Committee, submission is being advanced that option is left with the
parents to choose the son or daughter against whom claim u/s. 125
Cr.P.C. Could be made as also held by the learned single Judge of the
Gowahati High Court.
With due respect, I am unable to agree with the view taken
by the learned single Judge of the Gowahati High Court that there is
option available to the parents. The first reason is that though the Joint
Committee in paragraph 5 recommended that if there are two more
children the parents may seek remedy against any one or more of them,
the same appear to have not been accepted by the Parliament in its
infinite wisdom, and that is why the same is not inserted in the
provision of Section 125 Cr.P.C. It thus remained only a recommendation
and did not crystallize into law. Insofar as the present case is
concerned, what is seen is that the applicant has prima facie shown that
Rajani, the married daughter and Chandan, the younger son of the
respondents have been earning lordly sums by way of income and
because of the dispute with the eldest son applicantVasant and his wife,
the parents have sought maintenance from him only, without joining
the married daughterRajani and younger sonChandan to the
proceeding. In my opinion, allowing an option for the parents to choose
any of them would be unjust and onerous only on one of the children
particularly when others are also earning that too handsomely. I hasten
to clarify that I have neither recorded any finding nor any inference
or conclusion which would affect any of the parties on merits of the
dispute since I have already said that this is my prima facie opinion
that Rajani and Chandan are having sufficient means to maintain their
parents and they should also have been asked to participate in the
proceedings in question to place their side before the Family Court,
with pleadings and evidences from all angles. But to say that they
were not necessary parties because of the available option to the
parents, would be doing severe injustice to only one sonVasant, the
revisionapplicant. It will have to be further clarified that the only
question decided by me is that they were the necessary parties to the
Application along with applicantVasant and all of them are free to plead
and prove before the Family Court as to the merits of the Application
and claim against them for maintenance, about they having or not
having sufficient means or neglect or refusal. I therefore, hold that the
married daughterRajani and the younger son Chandan are necessary
parties to the Application and answer the question accordingly.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 172/2014
Vasant s/o Govindrao Naik
v
Govindrao Upasrao Naik
CORAM : A.B.CHAUDHARI, J.
DATED : 2nd February, 2016
Citation;2016 ALLMR(CRI)1728
Being aggrieved by the judgment and order dated
27.08.2014 in Petition No.E35/2013 passed by the learned Principal
Judge, Family Court, Amravati, by which the applicant has been directed
to pay Rs. 20,000/ per month each, totalling to Rs. 40,000/ from the
date of filing of the Application i.e. 4.3.2013, to the father and mother of
the applicant (original petitioners), the instant Revision has been filed.
FACTS:
2. The respondents herein, that is, applicants before the
Family Court, Amravati Govind and Mankarnabai, filed an
Application under Section 125 of the Code of Criminal Procedure, 1973
against the present applicantVasant, their son, for grant of maintenance
in the sum of Rs. 20,000/ per month each, from the applicant. In their
Application, they stated that they are the parents of the present
applicant and have been residing in the house of their daughter Rajani
in Prabhu Colony, Amravati. The applicantson Vasant is serving in a
high position in Saudi Polydlefins Limited, a Company in Saudi
Arabia and receiving an eyepopping salary in the sum of Rs. 3 lakhs
per month. The applicantVasant is the elder son possessing qualification
of M.Sc. in Petrochemicals. Daughter Rajani is married and resides in
United States of America (USA); while the younger sonChandan is an
unemployed youth, resides with nonapplicantsfather and mother. The
nonapplicants incurred huge expenses on the education of the children
by selling 16 acres of land and purchased another three acres of land
from the remaining amount. Till the marriage of the applicantVasant
he was supporting the parents but after the marriage he stopped
giving any monetary help and, on the contrary, tortured them, claiming
an amount of Rs. 2 lakhs for booking of a flat at Mumbai, illtreated and
threatened them and, as such, they were required to obtain temporary
injunction order from the Civil Court to prohibit applicantVasant from
entering their house at Amravati, vide an order dated 1.10.2012. The
nonapplicants are facing severe economic crisis and resource crunch
inasmuch as they are on the verge of starvation and have no source of
income and, as such, they require maintenance from the present
applicantVasant. They had issued a notice to him on 31.10.2012 but
false reply was sent by applicantVasant. The nonapplicants reside at
Prabhu Colony, Amravati and, therefore, the Amravati Court has
jurisdiction to try the Application.
