# NANAK CHAND v. SURI CHANDRA KISHORE AGARWALA AND OTHERS

- **Citation:** [1970] 1 S.C.R. 565
- **Court:** Supreme Court of India
- **Decided:** 1969-05-20
- **Case number:** Civil Appeal No. 579 of 1966
- **Bench:** S. M. S!Kri, V. Ramaswam!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nanak-chand-v-suri-chandra-kishore-agarwala-and-others-4663
- **Pages:** 7

## Headnote

Criminal Procedure Code 1898 s. 488-Expression "child"-Whether
includes only minor children-Whether Section impliedly repealed by s. 4
of Hindu Adoptions and Maintenance Act 78 of 1958-lf educational
expenses to be tc;ken into account for detern1ining quantum of maintenance.
The appellant's four childern, the respondents in the appeal, two of
whom were majors and two were niinors, filed an application under s. 488
of the Criminal Procedure Code in September, 1963 for an order requiring the appellant to pay them maintenance. The Trial Court allowed the
application and fixed the monthly amounts to be paid as maintenance to
each of the children.
The appellant's revision application was dismissed
but one filed by the respondents was allowed whereby the Additional
Sessions Judge submitted the case to the High Court with recommendations
to enhance
the- mainten1lnce
allowance.
The High
Court accepted
the reference and thereafter. on an appliCation by the appe11ant gtanted a
certificate under Art. 134(J)(c) for an appeal to this Court.
It was contended on behalf of the appellant that (i) s. 488 Cr. P.C.
w~s impliedly repealed by s. 4 df the Hindu Adoptions and Maintenance
Act 78 1956 insofar as it applied to Hindus; (ii) that the word "child".
in s. 488 means a minor; and (iii) that the maintenance fixed for two of
the major children was based on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration.
HELD : Dismissing the appeal :
(i) There was no inci>nsistency between Act 78 of 1956 and s: 488
Cr. P.C. Both could stand together. The Act of 1956 is an Act to amend·
and codify the law relating to adoptions and maintenance among Hindus.
The law was substantiauy·.··similar before when it was·~never suggested th~J
there was any inconsistency with ·s. 488 Cr.P.C.
The scope of the two
laws is different. Section 488 provides a summary remedy and is applicable
to all pe'rsons belonging to all religions and has no relationship with the
personal law of the parties. [568 A-BJ
Ram Singh v. State,· A.l.R. 1963 All. 355; Mahabir
A11arwal/a v.
Gita Roy, (1962) 2 Cr. L.J. 528; and Na/lni Ran;an v. Kiron Rani, A.I.R.
1965 Pat. 442; approved.
(ii) The word "child" ins. 488 does not mean a minor son or daughter
and the real limitation is contained in the expres·sion "unable to maintain
itselr'
If the concept of majority is imported into the section, a major child
who is an imbecile or otherwise handicapped will fall outside the purview
of this section. If this Concept is not imported, no harm is done for the
section itself provides a limitation by saying that the child must be unable
to maintain itself. The older a person becomes the more difficult it would
be to prove that he is unable to maintain himself. [569 F-H]
586
SUPREME COURT REPORTS
[1970] l S.C.R.
The Commissioner had notice of" whole of the suit and of the claim
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made by the plaintiff in the case.
He was afforded an opportunity to
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resist the suit and, in fact, resisted it but later gave up the fight and agreed
to go out of the suit. In these circumstances, it will be wrong to hold
that the decree \vas void because the Commissioner was not given a notice
of the compromise petition. [592 CJ
State Wakf Board, Madras v. Abdul Azeez Sahib & Ors. A.LR. 1968
Mad 79, distinguished.
Muzafar Ahn1ed v. Indra Kuniar Das & Ors. 77 C.L.J .. 159,
Benoy
Ku1nrir Acharjee Choudhllry & Ors. v. Ahanuna Ali & Anr. 46 C.W.N.
339 and The Commissioner of Wokfs, Bengal v. Shahbzada Mohammed
Zehangir Shah, 48 C.W.N. 157, referred to.

## Text

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NANAK CHAND
v.
SURI CHANDRA KISHORE AGARWALA AND OTHERS
May 20, 1969
[S. M. S!KRI AND V. RAMASWAM!, JJ.]
Criminal Procedure Code 1898 s. 488-Expression "child"-Whether
includes only minor children-Whether Section impliedly repealed by s. 4
of Hindu Adoptions and Maintenance Act 78 of 1958-lf educational
expenses to be tc;ken into account for detern1ining quantum of maintenance.
