Maintenance to Step-relations:

An Analysis of Step Treatment Meted out by the Law

(By Saema Jamil)

It is a moral duty to maintain one’s wife, children and aged parents in all personal laws.
Section 20 of the Hindu Adoptions and Maintenance Act, 1956 and Section 125 of Criminal
Procedure Code, 1973 (hereinafter referred to as CrPC) has made it into a legal obligation.1
The latter is a secular law and people from all religions can claim maintenance under the
Code. The maintenance of these three categories of persons is a personal obligation on the
person. Section 125 of CrPC puts an obligation on the person to maintain

 his wife, unable to maintain herself,

 his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself,
 his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself,
 his father or mother, unable to maintain himself or herself.

The provision nowhere clarifies whether a step parent or a step child would be entitled to
obtain maintenance from her step children or step parents respectively.

This article would analyse the applicability of Section 125 of CrPC to step parents and step
children. It would also look into Section 20 of the Hindu Adoptions and Maintenance Act,
1956 which the courts have referred to while interpreting Section 125 of CrPC. Further, it
would refer to Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which
explicitly provides for maintenance to step parents. The article would conclude that a secular
maintenance provision like Section 125 of CrPC should be liberally construed to include step
children who have nobody else to maintain them, at least unless the legislature makes a
provision for them. Also, even though step parents can obtain maintenance under the 2007
Act, childless step fathers who have no means to maintain themselves should also be entitled

1
S. 488, Criminal Procedure Code, 1898 had a provision for maintenance for wives and children but not
parents. Now S. 125, Criminal Procedure Code, 1973 provides maintenance to parents as well.

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to obtain maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956
and Section 125 of CrPC from their step children.

Interpretation of the words “mother” and “father”

The term “parent” generally includes natural parents and adoptive parents but not step
parents. It has been held that a step mother does not have a right to give in adoption under
Section 9 of the Hindu Adoptions and Maintenance Act, 1956.2 The reason is that natural and
adoptive parents have the same rights but not step parents. However, the explanation of
Section 20 of the same Act states that the word “parent” includes a childless step-mother
(may be the legislature wanted to come to the aid of a helpless step mother who has no
biological or adoptive child). There is no explanation which clarifies whether the word
“child” includes a step child. The provision merely reads “a legitimate or illegitimate child”
may claim maintenance from his or her mother or father.3 Section 125 of CrPC similarly puts
an obligation on the mother and father to maintain their legitimate and illegitimate children
and on the children to maintain their parents.

A literal interpretation would exclude step parents and step children from the ambit of the
Section. However if we go to the purpose of enacting the provision, it would be clear that
they should also be included. The question as to whether step mothers are entitled to be
maintained under Section 125, CrPC by their step sons came up for consideration before
various High Courts which gave conflicting judgments. Gujarat, Orissa and Rajasthan High
Courts held that step-mothers have the right to claim maintenance from their step-children.
The Gujarat High Court in Havaben Karimbhai Beline v. Razakbhai @ Bachubhai
Karimbhai Belin and Ors.4 pointed out the social purpose of the provision viz. to prevent
vagrancy and held that step-mothers are entitled to claim maintenance from her step children.
It referred to situations where the step mother and step children live happily together as one
family after the father’s death. In such situations the filial relationship is very much present.
The court held that there is no indication that step mothers are not within the meaning of
Section 125 of CrPC. It further held that in case the woman asks for maintenance only from
2
Dhanraj v. Surajbai 1975 AIR 1103

3
See S. 20 (2) of The Hindu Adoptions and Maintenance Act, 1956

4
(1978) GLR 237

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her step children and not natural sons with a motive of harassing them, the court has the
discretion to do justice by refusing maintenance in such cases.