3. ApplicantVasant filed his written statement and denied all
the adverse allegations. He, however, stated that he was never
supported by his parents for completing his education and, on the
contrary, the ancestral land was sold by the nonapplicants, whereas
money was spent on education of Rajani and Chandan. Rajani took
education at Indore and Chennai who obtained a degree in Engineering.
Chandan took education in Indore in Engineering course. Rajani is a
married daughter of nonapplicants who is settled in USA and is earning
Rs. 5 lakhs per month, while the younger sonChandan is doing the
business of estate broker at Armavati. ApplicantVasant stated that he
had purchased as many as six plots in the name of his younger brotherChandan
and father out of love and affection since he is residing and
serving at Saudi Arabia, but Chandan disposed of the plots and he has
been doing business in estate broker from the sale proceeds. The
objection was taken by the applicantVasant that the married sister
Rajani and brother Chandan are also under legal obligation to maintain
their parents and they should have been made parties to the petition for
claiming maintenance and nonjoining thereof and, as such, he stated
that the application was liable to be dismissed, vide paragraph 9 of the
written statement. It was then stated that the applicantVasant had
spent around Rs. 20 to 25 lakhs for purchasing the land, plots, marriage
of Rajani, repayment of hand loan of the relatives over the nonapplicants
and the family members through bank transaction and he
has therefore performed his duty as a elder son. However, Rajani and
Chandan are neglecting to perform their obligation towards the nonapplicants.
ApplicantVasant then stated in written statement that after
the marriage, the nonapplicants started ill treating his wife for flimsy
reasons and they used to abuse her for not having brought sufficient
dowry in the marriage.
The record shows that the applicant Vasant has kept his
family i,.e. wife and daughter at Washi, Mumbai, which is their
permanent abode, while applicantVasant is residing at Saudi Arabia
for his employment and he looks after his family at Mumbai. Along
with the present Revision Application, Annexure 6 is annexed which
shows that Rajani is working as Microsoft Dynamics CRM Consultant at
Boca Raton, Florida (USA). The Family Court did not frame any
issue/point about the nonjoinder of Rajani and Chandan as a parties to
the proceeding/Petition. The issue about the territorial jurisdiction of the
Family Court was also not framed. Ultimately, the Family Court recorded
the evidence and made the impugned order which is challenged by
means of the present Revision Application.
4. In support of the Revision, assailing the impugned judgment
and order, Smt.R.P.Khaparde, learned counsel for the revision applicantVasant,
submitted that he is the eldest son of the non applicants Govind
and Mankarnabai and Rajani is the daughter and Chandan is the
younger son, who are welleducated with very good earnings. Rajani is
working as a Software Engineer in USA and is residing there
permanently and earning not less than Rs. 5 lakhs per month, while
Chandan is also Engineering Graduate, pursuing his career in the
business of broking in real estate at Amravati, for which the applicant
Vasant had contributed immensely though the wife and daughter of the
applicant is living in Washi, Mumbai in a flat, the applicant for his
employment is residing in Kingdom of Saudi Arabia and is maintaining
his family at Washi, Mumbai. His salary is only to the extent of Rs.
1,78,000/per month from which he has to maintain his family and
himself. Learned counsel then contended that the applicant does not
reside at Amravati, all the more so since the nonapplicants have
obtained an injunction order from entering their house in a Civil Suit.
