11

CRIMINAL LAW AND PROCEDURE

D.C. Pande*

I. SUBSTANTIVE LAW
General defences

Insanity : The law presumes every person of the age of discretion to

be sane unless the contrary is proved; and even if the lunatic has lucid
intervals the law presumes the offence of such person to have been
committed in a lucid interval, unless it appears to have been committed
during derangement. Thus, it was held in Chhagan v. State1 that
it would be most dangerous to admit a defence of insanity upon
arguments merely derived from the character of the crime. A somewhat
queer behaviour on the part of the accused preceding the commission of
crime does not establish that the accused would be called non compos
mentis.
Legal insanity is established only if it is known that the cognitive
faculties of the person are such that he does not know what he has done
or what will follow his act.2 Thus, in In re BalagopaP the accused, who
was living very amicably with his wife and behaved in a friendly manner
towards her, murdered her and his son by stabbing them with a knife.
No motive could be suggested. The medical opinion was definite about
the accused not being in a position to understand the nature of the act.
It was held that the plea of insanity could well be substantiated by the
statement of the doctor. In Phulabai v. State of Maharashtra4 the

* Associate Research Professor, Indian Law Institute, New Delhi.

1
1976Cri. L J . 671.
2
S. Tubu Chetia y. State of Assam, 1976 Cri. L.J. 1416.
3
1976Cri. L.J. 1978.
4
1976 Cri. L.J. 1519.
Vol. XII] Criminal Law and Procedure 305

Bombay High Court went even further to grant the plea of insanity to
the accused who was suffering from chronic and incurable illness. The
accused in an attempt to commit suicide jumped into a well along with
her child resulting in the Iatter's death. The plea of insanity was
advanced though medical evidence was absent in the case. The court
granted the benefit of the plea of unsoundness of mind on the basis that
the absence of medical evidence did not justify exclusion of common-
sense,

Drunkenness : In cases where an act is not an offence unless done

with a particular knowledge or intent, a person who does it in a state of
intoxication shall be liable to be so dealt with as if he had the same
knowledge, as he would have if he had not been intoxicated, unless the
thing which intoxicated him was administered to him without his know-
ledge or against his will.5 The scope of the law relating to drunkenness
as a defence has been crystallised into three rules.6 These are as
follows :

(/) the absence of understanding of the nature and consequences of

an act, whether produced by drunkenness or otherwise, is a
defence to the crime charged;

(//) the evidence of drunkenness which renders the accused incapable

of forming the specific intent essential to constitute the crime,
should be taken into consideration with other proved facts in
order to determine whether or not he had this intent;

(Hi) the evidence of drunkenness falling short of a proved incapacity

in the accused to form the intent necessary to constitute the
crime, and merely establishing that his mind was affected by
drink so that he more readily gave way to some violent passion,
does not rebut the presumption that a man intends the natural
consequences of his acts.

Thus, in Dasa Kandha v. State of Orissa7 the plea of the accused appe-
llant that under the influence of liquor he could not have formed the requi-
site intent for committing the murder of the deceased, hence, his offence
be treated as culpable homicide not amounting to murder was not sustain-
ed. It was held that the normal presumption is that a man intends the
natural consequences of his act unless rebutted by the accused by giving

* S. 86, Indian Penal Code, 1860.

• See Basdev v. State ofPepsu, A.LR. 1956 S.C. 488.
7
1976 Cri. L.J. 2010.
 306 Annual Survey of Indian Law [ 1976

such evidence of drunkenness as might have affected his faculty of

understanding to form the requisite intent. In the instant case the plea
could not be upheld because of the clear and cogent prosecution evidence
which established the guilt of the accused.

In Sarthi v. State ofM.P.* three drunken accused persons had over-

powered the deceased and made him unconscious by rough handling.
They had, thus, the specific intent to cause grievous hurt till then, but
the question with regard to the intent became dubious when the accused
persons hanged him from the ceiling without taking steps to ascertain
whether he was dead or alive. The recklessness and gross negligence on
the part of these accused, under a state of intoxication, gave the accused
a benefit to be convicted for culpable homicide not amounting to murder
instead of the offence of murder.