The Orissa High Court agreed with the Gujarat High Court in Pitei Bewa v. Laxmidhar Jena
and Anr.5 and held that “the provision being a beneficial one intended to curb some social
evil should be construed liberally and no word should be used in any restrictive sense unless
and until the intention of the legislation appears to be so.” Accordingly, it granted
maintenance to the step-mother. The Rajasthan High Court in Smt. Sundar Bai vs Sugandh
Kumar 6 also held that step mothers can claim maintenance as beneficial legislations must be
construed liberally. The Gujarat High Court in 1991 once again in Aher Devsi Natha And
Ors. vs Rathiban Nathubhai And Anr.7 held that step mothers have a right to claim
maintenance from step sons. It further held that the woman has no obligation to first obtain
maintenance from real and affluent sons and then other sons. It was held that she has a choice
to ask for maintenance from any of her sons: real or step.

On the other hand, Bombay, Andhra Pradesh and Madhya Pradesh High Courts subscribed to
the view that the word ”mother” in Section 125, CrPC did not include step-mother and
therefore she could not claim mainetenance.8 The Andhra Pradesh High Court in Ayyagari
Suryanarayana Vara Prasuda Rao v. Ayyagari Venkatakrishna Veni and Anr.9 held that step
mothers cannot claim maintenance though they might be dependents. It pointed out that the
Explanation to Section 20 of the Hindu Adoptions and Maintenance Act would not be
applicable to Section 125 of CrPC and even if it were, it would not help the step-mother in
the case at hand as she had real children.

The question whether step-mothers would get maintenance came before the Supreme Court in
Kirtikant D. Vadodaria v. State of Gujarat10 and the controversy finally came to rest. After
analysing various High Court decisions, the Court agreed with High Courts which held that

5
1985 CriLJ 1124

6
1990 (2) WLN 67

7
(1991) 2 GLR 1281

8
See Ramabai v. Dinesh (1976) Mah LJ 565; Rewalal Arjun Babu and Anr. v. Kamlabai Arjun Babu (1985) MP
LJ 541.

9
(1989) Cri.LJ 673.

10
(1996) 4 SCC 479
step mothers are not included within the term “mother” in Section 125 of CrPC. However,
looking at the purpose of the provision, it carved out an exception and ruled that childless
step mothers who were either widows or whose husbands were not in a position to maintain
them could ask for maintenance under the Section.

The court pointed out that the primary purpose of the provision is “to give social justice to
the woman, child and infirm parents etc. and to prevent destitution and vagrancy by
compelling those who can support those who are unable to support themselves but have a
moral claim for support.”11 It further held that the provision has been enacted “to provide a
speedy remedy to those women, children and destitute parents who are in distress.”12
Keeping in mind the benevolent nature of the provision and reading it with Section 20 of
Hindu Adoptions and Maintenance Act, 1956, the court held that a step mother who is a
widow or whose husband is incapable of maintaining her and who has no natural born son
can claim maintenance from her step son.

Analysing the judgment, the author is of the opinion that the use of the term “step son” and
not “step child” was probably because in the particular case, the step mother was asking for
maintenance from her step son and not step daughter. It would not be unfair to extrapolate the
language of the Court to mean that even when a step mother has a natural daughter, she
would not be entitled to maintenance from her step children.

The Karnataka High Court in Ulleppa And Ors. v. Smt. Gangabai13 expanded the scope of the
Section as interpreted in Kirtikant Case14 and held that a helpless step-mother who has no
means of maintaining herself can obtain maintenance from her step-son even if she has a
daughter living. The court reasoned that the aim of the provision is to provide maintenance to
people who cannot take care of themselves and if a daughter is incapable of maintaining her
natural mother, the mother can claim maintenance from her step-son.

11
Ibid
12
Ibid

13
2003 CriLJ 2566

14
Supra 10
The Punjab and Haryana High Court in Balwan Singh v. Smt. Brahmo15 similarly held that a
step-mother can obtain maintenance from her step-son if she is able to prove her
helplessness.16