The counsel for applicant submitted that the Amravati Court does not
have territorial jurisdiction to entertain the proceeding in the light of
Section 126 of the Cr.P.C. She relied decision in the case of Vijay
Kumar Prasad vs. State of Bihar : AIR 2004 SC 2123, to buttress the
submission that unlike wife and the child, the parents have not been
extended the facility to file Application u/s 125 of the Cr.P.C. at the place
of their residence. Learned counsel for the applicant Vasant then
contended that the married sister Rajani and the younger sonChandan,
both earn handsome income from their avocation and and the
objection taken by the applicant Vasant for their nonjoinder to the
Application in paragraph 9 of the written statement, has been ignored
by the learned Principal Judge Family Court. Learned counsel for the
applicantVasant then contended that because of the family dispute i.e.
the respondents quarreling and torturing the wife of applicant, over
demand of dowry, out of sheer revenge, the nonapplicants filed the
Application only against him and not against the married daughter
Rajani and the younger sonChandan who also have an obligation to
maintain their parents. Learned counsel then contended that the parents
have stubborn antipathy and hatred for the present applicantVasant,
whereas extra love and affection in favour of Rajani and Chandan and
that is why they were not arrayed as respondents in the proceeding
despite the fact that they are also obliged to provide maintenance to
their parents. Learned counsel for the applicants, therefore, prayed for
dismissal of the Application as not maintainable and, in the alternative,
for sending the matter back to the Family Court for joining Rajani and
Chandan as the nonapplicants to the Application.
5. Per contra, Smt.S.P. Deshpande, learned counsel for the
respondentsfather and mother submitted that the question about the
territorial jurisdiction was never raised before the Family Court and the
applicant cannot be allowed to raise the said issue for the first time.
Learned counsel for nonapplicants then contended that the choice is of
the parents/nonapplicants as to against whom out of three children,
the proceeding should be taken for claiming maintenance and, in the
instant case, the respondents/parents who were entitled to make a
choice among the three children, rightly decided to proceed against the
applicantVasant. The nonapplicants are, in law, entitled to do so. She
relied on the decision in the case of Akham Joy Kumar Singh vs.
Akham Ibobi Singh and others : (2005) 3 GLR 236, to support her
contention. She then contended that Rajani is a married daughter,
having gone to live in her matrimonial house, cannot be said to be
under an obligation to maintain her parents and the obligation, at the
most, should be of the two sons, but since the respondents have
choice to claim maintenance from either of them, they filed the
proceeding against Vasant, who is working in Kingdom of Saudi Arabia,
earning royal and handsome emoluments. She, therefore, submitted
that there is no substance in the instant Revision Application, which
deserves to be dismissed and be dismissed with costs.
6. The instant Revision Application raises three interesting
questions of law, as under :
(1) Whether in accordance with Section 126 Cr.P.C.
providing for procedure, the nonapplicants who are the
parents, could file their Application for grant of
maintenance at the place of their residence, namely,
Amravati and, if not, at which place such an
Application should have been filed?
(2) Whether the married daughterRajani having
source of income/ sufficient means, was obliged to
provide maintenance to her parents/ nonapplicants?
(3) Whether the married daughter Rajani and the
sonChandan of the nonapplicants were necessary party
to the Application/Petition u/s. 125 of Cr.P.C. that was
filed by the respondent nos. 1 and 2 mother and
father ; and whether the parents could seek remedy
against any one or more of the children?
7. Section 488(1) and (8) of the old Code of Criminal
Procedure (Act V of 1898) read thus,
“ 488: (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 SubDivisional
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
(one 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.”
“ 488: (8) Proceedings under this section may be taken
against any person in any District where he resides or
is, or where he last resided with his wife, or, as the case
may be, the mother of the illegitimate child.”
It is thus clear that the above provisions did not enable
the father or mother, unable to maintain themselves himself or herself,
to apply for grant of maintenance. Subsection (8) of Section 488 above
provided for the territorial jurisdiction where the application could be
instituted.
