JUDGMENT : A.P. Ravani, J. A lunatic woman, who is otherwise entitled to claim maintenance under Section 125 of Criminal Procedure Code, and whose father, as her guardian and next friend has filed application for maintenance, is asked by the learned Magistrate to wait till she regains sanity and becomes capable to understand the proceedings. The lunatic, (of course during the period of lucid intervals) in turn asks, if this is the law, is it not tantamount to saying that the maintenance can be claimed in next birth, if there be any ? The lunatic has to be assured, and is required to be told law is not that unreasonable and her application, filed through a next friend or a guardian is maintainable. 2. The petitioner herein is the father of the Urvashiben, a lunatic, on whose behalf the petitioner as next friend and guardian of the lunatic, filed an application under the provisions of Section 125 of the Criminal Procedure Code in the Court of Judicial Magistrate First Class, Halol and claimed maintenance from the opponent No. 1 husband of said Urvashiben. The learned Magistrate, as per his order, dated February 18, 1985 held that the application filed on behalf of the lunatic by her father as next friend and guardian, was not maintainable. The learned Magistrate felt that the only course left open to him was to stay further proceedings of the application till the applicant herself get cured and regained the soundness of mind. Against this order the petitioner has filed this application. 3. The learned Magistrate inter alia held that under the provisions of the Indian Lunacy Act, 1912, the District Court had power to appoint a guardian of a lunatic and, therefore, it would not be possible for him to appoint the petitioner as a guardian of lunatic Urvashiben and proceed further with the case. The learned Magistrate also observed that Urvashiben herself is a lunatic and would not be in a position to give deposition and if the deposition of her guardian and next friend were recorded, then there was possibility of an embellishment and the facts may he distorted and, therefore, it would be difficult to find out the truth. The learned Magistrate also observed that Urvashiben herself is a lunatic and would not be in a position to give deposition and if the deposition of her guardian and next friend were recorded, then there was possibility of an embellishment and the facts may he distorted and, therefore, it would be difficult to find out the truth. Following the principles laid down in the case of Appichi Goundan v. Kuthujamal, reported in AIR 1925 Madras 440, the learned Magistrate held that he had no power to appoint guardian ad litem in the proceedings under Section 125 of the Code and there was no other course left open to him but to stay the proceedings of the application till the lunatic regained the soundness of mind. 4. In the case before the Madras High Court an application was filed by the wife against her husband who was lunatic. In that case the Madras High Court observed that the provisions of Section 464 of the Criminal 'Procedure Code, 1898 (corresponding to Section 328 of the Criminal Procedure Code, 1973) should have been followed by the trial Court and said : "That is, if it finds that the petitioner is insane and incapable of understanding question put to him and giving rational answers, it must postpone further proceedings until it is satisfied that the petitioner is capable of so understanding the proceedings." Then it is further observed : "It is true that to postpone further proceedings, indefinitely postpone also the wife's prospect of relief under Section 488 but this seems an inevitable result of the omission of the legislature to legislate. She is not without remedy as she can use for maintenance in the Civil Court." 5. From what is stated here-in-above it should be clear that the question which arose before the Madras High Court was not similar to that one which has arisen in these proceedings. In that case the petitioner before High Court was original opponent-husband, and he was lunatic. Therefore, factually the case can be distinguished. From what is stated here-in-above it should be clear that the question which arose before the Madras High Court was not similar to that one which has arisen in these proceedings. In that case the petitioner before High Court was original opponent-husband, and he was lunatic. Therefore, factually the case can be distinguished. But the learned Counsel for the opponent-husband has relied upon the observations of the Madras High Court to the effect that the Magistrate had no power under the Criminal Procedure Code to appoint a guardian ad litem for the lunatic and that the proceedings under Section 488 may be quasi civil but they are also criminal and are wholly governed by the provisions of the Criminal Procedure Code alone. On the basis of these observations it is submitted that the Magistrate cannot appoint any one as a guardian ad litem in the proceedings under Section 125 of the Code and, therefore, the order passed by the trial Court staying the proceedings till the petitioner wife regains sanity, cannot be disturbed. 