Jahagirdar, J.:—
This case raises an interesting question about the liability of the father under s. 488 of the Criminal Procedure Code to maintain his married daughter. The applicant before us had been ordered on March 11, 1943, by the Magistrate to pay maintenance to his wife and four children at the rate of Rs. 40 per month, that is Rs. 16 to his wife, the opponent before us, and Rs. 6 to each of his four children. The opponent applied to the Presidency Magistrate, 7th Court, Dadar, Bombay, for the enhancement of the amount of maintenance for herself and her children, in view of the fact that the applicant's salary is now increased. The opponent also made an application praying that the amount ordered to be paid in 1943 be reduced as the eldest daughter is now married. The learned Magistrate rejected the application of the opponent and enhanced the amount of maintenance in respect of the opponent and her three children. He, however, refused to enhance the amount of maintenance in respect of the married daughter, who is now said to be 15 years old. The applicant comes in revision against the said order.
Miss Navalkar, the learned advocate for the applicant, contends that under Hindu law the moment a daughter is married she gets an enforceable right to be maintained by the husband and she cannot therefore be described as unable to maintain herself within the meaning of s. 488, Criminal Procedure Code, and the father ceases to be liable to maintain his married daughter. In support of her contention she relies upon a ruling of the Madras High Court in Chantan v. Mathu, where it has been held that a child that possesses a right to maintenance from its mother's tavazhi is not entitled under s. 488 to an order for maintenance. In dealing with this point, Abdur Rahim J. observes (p. 958):
“……the ability contemplated by the section applies as much to the case of a child which has got means of its own or which is entitled in law to be maintained, and is being maintained……by some other person as to a child which is able to earn a living by its own exertions”.
Alying J. concurs with this view. He observes (p. 958):
“I think that a child which possesses a legally enforceable right to maintenance from its mother's tarwad stands in the same position as a child which possesses property in its own right, and that neither can be regarded as ‘unable to maintain itself’ within the meaning of section 488.”
With great respect we are unable to accept this view. The right to maintenance under this section is a distinct statutory right irrespective of the personal law of the parties. Section 488 provides only a speedy remedy against starvation for a deserted wife or a child. It provides for a summary procedure which does not cover entirely the same ground as the civil liability of a husband or father under his personal law to maintain his wife or child. A legally enforceable right to maintenance at the hands of a third person cannot mean the same thing as ability to maintain. It may take some years to enforce a legal emperor right in a Court of law. In the meanwhile the wife or the child has to live. A wife under Hindu law has enforceable right against her husband for her maintenance and yet s. 488 enables her to resort to this summary remedy. When substantial issues of civil law are raised between the parties, their remedy lies only in the civil Courts. Under s. 488 a person having sufficient means and neglecting or refusing to maintain his wife or child unable to maintain itself can be ordered to pay maintenance to his wife and child. Though the word ‘child’ has not been defined in the Code, it has been however held that a person is a child for the purposes of this section till he attains the age of majority: Hemantakumar Banerji v. Manorama Debee. Under this section, a daughter does not on marriage ipso facto lose her right of maintenance from the father. The real and only test is whether that child is unable to maintain itself. It may be that the husband himself is a child or too poor to maintain her. In Meenatchi Ammal v. Muthuswami Pillai it has been held that the father must continue to maintain his daughter even after her marriage, if in spite of her marriage she still remains unable to maintain herself either because her husband is too poor to maintain her or for any other good reason.
In that case, on the application of the father, the Magistrate had cancelled altogether the maintenance allowed to the daughter on the ground that she was married. Krishnan J. observes (p. 504):—
“It seems to me that the question really turns upon whether the altered circumstances are such that the child has become able to maintain herself. If she has become able to maintain herself by reason of her marriage and ceased to depend on the original maintenance, I would be prepared to hold that cancellation under s. 489 of the Criminal Procedure Code would be the proper order to make, but if, in spite of her marriage, the girl still remains unable to maintain herself either because her husband is too poor to maintain her or for any other good reason, the father's liability maintain the child would still exist under section 488”.
The learned Judge set aside the order and sent the case back to the Magistrate for passing fresh orders in the light of the above observations.
The learned Magistrate in this case no doubt refers to Meenatchi Ammal v. Muthuswami Pillai; but he has failed to find out as to whether the daughter is living with her husband or whether she still remains unable to maintain herself.
We, therefore, set aside the order directing the applicant to pay maintenance to his married daughter and send back the case to the learned Magistrate to pass fresh orders after ascertaining whether in spite of her marriage she is still unable to maintain herself, either because her husband is too poor to maintain her or for any other good reason.
Order set aside.
P.A.D