Trifles ; The penalisation of negligible wrongs or of offences of trivial

character is prevented by the application of section 95 of the Indian
Penal Code which, inter alia, says :

[N]othing is an offence by reason that it caused or that it is

intended to cause, or that it is known to be likely to cause, any
harm, if that harm is so slight that no person of ordinary sense
and temper would complain of such harm.
>
In Kishori Mohan v. State of Bihar * the fraternity of the non-gazetted
employees, who were on strike sought to make fun of the complainant,
who was a loyalist co-worker and had not been participating in the
strike. The fun was in the nature of having taken a photograph of the
loyalist worker with a garland of shoes around his neck. No photo-
graph was either shown to the complainant nor was it published. In a
prosecution under section 504 of the Indian Penal Code against the
accused for having insulted the complainant, the submission was made
on behalf of the accused that the triviality of the act with a view to
befooling a member of the fraternity should operate as a bar to the
wrong alleged. The plea was not sustained and it was held that the
complainant had been subjected to indignity although the court took a
lenient view of the matter by merely admonishing the accused.

Self defence : The extent and limit on the exercise of the right of
private defence came up for discussion in Iswar Behera v. State,10 Bhaja

8
1976 Cri. LJ. 594.
• 1976 Cri. L. J. 654.
10
1976 Cri. LJ. 611.
Vol. XII] Criminal Law and Procedure 307
Pradhanv. State of Orissa11 in the High Court of Orissa and in Baljit
Singh v. State of U.P.12 in the Supreme Court.

In Iswar Behera's case18 the villagers trespassed into the land of the
accused to construct a house and the latter came to the spot with
necessary force to repel the entry of the aggressors without seeking the
aid of public authorities. It was held that the right of private defence
of property justified the action. On the question of the right of private
defence of a person the court held that the right existed against an
offence and an act which gives rise to an offence cannot be treated as a
basis for the exercise of the right of private defence in favour of the
aggressor.

The right of private defence, however, need not exceed the limits.
Thus, in Bhaja Pradhan v. State of Orissa14 the deceased had stolen the
goat from the cattleshed of the accused. The accused chased him to
recover his property and, in the process of recovering it, assaulted the
deceased without knowing that he had been hit on the vital parts. The
court held that the right of self defence had been exceeded.

Likewise, the Supreme Court in Baljit Singh v. State of U.P.15 held

that the actual possession of the disputed land did permit the accused
the right to defend the property from being dispossessed, nonetheless
the right if exercised in pursuance of a combined assault on the aggress-
ors resulting in fatal injuries to them would defy the limits of lawful
exercise of the right.

Unlawful assembly

A shared common object by the members of an unlawful assembly

comprising of five or more persons, fastens liability on each of the
members for an act committed by one of them. It is, however, nece-
ssary that all the members of the assembly should take part at every
stage of the events arising in pursuance of the common object. Accord-
ingly, it must be proved in each case that the person concerned was not
only a member of the unlawful assembly at some stage, but shared the
common object of the assembly at all the crucial stages.16 The sharing
of common object would, however, not necessarily require the member

11
1976 Cri L J. 1347.
18
1976 Cri L J. 1745.
13
Supra note 10.
14
Supra note 11.
15
Supra note 12.
16
Musakhan v. State of Maharashtra, 1976 Cri. L.J. 1987.
 308 Annual Survey of Indian Law [1976

present and sharing the object, to engage himself in doing an overt

act.17

Thus, section 149, Indian Penal Code which fastens liability on

members of the unlawful assembly for having committed an offence in
pursuance of the common object, could not be pressed into service in
Ramaswami v. State of Tamil Nadu18 In this case the six accused persons
could not be considered confederates in the common object because
three of them had been acquitted by the trial court. Likewise, section
149, Indian Penal Code is also inapplicable in a case of sudden mutual
fight between two parties. Constructive criminal liability in such cases
cannot be imposed because of the lack of a common object. The indivi-
dual acts cannot be grouped together in such cases and the individuals
are to be held responsible for their individual acts.19

II PROCEDURAL LAW
Law of arrest
The power to effect an arrest without warrant by the police is contin-
gent on circumstances enumerated under the Code of Criminal Procedure,
1973. The situations are the same whether the arrest is made under the
Code or any other law. Thus, in Guljarsing v. State of Maharashtra20
the scope of the power of arrest under section 19 of the Arms Act, 1959
was explained. It was held that a police officer can demand the produc-
tion of the licence from a person who was carrying any arm or ammuni-
tion, and in failing to do so may require him to give his name and address.
A refusal to furnish the name and address would empower the officer to
arrest him without warrant, and any belief that the information furnished
is not correct could also lead to the arrest of the person. The power
corresponds to the one provided in section 42(1) of the Code of Criminal
Procedure, 1973.