The appellant's four childern, the respondents in the appeal, two of
whom were majors and two were niinors, filed an application under s. 488
of the Criminal Procedure Code in September, 1963 for an order requiring the appellant to pay them maintenance. The Trial Court allowed the
application and fixed the monthly amounts to be paid as maintenance to
each of the children.
The appellant's revision application was dismissed
but one filed by the respondents was allowed whereby the Additional
Sessions Judge submitted the case to the High Court with recommendations
to enhance
the- mainten1lnce
allowance.
The High
Court accepted
the reference and thereafter. on an appliCation by the appe11ant gtanted a
certificate under Art. 134(J)(c) for an appeal to this Court.
It was contended on behalf of the appellant that (i) s. 488 Cr. P.C.
w~s impliedly repealed by s. 4 df the Hindu Adoptions and Maintenance
Act 78 1956 insofar as it applied to Hindus; (ii) that the word "child".
in s. 488 means a minor; and (iii) that the maintenance fixed for two of
the major children was based on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration.
HELD : Dismissing the appeal :
(i) There was no inci>nsistency between Act 78 of 1956 and s: 488
Cr. P.C. Both could stand together. The Act of 1956 is an Act to amend·
and codify the law relating to adoptions and maintenance among Hindus.
The law was substantiauy·.··similar before when it was·~never suggested th~J
there was any inconsistency with ·s. 488 Cr.P.C.
The scope of the two
laws is different. Section 488 provides a summary remedy and is applicable
to all pe'rsons belonging to all religions and has no relationship with the
personal law of the parties. [568 A-BJ
Ram Singh v. State,· A.l.R. 1963 All. 355; Mahabir
A11arwal/a v.
Gita Roy, (1962) 2 Cr. L.J. 528; and Na/lni Ran;an v. Kiron Rani, A.I.R.
1965 Pat. 442; approved.
(ii) The word "child" ins. 488 does not mean a minor son or daughter
and the real limitation is contained in the expres·sion "unable to maintain
itselr'
If the concept of majority is imported into the section, a major child
who is an imbecile or otherwise handicapped will fall outside the purview
of this section. If this Concept is not imported, no harm is done for the
section itself provides a limitation by saying that the child must be unable
to maintain itself. The older a person becomes the more difficult it would
be to prove that he is unable to maintain himself. [569 F-H]
586
SUPREME COURT REPORTS
[1970] l S.C.R.
The Commissioner had notice of" whole of the suit and of the claim
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made by the plaintiff in the case.
He was afforded an opportunity to
,
resist the suit and, in fact, resisted it but later gave up the fight and agreed
to go out of the suit. In these circumstances, it will be wrong to hold
that the decree \vas void because the Commissioner was not given a notice
of the compromise petition. [592 CJ
State Wakf Board, Madras v. Abdul Azeez Sahib & Ors. A.LR. 1968
Mad 79, distinguished.
Muzafar Ahn1ed v. Indra Kuniar Das & Ors. 77 C.L.J .. 159,
Benoy
Ku1nrir Acharjee Choudhllry & Ors. v. Ahanuna Ali & Anr. 46 C.W.N.
339 and The Commissioner of Wokfs, Bengal v. Shahbzada Mohammed
Zehangir Shah, 48 C.W.N. 157, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 579 of
1966.
Appeal by special leave from the judgment and order dated
August 20, 1964 of the Calcutta High Court in Civil Rule No.
1715 of 1961.
D. N. Mukherjee, for the appellant.
B. C. Mitra and S. C. Majumdar, for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This is an appeal by special leave from the
judgment and order of the High Court of Calcutta, August 20,
1964, in an application under s. 115 of the Code of Civil Proce-
:iure, reversing the judgment of the Subordinate Judge, Howrah.
""he facts are as follows :
One Haji Abdul Karim, grandfather of respondents 2 to 4 executed a Wakf al-al-aulad on March 30, 1917.
He constituted
himself as the first Mutwali and named his two sons and widow as
Mutwalis after his own death.
The Wakf provided for the benefit
of the family and after the extinction of all the family a scheme for
feeding the poor.
On February 14, 1956 the present appellant
Ayesha Bibi filed a suit claiming I/16th of the property as a sharer
after the death of her husband Abdul Hamid.
This claim was
made against respondents 2 to 4 who were the Mutwalis.
Ayesha
Bibi joined the CommissiCl\ller of Wakfs, West Bengal as a defen·
dant to the suit.
The suit was filed in the Court iJ,f Munsif, Howrah
and reliefs claimed were a declaration that the Wakf was invalid,
inoperative and void and that its enrolment in the Wakf Office
was wrongly done and was of no avail.
She also asked for a permainent injunction restaining the Commissioner of West Bengal
and other respondents from interfering with the possession of the
property.
