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2016 DIGILAW 182 (JK)

Bachan Lal Kalgotra v. State of Jammu and Kashmir

2016-04-11

BANSI LAL BHAT, N.PAUL VASANTHAKUMAR

body2016
ORDER : N. Paul Vasantha Kumar, J. 1. This writ petition is filed by the petitioner who is an Advocate, seeking to declare/quash the word " minor child" from Clause (b) of Sub-Section (1) of Section 488 Cr.P.C and explanation defining minor child, by contending that as per the amended provision, on reaching the age of 18 years, the children are not entitled to get maintenance from their parents. 2. According to the petitioner, by the impugned amendment the Legislature has defined the child as minor child, i.e. one who has not attained the majority and as a consequence of the definition, maintenance is stopped at the age of 18 years when they require most as they are mid-way of their studies. The petitioner, who is appearing as a party in person, argued that while interpreting the provisions seeking maintenance by wife and children, those who are unable to maintain themselves irrespective of their age were held entitled by Hon'ble the Supreme Court in the decision reported in AIR 1970 SC 446 (Nanak Chand Vs. Chandra Kishore Aggarwal and ors), and by virtue of this amendment made in the year 1973 the right of the children to seek maintenance as a matter of right has been taken away under Section 125 Cr.P.C which is in pari materia with Section 488 of the Cr.P.C (State Code), hence a declaration or quashment of the amendment restricting the word "minor child" entitled to claim maintenance is sought for. 3. In the objections filed by the State it is stated that petitioner has failed to show as to how the said provision is against the interest of public and in what manner it is in violation of the Constitutional mandate or arbitrary. It is stated that the amended provision is part of welfare legislation which was enacted at the wisdom of legislature. It is also stated that major child is one who does not suffer physically or mentally and is able to maintain himself/herself. It is also mentioned that the major children are bound to maintain their parents who are not possessed of sufficient means and are unable to maintain themselves. Similarly the father and the mother is bound to maintain their children up to the age of 18 years i.e. till they attain the age of majority. 4. It is also mentioned that the major children are bound to maintain their parents who are not possessed of sufficient means and are unable to maintain themselves. Similarly the father and the mother is bound to maintain their children up to the age of 18 years i.e. till they attain the age of majority. 4. The petitioner, who has argued as party in person, submitted that restricting maintenance under section 488 Cr.PC to the minor children is causing lot of difficulties to the children whose father goes for second marriage and they are actually deserting their children from the first marriage and the same has not been considered by the legislature. The second argument of the petitioner is that children beyond the age of 18 years would require support from the parents for education because it is an admitted fact that at the age of 18 years only, the children will be at the thresh hold of their professional courses and support of the parents is very much essential at that stage. The said aspect has not been considered by the legislature, therefore, the said amendment issued is irrational and arbitrary. 5. Mr. D.C. Raina, the learned Advocate General, on the other hand, argued that the legislature has in its wisdom deliberated upon every aspect and considered the fact that on attaining majority, children can go for employment and restricted the statutory right of maintenance to 18 years. The learned Advocate General has also argued that every major child is bound to maintain his or her father or mother or both if they are having no resource. He also contended that it is an accepted position of law of maintenance that if the husband is an able-bodied man and even if he has no income and if the wife is unable to maintain herself, he is bound to give maintenance to his wife. The same principle will apply to children also. The learned Advocate General also argued that Central Cr.PC 1973 also restricts maintenance claim to children upto the age of 18 years and this being the position throughout the country being fixed by the parliament and legislature by way of policy after deliberation, this Court may not sit over the said policy and declare the same as invalid merely because there is possibility of another view to be taken. He has cited judgments of Hon'ble Supreme Court reported in AIR 1958 SC 538 (Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkari and ors), AIR 1959 SC 942 (Mahant Ram Krishan Dass Vs. S.P. Sahi) and AIR 1986 SC 1205 (Municipal Corporation of City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbahai and anr) for the proposition that legislature's wisdom cannot be challenged in the writ petition even if another view is possible. 6. We have considered rival submissions. 7. The amendment issued to section 488 Cr.PC Svt. 1989 reads thus "488 (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 two thousand 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. ............................................................... Explanation:- For the purposes of this chapter, "minor" means a person who, under the provisions of the Majority Act, Svt. 1977 is deemed not to have attained its majority." Prior to the said amendment, i.e. in the Code of Svt. 1989, the word 'minor child' was not mentioned. In the Central Code of Criminal Procedure 1973 also, the benefit of maintenance is restricted to minor child and in the explanation it is mentioned that minor means a person who, under the provisions of Indian Majority Act 1875 (9 of 1875), is deemed not to have attained his majority. Section 3 of the Majority Act 1997 (1920 AD) mentions the age of majority of persons domiciled in the State on completion of age