine gender
shall be taken to include females. Therefore, the pronoun 'his' as used in
Cl. (d) of S. 125(l) Cr. P.C. 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   a   mentioned   in   the
section are fulfilled. 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.”
40 In the case of Rajathi vs. C. Ganeshan [AIR 1999 SC 2374(1)],
the Supreme Court made the following observations in para 8 as under: 
“8. We may also have a look at the provisions of the Hindu Adoptions and
Maintenance Act 1956, which provides for maintenance to a Hindu wife.
Under Section 18 of this Act a Hindu wife, whether married before or after
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the commencement of this Act, shall be entitled to be maintained by her
husband during her life­time. Under sub­section (2) she will be entitled to
live   separate   from   her   husband   without   forfeiting   her   claim   to
maintenance,­ (a) if he is guilty of desertion, that is to say, of abandoning
her without reasonable cause and without her consent or against her wish,
or of wilfully neglecting her; (b) if he has treated her with such cruelty as
to cause a reasonable apprehension in her mind that it will be harmful or
injurious to live with her husband; (c) if he is suffering from a virulent
form of leprosy; (d) if he has any other wife living; (e) if he keeps a
concubine  in the same house in which his wife is living or habitually
resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by
conversion   to   another   religion;   and   (g)   if   there   is   any   other   cause
justifying her living separately. Under sub­section (3) a Hindu wife is not
entitled to separate residence and maintenance from her husband if she is
unchaste or ceases to be Hindu by conversion to another religion. It will
be apposite to keep these provisions in view while considering the
petition under Section 125 of the Code.”
41 Section 20(2) of the Hindu Adoptions and Maintenances Act 1956
reads as under: 
“A legitimate or illegitimate child may claim maintenance from his
or her father or mother so long as the child is a minor.”
42 Thus, the Act of 1956 also makes it very clear that a legitimate or
illegitimate   child    can   claim   maintenance  from   his   or   her   father   or
mother. Therefore, the maintenance can be claimed from the mother
also. In such circumstances, there is no difficulty in reading Section
125(1)(b) accordingly. However, the question in the present case is with
regard to the right of the stepdaughter to claim maintenance from her
stepmother. 
43 The present Legislation is secular in nature and is applicable to all
persons   belonging   to   all   religions   and   has   no   relationship   with   the
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personal law of the parties. The Supreme Court had again an occasion to
consider this aspect of the matter in Bhagwan Dutt vs. Smt. Kamla Devi
[AIR 1975 SC 83]. In the said decision a reference was also made to
section 125 of the new Code and then it was observed by the Supreme
Court as under: 
“The   question   therefore   resolves   itself   into   the   issue   whether   there   is
anything in Section 488 which is inconsistent with Section 23 or any other
provisions of the Act ? This matter is no longer res integra . In Nanak
Chand v. Chandra Kishore Aggarwal,  this Court held that there is no
inconsistency between Act 78 of 1956 and Section 488, Criminal P. C.
Both could stand together. The Act of 1956 is an Act to amend and codify
the law relating to adoption and maintenance among Hindus. The law
was substantially similar before when it was never suggested that there
was any inconsistency with Sec. 488. Criminal 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.”
44 Therefore, it is quite obvious that the provisions of Section 125 as
such are neither inconsistent nor are controlled by the provisions of
Hindu Adoptions and Maintenance Act, 1956. Thus, the provisions of
Section 125 of the Code will have to be construed having regard to the
phraseology used in the section itself.
45 The Supreme Court in the case of  Gulraj Singh vs. Mota Singh
[AIR 1965 SC 608] had the occasion to consider the import of the word
“son”   or   “daughter”   which   occurred   in   the   Punjab   Pre­emption   Act,
1913, as amended by Act 10 of 1960. It was contended therein that the
expression “son” or “daughter” should be so construed so as to include
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illegitimate children also. A further contention was also raised before the
Supreme Court that the Pre­emption Act must be read in conjunction
with   the   Hindu   Succession   Act,   1956   which   made   a   provision   for
devolution   of   the   property.   Negativing   this   contention   the   Supreme
Court observed as under:
“We   have,   therefore,   to   ascertain   whether   by   the   expression   son   or
daughter  only  the  legitimate  issue  of such  female   is comprehended  or
whether the words are wide enough to include illegitimate children also.