But, Section 125(1) (d) of the new Code of Criminal
Procedure 1973 enables father or mother, unable to maintain himself or
herself to apply to have the order of maintenance.
Section 126(1) provides for the procedure, which reads thus :
“ 126: Procedure – (1) Proceedings under section 125
may be taken against any person in any District
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as
the case may be, with the mother of the illegitimate
child.
(2) All evidence in such proceedings shall be
taken in the presence of the person against whom an
order for payment of maintenance is proposed to be
made, or, when his personal attendance is dispensed
with, in the presence of his pleader, and shall be
recorded in the manner prescribed for summons cases:
Provided that if the Magistrate is satisfied
that the person against whom an order for payment of
maintenance is proposed to be made is wilfully
avoiding service, or wilfully neglecting to attend the
court, the Magistrate may proceed to hear and
determine the case ex parte and any order so made may
be set aside for good cause shown on an application
made within three months from the date thereof subject
to such terms including terms as to payment of costs to
the opposite party as the magistrate may thuink just and
proper.
(3) The Court in dealing with applications
under section 125 shall have power to make such order
as to costs as may be just.”
From the reading of Section 125(1)(d), it is clear that the
Code of 1973 provided remedy for father or mother unable to maintain
himself or herself to claim maintenance. However, Section 126
providing for the territorial jurisdiction simultaneously does not show
the forum where the father or mother could institute the Application
u/s. 125 Cr.P.C. for maintenance, as was provided for wife and her
children.
It is in the above context, in the case of Vijay Kumar
Prasad (supra), the Hon’ble Apex Court held that the benefit given to
the wife and children to initiate proceedings against husband at the
place where the wife and children reside, is not given to the parents
u/s. 126(1) of the Cr.P.C. 1973. It would be apt to quote paragraph
Nos. 13 and 14 from the judgment, which read thus:
“13. It is to be noted that clauses (b) & (c) of
subsection (1) of Section 126 relate to the wife and
the children under Section 125 of the Code. The benefit
given to the wife and the children to initiate proceeding
at the place where they reside is not given to the parents.
A bare reading of the Section makes it clear that the
parents cannot be placed on the same pedestal as that of
the wife or the children for the purpose of Section 126
of the Code.
14. The basic distinction between Section 488
of the old Code and Section 126 of the Code is that
Section 126 has essentially enlarged the venue of
proceedings for maintenance so as to move the place
where the wife may be residing at the date of
application. The change was thought necessary because
of certain observations by the Law Commission, taking
note of the fact that often deserted wives are compelled
to live with their relatives far away from the place where
the husband and wife last resided together. As noted by
this Court in several cases, proceedings under Section
125 of the Code are of civil nature. Unlike clauses (b)
and (c) of Section 126(1) an application by the father
or the mother claiming maintenance has to be filed
where the person from whom maintenance is claimed
lives.”
Ultimately, the Hon’ble Apex Court in the case of Vijay
Kumar Prasad (supra) held that the son being a legal practitioner in
Patna High Court, the proceeding instituted by father at Sivan were not
maintainable for territorial jurisdiction and were liable to be transferred
to Patna.
8. In my respectful and humble opinion, looking to the
disablement of old parents father or mother to go and file Application
u/s 125 Cr.P.C. at the place where the son or their children reside, would
be practically denying them the benefit of provisions of Section 125 for
claiming maintenance which was inserted by way of clause (d) of subsection
(1) of Section 125 Cr.P.C. for the first time, under the Code of
1973. But then as held by the Hon’ble Apex Court in the case of
Vijay Kumar Prasad (supra), the provision of Section 126 does not
extend that benefit to the parents. The issue is certainly of
significance looked from the angle of the parents who are neglected by
their children in order that they would be entitled to take the benefit of
the provisions u/s 125 (1)(d) by providing justice at the doorstep. But
then that is the domain of the legislature and except for making
request, this Court can do nothing. Hence, a copy of this judgment is
required to be sent to the Ministry of Law and Justice Department, New
Delhi.