of 18 years and not before. Section 3 of the Majority Act 1997 (1920 AD) mentions the age of majority of persons domiciled in the State on completion of age of 18 years and not before. Thus, it is evident that the Code of Criminal Procedure was amended restricting the claim of the maintenance to minor children whether married or not and unable to maintain themselves and minor female child, if the husband of the minor child is not possessed of sufficient means. Claim of maintenance for wife, minor children/parents are provided under section 488 of the State Code which is in pari materia with Section 125 of the Central Code. After amendment of Section 488 of the Code of Criminal Procedure, Svt. 1989, in the case of child who has attained majority, the liability to pay maintenance is restricted to any physical or mental abnormality or injury and unable to maintain itself. The object of the Section is to prevent future vagrancy by providing support to those who are capable to support those who are unable to support themselves and have a moral claim to support. "Inability of a child to maintain itself implies lack of physical and mental development in the child which renders it incapable of supporting itself financially. A child, upon attaining age of majority is presumed to be endowed with earning capacity and capable of supporting itself. It is the presumed capacity of the child aged 18 years to have an earning capacity that he is excluded from being a beneficiary under Section 488 Cr.P.C. There is no infringement of public policy as exploitation of his earning capacity by the child having attained age of majority would not fall within the purview of child labour. Such person would be statutorily bound to maintain his parents and his wife too, if married". 8. This Section confined a summary remedy which is not co-extensive with the civil liability of the husband, father or son under his personal law to maintain his wife, children and parents. Provisions engrafted under section 488 Cr.P.C are not in the nature of penal provisions but are only intended for the enforcement of a duty, a default wherein may lead to vagrancy. It is providing a speedy remedy against starvation of deserted wife or children or indigent parents. It is only an interim measure subject to the rights to be agitated in a civil court. 9. It is providing a speedy remedy against starvation of deserted wife or children or indigent parents. It is only an interim measure subject to the rights to be agitated in a civil court. 9. The petitioner who is appearing as party in person has cited judgment of Hon'ble the Supreme Court reported in AIR 1970 SC 446 (supra) which is in reference to section 488 of the old Code namely Criminal Procedure Code 1898. In the said Section the word child was mentioned without the word 'minor', therefore, the interpretation given by the Madras High Court in the decision reported in AIR 1967 Mad 77 (Amirithamal Vs. Marimuthu) was over ruled by stating that word 'child' is not defined in the Code itself, therefore, the only qualification is that the child must be unable to maintain himself/herself. The Hon'ble Supreme Court, approving the judgment of Bombay High Court reported in AIR 1943 Bom 48 (Shaikh Ahmed Shaikh Mahomed Vs. Bai Fatma), agreed with the observations that there is no reason to depart from the natural meaning of the word which was mentioned by the Bombay High Court. The Hon'ble Supreme Court relying on its earlier decision reported in AIR 1963 SC 1521 (Jagir Kaur Vs. Jaswant Singh), held that the concept of major is imported into the section. A major child who is an imbecile or otherwise handicapped will fall outside the purview of the section. The said issue was taken care of in 1973 amendment to the effect that legitimate or illegitimate child who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain himself, is entitled to seek maintenance. Therefore, the said judgment of the Hon'ble Supreme Court will not give any assistance to the petitioner in view of the amendment issued in the year 1973, based on which the J&K Code of Criminal Procedure was amended. 10. The petitioner has submitted two reasons to declare the word 'minor child' as invalid. One reason is that when a child is unable to maintain himself or herself even though he has become major on attaining the age of 18 years, if he or she is undergoing studies the said person will not be able to maintain himself or herself and this section is an impediment to claim expenses for undergoing studies. 11. One reason is that when a child is unable to maintain himself or herself even though he has become major on attaining the age of 18 years, if he or she is undergoing studies the said person will not be able to maintain himself or herself and this section is an impediment to claim expenses for undergoing studies. 11. The said aspect has to be considered by the Legislature in their wisdom and the Writ Court, under Article 226 of the Constitution of India read with Section 103 of the J&K Constitution cannot say that if a person is unable to maintain himself/herself, is entitled to get maintenance even after attaining the age of majority which will tantamount to questioning the wisdom of the legislature which is impermissible as policy decisions are to be taken by the legislature and the power of the Court is to find out as to whether the legislation is valid or not. 12. The scope of interference in the matter of policy framed by the Government by courts is well settled. The Hon'ble Supreme Court in the decision reported in (2001) 3 SCC 635 (Ugar Sugar Works Ltd. Vs. Delhi Administration and ors) has held as follows:- "18......It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy...." In the aforesaid paragraph the Hon'ble Supreme Court has further held that the Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State. In the case of Ms. Aruna Roy and others Vs. Union of India and others, reported in (2002)7 SCC 368 , Hon'ble the Supreme Court has held as follows:- "96....It is ultimately for Parliament to