An analysis of the judgments demonstrates that step mothers who are incapable of
maintaining themselves may ask for maintenance from step sons. It is unfathomable why
childless step fathers who are incapable of maintaining themselves have not been included
within the word “parent” in Section 20 of Hindu Adoptions and Maintenance Act and have
not been considered while interpreting Section 125 of CrPC. The Supreme Court in Kirtikant
case17 was not obligated to carve out an exception for childless step mothers as the mother in
the case had five natural born sons who were in a position to maintain her and yet it did.
While interpreting the Section the court completely ignored childless step fathers incapable of
supporting themselves and made no observation about their needs. In fact the direct
implication of the decision was the exclusion of step-fathers from Section 125, CrPC as only
one exception was carved out (i.e. of childless step mothers)18. If the purpose of the
maintenance provisions is to prevent destitution of wives, children and aged parents who are
not in a position to maintain themselves, it is inexplicable why step fathers who have no
natural born children and no means to maintain themselves should not be entitled to be
maintained by their step children. May be the question did not arise specifically and hence the
courts did not consider the problem but Section 20 of the Hindu and Adoptions and
Maintenance Act, 1956 should have kept in mind hapless, childless step-fathers also.

Some respite has been given to step fathers by the enactment of Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. The Act specifically states that “parent” means father
or mother whether biological, adoptive or step father or step mother19. Thus, now even a step

15
(2008) 151 PLR 539

16
Also See Deenbandhu & Anr. v. Birajho Bai Criminal Revision No. 123 of 2015 (Chhatisgarh High Court,
15/07/2015) where the where the Court also held that a childless step mother can claim maintenance from step
son.

17
Supra 10

18
Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479 was recently quoted in Mohit Gupta v Regional
Passport Office, Govt. of India, Ministry of External Affairs W.P.(C) No.9156/2015 (Supreme Court,
23/09/2015) as a precedent which held that the term “father” in S. 125, Criminal Procedure Code does not
include step-father.

19
See Section 2 (d) of Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
parent can legitimately claim maintenance under this Act and would not need to resort to
Section 125 of CrPC and prove absolute helplessness and non-presence of natural born sons.
Nevertheless, there is a cap on the amount of maintenance that can be granted under the 2007
Act (ten thousand rupees per month)20 while there is no such cap on the amount that can be
granted under Section 125 of CrPC. The medical expenses in old age can be very high and
ten thousand rupees per month might prove to be a meagre amount for the maintenance of an
old, ailing person. Therefore, the need to include step fathers incapable of maintaining
themselves in Section 20 of the Hindu Adoptions and Maintenance Act, 1956 and Section
125 of CrPC is still a necessity.

Interpretation of the word “child” in Section 125, CrPC

The problem is more serious when it comes to step children. It is even more profound
because India has the largest young population in the entire world21 and it is the duty of the
State to ensure that the young people do not starve to death. The legislature and the courts
cannot allow step children incapable of maintaining themselves to become destitute.
However, none of the two organs of the State have taken any measures to ensure maintenance
of minor step children.

The Punjab and Haryana High Court in Annu Bala v. Dharam Pal22 held that step-children
are not entitled to maintenance under Section 125 of CrPC. The court stressed on the word
“his” before legitimate or illegitimate child and held that it means only “the person who
procreates, begets or brings forth offspring.” This is too narrow an interpretation as the word
“his” is merely a personal pronoun which connotes some relationship and not necessarily
blood relationship.23 It also reasoned that the Section is extremely descriptive and clarifies
what each term means. For example, it specifically includes illegitimate children and clarifies
that the term “wife” in the Section includes women who have been divorced. Therefore, if the

20
S. 9(2), Maintenance and Welfare of Parents and Senior Citizens Act, 2007

21
India has world's largest youth population: UN report, The Economic Times (18/11/2014), available at
http://articles.economictimes.indiatimes.com/2014-11-18/news/56221890_1_demographic-dividend-youth-
population-osotimehin, last seen on 25/10/2015.
22
II (1996) DMC 293

23
In Havaben Karimbhai Beline v. Razakbhai @ Bachubhai Karimbhai Belin and Ors (1978) GLR 237 the
High Court rightly stated that the word “his” merely refers to the person who has the obligation to maintain.
legislature intended to include step children, it would have said so explicitly. That might be
so but it is an accepted cannon of interpretation that a welfare legislation should be given a
beneficial interpretation. It is the duty of the court to do justice and to interpret a section
liberally when required.