That   the   normal   rule   of   construction   of   the   words   "child'',   "son"   or
"daughter" occurring in a statute would include only legitimate children
i.e., born in wedlock, is too elementary, to require authority. No doubt,
there might be express provision in the statute itself to give these words a
more extended meaning as to include also illegitimate children and S. 3 (j)
of   the   Hindu   Succession   Act   (Act   XXX   of   1956)   furnishes   a   goods
illustration of such a provision. It might even be that without an express
provision in that regard the context might indicate that the words were
used   in   a   more   comprehensive   sense   as   indicating   merely   a   blood
relationship apart from the question of legitimacy.Section 15 with which
we are concerned contains no express provision and the context, so far as it
goes, is not capable of lending any support to such a construction. In the
first place,  the words "son or daughter" occur more than once in that
Section. It was fairly conceded by Mr. Bishan Narain that where the son or
daughter of a male vendor is referred to as in S. 15 (1), the words mean
only the legitimate issue of the vendor. If so, it cannot be that in the case
of a female vendor the words could have a different connotation. Even
taking the case of a female vendor herself, there is a reference in S. 15(2)
(a) (i) to the brother's son of such vendor. It could hardly be open to
argument that a brother's illegitimate son is comprehended within those
words. The matter appears to us to be too clear for argument that when S.
15 (2) (b) (i) uses the words "son or daughter" it meant only a legitimate
son and a legitimate daughter of the female vendor.”
46 In Mallappa v. Shivappa [AIR 1962 Mys 140] a question arose as
to whether the term “son” as used in section 15(1)(a) of the Hindu
Succession Act, 1956 will include a step­son. In this context a Division
Bench of the Mysore High Court observed as under:
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“In the absence of any definition or explanation to the effect that the word
'son' would also include a step­son, that word should be given its natural
meaning; if so, a son of a deceased female would mean a male issue of the
body of that deceased female.(It may also include a boy taken in adoption,
who, in law, stands on the same footing as a natural son; but, with this
question, we are not at present concerned).The position, therefore, is that
the plaintiff who is a son of the step­son of the defendant No.4, cannot
claim to be a son of the deceased 4th defendant. As the son of a step­son,
he may have the right to succeed under Section 15 (1) (b) of the Hindu
Succession Act, as the heir of the husband of the deceased defendant No.4;
but, defendant No.1 being the son of the deceased defendant No.4, has the
right to succeed under Section 15 (1) (a) and would be the preferential
heir. In the 12th Edition of Mulla's 'Principles of Hindu Law',it is stated,
with   reference   to   S.15   of   the   Hindu   Succession   Act,   at   page   984,   as
follows:
''A 'step­son' is not entitled as 'son' to inherit to his stepmother as
one of the heirs under this Entry. But he can succeed to her property
as an heir of her husband under Entry (b)".”
47 In my opinion, while construing Section 125 of the Code also, in
the absence of any definition or explanation to the effect that the words
“legitimate or illegitimate child” would also include a stepchild, that
word will have to be given its natural meaning and if so construed, the
legitimate or illegitimate child would mean only a child which has been
given birth by a woman from whom the maintenance is being claimed. A
stepdaughter is not an illegitimate child but a daughter of one’s spouse
born through another spouse. Section 125 contemplates blood relation
which gives rise to moral and legal obligation to maintain a person. 
48 I am dealing with a statute which is secular in nature and is not
controlled   as   such   by   the   provisions   of   the   Hindu   Adoptions   and
Maintenance Act, 1956, although it would be apposite to keep those

provisions in view while considering the petition under Section 125 of
the Code. The language used in Section 125 of the Code is plain and
unambiguous. The words “legitimate or illegitimate” as used in Section
125 must, therefore, be presumed to carry its plain literal meaning in the
absence of any evidence that it was intended to mean something else or
include a stepchild also. 