9. Reverting back to Question No.1 raised before me by the
learned counsel for the revisionapplicant, at the outset, I find from the
written statement and from the arguments before the Family Court that
the applicantVasant had never raised the issue of territorial jurisdiction
in terms of Section 126 or otherwise, before the Principal Judge, Family
Court, Amravati and, on the contrary, he submitted to the jurisdiction of
the said Court till the completion of trial and the delivery of judgment.
In my opinion, it would therefore be wholly improper to allow the
applicantVasant to raise the issue of territorial jurisdiction for the first
time before this Court and, therefore, I hold that the applicant Vasant is
not entitled to object to the proceedings u/s. 125 Cr.P.C. before the
Principal Judge, Family Court, Amravati and thus answer the above
question accordingly.
10. As to Question No.2: The learned counsel for the
respondents vehemently contended that the married daughter is not
liable to maintain her parents since after marriage she has gone to live
in her matrimonial house in the other family i.e. of her husband
According to the learned counsel for the respondents the married
daughter has an obligation towards her matrimonial house, husband
fatherinlaw and her children and therefore she cannot be held liable
to maintain her parents. According to her, even the provision of Section
125 (1)(d) uses the word “his” and not “her”. Without dwelling in
any details, I find that the question raised by the learned counsel for
the respondents is no more res integra and the Apex Court in Dr. Mrs.
Vijaya Arbat vs. Kashirao Sawaui and another” (AIR 1987 Sc 1100,
decided the same, firmly holding that the daughter also is liable to
maintain her parents, without making any distinction of unmarried
daughter or married daughter. It would be apt to quote paragraph nos.
6,8,10,12, and 13 which read thus:
“6. There can be no doubt that it is the moral
obligation of a son or a daughter to maintain his or her
parents. It is not desirable that even though a son or a
daughter has sufficient means, his or her parents would
starve. Apart from any law, the Indian society casts a
duty on the children of a person to maintain their
parents if they are not in a position to maintain
themselves. It is also their duty to look after their parents
when they become old and infirm.
8. We are unable to accept this contention. It
is true that Cl.(d) has used the expression “his father or
mother” but, in our opinion, the use of the word ‘his’
does not exclude the parents claiming maintenance
from their daughter. Section 2(y) Cr.P.C. provides that
the words and expressions used herein and not defined
but defined in the Indian Penal code have the meanings
respectively assigned to them in that Code. S.8 of the
Indian Penal Code lays down that the pronoun ‘his’ in
Cl.(d) of S.125(1),Cr.P.C. also indicates a female.
Section 13(1) of the General Clauses Act lays down that
in all Central Acts and Regulations, unless there is
anything repugnant in the subject or context, words
importing the masculine gender shall be taken to
include females. Therefore, the pronoun ‘his’ as used in
Cl.(d) of S.125(1), Cr.P.C. includes both a male and a
female. In other words, the parents will be entitled to
claim maintenance against their daughter provided,
however, the other conditions as mentioned in the
Section are fulfilled. Before ordering maintenance in
favour of a father or a mother against their married
daughter, the Court must be satisfied that the daughter
has sufficient means or income of her husband, and that
the father or the mother, as the case may be, is unable to
maintain himself or herself.
10. The learned judge of the Kerala High Court
did not refer in his judgment to the sentence which has
been underlined. It is true that in the first part of the
report the word ‘son’ has been used, but in the later part
which has been underlined the recommendation is that
if there are two or more children the parents may seek
the remedy against any one or more of them. If the
recommendation of the Joint Committee was that the
liability to maintain the parents, unable to maintain
themselves, would be on the son only, in that case, in
the latter portion of the report the Joint Committee
would not have used the word ‘children’ which
admittedly includes sons and daughters. ............