The Commissioner of Wakfs appeared in answer to
the notice o.f the suit and filed a written-statement on April 4, 1956.
He contended that the properties were governed by the Wakf which
was valid aind also that he was entitled to a notice under s. 80 of
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NANAK CHAND V, SHRI CHANDRA (Sikri, J.)
567
applicants. The Additional Sessions Judge submitted the
b~se
to the High Court with the recommendation to enhance the mamtenance allowance of the applicants in terms of the proposals
made by him.
The Additional Sessions Judge observed that the
maintenance unaer s. 488 did not include the costs of college
education, and therefore he did not propose to allow Chandra
Kishore and Ravindra Kishore the expenses of their college education. But talcing into consideration the income of the respondent and the status of the family, the Additional Sessions Judge
proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100
p.m. each as maintenance allowance until they finished their
courses of M.Com. and M.B.B.S., respectively. He further proposed to allow to Rakesh Kumar and Shashi Prabha each a
monthly maintenance allowance of Rs. 50 until Shashi Prabha
was able to earn or was married, whichever was earlier, and until
Rakesh Kumar was able to maintain himself.
The High Court accepted the reference made by the learned
Additional Sessions ~ndge and dismissed the criminal revision filed
by the respondent. The High Court granted the certificate under
art. 134(1)(c) of the Constitution because there is conflict of
opinion on the question of the interpretation to be given to the
word 'child' in s. 489, Cr. P.C.
The learned counsel for Nanak Chand has raised three points
before us: first, thh~s. 488, Cr. P.C. stands impliedly repealed
by s. 4 of the Hindu Adoptions and Maintenance Act, 1956 ( 78
of 1956)--hereinafter referred to as the Maintenance Actinsofar as it is applicable to Hindus; secondly, that the word 'child'
in s. 488 means a minor; and thirdly, that the maintenance fixed
for Chandra Kishore and Ravindra Kishore was based on wrong
principles and was excessive inasmuch as expenses for education
have been taken into consideration.
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Section 4 of the Maintenance Act reads :
"4. Save a~ otherwise expressly provided in this
Act,-
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(a) ........
(b) any other law in· force immediately before the
commencement of this Act shall cease to apply
to Hindus inrofar as it is inconsistent with any
of the provisions contained in this Act."
The leamed .counsel says that s. 488 Cr. P.C., insofar as it proH
vides for the grant of maintenance to a Hindu, is inconsistent with
Chapter III of the Maintenance Act, and in particular, s. 20,
which provides for maintenance to children.
We are unable to
Ll4 Sup. Cl/69-7
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568
SUPREME COURT REPORTS
[1970) I S.C.R
see any inconsistency between the Maintenance Act and s. 488,
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Cr. P.C. Both can stand together. The Maintenance Act is an
act IP 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 bofore the commencement of this Act, insofar as it dealt
with the maintenance of children, was in any way inconsistent
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with s. 488, Cr. P.C. The scope of the two laws is different.
Sedion 488 provides a summary r~m:dy 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('), before the
Calcutta High Court in Mahabir Agarwal/a v. Gita Roy('), and c
before the Patna High Court in Nalini Ranjan v. Kiran Rani(').
The three High Courts have, in our view, correctly come to the
conclusion that s. 4(b) of the Maintenance Act docs not repeal
or affect in any manner the provisions contained ins. 488, Cr. P.C.
On the second point there is sharp conflict of opinion amongst
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the High Court and indeed amongst the Judges of the same High
Court. In view of this sharp conflic• of opinion we must examine
the terms of s. 488 ourselves. Section 488(1) reads as follows:
"488 ( 1). If any person having sufficient means
neglects or refuses to maintain his wife or his legitimate
or illegitimate child unable to maintain itself, the District
Magistrate, a Presidency Magistrate, a Sub-divisional
Magistrate or 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, at such manthly 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 from time to time directs."
We may also set out sub-s. (8) of s. 488 because some courts
have placed reliance on it :
"488(8). Proceedings under this section may be
taken against any person in any district where he resides
or is, or where he last resided with his wife, or, as the
case may be, the mother of the illegitimate child."
The word 'Child' is not defined in the Code itself. This word
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has different meanings in different contexts. "\\'hen it is used in
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(1) A.LR. [1963) All. 3SS,
(3) A.LR. [196SJ Pat. 442.
(2) 11962} 2 Cr. L.J. S28.
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NANAK CHAND v; SHRI CHANDRA (Sikri, J.)
569
correlation with father or parents, according to Shorter Oxford
Dictionary it means :
"As correlative to parent. 1. The offspring, male or
female, of human parents."
