Maintenance Claim of Major Children under “Mental Injury”: Has the Law Identified the Mischief and Remedied it under Section 144(1)(c), Nagarik Suraksha Sanhita, 2023

An analysis of maintenance claims by major children under Section 144(1)(c) of the BNSS, 2023, examining whether “mental injury” can encompass the deprivation of education and thereby provide a statutory basis for major children unable to maintain themselves to claim maintenance.

Introduction

A very widely known proverb is that law is an instrument of social change, and hence, it ought to bring changes in the society with its enactment. However, law should change and adapt with changing social reality and needs too, after all laws are nothing but collective consciousness of the community. Either way laws and society are correlated, where a change in one should bring change in the other. This is more so necessitated in social welfare legislations, sole purpose of enactment of which is to advance the cause of derelicts. One such legislation is the provision of Section 144, Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) (erstwhile Section 125, Criminal Procedure Code, 1973 and Section 488, Criminal Procedure Code, 1898) (collectively the “Criminal Code”), introduced, on account of brooding presence of constitutional empathy for weaker sections like women and children, under Articles 15(3) and 39 of the Constitution of India. This section made provision of the maintenance of “dependants”, inter alia, women and children. Interestingly, this staringly distinguished civil remedy has been provided under the Criminal Code, apart from personal law, in the form of summary proceedings to enable more speedy and economical form of justice, than that available in civil courts, for the dependants, so that they can be protected timely from vagrancy. However, it seems from a bare reading of all the three provisions of the Criminal Code, Law Commission reports and judgment of the courts, that ambiguity persists around entitlement of maintenance for specifically “major children” (who are also “dependants” in certain circumstances), who according to the above, seems to have been vividly excluded from claiming maintenance under the Criminal Code. This article, thus delves into understanding if the three provisions (which have evolved over time), of the Criminal Code, intended or intend to provide relief of maintenance to major children, or the law remains inert, with the Rule of Law not running close to the rule of life for such major children.

Background of Section 488 of the original Code, Section 125 of the 1973 Code and Section 144 of the new Code

With the underlying objective of enacting a provision for advancing the cause of derelicts, the original Code, i.e. the Criminal Procedure Code, 1898 (original Code) provided for maintenance under Section 488 as under:

488. Order for maintenance of wives and children.—(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 monthly 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.

The original Code abstained from using the term “minor” or “major” before child as well as did not define child anywhere. Hence, whether major children were entitled to maintenance from their father when they were “unable to maintain themselves”, primarily due to pursuing education, became the focal point of contention. In the absence of such provision for major children specifically, courts widely interpreted the aforesaid provision to state that nowhere does the provision prohibits such major children from seeking maintenance from their father.

A majorly discussed judgment was Nanak Chand v. Chandra Kishore Aggarwal¹, where, on the basis of inability of the children to maintain themselves on account of currently pursuing education, maintenance was granted to them, despite them having attained majority. The court stated that the term child used under the provision did not connote to only minor children, and rather referred to children who were unable to maintain themselves on account of their existing situation.

In several other findings, courts relied upon the definition of the term “child” in English language, on account of its absence under the original Code, to state that it also included major children, as in Shaikh Ahmed Shaikh Mahomed Ashraf v. Ba Fatma², where the Bombay High Court held that if the term “child” is being used with reference to parentage, as is the case under Section 488 of the original Code where the term “minor” or “major” has not been used, then the term cannot be confined to children under the age of majority.

Subsequently, personal law for Hindus, which deal specifically with personal rights in a detailed manner, was codified in 1956, i.e. the Hindu Adoptions and Maintenance Act, 1956 (HAMA), which seemed to have been providing “wider amplitude of relief”, primarily “wider” on account of significant relief to major daughters to claim maintenance till they get married, i.e. even after majority and also expenses which are incidental to her marriage.³ It recognises that the obligation to maintain, inter alia, children is personal, legal and absolute in character and arises from the very existence of the relationship.⁴ This obligation is so personal that in case of deceased husband this obligation has been casted upon the father in law to maintain her widowed daughter in law, if she is unable to maintain herself, to an extent that she can claim maintenance from the father in law’s self-acquired property or from his donee.⁵ The courts have also expanded the scope of maintenance for such unmarried daughters to an extent of providing them this relief even in instances where their own earnings or source of income is not sufficient for their maintenance.⁶ In Wali Ram v. Mukhtiar Kaur⁷, the court has even held that mere bodily health or age cannot be grounds for rejection of the claim for maintenance.