49 It is not open to this Court to supply the omission by extending the
meaning of the word of the words “legitimate or illegitimate child” in the
guise of interpretation by analogy or implication only because this Court
feels that it will be in conformity with the principles of social justice and
equity. 
50 In the aforesaid context, a reference could usefully be made to the
observations of the Supreme Court in Commission of Sales Tax, Uttar
Pradesh vs. M/s. Parson Tools and Plants,  Kanpur [AIR 1975 SC
1039]. 
“If   the   legislature   wi1fu11y,   omits   to   incorporate   something   of   an
analogous law in a subsequent statute, or even if there is a casus omissus
in a statute, the language of which is otherwise plain and unambiguous,
the Court is not competent to supply the omission by engrafting on it or
introducing   in   it,   under   the   guise   of   interpretation   by   analogy   or
implication, something what it thinks to be a general principle of justice
and equity. "To do so" ­ (at p. 65 in Prem Nath L. Ganesh v. Prem Nath L.
Ram Nath AIR 1963 Punj 62. Per Tek Chand J.) "would be entrenching
upon the preserves of Legislature", the primary function of a court of law
being jus dicere and not jus dare.”
51 Therefore, it is not possible for me to accept the contentions of

Ms. Punani, the learned Additional Public Prosecutor as well as Mr.
Ankur Oza, the learned advocate appearing for the respondent No.2. 
52 The   analogy   explained   by   the   Supreme   Court   in   the   case   of
Kirtikant  (supra)  would   apply   in   the   present   case.   The   children   of
another have not been mentioned in the entire Section 125 of the Cr.
P.C. nor any right has been conferred on them to claim maintenance.
There was an enactment in the United Kingdom known as the Family
Relations Act, which, of course, now stands repealed and substituted
with a new enactment. The provisions therein provided that where step
– parent or common law partner of someone with a child had been
standing in the role of parent, known as in loco parentis, the Court would
order   that  person   to  pay  child  support,   even   though   they   were   not
biologically related to the child. 
53 However, child support could also be ordered where the person
was   found   to   be   a   “parent”,   which   was   defined   under   the   Family
Relations Act as under: 
“ A “parent” includes
(a) a guardian or guardian the person of a child, or 
(b) a stepparent of a child if
(i) the stepparent contributed to the support and maintenance of the
child for at least one year, and
(ii)the   proceeding   under   this   Act   by   or   against   the   stepparent   is
commenced   within   one   year   after   the   date   the   stepparent   last
contributed to the support and maintenance of the child;
54 Section 1(2) of the Act stated as under: 

“(2) For the purpose of paragraph (b) of the definition of “parent” in
subsection (1), a person is the stepparent of a child if the person and a
parent of the child 
(a) are or were married, or 
(b) lived together in a marriage­like relationship for a period of at least 2
years and, for the purposes of this Act, the marriage­like relationship may
be between persons of the same gender.”
55 Thus, the Court could order a step­parent to pay child support in
three contingencies: 
“The step­parent:
was either in a marriage­like (common law) relationship with the child’s
parent for at least two years   OR married to the child’s parent for any
length of time; AND contributed to the child’s support or maintenance for
at least one  year;  AND  last contributed  to the child’s maintenance  or
support within one y ear of the date that the child support claim was filed
with the court.”
56 However, it is for the Legislature to look into this issue in the
interest   of   a   helpless   child   who   is   thrown   out   by   his   stepfather   or
stepmother and there is none to take care of such child. 
57 With  the   above,   this   petition   is   allowed.   The   impugned   order
dated   30.03.2015   passed   by   the   Principal   Judge,   Family   Court,
Bhavnagar is hereby ordered to be quashed. Rule is made absolute.  
(J.B.PARDIWALA, J.)

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