Beaumont, C.J., in Shaikh Ahmed Shaikh Mahomed v. Ba
Fatma(') observed:
"The word "child" according to its use in the
English language ,has different meanings according to
the context. If used without reference to parentage, it
is generally synonymous with the word 'infant' and
llleans a person who has not attained the age of
majority .... where the word 'child' is used with reference to parentage, it means · a descendant of the first
degree, a son or a daughter and has no reference to age.
In certain context& it may include descendants of more
remote degree, a11d be equivalent to "issue".
But, at
any rate, where the word "child" is nsed in conjunction
with parentage, it is not concerned with age.
No one
would suggest that a gift "to all my children" or "to all
the children of A'1 should be confined to minor children.
In s. 488 of the t~al Procedure Code the word is
used with reference to the father.
There is no qualification of age; the ,only qualification is that the child must
be unable to maintain itself.
In my opinion, there is no
justification for s'aying that this section is confined to
children who are ,under the age of majority."
We agree with these observations and it seems to us that
there is no reason to depart from the dictionary meaning of the
word.
As observed by S\lbba Rao, J., as he then was, speaking for
the Court in Jagir Kaur v. Jaswant Singh('), "Chapter XXXVI
of the Code of Criminal Procedure providing for maintenance of
wives and children intends to s~rve a social purpose." If the concept of majority is imported into the section a major child who is
an imbecile or otherwise handicapped will fall outside the purview of this section. ' If this concept is not imparted, no harm is
done for the section it:self provides a limitation by saying that the
child must be unablcl: to !llaintain itself.
The older a person
becomes the more difficult it would be to prove that he is unable
to maintain himself.;. It is true that a son aged 77 may claim
maintenance under the section from a father who is 97.
lt is
very unlikely to happen but if it does happe::i and the father is
(I) I.L.R. [19431Bom,'38,40.
(2) [19641 2 S.C.R. 73, 84.
570
SUPREME COURT REPORTS
[1970] l S.C.R.
able to maintain while the son is μnable to maintain himself no
harm would be done by passing an appropriate order under s. 488.
We cannot view with equanimity the lot of helpless children who
though major arc unable to support themselves because of their
imbecility or deformity or other handicaps, and it is not as if such
cases have not arisen. As long ago as 1873, Pearson, J. In the
matter of the Petition of W. B. Todd(') had to deal with a major
son who was deaf and dumb, and he had no hesitation in grant·
ing an order of maintenance. The same conclusion was arrived
at by Chevis, J., in 1910 in Bhagat Singh v. Emperor(') and be
allowed maintenance .o a young man of about 20 who was very
lame having a deformed foot.
We have seen no case in which a
man of 77 has claimed maintenance and we think, with respect,
that unnecessary emphasis has been laid on the fact that it might
be possible for a man of 77 to claim maintenance.
It is not necessary to review all the case law. The latest judgment which was brought to our notice is that of the Madras High
Court in Amiritltammal v. Marimuthu(') in which Natesan, J..has
written a very elaborate judgment.
He has referred to all the
Indian cases and a number of English cases and statutory provisions both in England and in India. We are unable to derive any
assistance from the statutory provisions referred to by him or from
the English Law on the point. He relied on the use of the word
"itself' in s. 488 as showing that what was meant was a minor
child. We are unable to attach so much significance to this word.
It may well be that it is simpler or more correct to use the word
"itself' rather than use the words "himself or herself."
We may mention that Das Gupta, J., in Smt. Purnasashi Devi
v. Nagendra Nath(') and Mudholkar, J., in State v. lshwar/al(•)
came to the same conclusion as we have done.
In view of the reasons given above we must hold that the
word "child" in s. 488 does not mean a minor son or daughter
and the real limitation is contained in the expression "unable to
maintain itself."
Coming to the third point raised by the learned counsel we
are of the view that the learned Additional Sessions Judge and
the High Court were right in taking into consideration the existing
situation, the situation being that at the time the order was passed
Chandra Kishore was a student of M.Com. and Ravindra Kishore
was a studt>nt of M.B.B.S. course.
We need not decide in this
(I) (18731 S N.W.P. High Court Reports 237.
(2) 6 l.C. 900.
'(3) A.l.R. [1967) Mad. 77.
(4) A.l.R. [19SOJ Cal. 46S.
(S) I.LR. [1951! Nag. 474.
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NANAE CHAND V, SHPJ CHANDRA (Sikri, /,)
571
A case whether expenses for education can be given under s. 488
because no such expenses have been taken into consjderation in
fixing the maintenance in this case.
It has not been shown to us
that the amount fixed by the learned Additional Sessions Judge
and ·confirmed by the High Court is in any way excessive or
exorbitant.
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In the result the appeal fails and is dismissed.
R.K.P.S.
Appeal dismissed.