Thus, in the absence of a clear provision to that effect and various interpretations of courts, it seemed that Criminal Code did not provide for relief of maintenance to major children, while personal law for Hindus, creates an exception (practically wide enough) for the daughters, to claim maintenance, to an extent that such relief can also be granted to a healthy major unmarried daughter, by virtue of it being an absolute right.

Meanwhile, taking due consideration of the absence of the term “minor or major” before the word child in Section 488 of the original Code, and resultantly differing opinions of the court to that effect, Law Commission of India in its 41st Report, 1969⁸, while relying on the aforesaid constructions of the courts, stated that having regard to the primary object of Section 488, namely, prevention of vagrancy, a wider view on the subject was desirable. Hence, it was suggested that daughter or son, of whatever age, would be entitled to maintenance, emphasising on the inability to maintain itself and not the age of child.

Basis the continuing interpretations of courts in several judgments as above, recommendation of Law Commission in the aforesaid report, and civil remedy for Hindus under HAMA, already addressing the relief for major daughters, Parliament passed the Criminal Procedure Code, 1973 (the “1973 Code”), which replaced Section 488 of the original Code with Section 125 as the respective maintenance provision. Surprisingly, this time the legislature specifically stated that only “minor children”, i.e. the children under the age of “18 years” would be entitled to maintenance under Section 125. This change in the provision in 1973 Code, made the intention of the legislature, retrospectively clear that the provision always (even under the original Code) meant “minor children” by the phrase “child” under the provision. However, in 1973 Code, it made an explicit provision for maintenance of major children if due to “physical or mental abnormality or injury, they are unable to maintain themselves”. This change, in the form of Section 125(1)(c) of the 1973 Code, which also stands retained as Section 144(1)(c) of the new Code, seems to have been derived from the judgment in the Nanak Chand case⁹ and recommendation of Law Commission in its 41st Report¹⁰.

Subsequently, on account of absence of interpretation of Section 125(1)(c) of the 1973 Code, and varying/confusing interpretations of courts to that effect, Law Commission of India yet again reiterated its recommendations in its 132nd Report, 1989¹¹, stating that the term minor or major should not be imported in the understanding of the term child under the maintenance provision and rather should only rely on the inability of such child to maintain itself and his/her existing situation, which had always been the primary qualifiers for courts to grant maintenance. However, law stands on the same footing under the new Code, i.e. Section 144 BNSS, 2023, where again provision has been made for granting maintenance, reiterating the same as provided under Section 125 of the 1973 Code. Thus, in the background of constitutional objective, it needs to be understood if the enacted provisions of Criminal Code have evolved in a manner, to address the relief of major children, thereby subserving the cause of Articles 15(3) and 39 of the Constitution of India for such dependants.

Mental injury: An already existing criteria for granting maintenance to major children

The major difference between the provision of the original Code and the provisions under the 1973 Code and the new Code is mainly on two premises: 1) absence of the term “minor” or “major” under the original Code, unlike the new Code and 1973 Code; and 2) inclusion of the phrase “physical or mental abnormality and injury” under the 1973 Code and new Code, unlike the old Code.

Thus, whether courts’ (and more specifically the Supreme Court) findings under the original Code were inducted in the provisions under the 1973 Code and the new Code or not, is required to be understood from the concepts elaborated by the courts (as more specifically by the Supreme Court) under the original Code. First and foremost concept which was considered by the court in the famous case of Nanak Chand case¹², was “unable to maintain itself”. This requirement has also been included in verbatim under the 1973 Code and the new Code. However, apart from the same, the Supreme Court had stated in the Nanak Chand case that 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, and thus the word “child” in Section 488 does not mean a minor son or daughter and the real limitation is contained in the expression “unable to maintain itself”.¹³

Thus, unable to maintain, was contemplated under the original Code, by the Supreme Court as well as other courts, as including inability arising on account of “physical abnormality or injury”, which stands included under Section 125(1)(c) of the 1973 Code and Section 144(1)(c) of the new Code.