6. Assuming for a moment that the observations made by the Madras High Court is correct then even, in the instant case there was no question for the learned Magistrate to appoint any person as a guardian. The natural guardian of Urvashiben, that is father had filed the petition. The question of appointing a guardian ad ]item may arise only when the opponent-husband or any one on behalf of the opponent may claim that the opponent is a lunatic and is incapable of understanding the nature of the proceedings. In the instant case there was no question of appointing a guardian ad litem by the learned Magistrate. Hence the learned Magistrate has erred in placing reliance on the decision of the Madras High Court. Even apart from the aforesaid distinguishing feature, with respect, it is not possible to agree with the broad proposition made by the Madras High Court that the Magistrate has no power under the Criminal Procedure Code to appoint a guardian ad litem for a lunatic. 7. It may be noted that the proceedings under Section 125 of the Criminal Procedure Code are in the nature of civil proceedings. The remedy is a summary one and the person seeking that remedy is ordinarily a helpless person. (See AIR 1963 Supreme Court 1521 para 5). 7. It may be noted that the proceedings under Section 125 of the Criminal Procedure Code are in the nature of civil proceedings. The remedy is a summary one and the person seeking that remedy is ordinarily a helpless person. (See AIR 1963 Supreme Court 1521 para 5). In this connection if one examines the decided case law it appears that as far as the procedural aspect is concerned, substantially the procedure, laid down in the Civil Procedure Code is to be followed. In criminal cases, under the provisions of Section 200 to 203 of the Code, the Magistrate can hold a preliminary inquiry Enforce issuing the process against the accused. In a case, which arose out of maintenance proceedings taken out claiming maintenance against that alleged putative father, the Supreme Court Nandlal Misra v. Kanhaiyalal Misra, reported in AIR 1960 Supreme Court p. 882 has in terms laid down that the proceedings are of civil nature and no preliminary inquiry is contemplated under the Code. The Supreme Court has observed as follows : "As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a black-mailing action notice will have to go to the respondent. There is nothing incongruous in the position; for if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry." 8. From what is stated here-in-above it becomes clear that the procedure as laid down in the Civil Procedure Code or at any rate of procedure analogous to that, can be followed and has to be followed by the learned Magistrate while exercising his powers under Section 125 of the Criminal Procedure Code. 9. Moreover, it may be noted that Chapter IX of the Criminal Procedure Code deals with an order for maintenance of wives, children and parents. The provisions contained in Section 125 to 128 of the Criminal Procedure Code are the self contained Code as far as the proceedings for maintenance are concerned. 9. Moreover, it may be noted that Chapter IX of the Criminal Procedure Code deals with an order for maintenance of wives, children and parents. The provisions contained in Section 125 to 128 of the Criminal Procedure Code are the self contained Code as far as the proceedings for maintenance are concerned. There is nothing in Section 125 or 126 of the Code to show that the application on behalf of the lunatic cannot be filed by a next friend or by a guardian of a lunatic. The underlying object of the provisions regarding maintenance is to prevent vagrancy by compelling a person to support his wife or child or father or mother unable to support herself/itself. The object is to device the speedy summary remedy so that an adequate provision is made for supply of food, clothing and shelter to a deserted wife, or children who are not taken care of. That is the reason why Section 125 of the Code empowers the Magistrate to grant maintenance upon proof of neglect or refusal to maintain. The only requirement is that the Magistrate concerned should be satisfied about the neglect or refusal to provide maintenance by the person who is liable to provide for the maintenance of the wife, children or parents. In fact, in Section 125 of the Code, nowhere it is provided that an application is necessary. Even without a formal application, if the learned Magistrate is satisfied that there was neglect or refusal on the part of the person to provide for the maintenance, he would be in a position to direct the payment of maintenance. Of course, before passing such an order he will have to follow the necessary procedure. 