However, an arrest without a warrant by a police officer entails a duty

on him. It is with regard to the communication of particulars of the
offence to the arrested person. In Ajit Kumar v. State of Assam21 the
person who had been arrested without a warrant alleged, on affidavit,
that the grounds of arrest were not communicated to him, and a police

17
Sita Ram Pandey v. State of Bihar, 1976 Cri. L.J. 800, following Bishambhar Bhagat
y. State, A.LR. 1971 S.C. 2381 and Masalti v. State of U.P., A.LR. 1965 S.C. 202.
18
1976 Cri. L J . 1563.
19
Puran v. State of Rajasthan, 1976 Cri. LJ. 674.
20
1976 Cri. L J . 205.
21
1976 Cri. L J . 1303.
Vol. XII] Criminal Law and Procedure 309
claim to the contrary that oral communication had been made did not
prove of any help to them. It was held that the duty is mandatory and
ought not to be treated lightly by the police officer in curtailing the
liberty of the citizen.
Duty of prosecution
Observations with regard to the duties of prosecution have been made
in certain cases, because the role of prosecution in a criminal trial is
circumscribed by the need to act fairly both to the accused as well as to
the interests of the state. A certain amount of flexibility is warranted
to meet the needs and exigencies of the situation. Thus, in Bhagwati v.
State of U.P.%2 the Supreme Court did not think it proper to lay down
a general rule requiring every witness to be produced and examined who
has been named in the first information report. It is indeed useful to
produce the material witnesses and failure to do so would affect the
credibility of the prosecution. The choice of witnesses rests with it and
simply because some have not been produced would not result in the
rejection of the prosecution case. The basis for this rule was provided
by an earlier decision of the Supreme Court in Masalti v. State of U.P.23
which laid down that failure to produce all the witnesses would not lead
to a rejection of the evidence of others.

The prosecution has an obligation to impress upon the court as

regards the fairness in dealing with the investigation. A delay in investi-
gation may cause an infirmity in the case. However, a delay in
despatch of the first information report to the magistrate would not be
held a circumstance to throw the case out in its entirety. In Sarwan
Singh v. State of Punjab,24 the prosecution had given a very cogent and
reasonable explanation of the delay in despatch of the first information
report. Accordingly, it was justified. However, the compliance of the
necessary procedure would also place a demand on the part of the prose-
cuting agency to expedite the actions at every stage so that there
remains no room for doubt in the prosecution behaviour.

In two cases the Supreme Court, however, took a stringent view of

the delay caused in the despatch of the first information report. These
cases are Ishwar Singh v. State of U.P.25 and Mitter Sain v. State of
U.P.ZQ In both, the court viewed the extraordinary delay in the des-

22
1976 Cri LJ. 1171.
23
A.LR, 1965 S.C. 202.
2
M976Cri.LJ. 1757.
28
1976 Cri. LJ. 1883.
26
AJ.R. 1976 S.C. 1156.
310 Annual Survey of Indian Law [1976

patch of the report to the magistrate as a legitimate basis for suspecting

that the time gained was to improve and embellish the version of the
occurrence to suit the prosecution convenience. The suspicion hardened
into a definite possibility because of the differences that poured in as
regards the narration of important particulars by eye witnesses which
laid a basis for rejection of the prosecution case.