This concept of “unable to maintain itself” was also elaborated by courts under the original Code, on the basis of two different aspects, i.e. “existing situation” and “potentiality to earn”. Existing situation can be considered as one of the reasons for children’s inability to maintain as was also stated by the Supreme Court in the Nanak Chand case¹⁴, as under:

12. 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 student of M.B.B.S. course.¹⁵

Similarly, in the cases of Rita Dutta v. Subhendu Dutta¹⁶ and Kirti Malhotra v. M.K. Malhotra¹⁷, the Supreme Court has granted maintenance on grounds of existing situation, i.e. major children pursuing education.

Thus, if judgments of all the courts including the Supreme Court, are considered, then the “existing situation” of such major children has been connoted to “pursuing education”. Considering Section 125(1)(c) and Section 144(1)(c), major children can also claim maintenance due to “mental abnormality or injury” apart from physical abnormality or injury, which, as already stated by the Supreme Court and other Courts, above, stands covered as one of the reasons for “unable to maintain themselves” under Section 125(1)(c) of the 1973 Code and Section 144(1)(c) of the new Code.

If we consider the term mental injury, it has not been collectively defined anywhere in the Code or in English language. However, if we rely on Section 2(2) of the new Code (erstwhile Section 2(y) of the 1973 Code), it states as under:

2. Definitions.—(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code.

Therefore, if we look into Nyaya Sanhita, 2023, the term stands defined under Section 2(14) of it as under (erstwhile Section 44, Penal Code, 1860):

44. “Injury”.—The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.¹⁸

In Jitendra Nath Sarkar v. Dalia Sarkar¹⁹, the Orissa High Court held as under:

8. The provision in Section 125 of the Code as per the settled principle of law, is a beneficial provision to have the weaker section in the family; such as, the wife, legitimate and illegitimate minor children, legitimate or illegitimate children excepting major married daughter, who has attained majority, but suffers from physical or mental abnormality or injury and the parents who are unable to maintain himself/themselves have been provided the right to claim for maintenance under the Code notwithstanding availability of adequate remedies in their personal law or the supporting law. Therefore, the most crucial qualifying term is“unable to maintain”thereby meaning such dependants having no source of independent livelihood. According to the scheme of that section, persons of the aforesaid category should be protected by grant of maintenance to save them from destitution and vagrancy. A major unmarried daughter ipso facto may not be entitled to maintenance in view of the provision of Section 125(1)(c) of the Code if it is proved in record that she has a source of income to maintain herself. In other words, when she claims to be not being able to maintain herself, unless the contrary is pleaded and proved, even if she is a major, she is bound to be maintained by her father or the mother as the case may be and at that time, the definition of term ”injury” comes to her aid to protect her from the harm to body and mind. Of course, this is accepted as a prima facie view and is left open to be decided in appropriate case where such points can be validly raised for adjudication.²⁰

Hence, the term “mental injury” has been stated by the courts to be any harm caused to the mind of children when they are unable to maintain themselves even after majority, which as contemplated, can be on account of them pursuing education. Thus, mental injury denotes and squarely covers “existing situation” which had been contemplated by the Supreme Court in the Nanak Chand case²¹ and also reiterated by courts in several other cases. It can, therefore, be safely concluded that maintenance granted to major children on account of their existing situation of pursuing education, squarely and categorically falls under Section 125(1)(c) of the 1973 Code, and the new provision Section 144(1)(c) of the new Code.

Another concept that was discussed by the Supreme Court, other courts as well as the reports of Law Commission was “potentiality to earn”. While this concept is not included in the provision anywhere, yet its relevance lies in the fact that it was discussed from the perspective of “wife” under the provision. The reason for introduction of such new concept was on account of ambiguity in the original Code, where it seemed that “unable to maintain itself” only qualified illegitimate and legitimate children and not the “wife”. Hence, it was alleged that the wife, being able bodied had potentiality to earn, so the qualification of “unable to maintain” was not required in her case. Though the discussion pertained to wife as dependant, explaining how the concept of able-bodied person cannot be imported for wife, yet this can also be understood from the context of children (major or minor), who are unable to maintain themselves.