10. Here reference may be made to the provisions of Section 5 of the Indian Limitation Act. As provided therein the Court may entertain appeal and/or application even after the prescribed period of limitation if the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed period. While interpreting this provision a Division Bench of this High Court in the case of Patel Purshotamdas Motilal v. Patel Chhotabhai Motiblial reported in 20 GLR P. 918, has held that though an application for condonation of delay is ordinarily necessary, it is not a mandatory requirement of law. While interpreting this provision a Division Bench of this High Court in the case of Patel Purshotamdas Motilal v. Patel Chhotabhai Motiblial reported in 20 GLR P. 918, has held that though an application for condonation of delay is ordinarily necessary, it is not a mandatory requirement of law. In a given case the court has jurisdiction to condone delay if the facts and circumstances of the case so warrant. Similarly in the case of maintenance proceedings, in a given case, court may even proceed on the basis of an oral application. There is nothing in the Code to indicate that such an application must be filed by the person himself claiming maintenance. If that be so, how a child would claim maintenance ? 11. The provisions of Section 125(l)(c) indicates that an application on behalf of a lunatic is maintainable. Section 125(l)(c) of the Code reads as under : "125(1) If any person having sufficient means neglects or refuses to maintain. xx xx xx (c) His legitimate or 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." 12. If an application can be filed by/or on behalf of a child who has not attained majority or who is physically or mentally abnormal child, why such an application cannot be file, for and on behalf of wife who is mentally incapable to initiate and/or conduct the maintenance proceedings. Similar will be the position with regard to parents entitled to claim maintenance. 13. Section 126 of the Code provides for the procedure to be followed in the maintenance proceedings. 14. The Section 126 opens with the words 'Proceedings may be taken against any person." The phrase "proceedings may be taken against any person" is very important. It does not indicate that the proceedings be taken on an application being filed by a person who claims maintenance. Either Section 125 or Section 126 does not contemplate any formal application to be filed by any person whomsoever. It does not indicate that the proceedings be taken on an application being filed by a person who claims maintenance. Either Section 125 or Section 126 does not contemplate any formal application to be filed by any person whomsoever. In a given case the attention of the learned Magistrate may be drawn by some welfare institution or by any public spirited social worker that a helpless wife or the helpless children or parents as the case may be are being neglected by a person who is otherwise bound to maintain them under the law and that such person is neglecting and refusing to maintain them. On such information being received the learned Magistrate himself may draw a memorandum of the information received by him and may direct the office to treat such memorandum of information as an application for maintenance. On such memorandum which is treated as an application he can issue a notice against the person, liable to provide maintenance. There is nothing in the Code to show that such a procedure cannot be adopted by the learned Magistrate. This view is in consonance with the basic object underlying the provisions for providing maintenance. As stated above the basic object is to prevent vagrancy by compelling a person to support his wife or child or father or mother unable to support himself/itself. Another principal object is to device speedy summary remedy for providing maintenance. When such is the benevolent object underlying the provisions of maintenance, 'Setan' of technicality cannot be allowed to stand in the way of dispensation of justice. The helpless lunatic cannot be asked to wait indefinitely or to wait till next birth. If that be so, the entire provision of Section 125 to 128 would become a dead letter of law. 15. As noted here-in-above, Section 125 to 128 make provisions for speedy and summary remedy for obtaining maintenance. As far as the final adjudication regarding claim and grant of maintenance is concerned, the same is to be dealt with by a Civil Court. The Civil Court may adjudicate and decide the respective civil rights of the parties. It is trite knowledge that Civil Court can entertain application on behalf of a minor or a lunatic. The Civil Court can entertain in such application even against a minor or a lunatic by appointing a guardian ad-litem. The Civil Court may adjudicate and decide the respective civil rights of the parties. It is trite knowledge that Civil Court can entertain application on behalf of a minor or a lunatic. The Civil Court can entertain in such application even against a minor or a lunatic by appointing a guardian ad-litem. If this can be done while determining the substantial civil rights of the parties, why can it not be done in a speedy summary remedy which provides for adhoc maintenance ? As held by the Supreme Court, maintenance proceedings under Section 125 of the Code are of a civil nature. Then why the procedure laid down under the Civil Procedure Code or the procedure analogous thereto cannot be adopted. In this view of the matter if the learned Magistrate exercising powers under Section 125 of the Code entertains' an application filed by a next friend or a guardian of a lunatic, there will be nothing wrong. It would be a duty of the learned Magistrate to entertain such application so that the helpless person is not deprived of the minimum maintenance which he or she is (or it) otherwise entitled to claim. 