In Bhagirath v. State of M.P.27 the Supreme Court reminded the

prosecution of its duty to act on its own strength rather than on the
weakness of the defence. In the instant case in a prosecution for the
offence of attempt to murder, the substratum of the evidence given by
the witnesses was found to be false. The court observed :

It is well settled that the prosecution can succeed by substan-

tially proving the very story it alleges. It must stand on its
own legs. It cannot take advantage of the weakness of the
defence. Nor can the court, on its own make out a new case
for the prosecution and convict the accused on that basis.28

The emphasis has always been to require the prosecution to secure

reliable and trustworthy evidence for proving the case. This duty adds
further importance in trapping cases where the culpability of a corrupt
officer is detected through men who may have an interest in the case.
In Raghbir Singh v. State of Punjab2* the two search witnesses, in the
trap laid down by the anti-corruption department, were neither
independent nor respectable. In fact, one was in the employ of the
police. The court disapproved the testimony as well as the practice and
remarked ;

We must take this opportunity of impressing on the officers

functioning in the anti-corruption department to insist on
observing this safeguard as zealously and scrupulously as
possible for the protection of public servants against whom a
trap may have to be laid.30

One of the modes by which protection of public servants can be

secured in trap cases has already been suggested by the court earlier31
and has been reiterated once again in this case. It has been pointed

87
1976 Cri. LJ. 706.
*8 Id. at 708.
29
1976 Cri. LJ. 172.
80
Id. at 177.
81
V. Som Prakash y. State, 1974 Cri. LJ. 784.
Vol. XII] Criminal Law and Procedure 311
out that it would be desirable to mark the currency notes in cases of
bribery by phenolpthalein powder so that the handling of such currency
can be detected by chemical process and oral evidence of dubious
character can be precluded in such cases. It is a suggestion worth
pondering over that in a technological age, the science-oriented detection
of crime is made a massive programme of police.

Ill PUNISHMENT
Sentencing an accused
The pivotal theme of criminal law and justice has been that
commensurate punishment for the wrong must as a consequence follow
the determination of culpability of the offender. The punishment is a
necessary requisite of all the criminal laws. Its application to each case
is a judicially determined action. The practice to sentence a person has
been with the courts for long; and certain standards and guidelines have
been laid down from time to time. However, the skepticism has always
remained about the adequacy and the correctness of the practice parti-
cularly when the practice rests on the exercise of the discretion of the
judge which is likely to suffer from subjective considerations. The lack
of an objective standard to follow in this regard has led the Supreme
Court to remark :
Sentencing involves an element of guessing but often settles
down to practice obtaining in a particular court with inevitable
differences arising in the context of the times and events in the
light of social imperatives.32
The court further observed :
It is always a matter of judicial discretion subject to any
mandatory minimum prescribed by law.33
It may, thus, be noted that the element of subjectivity is ingrained in
the application of sentencing a person for an offence and it is circum-
scribed by two considerations, viz., that whatever has been settled down
as practice by way of the exercise of judicial discretion be deemed as a
rule and secondly, that further consideration be added from time to
time in the light of the "social imperatives," which in turn would again
be decreed by the courts themselves.
The imperatives which the courts have so far spelled out as rules can
be ascertained through the dictum of the court, which states :
32
R. Chakravarti y. State of M.P., 1976 Cri. LJ. 334 at 335.
33
Ibid.
312 Annual Survey of Indian Law [ 1976

In judging the adequacy of a sentence the nature of the offence,

the circumstances of its commission, the age and character of
the offender, injury to individuals or to society, effect of
punishment on the offender, eye to correction and reformation
of the offender, are some of amongst many other factors which
would be ordinarily taken into consideration by courts.3*

The foregoing list contains a number of factors which are used to

reckon the adequacy of punishment being awarded in each case. It
may be noted that while on the basis of record the court may have a
first hand knowledge about the nature of the offence, the circumstances
of its commission, the age and character of the offender and the like, it
cannot claim to have a correct estimation of the injury caused to the
individuals or to the society or the future impact of its action on the
individual. The guidelines, thus laid down by the courts, are so ambi-
guous that the outflow of the sentencing action can hardly be efficacious,
hence, adequate, as it ought to in a good system of administration of
criminal justice aided by the mechanism of pre-sentencing investigation
which may be of great sociological value.35 In this country the
pre-sentencing agency is not available to make the necessary data avail-
able to the courts for determining the adequacy of the sentence. On
the other hand, the trial courts are so overburdened with work that they
"have hardly any time to set apart for sentencing reflection."36

Accordingly, the real position that obtains with regard to sentencing

action is that the courts are busily engaged in the guessing game of
awarding "adequate" punishments in the light of their own set
standards. Thus, the punishment appears to be fabricated with the
help of some facts on record and some conjectures with regard to the
impact of the sentence on the individual—a myth which is taken to be
of objective value by the courts and is intermixed with the judge's own
notional "social imperative". The truth of the matter is that the trial
courts have no time even to get involved in this guessing game. They do
pass the sentences but, how they do it is known only to them.