This concept was explained in Vimal Sukumar Patil v. Sukumar Anna Patil²² by Bombay High Court, inter alia stating that ability to earn many time depends upon several other factors such as education, experience, finances, family tradition, etc. and that mere physical ability is not the only qualification required for getting a job, for in a country where economic independence of a woman is a rarity, such a situation would never have been intended by the legislature. The court also explored the underlying constitutional objective of introducing this provision and the compassionate relevance of the provision with the constitutional objective of preventing vagrancy, and hence, benefit of doubt, if any, should be in the favour of ill-used wife. Lastly and most importantly, court drew a comparative analysis of Section 125(1)(a) with sub-clause (b), where, relying on various courts’ decision, it held that in case of children, criteria considered was the “existing situation” irrespective of their age, physical ability or capacity to earn, since “ability to earn” would lead to realms of conjectures and surmises. Hence, it was concluded that if, in the existing situation, wife was unable to earn irrespective of her capacity or ability, she would be entitled to maintenance. Interestingly, this was also deduced by Law Commission in its 132nd Law Commission Report, where it recommended that for the purpose of clarity, an Explanation be added to Section 125(1) stating that the phrase “unable to maintain herself” concerns with the actual separate income, if any, of the wife and not with the possibility or potentiality of her to earn for herself by securing employment or exerting herself.

Thus, the concept of potentiality to earn was stated to have no bearing on the “inability of the wife to maintain herself”. Looking into the relevant provision of Criminal Code, be it the original Code or the 1973 Code or new Code, it seems that the provision of maintenance presumed children above the age of majority to have “potentiality to earn” and hence, excluded them from the category of dependants claiming maintenance, under the provision. Thus, if the concept of “potentiality to earn” cannot be imported into the provision, in the case of wife, who is an adult, and who might have even worked prior to getting married or is working at the time of claiming maintenance, and is granted maintenance, irrespective, then there lies no reason why the provision would have carved out an exception for major children merely on a presumption that they have potentiality to earn by a certain age. This reasoning was also confirmed by Bombay High Court in Gitanjali Gajanan Tendulkar v. Gajanan Dinkar Tendulkar²³, where the court held that the law merely takes note of the fact that at the age of majority, child concerned has the “capacity to earn”, but the child might not be earning realistically, and considering his “existing situation”, i.e. if he is still dependent on his mother for his studies that fact will be considered while granting maintenance. However, while clarifying the intent of the provision, the court mistakenly granted maintenance for such major children to mother and not the children stating that they were abstained from claiming maintenance under the provision.²⁴

It can, therefore, be safely deduced that if the courts clearly rely on the three concepts of “unable to maintain”, “existing situation” and “potentiality to earn”, as squarely covered under Section 125(1)(c) of the 1973 Code and Section 144(1)(c) of the new Code, under the head mental injury, then the conundrum around putting words into the provision and the dilemma of granting relief by resorting to the constitutional objective or indirectly granting relief to major children through the mother, thereby leading confusing precedents for the courts to follow, can be avoided.

Summary proceedings under Section 125 of the 1973 Code and determination of personal rights and liabilities under Section 20 HAMA

Taking due consideration of the provisions of Criminal Code as well as by way of example in personal laws, the provisions of HAMA, it is abundantly clear that the provisions nowhere state in the Criminal Code that the proceedings are summary in nature or for the provisions under HAMA that they are conclusive determination of personal rights and liabilities. However, if we undertake a comparative analysis of the two provisions, on the basis of the judgments of courts to that effect, it can be clearly stated that proceedings under the Criminal Code are summary in nature and the proceedings under Section 20 HAMA are conducted in a manner so as to conclusively determine the personal rights and liabilities of the parties.

Before delving into the concepts of “summary proceedings for prima facie determination of rights and liabilities” and “conclusive determination of rights and liabilities”, terms coined not under law but by judicial precedents, we need to understand what are the rights and obligations as stipulated under these judgments. A broad understanding of these terms require correlation between personal law (HAMA for example) and Criminal Code. These terms have been elaborately explained by Himachal Pradesh High Court in Baldev Singh v. Pooja Devi²⁵, where it held as under:

5. Whether it is the maintenance of a wife, or the maintenance of a widowed daughter-in-law or the children or parents, Sections 18, 19 and 20 of the 1956 Act create a right in these persons mentioned in these Sections, namely, wife being maintained by her husband (Section 18), widowed daughter-in-law being maintained by her father-in-law (Section 19) and children being maintained by their father (Section 20) and the corresponding obligation of such Hindus to maintain the aforesaid persons. Even though, undoubtedly, these provisions create a right and a corresponding obligation, neither these provisions occurring in Chapter III of 1956 Act nor the Act itself anywhere else provides for any mechanism nor creates any Machinery or Forum for enforcing the said right or the said obligation.

