Sunday, 6 March 2016

When married working daughter is liable to pay maintenance to parents?

 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 172/2014
Vasant s/o Govindrao Naik

v e r s u s
1) Govindrao Upasrao  Naik
Aged  64 years, occu: Nil.
2) Sou. Mankarnabai  w/o  Govind 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.

Print Page

No comments:

Post a Comment