An analysis of the Supreme Court decision37 does, however, indicate

that in computing the quantum of sentence two considerations must
weigh with the sentencing authority. These two considerations relate
to the offender and the society respectively. However, in Ghisa v. State

34
Ibid.
35
Id. at 336.
36
Ibid.
87
Supra note 32.
Vol. XII] Criminal Law and Procedure 313
of Rajasthan™ the High Court inducted the rule that lapse of a long
period between the date of commencement of trial and hearing of appeal
is a factor which in the context of the case may justify reduction of the
sentence. The factor of delay in hearing the appeal which had the
effect in determining the quantum of sentence was altogether unrelated
either to the personality of the offender or the interests of the society.
The value of delay as a mitigating factor may be necessary in certain
particular situations but it should not be divorced from the diabolical
circumstances of the crime itself.

In an appeal against the capital sentence in Nattan v. State of Tamil

Nadu*9 the appellant pointed out the circumstances which called for
mitigation of the severe sentence imposed upon him. The appellant had
caused only one sword injury to the deceased at the instigation of
another accused, and had himself received as many as nine injuries in a
scuffle. His other companions who were ascribed to have committed
more serious injuries had been either acquitted or were awarded a lesser
sentence. The Supreme Court, therefore, found that a lesser penalty
prescribed for murder would be commensurate with the ends of justice.
One may be inclined to interject that the reduction of sentence was
motivated by considerations of correcting the anomalies of the sentenc-
ing court rather than the considerations of the offender or of the society.
In K Thevar v. State of Tamil Nadtt40 where the High Court, on an
appeal against acquittal, had imposed the lesser sentence of life imprison-
ment instead of death sentence, the Supreme Court pointed out that the
fact of hearing an appeal against acquittal was irrelevant to the issue of
punishment. The Supreme Court observed that, in the instant case, the
High Court was dealing with an order of acquittal and it was hardly any
reason for imposing the lesser sentence, if the sentence of death was
otherwise called for.40*

In Jamshed v. State of U.P41 while committing theft the accused was

confronted by the deceased who would have been the sole eye witness
against him. In the wake of these events the accused committed his
murder. These circumstances weighed with the court to award him a
lesser punishment of life imprisonment. But in Ramesh Ramdas v.
State of Maharashtra42 the Supreme Court viewed an identical situation

88
1976 Cri. LJ. 39.
89
1976 Cri. L J. 1717.
40
1976 Cri. LJ. 708.
40
* Id. at 713.
41
1976 Cri. LJ. 1680.
42
1976 Cri. LJ. 310.
 314 Annual Survey of Indian Law [1976

in a somewhat different manner. The court held that the accused

appellant was a desperate character because he did not stop at killing
rather than being caught in an attempt to steal after breaking into a
house. The death sentence was, therefore, held to be proper in this
case.

A review of the above decisions on the issue of sentencing action does

reveal an earnest desire on the part of the courts to rationalise the
sentencing policy. However, it has not been possible for judges to
adhere to definite postulates. The personality of the offender and the
protective interests of the society get receded into the background while
considering the question of sentence, if the facts of the case reveal
horrifying situations. These have invariably led the court to introduce
subjective elements in the award of the sentence as can evidently be seen
in the case of La jar Masih v. State of U.P4Z where the facts of the case
led the Supreme Court to rely on its earlier ruling that the horrendous
features of the crime, the hapless, helpless state of the victim and the
like "steel the heart of the law for a sterner sentence." 44

The object of sentencing is fairly clear today. The courts are also
aware of the same but the uncertainties lie in the modalities of applying
it. It would be worthwhile that a proposal be mooted to take out the
sentencing process from the hands of the court and vest the same in a
board which could act on more systematic lines and, thus, enable the
criminal judicial system perform its proper role in the regulation of
human affairs.