Rights and obligations, vis-à-vis children, which are being determined under Criminal Code and personal law are the rights of children to be maintained by their father and the corresponding obligation of the father to maintain his children. The enforcement mechanism for determination of such rights and liabilities differs under the two laws, and as such distinguishes the Criminal Code from personal law. In Kamala v. M.R. Mohan Kumar²⁶, while deciding an application for maintenance, the Supreme Court stated that broad and expansive interpretation should be given to the term “wife”, by stating that if by “some evidence” it is established that parties lived together as husband and wife, then presumption of marriage would be drawn and maintenance cannot be denied to her. Such presumption has been considered to be a rebuttable presumption and burden lies on the husband. Therefore, proceedings under Section 125 draws presumption in favour of dependants to fulfil the true spirit of beneficial legislation and burden of proof for weakening or destroying such presumption lies on the person who is liable to pay. Similarly, the Supreme Court also held in Nagendrappa Natikar v. Neelamma²⁷, that the proceedings under Section 125, being summary in nature do not foreclose the remedy available before the civil court and are subject to final determination in civil proceedings under Section 20 HAMA. In fact, there has also been an intriguing finding of Allahabad High Court in Lekhraj Maithil v. State of U.P.²⁸, by relying on the Supreme Court finding in Jagdish Jugtawat v. Manju Lata²⁹, where Allahabad High Court reiterated the finding of the Supreme Court stating that there will be inconvenience to the party as well as there will be multiplicity of proceedings if relief of major daughters under Section 20 HAMA, is not provided under Section 125 of the 1973 Code. Considering that both the proceedings are to be conducted before the Family Court, Allahabad High Court in the Lekhraj Maithil case allowed the claim for maintenance under the Criminal Code, by relying on the finding of the Allahabad High Court in Raj Kumari Awasthi v. State of U.P.³⁰ Reliance was placed on Raj Kumari Awasthi case, since court had held in it that an unmarried daughter who is pursuing her education or staying at home awaiting her marriage cannot be denied maintenance from her father who possesses sufficient means and recommended that Section 125(1)(c) needs to be amended by the legislature and the right to be maintained by a parent having sufficient means, should be provided to all unmarried daughters, who are unable to maintain themselves, even after they have attained majority. Similarly, in Dwarika Prasad Satpathy v. Bidyut Prava Dixit³¹, the court was of the view that the proceedings under Section 125 of the 1973 Code, are meant to achieve a social purpose of preventing vagrancy and destitution and hence, any claim of maintenance of wife if negated by the husband, would be subject to strict standard of proof. Thus, the remedy under Section 125 of the 1973 Code, does not foreclose the remedy available under any other law. However, what the provision under Criminal Code envisages, is to provide an instant relief in the interregnum, to the dependants, in consonance with the constitutional parameters which necessitated introduction of this provision under the Criminal Code, despite its existence under the personal law.

An intriguing aspect had arisen in Abhilasha v. Parkash³², wherein the Supreme Court was deciding the issue of whether unmarried major daughters can claim maintenance under Section 125 of the 1973 Code, by relying on Section 20(3) HAMA, wherein the Supreme Court held that, that the rights granted under the personal law are wider scope of rights in comparison to the maintenance provision under the Criminal Code. Bearing this fallacy in mind, it became interwind in deciding the issue of whether such claims of major daughters can be entertained in Section 125 proceedings. The court stated that if the proceedings are before the Judicial Magistrate, then the relief of Section 20(3) cannot be given under Section 125 of the 1973 Code. However, if both the proceedings are before the Family Court, then to avoid multiplicity of proceedings, relief of major unmarried daughters under Section 20(3) HAMA can be granted to them in an application under Section 125 of the 1973 Code. This finding of the Supreme Court falls foul on two aspects. Firstly, it is unclear if the nature of proceedings and trial under Section 125, if conducted for granting relief as per Section 20(3) HAMA, would be conducted in a summary manner as per Section 125 or in an extensive manner conclusively determining rights and liabilities as per Section 20(3) HAMA, since standard of proof in both the proceedings is different. Secondly, even if we accept the finding of the Supreme Court and as such proceedings conducted before the Family Court under Section 125 of the 1973 Code, are conducted as per Section 20 HAMA, then it would set confusing precedent for courts to follow for conducting proceedings under Section 125 of the 1973 Code. Alternatively, even if we still conform to the findings of the Supreme Court in the Abhilasha case above, which corroborates the findings of Jagdish Jugtawat case³³, then considering the new Code, which came into effect from 1 July 2024, should have included the provision for maintenance of major unmarried daughters, as was also recommended by Allahabad High Court in the Raj Kumari Awasthi case.

