Mst. Khedani Rajwarin v. Lagan Singh Opposite Party.

1. This is a reference by the District Magistrate of Shahabad, under section 438 of the Cr PC, recommending that the order of the Sub-Divisional Officer, dated the 17th September, 1920, directing that the maintenance allowed under section 488 of the Cr PC by his previous order of the 26th February, 1907, should be paid until the girl is 14 years of age, that is, until the 2nd of May, 1921, be set aside.

2. There is no limit of age placed by section 488 for the maintenance allowance awarded under that section to be paid. Under the English Law the age is specified under the various Statutes from 13 to 16 years. But as there is no express specification in the Indian Law, no limit can at all be placed. It has, however, been held that maintenance is to be allowed until the child can maintain itself: Bhagat Singh v. Emperor(1); though in the case of Krishna samy Iyer v. Chandravadhana(2) it was held that “child” means a person who has not attained the age of majority. In the absence of any definition of the word “child” in the Act, or to any limit of age placed upon it, I would accept the decision of the Punjab Court that the maintenance allowed is to continue so long as the person is unable to maintain himself. The omission to define the age was probably intentional so as to allow the maintenance to continue even throughout the life, if owing to some mental or corporeal defect the person is unable to maintain himself: Thambuswamy Pillay v. Ma Loue(3) (Burma).

3. It is a question of fact in each case as to whether a child can maintain itself or not. Hence, without such enquiry the maintenance allowance cannot be limited in the way as has been done by the Sub-Divisional Officer. His order, dated the 17th September, 1920, must, therefore, be set aside. He will have to decide, if and when an application is made to him, whether or not the child is capable of maintaining itself, and if he finds that the child is capable of maintaining itself, the maintenance allowance under section 488 will cease to be paid.

4. Reference accepted.