16. The learned Magistrate was wholly wrong in holding that the provisions of Indian Lunacy Act were applicable and unless the appointment of a guardian is made by the District Court, an application under Section 125 of the Code for maintenance cannot be filed. Therefore, he felt that he was not in a position to proceed with the application filed on behalf of the lunatic. There is nothing in the Criminal Procedure Code which makes the provisions of Indian Lunacy Act applicable to the proceedings under Section 125 of the Criminal Procedure Code. Similarly there is nothing in the Indian Lunacy Act, 1912 which debars an application being made by a next friend or a guardian of a lunatic claiming maintenance under the provisions of Section 125 of the Code. Therefore, the learned Magistrate has clearly fallen in error. The learned Magistrate was probably misled on account of the erroneous reading of the decision in the aforesaid case of Madras High Court. 17. The learned Magistrate also observed that Bai Urvashi would not be in a position to give deposition and the next friend or guardian may depose with embellishment and may present the facts in a distorted manner. The learned Magistrate was probably misled on account of the erroneous reading of the decision in the aforesaid case of Madras High Court. 17. The learned Magistrate also observed that Bai Urvashi would not be in a position to give deposition and the next friend or guardian may depose with embellishment and may present the facts in a distorted manner. Therefore, it may become difficult to find out the truth. This is no reason to hold that an application filed by next friend or a guardian is not maintainable. If this logic is applied, the application filed by any person who is clever and shrewd can never be entertained. A clever and shrewd person is likely to present facts as to suit himself/herself. When the evidence is given by such a person it will always be difficult to find out the truth. Simply because it is difficult to find out the truth, it can never be said that the application filed by such a person is not maintainable. It is only when the task is difficult, the common sense coupled with judicial acumen and experience of life should be called to aid and the problem posed before the Court should be resolved. The court cannot shelve the problem because it appears to be intractable or difficult to be resolved. Therefore, this reason given by the learned Magistrate has also no merits and it has got to be rejected. 18. In this connection reference may be made to the decision of Madras High Court in the case of Rajalakshmi v. Kothanaodapani Pillai, reported in AIR 1971 Madras page 149. Relying on the provisions of Section 90 of the Indian Lunacy Act, the Madras High Court has held that the provisions of Indian Lunacy Act do not have any overriding effect over the provisions of Section 489 of the Criminal Procedure Code (Section 125 of the Present Code). I am in respectful agreement with the decision of the Madras High Court. In the case of Kishanlal v. Nandlal, reported in AIR 1968 Rajasthan, page 86 an application for maintenance was filed by the father of the girl who was minor and on account of the injuries sustained by her she was not in a position to move out. Therein it was contended that the application filed by the father on behalf of the minor was not maintainable. Therein it was contended that the application filed by the father on behalf of the minor was not maintainable. Negativing this contention the Court held that the Code of Criminal Procedure does not contain any bar which may come in the way of the father of a minor girl to move the court for maintenance allowance for his daughter who has been incapiciated by the husband himself to go to the court of law to submit the application. 19. Thus if an application can be filed by a next friend or a guardian of a minor, similarly such an application can also be filed by a next friend or a guardian of a lunatic. In this connection all that is required is to keep in mind the principles underlying the relevant provisions of the Civil Procedure Code. The learned Magistrate while entertaining an application for and on behalf of a minor or a lunatic should see it that the person who otherwise cannot act as a guardian of a minor (or of a lunatic) should not be allowed to prosecute the proceedings for and on behalf of the minor (or the lunatic). Ordinarily a person who has an interest adverse to that of the minor, cannot be permitted to conduct the proceedings for and on behalf of the minor. This is the principle which is contained in the provisions of Order 32, Rules 4 and 5 of the Civil Procedure Code. 20. In above view of the matter the judgment and order passed by the learned Magistrate is required to be quashed and set aside. 21. In the result the application is allowed. The judgment and order passed by the learned Magistrate, below Exh. 1 in Criminal Miscellaneous Application No. 27 of 1983 is quashed and set aside. The learned Magistrate is directed to proceed further with the application in accordance with law and decide the same as expeditiously as possible. 22. Rule made absolute accordingly. Appeal allowed.