However, absence of the same from the new Code or for that matter even from the 1973 Code, despite an already existing provision under HAMA, makes us to draw two inferences. Firstly, either the legislature never intended to include the provision for maintenance of major children altogether or secondly that the provision of maintenance for major children under the 1973 Code and the new Code already exists. If we consider drawing first inference, then absence of an immediate remedy for dependants under the 1973 Code and the new Code, despite an existing provision for them under personal law, seems to be an absurd situation. Additionally, original Code abstained from using the term minor and major before child, and its introduction was only in the 1973 Code and the new Code, despite an existing remedy under the personal law and several recommendations of Law Commission and judgments of courts to the effect of allowing claim of maintenance for major children. Hence, inclusion of the term minor child while neglecting the recommendations of Law Commission reports and judgments of courts would be a bleak scenario to believe, on the part of the legislature. This leads us to the second scenario of an already existing provision for major children under the 1973 Code and the new Code. If we draw corollary from the foregoing paragraphs, we have already seen how the phrase “physical or mental abnormality or injury” has been construed by courts, wherein they have explicitly stated that not maintaining their children on account of their educational expenses would cause “mental injury” to them and hence, the claim of major children is squarely covered under the Criminal Code. This reasoning satisfies five conditions. Firstly, exclusion of the term “minor” from the original Code and inclusion in the 1973 Code and new Code stands justified. Secondly, recommendations of Law Commission reports stand accepted. Thirdly, judgments of the courts would have a legal backing for justifying their order for grant of maintenance to major children. Fourthly, it also addresses the absurdity of including relief for major daughters under the personal laws, while not giving such relief under the Criminal Code. Lastly, the aforesaid analysis of the judgments, makes one thing conspicuous that the two legislations are primarily distinguished on the premise of “standard of proof” and seldom on “rights granted” under the two provisions. Hence, to resolve this anomaly, if we adhere to the fact that the right of maintenance of children under the two provisions has already been covered under Section 144(1)(c) under mental injury, and the mere difference between the provisions, pertains to “standard of proof”, then courts will not have to rely on any personal law for providing relief to major children as was done in the Jagdish Jugtawat case³⁴ or Abhilasha case³⁵ above. This way courts will not be compelled to draw inferences and vague interpretations in order to justify the claim for maintenance of major children without any legal backdrop.

Resolution of the dilemma of contrary findings of courts

The courts have, time and again, attempted to give varying interpretations to the evolved provision of maintenance, with some judgments denying the claim of maintenance altogether, stating that there is an explicit bar and no provision for such relief under the provision.

In Nitaben Dineshkumar Oza v. Dineshkumar Ishwarlal Oza³⁶, the Gujarat High Court denied maintenance to a major son pursuing education, stating that beneficial legislation, undoubtedly requires benevolent and justice-oriented interpretation, but it cannot be allowed to sweep the plain and simple language of the provision provided by the legislature, in its wisdom knowing the previous enactment well.³⁷ Similarly, in Amarendra Kumar Paul v. Maya Paul³⁸, the Supreme Court denied the claim of maintenance of children on the ground of majority.³⁹ In T. Vimala v. S. Ramakrishnan⁴⁰, the Madras High Court took into account that the provision of Section 125 was not “happily worded” and disallowed major children from claiming maintenance from their father, yet they interpreted the provision to state that “maintenance” includes education because like food, clothing and shelter, it is also an important aspect of life, and hence, granted relief to major children.

