NANAK CHAND versus SHRI CHANDRA KISHORE AGARWALA AND OTHERS

Citation: [1970] 1 S.C.R. 565 · Decided: 20-05-1969 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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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includes only minor children-Whether Section impliedly repealed by s. 4 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 requir-
ing 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w~s impliedly repealed by s. 4 df the Hindu Adoptions and Maintenance 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 inas-
much 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. 
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 exe-
cuted a Wakf al-al-aulad on March 30, 1917. 
He const

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