Following this narrow interpretation, the Gujarat High Court recently in Manjulaben
Prakshbhai Sarvaiya v. State of Gujarat24 held that a step child is not included within the
meaning of “legitimate and illegitimate child” in Section 125 of CrPC. The facts of the case
were as follows: a marriage was solemnised in 1998 under the Hindu Marriage Act. A girl
was born in the wedlock but the marriage resulted in divorce. The father married a second
time and died soon thereafter. The minor girl continued to stay with her step mother.
Subsequently, the paternal grandfather filed an application to obtain the custody of the girl.
He was successful in obtaining her custody. He filed an application asking for maintenance
for the girl from her step-mother. Further, the biological mother of the girl was alive and
willing to take custody of the girl but the girl was unwilling to go to her. Thus, the question to
be determined before the court was whether the step daughter was entitled to obtain
maintenance from her step-mother. The court held that the step daughter was not entitled to
obtain maintenance in the said circumstances. However, it did not stop at this and went on to
state that even if the step child was helpless and had nobody to take care of her, the step
parent would not be under an obligation to maintain her under Section 125 of CrPC.

There is no dispute that the step-daughter in the case was not helpless as she was being taken
care of by her paternal grandfather. Also, her biological mother was alive and willing to take
care of her. Thus, the court was absolutely right in not asking the step-mother to provide
maintenance for the step daughter. But the court’s statement that even if there were nobody to
maintain and take care of the minor step-daughter, the step-mother would not have been
under an obligation to maintain her is wrong and unjustified. According to the court, Section
125 contemplates only blood relations which give rise to moral and legal obligation to
maintain a person and it is for the legislature to provide for helpless step-children who have
nobody to take care of them.

24
Special Criminal Application (Maintenance) No. 2666 Of 2015 (Gujarat High Court, 08/10/2015)
It quoted Kirtikant25 judgment extensively and also recognised that the Supreme Court in that
judgment allowed maintenance to be provided to a childless step mother considering the
benevolent nature of the provision (as she could not be left without remedy) even though the
Court pointed out that the term “mother” does not include a step-mother. And yet, the Gujarat
High Court held that a step daughter cannot claim maintenance from her step mother even if
there is nobody to take care of her other than the step mother. This is even more appalling as
the logic given in Kirtikant case holds true more so in the case of a minor child who would be
totally at the mercy of adults. If such a helpless child is not provided maintenance, it would
be gross injustice. This could never have been the intention of the legislation. A step-parent
might not have the same attachment with his/her step-child; nevertheless, it cannot be said
there is no relationship between them and that the stepchild should be totally abandoned.

It is the duty of the courts to liberally construe provisions made for the benefit of people who
are in dire need of help. It is unfair and wrong to deny maintenance to a step-child who is
helpless and has no means to maintain himself/herself. The Gujarat High Court went out of
its way to narrowly and technically interpret Section 125 of CrPC to exclude step-children
completely when it was not necessary for it to do so at all considering the facts of the
particular case.

Conclusion

An analysis of the cases on maintenance under Section 125 of CrPC demonstrates that a step
child or a step father cannot claim maintenance; only a childless step mother who is a widow
or whose husband is incapable of maintaining her is entitled to be maintained by her step
children. If it is recognised that the purpose of the provision is to come to the aid of helpless,
needy parents, wives and children, then how can helpless step fathers and step children be
excluded from its ambit? On what basis is the provision liberally construed when it comes to
childless step mothers but narrowly construed when it comes to childless step fathers and
hapless step children? It is justified to hold that natural parents and children should have the
first responsibility to maintain but totally unjustified to hold that step parents (except
childless step mothers) and step children have no right to obtain maintenance from their step

25
Supra 10
children and step parents respectively even when they have nobody else who can take care of
them.

With the enactment of Maintenance and Welfare of Parents and Senior Citizens Act, 2007,
the legislature has come to the rescue of step parents (though it might not be enough) but the
situation of step children is still the same. The Hindu Adoptions and Maintenance Act, 1956
and Section 125 of CrPC should be explicitly amended to clarify that step fathers, step
mothers and step children are capable of asking for maintenance. The provisions would
obviously provide discretion to the courts to grant maintenance only in appropriate cases so
that they are not misused. However, until the legislature takes the responsibility to make sure
that proper maintenance provisions are enacted, it is the duty of the courts to step forward and
take a stand on their behalf.