take a decision on the National Education Policy one way or the other. It is best left to the discretion of the State. In the case of Ms. Aruna Roy and others Vs. Union of India and others, reported in (2002)7 SCC 368 , Hon'ble the Supreme Court has held as follows:- "96....It is ultimately for Parliament to take a decision on the National Education Policy one way or the other. It is not the province of the Court to decide on the good or bad points of an education policy. The Court's limited jurisdiction to intervene in implementation of a policy is only if it is found to be against any statute or the Constitution..." It has further held in paragraph 97 of said judgment as follows: "It cannot, however, compel that a particular practice or tradition followed in framing and implementing the policy, must be adhered to. The Court has to keep in mind the above limitations on its jurisdiction and power. It is true that if a policy framed in the field of education or other fields runs counter to the constitutional provisions or the philosophy behind those provisions, this Court must, as part of its constitution duty, interdict such policy." In the case of Union of India and another Vs. International Trading Co. and another, (2003) 5 SCC 437 , the Hon'ble Supreme Court has held as follows: "15. While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness." In the case of Delhi Development Authority and another Vs. Joint Action Committee, Allottee of SFS Flats and others, (2008)2 SCC 672 , the Hon'ble Supreme Court has held as follows:- "64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritties of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review." In the case of Villianur Iyarkkai Padukappu Maiyam Vs. Union of India and others, (2009) 7 SCC 561 , the Hon'ble Supreme Court has held as follows:- "168. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or malafide, a decision bringing about change cannot per se be interfered with by the court. "169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. "169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.................." In the case of State of H.P. and others Vs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, (2011) 6 SCC 597 , the Hon'ble Supreme Court has held as follows:- "With regard to the importance of human resources, especially manpower requirement in various professional and technical fields, the Government is free to frame its policy, alter or modify the same as to the needs of the society........." In the case of Krishna Kakkanth Vs. Government of Kerala, (1997)9 SCC 495 , the Hon'ble Supreme Court has held unless the Government policy is demonstrably arbitrary, capricious, irrational, discriminatory or violative of the Constitutional or Statutory provisions, it cannot be struck down by the Courts and the Wisdom of public policy is irrelevant. In the case of Centre for Public Interest Litigation Vs. Union of India, 2012 (3) SCC 1 , the Hon'ble Supreme Court in paragraphs 99 &100 of the judgment has held as follows:- "In majority of the judgments relied upon by the learned Attorney General and the learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters..........................." In the case of Brij Mohan Lal Vs. Union of India & Others, 2012 (6) SCC 502 , the Hon'ble Supreme Court has held in paragraphs 96 & 99 as follows:- "It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions." 13. The learned Advocate General has pointed out that a person has got a right to education as a fundamental right under Article 21 A of the Constitution of India only upto the age of 14 years against the State. The judgment of Hon'ble the Supreme Court in the decision reported in (1992) 3 SCC 666 (Mohini Jain Vs. State of Karnataka and ors), though declared, the right to education as a fundamental right, without any restriction of age, in the subsequent decision of Constitution Bench of Hon'ble the Supreme Court reported in 1993 (1) SCC 645 (Unni Krishan J.P and ors Vs. State of A.P), the restrictive meaning was given, i.e. right to education is guaranteed only up to the age of 14. The said view was approved by the Constitution Bench (11 Judges) of Hon'ble the Supreme Court in the decision reported in (2002) 8 SCC 441 (TMA Pai Foundation Vs. State of Karnataka). 14. State of A.P), the restrictive meaning was given, i.e. right to education is guaranteed only up to the age of 14. The said view was approved by the Constitution Bench (11 Judges) of Hon'ble the Supreme Court in the decision reported in (2002) 8 SCC 441 (TMA Pai Foundation Vs. State of Karnataka). 14. In the light of the above Judgments of Hon'ble the Supreme Court, declaring the right of child to get education as a fundamental right up to the age of 14 years, we are unable to sustain the argument of the petitioner to declare the amendment as invalid. However, after 14 years also the parents having means are morally bound to extend all help to their children to pursue further studies. 15. The next contention raised by the petitioner is that the persons marrying second wife are not looking after the child born to the first wife beyond 18 years even though they are unable to maintain themselves. The said contention also cannot be appreciated as cases of such nature would be few and far between and such persons can avail the civil remedy and merely because one or other father is not looking after the son or daughter of the first wife beyond the age of 18 years, the same cannot be a reason to set aside the amendment. 16. It is well settled proposition of law that mere possibility of misuse of the provisions is not a ground to declare the provision as invalid. In such circumstances, even though we appreciate the efforts made by the petitioner in person, having regard to the limited jurisdiction vested with this Court, we are unable to find any reason to declare the amendment as invalid. Consequently, the writ petition is dismissed leaving the contention raised in this petition to be considered by the legislature at the appropriate time. No costs.