Life Imprisonment — Meaning

Section 53 of the Indian Penal Code enumerates the kind of penalties

which are to be imposed on the offender. One of the variety of the
prescribed punishments is the "imprisonment for life" which in its
ordinary connotation would be an imprisonment for whole of the remain-
ing period of the convicted persons' natural life, although section 57 of
the Indian Penal Code provides that in calculating fractions of terms of
imprisonment, "life imprisonment" shall be reckoned as equivalent to
imprisonment for twenty years. The various state jail manuals also
refer to the life term sentence being of definite period. Notwithstanding
the above, the Supreme Court had ruled in G.V. Godse v. The State45
that a sentence of life imprisonment, without any formal remission by

43
1976 Cri. L J . 580.
44
Ediga Anamma v. State of Andhra Pradesh, (1974)3 S.C.R. 329.
45
AJ.R. 1961 S C. 600; see also Pt. Kishorilal v. K.E.. 72 Ind. App. 1.
Vol. XI I] Criminal Law and Procedure 315

appropriate government cannot be automatically treated as one for a

definite period.
The question for consideration of the judicial view on the "imprison-
ment for life" came up before the Supreme Court in State of M.P. v.
Ratan Singh.46 In the instant case the accused had been prosecuted and
punished by a Madhya Pradesh court and was convicted to undergo a
life sentence. The accused who belonged to the State of Punjab made
a request for his transfer to the Punjab jail from where he sought to be
released on the expiry of twenty years on the basis of the rules framed
under the Prisons Act and the Jail Manual. The Punjab and Haryana
High Court had allowed the writ of the respondent for his release.
The State of Madhya Pradesh challenged the correctness of the
decision. The court reiterated its earlier view that a sentence for life
would ensure till the lifetime of the accused as it is not possible to fix
a particular period of the prisoner's death. The references to the
expression "sentence for life" as being for a definite period under the
rules and regulations are administrative directions which cannot substi-
tute the provision of the Indian Penal Code. A review of the authorities
and the statutory provisions has led the following propositions to
emerge:

(/) A sentence of imprisonment for life does not automatically expire

at the end of twenty years.

(ii) The remissions granted under the rules framed under various
Jail Manuals or Prison Acts are mere directions for the admini-
stration of jails and prisoners, and cannot thus supersede the
statutory provision of the Code.

(Hi) A sentence of imprisonment for life means a sentence for the

entire life of the prisoner unless the appropriate government
chooses to exercise its discretion to remit either the whole or
a part of the sentence.

(iv) That the state where the prisoner has been convicted and senten-
ced is alone empowered to exercise the discretion in the remission
of the sentence.

Since Godse's case47 the law on the meaning of the term "imprison-
ment for life" continues to be a sentence to be carried for life in the
prison. In Abdul Azad v. State4* the same connotation was given to the

46
1976 Cri. LJ. 1192.
47
Supra note 45.
48
1976 Cri. L J . 315.
 316 Annual Survey of Indian Law [1976

expression, but it was observed that if any remission in sentence is

granted by the government, the accused would be entitled to set off his
period of detention undergone by him during the period of investigation,
enquiry or trial.
Death sentence — an exception not a rule

Significant judicial thinking on the question of death sentence is

reflected in some of the Supreme Court decisions on the subject. In
Harnam v. State of U.P.49 the subject of capital punishment was subdued
with sociological thinking which was taken note of by the court to lay
down that "it would be legitimate for the court to refuse to impose
death sentence on an accused convicted of murder, if it finds that at the
time of commission of the offence he was under 18 years of age."50
This view has been in consonance with the recommendations of the Law
Commission which had opined that persons below the age of 18 years
are to be regarded as intellectually immature and, thus, be not subjected
to the severest punishment.51

The sentence of death had been hanging over the head of the accused
for the last twenty months, in Ear Dayal v. State of U.P.52 This factor
would not constitute a mitigating circumstance by itself. However, the
change in the trend was noticed by the court through section 354(3) of
the Code of Criminal Procedure wherein the court found that the law
now required that "life imprisonment for murder is the rule and capital
sentence an exception." The change in the current penological thought
had earlier been discussed elaborately in Balwant Singh v. State of
Punjab™ and was subsequently endorsed in Ambaram v. State of M.P.54
It is necessary to catalogue reasons for the award of a death sentence.
The reasons have to specially justify the imposition of death penalty as
against imposing the sentence for life.55

IV MAINTENANCE CLAIMS

Two significant questions on the law relating to maintenance under the

Code of Criminal Procedure were decided in Balbir Singh v. Hardeep

« 1976 Cri. LJ. 1642.

