Sec. 125 of Code of Criminal Procedure, 1973 (for short 'CrPC') under the chapter IX which provides for maintenance of the wives, children and parents, have been termed as a social welfare provision and it travels beyond the clutches of the respective personal laws. The Supreme Court in the case of 'Fuzlunbi vs. K. Khader Vali & Anr.' (1980) 4 SCC 125, has went ahead and observed...
Sec. 125 of Code of Criminal Procedure, 1973 (for short 'CrPC') under the chapter IX which provides for maintenance of the wives, children and parents, have been termed as a social welfare provision and it travels beyond the clutches of the respective personal laws. The Supreme Court in the case of 'Fuzlunbi vs. K. Khader Vali & Anr.' (1980) 4 SCC 125, has went ahead and observed that enactment of the said provision charges the court with a deliberate secular design to enforce maintenance or its equivalent against the humane obligation, which is derived from the State's responsibility for social welfare and it is not confined to members of one religion or region, but the whole community of womanhood.
From 1st July, 2024, the CrPC stands repealed and Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS') has come into force. Earlier Sec. 125 CrPC is now Sec. 144 BNSS. A comparison of both the provisions will reveal that the legislature by omitting the word 'minor' has made major change in Sec. 144 BNSS. For the purposes of comparison, Sec. 125 (1) CrPC and Sec. 144 (1) BNSS are quoted herein below:
Sec. 125 CrPC- 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 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, 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 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: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. 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 re-married.” | Sec. 144 BNSS- 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 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, 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 may order the father of a 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 female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation. - For the purposes of this Chapter, "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married |
Note- The words marked in bold and underlined in Sec. 125 CrPC, are missing from Sec. 144 BNSS.
The Supreme Court in Amarendra Kumar Paul vs. Maya Paul (2009) 8 SCC 359 while dealing with Sec. 125 CrPC has also observed that an application for grant of maintenance, therefore, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child unable to maintain itself, once, therefore, the children attained majority, the said provision would cease to apply to their cases. The legislature was aware that use of word 'minor' in Sec. 125 (1) (b) restricts the grant of maintenance only in respect of minor child.
A perusal of Sec. 144 BNSS will reveal that word 'minor' is now omitted from sub-sec. 1 (b) and at two places from first proviso. Further from the explanation also the reference of 'minor' has been omitted. The legislature has not only omitted the word 'minor', but also has omitted the reference of 'minor' under the explanation, therefore it cannot be said that it is merely a draftsman mistake, rather it is an attempt to further enlarge the scope of the provision.
By omitting the word 'minor' from sub-sec (1) (b) of Sec. 144 BNSS, the legislature has now allowed the legitimate or illegitimate child, irrespective of achieving the age of majority to approach the Courts for grant of maintenance (which was earlier restricted for only minor child) if that person is unable to maintain itself, which will of course be subject to that the father even after having sufficient means is neglecting or refusing to maintain. The proviso attached to sub-sec (1) further elaborates clause (1) (b) and provides that the Magistrate may order the father of female child as referred in clause (1) (b) to make such allowance until she attains majority, if the magistrate is satisfied that the husband of such female child, if married, is not possessed of sufficient means.
The conjoint reading of Sec. 144 (1) (b) and its first proviso leads us to following situations:
In case of female legitimate or illegitimate child:
(i) unmarried female legitimate or illegitimate child can seek maintenance from her father if she is unable to maintain itself irrespective of attaining majority;
(ii) married female legitimate or illegitimate child can seek maintenance from her father if she is unable to maintain itself, till she attains majority, subject to the satisfaction of magistrate that her husband does not possess sufficient means;
In case of male legitimate or illegitimate child:
The Sec. 144 does not create any sub-classification for male child. After the omission of the word 'minor', it appears that the male child even after attaining the majority can approach the Courts for maintenance if they are unable to maintain itself.
The legislature while enlarging the scope of Sec. 144 BNSS, must have taken into considerations the situation wherein the children especially though attaining the age of majority i.e. above 18 years as Indian Majority Act, 1875, and being unable to maintain itself were left remediless except in a case of female Hindu unmarried child. Section 20 of Hindu Adoptions and Maintenance Act, 1956, which provides for maintenance of children and aged parents. Sub-sec (2) of Sec. 20 of HAM Act, 1956 provides that legitimate and illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. The Sub-sec (3), however makes its obligatory on a Hindu to maintain his unmarried daughter even after she attains majority, till she is married. By removing the word 'minor' from Sec. 144 the legislature has extended the right to claim maintenance to major child also if they are unable to maintain itself irrespective of gender or religion, which was earlier by virtue of Sec. 20 (3) of HAM, 1956 only available to female Hindu child.
However, it would be also apt to have a glance at sub-sec (1) (c) of sec. 144, which creates another category praying for maintenance- 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. The sub-sec (1) (c) uses the word 'majority'. According to sub-sec (1) (c) even if child (legitimate or illegitimate) reaches majority but if suffers from mental or physical abnormality or injury and is unable to maintain itself, such child may pray for maintenance. In my humble submission the legislature ought to have omitted the word 'majority' from sub-sec (1) (c), after it has removed the word 'minor' from sub-sec (1) (b). As earlier under Sec. 125 CrPC, the sub-sec (1) (b) restricted the maintenance only to the 'minor' child, therefore it appears that sub-sec (1) (c) of Sec. 125 used the word 'majority'. As Sec. 144 omits the word 'minor', therefore use of word 'majority' in sub-sec (1) (c) may during the interpretations narrow down the scope of sub-sec (1) (b), as it can be argued that if the legislature by virtue of sub-sec (1) (c) is specifically providing that children who have attained the majority will be able to seek the maintenance only if they are suffering from mental or physical abnormality or injury, therefore sub-sec (1) (b) does not allows major children to seek maintenance.
Whether the Sec. 144 will have a retrospective effect?
The other question is as to what will be the fate of the pending applications, if any, in which the major child has sought for maintenance from their father. Recently, the Hon'ble Supreme Court in case of – 'In Re- Inhuman Conditions in 1382 Prisons' [Writ Petition (Civil) No. 406/2013] while dealing with Sec. 479 of BNSS in regard to detention of undertrial prisoners, which is substituted provision of Sec. 436-A CrPC, has given a retrospective effect to Sec. 479 BNSS, as it being more beneficial. Though, the concession was extended by the Central Government itself of having giving effect of said provision even to undertrials in pending cases irrespective of registration of case before 01st July, 2024. It is hoped that for Sec. 144 BNSS also which is more beneficial vis-à-vis Sec. 125 CrPC, the retrospective effect will be given.
We must also remember that in the past our Courts has adopted the liberal approach towards the Sec. 125 CrPC, which is now Sec. 144 BNSS, as the Courts are of the view that said provision is a measure of social justice with a view to protect the women and children and is also aligned to achieve the object enshrined under our Article 15 and Article 39 (e) of the Constitution of India, so we are hopeful that whenever Sec. 144 (1) (b) of the BNSS is interpreted by the Courts, same liberal approach will be adopted and a way is made so the said provision is able to achieve its objective and is given its full effect.
The author is a practicing advocate at High Court, Lucknow. Views are personal