The foregoing judgments demonstrate the dilemma of courts in granting relief of maintenance, when a clear provision to that effect remains absent. In such case, yet again the proposed interpretation given to Section 144(1)(c) of the new Code, comes at rescue, where clearly courts have, and can, construe “mental injury” to grant maintenance to major children. In this manner, relieving any portion of the statute at convenience, interpreting the law in order to advance the cause of justice, will not be required. Moreover, looking into the T. Vimala case⁴¹ above, though the definition of maintenance was interpreted to include “education”, yet court merely and vaguely interpreted the provision on social aspect to grant maintenance. This, on the contrary, could have been avoided, stating, that in the absence of definition of maintenance under the Criminal Code, reliance can be placed upon Section 3(b) HAMA, which is an inclusive definition of maintenance, including “educational expenses”. There are twofold reasons for the same. Firstly, this construction of the provision is in consonance with the finding of the Supreme Court in Rajnesh v. Neha⁴², where the court held that the proceedings under Criminal Code does not have overriding effect over proceedings of maintenance under HAMA, that the claimant can seek maintenance under both, though the courts adjust the final amount to avoid double recovery. Considering this, if any claim for maintenance is made by children under Section 144 of the new Code, that claim would be presumed to include “educational expenses” as provided under Section 3(b) HAMA, to conform to a scenario of adjustment of final amount of maintenance in both the court proceedings, since any adjustment can only be possible when the amount granted under both the provisions includes same things, for such grant of maintenance. Thus, the definition of maintenance need not require any interpretation, and rather can be imported from HAMA. This reference of definition from HAMA, for the purposes of claim of maintenance under Section 144 of the new Code, proves that both the provisions are pari materia, more so since both of them are beneficial provisions for maintenance in order to advance the cause of such derelicts. This cardinal principle of construction to bring in external aids for widening the concept of context by way of including other statutes which are in pari materia with the statute in case at hand, has also been affirmed by the Supreme Court in District Mining Officer v. Tata Iron and Steel Co.⁴³, as under:

18. … It is also a cardinal principle of construction that external aids are brought in by widening the concept of context as including not only other enacting provisions of the same statute, but its Preamble, the existing state of law, other statutes in pari materia and the mischief which the statute was intended to remedy… .”

Thus, from the analysis above, it can be safely concluded that maintenance under Section 144(1)(c) of the new Code (or the erstwhile provisions under the previous enactments) always included educational expenses. Claim of maintenance of major children in almost all cases has been granted in view of their existing situation, which, as has been elaborated above, has always been “education” and expenses incurred for such education. Therefore, deprivation of children from pursing education is liable to cause mental injury to them, thereby entitling them to claim maintenance under Section 144(1)(c) BNSS, 2023. This analysis, settles down the dilemma of contrary findings and vague interpretations on the basis of constitutional objective, by relying on the express language of the statute to grant relief of maintenance to major children.

Conclusion

Change of law is necessary for change in social reality.⁴⁴ However, when the law changes in the background of ongoing judgments of courts and Law Commission reports, it becomes imperative to comprehend the “changed law”, because certainly the law would have changed in accordance with changed social needs. If the provision of maintenance under the 1973 Code and new Code, seemed to have created an explicit bar for claim of maintenance of major children, then the provision required purposive interpretation. Merely interpreting the provision by stating the underlying objective/intent of introducing the provision is in essence ineffective. With seemingly explicit bar under the provision, purposive interpretation requires not only looking behind the intent of the provision but also looking into the literal words of the provision. Thus, the exception carved out for major children suffering from “physical and mental abnormality or injury” for grant of maintenance comes into play. The term injury has always been understood under the Criminal Code as not only physical injury but also any harm caused to mind and reputation of the person. Maintenance, as understood from analysis above, includes (and always included) educational expenses, even under the Criminal Code. Commonly, claim of maintenance of major children has always been on account of “educational expenses”, and the courts have granted such claims, basis their existing situation, (i.e. when they are pursuing education, as has been analysed above in this article). Therefore, major children can claim maintenance from their father for deprivation of such children from pursing education is liable to cause mental injury to them, thereby entitling them to claim maintenance under Section 144(1)(c) of the new Code. This seems to be the only plausible and effective way of granting maintenance to major children and is also in consonance with the established principle of interpretation and construction set out by the Supreme Court in Ramesh Chander Kaushal v. Veena Kaushal⁴⁵, i.e. to advance the cause of derelicts. However, what remains to be seen, is if this interpretation would be validated by the Supreme Court in its subsequent judgments to lay down a well-settled and reasoned judgment for claim of maintenance of major children.