12. We are unable to accept the contention of
the appellant that a married daughter has no obligation
to maintain her parents even if they are unable to
maintain themselves. It has been rightly pointed out by
the High Court that a daughter after her marriage does
not cease to be a daughter of the father or mother. It
has been earlier noticed that it is the moral obligation of
the children to maintain their parents. In case the
contention of the appellant that the daughter has no
liability whatsoever to maintain her parents is accepted,
in that case, parents having no son but only daughters
and unable to maintain themselves, would go destitute,
if the daughters even though they have sufficient means
refuse to maintain their parents.
13. After giving our best consideration to the
question, we are of the view that Section 125 (1) (d)
has imposed a liability on both the son and the daughter
to maintain their father or mother who is unable to
maintain himself or herself. Section 488 of the old
Criminal Procedure Code did not contain a provision
like clause (d) of Section 125(1). The legislature in
enacting Criminal Procedure Code, 1973 thought it
wise to provide for the maintenance of the parents of a
person when such parents are unable to maintain
themselves. The purpose of such enactment is to enforce
social obligation and we do not think why the daughters
should be excluded from such obligation to maintain
their parents.”
11. In the light of the above dicta of the Apex Court I hold that
Rajani, the married daughter if proved to have been working as a
Software Engineer in USA and having sufficient means, is under an
obligation to maintain her parents. The question is answered
accordingly.
12. As to Question No.3: The learned counsel for the
respondents contended that the decision of the Apex Court in the case
of Dr.Mrs. Vijaya Arbat (supra) is also an authority for the proposition
that if there are two or more children, the parents may seek the
remedy against any one or more of them. Learned counsel, therefore,
submitted that it is the choice of the parents to seek remedy against one
of the children and, in the instant case, the respondentsparents had
filed the Application only against Vasant, he being the elder son, with
which no fault can be found out. Learned counsel for the respondents
also relied on the decision in the case of Akham Joy Kumar Singh
(supra) rendered by the learned single Judge of Gowahati High Court,
The relevant portion from paragraph 8 reads thus:
“8. ............. A plain reading of the law shows that
Legislature has intentionally used the word ‘any person’
thereby definitely meaning that any of the several
persons may be chosen and it is not obligatory on the
part of the claimant seeking maintenance to name all
the persons ‘having sufficient means’ to be proceeded
against, or in other words, it is optional for a
claimant to seek an order of maintenance from any
of the several persons, if there are more than one,
having sufficient means, ‘having sufficient means’ is
the qualifying phrase for ‘any person’
notwithstanding. I repeat, from the reading of the
law, it appears that there is nothing obligatory
either on the part of the Magistrate or on the part of
the person seeking relief under Section 125 Cr.P.C. to
include all sons and daughters when the parents are
claimants. It appears the claimant has an option to
choose.”
13. I have carefully perused the ratio of the decision of the
Apex Court in the case of Dr. Mrs Vijaya Arbat (supra). The question
that was raised and decided in that case was, whether in Application
u/s 125 (1)(d) Cr.P.C. father was entitled to claim maintenance from his
daughter (married) since Dr. Vijaya was married and was practising
medicine at Mumbai. The question whether the parents could seek the
remedy against any one or more of the children did not fall for
consideration of the Apex Court since the same was neither raised nor
decided. The Apex Court decided in paragraph 12 and 13 in that
judgment that the daughter cannot be excluded from the obligation to
maintain the parents. The decision in the case of Dr.Mrs.Vijaya Abrat
is not an authority for the said proposition. It is true that the report of
the Joint Committee on the Criminal Procedure Code Bill, 1973 in
paragraph 5, stated that if there there are two or more children, the
parents may seek against any one or more of them. This paragraph 5
quoted by the Apex Court in Dr. Mrs. Vijaya Arbat, in paragraph 9, is
being quoted hereunder:
“9. Much reliance has been placed by the learned
counsel for the appellant on a decision of the Kerala
High Court in Raj Kumari v. Yashodha Devi, 1978 Cri LJ
600. In that case it has been held by a learned single
Judge of the Kerala High Court, mainly relying upon the
report of the Joint Committee on the Criminal Procedure
Code Bill,1973 that a daughter is not liable to maintain
her parents who are unable to maintain themselves. The
Joint Committee in their report made the following
recommendations (para 5):
“The committee considers that the right of
the parents not possessed of sufficient means, to be
maintained by their son should be recognised by making
a provision that where the father or mother is unable to
maintain himself or herself an order for payment of
maintenance may be directed to a son, who is possession
of sufficient means. If there are two or more children the
parents may seek the remedy against any one or more of
them. (Emphasis supplied).