•• Id. at 1644.
51
See 35th Report of the Law Commission on Capital Punishment (1967) para 3.34; see
also 42nd Report on Indian Penal Code (1971).
62
1976 Cri. LJ. 1578.
53
ALR. 1976 S.C. 230.
54
1976 Cri. LJ. 1716.
55
Balwant Singh v. State of Punjab, 1976 Cri. LJ. 291.
Vol. XII] Criminal Law and Procedure 317
Singh?* and Khurshid Khan v. Husnabanu*1 by the High Courts of Punjab
and Bombay respectively.

In Balbir Singh's case58 the question was whether the minors are entit-
led to claim maintenance from their father even if they are in custody
of the mother and the father has desired to be the guardian and has also
moved the court to that effect.

A long line of decisions59 have consistently held that the readiness of

the father to keep the children does not entitle the children to claim
maintenance unless it was proved that the father had neglected to main-
tain the child.

This view, however, did not find favour with the High Courts of
Bombay,60 Madras,6* Nagpur,62 Rajasthan63 and Hyderabad.64 Accord-
ing to this view a child does not stay away by his own choice, and the
law relating to maintenance claim cannot be substituted for deciding the
issue of guardianship. Under the law it would be sufficient to show
that the child is unable to maintain himself and that the father has
sufficient means to maintain the child and that he has neglected to do
so.

Balbir Singh's case65 was decided by a Full Bench of the Punjab and
Haryana High Court and the conflicting decisions were given due
consideration to lay down the following propositions :

(0 If the child was living with the mother who was its natural
guardian, the father is bound to maintain it and it is not open to
him to impose a condition that the child must live with him.
0*0 Even in a case where the father is the natural guardian, but the
child is in the custody of the mother, the father's obligation to
maintain the child subsists and he cannot impose a condition

M
1976 Cri. LJ. H36.
57
1976 Cri. LJ. 1584.
u
Supra note 56.
69
Man Singh v.Dharman, 1894P.R. 18; Ralla v. Mt. Ratti, 15 Cri. LJ. 529 (1914);
Sardar Muhammad v. Sur Muhammady A.LR. 1917 Lah. 213, M. Thien y. Nga Po
Nyunt 15 Cri. LJ. 278 (1914); Jagannath y. Koshalia Devi, 28 Cri, LJ. 415 (1927).
«° Ehrahim Mohamed v. Khurshedbai, A.LR. 1941 Bom. 267.
%1
Kuppala Krishtappa v. Premaleetamani, A.LR. 1942 Mad. 705.
62
State v. Anwarbi, A.LR. 1953 Nag. 133.
«3 Bashiran v. Nathu, A.LR. 1960 Raj. 255.
64
Rahimunnissa y. Mohd. Ismail, A.I.R. 1956 Hyd. 14.
*s Supra note 56.
318 Annual Survey of Indian Law [1976

requiring the child to come and live with him in case the child has
not attained the age of discretion or is not living with the mother
of its free will or volition.

(Hi) In such a case, in order to escape his liability to pay maintenance

allowance, the father must obtain the custody of the child from
the proper court, but till the custody is obtained, the child must
be maintained, wherever it is.

(iv) The father's liability to maintain the child does not cease merely
because the child has attained the age of discretion but is living
with the mother on account of natural love and affection or
attachment with her. Till the father gets the custody of the
child, it can successfully claim maintenance.

Another significant question was decided in Khurshid Khan's case.66

The question was whether a divorced Muslim wife could claim main-
tenance under section 125 of the Code of Criminal Procedure, 1973 even
after the iddat period, so long as she remained unmarried. It was urged
by the petitioner that the principles of Muslim law relating to iddat
entitled the divorced wife to get maintenance only during that period
and that the provisions of section 125 of the Code were not relevant to
determine the question of maintenance in respect of the parties who were
governed by their personal laws. The court rejected the contention, and
was of the view that a provision like section 125 could be enacted by
the Parliament with regard to Muslim women having regard to its power
under article 15 of the Constitution of India and also to promote the
directive laid down under article 44 of the Constitution which aims at
having a uniform civil code.

1
Supra note 57.