14. It is on the basis of the said recommendation of the Joint
Committee, submission is being advanced that option is left with the
parents to choose the son or daughter against whom claim u/s. 125
Cr.P.C. Could be made as also held by the learned single Judge of the
Gowahati High Court.
With due respect, I am unable to agree with the view taken
by the learned single Judge of the Gowahati High Court that there is
option available to the parents. The first reason is that though the Joint
Committee in paragraph 5 recommended that if there are two more
children the parents may seek remedy against any one or more of them,
the same appear to have not been accepted by the Parliament in its
infinite wisdom, and that is why the same is not inserted in the
provision of Section 125 Cr.P.C. It thus remained only a recommendation
and did not crystallize into law. Insofar as the present case is
concerned, what is seen is that the applicant has prima facie shown that
Rajani, the married daughter and Chandan, the younger son of the
respondents have been earning lordly sums by way of income and
because of the dispute with the eldest son applicantVasant and his wife,
the parents have sought maintenance from him only, without joining
the married daughterRajani and younger sonChandan to the
proceeding. In my opinion, allowing an option for the parents to choose
any of them would be unjust and onerous only on one of the children
particularly when others are also earning that too handsomely. I hasten
to clarify that I have neither recorded any finding nor any inference
or conclusion which would affect any of the parties on merits of the
dispute since I have already said that this is my prima facie opinion
that Rajani and Chandan are having sufficient means to maintain their
parents and they should also have been asked to participate in the
proceedings in question to place their side before the Family Court,
with pleadings and evidences from all angles. But to say that they
were not necessary parties because of the available option to the
parents, would be doing severe injustice to only one sonVasant, the
revisionapplicant. It will have to be further clarified that the only
question decided by me is that they were the necessary parties to the
Application along with applicantVasant and all of them are free to plead
and prove before the Family Court as to the merits of the Application
and claim against them for maintenance, about they having or not
having sufficient means or neglect or refusal. I therefore, hold that the
married daughterRajani and the younger son Chandan are necessary
parties to the Application and answer the question accordingly.
15. The next question is what order should be passed in the
instant Application. In my opinion, the nonapplicants should be asked to
join Rajani and Chandan as party to the proceedings u/s 125 Cr.P.C.
along with the applicantVasant; and thereafter a fresh trial should be
held for trying the application u/s 125 Cr.P.C., which would subserve the
interest of justice. In the result, I make the following order:
ORDER
i) Criminal Revision Application No.172/2014 is partly allowed.
ii) The impugned judgment and order dated 27th august, 2014 in
Petition No E35/2013 made by the learned Principal Judge, Family
Court, Amravati is quashed and set aside.
iii) The proceedings in Petition No. E35/2013 are remitted de novo
to the Principal Judge, Family Court, Amravati for addition of married
daughterRajani and younger sonChandan as parties to the proceedings
and thereafter for holding a fresh trial and decide the same in
accordance with law, by giving full opportunity to the respective parties.
iv) The proceedings be decided within a period of one year from
today.
v) Copy of this judgment be sent to the Ministry of Law and Justice
Department, New Delhi, for information.
vi) No order as to costs.
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