In case of Basanta Kumari Mohanty -Vrs.- Sarat
Kumar Mohanty reported in Vol.53 (1982) Cuttack Law
Times 53, it is held as follows:-
“7. No doubt an order under section 125 can
be passed only if a person having sufficient
means neglects or refuses to maintain his
wife, child, parents etc. It is, however, well
settled that the expression ‘means’ occurring
in section 125 does not signify only visible
means, such as, real property or definite
employment and if a man is healthy and ablebodied,
he must be held to be possessed of
means to support his wife, child etc. The
Courts have gone to the extent of laying
down that the husband may be insolvent or a
professional beggar or a minor or a monk,
but he must support his wife so long as he is
able-bodied and can eke out his livelihood.”
8. In the present case, admittedly the other sons and
daughters of the opposite party have not been impleaded as
parties to the proceeding under section 125 of Cr.P.C. Though it
is stated by the opposite party in her maintenance application
that the other sons are living from hand to mouth but in the
show cause, the petitioner has denied the same and stated
specifically what one of the other sons of the opposite party was
doing and what is his income. It is not disputed that the
daughters of the opposite party are married. Whether the other
sons of the petitioner are living from hand to mouth and whether
they have got sufficient means are to be adjudicated at the
appropriate stage of the proceeding by the Magistrate. Since
there is nothing on record that the other sons of the opposite
party are physically incapable and not able-bodied, therefore, it
is necessary that they should be made as opposite parties in the
125 Cr.P.C. application as they have equal responsibility to
maintain the opposite party. The opposite party is at liberty to
claim or not to claim any maintenance amount against the other
sons and similarly whether those sons are liable to pay
maintenance to the opposite party or not in view of their means
and what would be the quantum of maintenance against each of
the opposite parties has to be decided by the Magistrate at the
appropriate stage. I am of the view that by impleading the other
sons as opposite parties in the 125 Cr.P.C. application, the
opposite party will not be prejudiced in any way rather if they
are not made as opposite parties and the petitioner succeeded in
establishing by way of evidence that they are also having
sufficient means and that they are also equally liable to maintain
the opposite party, in that event the Magistrate cannot pass any
order of maintenance against the other sons if they not made
parties in the 125 Cr.P.C. application.
Therefore, I am of the view that even though the
option lies with the opposite party to claim maintenance against
one of the sons amongst all her children but in the interest of
justice and in peculiar facts and circumstances of the case, I am
of the view that for proper adjudication of the maintenance
proceeding, it is necessary that the other two sons namely
Bikash Ranjan Darjee and Rasbihari Darjee should also be 11
arrayed as opposite parties in the 125 Cr.P.C. proceeding. It is
not necessary to make the daughters as opposite parties as they
are married.
IN THE HIGH COURT OF ORISSA, CUTTACK
RPFAM NO. 21 of 2014
Subash Darjee V Basanti Darjee
P R E S E N T:
MR. JUSTICE S.K. SAHOO
Dated: 21.09.2016
Citation: 2017 CRLJ (NOC)90 Orissa
This revision petition has been filed by the petitioner
Subash Darjee challenging the impugned order dated 30.11.2013
passed by the learned Judge, Family Court, Balangir in C.M.C.
No. 1/37 of 2012-13 in rejecting the application filed by the
petitioner to hold that the application filed by the opposite party
Basanti Darjee, the mother of the petitioner under section 125 of 2
Cr.P.C. as not maintainable for not impleading the other sons and
daughters of the opposite party as parties in the application.
2. The opposite party Basanti Darjee filed an application
under section 125 of Cr.P.C. claiming maintenance against the
petitioner Subash Darjee. It is her case that she is a widow and
the petitioner is her eldest son and her husband died on
21.04.2008 and she is blessed with two other sons and two
daughters but the other sons are living hand to mouth for which
they were not made parties in the proceeding. It is her further
case that the late husband of the opposite party left behind
some properties which have been forcibly occupied by the
petitioner and there are also rented houses and shop rooms and
the petitioner is appropriating all the rents and profits of the
house properties. It is her further case that the opposite party
and her daughter have filed Civil Suit No. 144 of 2011 in the
Court of the learned Civil Judge (Senior Division), Balangir for
partition and other reliefs and the petitioner and other children
of the opposite party are parties to the said suit. It is the case of
the opposite party that the petitioner drove her out of the
ancestral house and she was not provided with food and clothing
and abusive language was hurled at all times and the petitioner
had no respect for her. It is her further case that she is an old 3
lady and suffering from various ailments and the petitioner has
denied food and clothing to her and she is unable to maintain
herself out of the properties left behind by her late husband
because of the high handed and illegal action of the petitioner
and that the petitioner had gone to the extent of assaulting her
for which she approached the police on several occasions for
protection. It is further stated in her application that the
petitioner is a man of means and he is in forcible possession of
all the properties left behind by his father and also working as a
lecturer in Dahimal College, Tusura and he is also running a
coaching centre and his monthly income is around Rs.70,000/-.
In spite of having sufficient means, the petitioner is refusing and
neglecting to maintain her and accordingly, the monthly
maintenance of Rs.7,000/- from the date of application i.e.
02.01.2012 was claimed by the opposite party against the
petitioner.
3. On being noticed, the petitioner filed his show cause,
inter alia, disputing the averments made in the 125 Cr.P.C.
application. It is the case of the petitioner that another son of
the opposite party namely Bikash Ranjan Darjee is having flower
shop nearer to the Samaleswari Temple namely “Mahalaxmi
Pushpa Bhandar” and his monthly income is not less than 4
Rs.20,000/- and that he is also a Railway and Air E-ticket travel
agent and his income is not less than Rs.5000/- per month. It is
further stated in the show cause that the opposite party and her
son Bikash and daughter Kamalini were jointly residing in the
dwelling house which measures an area of 3440 Sq. feet. It is
further stated in the show cause that the petitioner has got no
objection if the opposite party stays with his family but she is
adamant and stays with her other son Bikash and daughter
Kamalini and the later works as an Assistant Teacher in
Khamarmunda Government Primary School and getting a salary
of Rs.20,603/-. While disputing his own income, the petitioner
stated in his show cause that he only gets Rs.3000/- while
working as a lecturer in Political Science in the Privately
Managed College of Dahimal. It is further stated that Nalini,
Kamalini and Bikash have joined hands for not providing basic
necessities of life to the opposite party.
4. The petitioner filed an application with a prayer to
dismiss the 125 Cr.P.C. application on the ground that the other
sons and daughters have not been arrayed as opposite parties
and that the petitioner has been singled out by the opposite
party with an ulterior motive. The opposite party filed her 5
objection that the application filed by the petitioner regarding
maintainability is a frivolous one and liable to be dismissal.
5. The learned Judge, Family Court, Balangir vide
impugned order has been pleased to hold that the petitioner is
the master of litigation and he/she would decide against whom
he/she would fight out the litigation. It is further held that the
opposite party has not arrayed her other sons and daughters
except her eldest son (petitioner) as a party and there is nothing
provided under section 125 Cr.P.C. that such a prayer of the
opposite party against the petitioner is not maintainable in law
and accordingly, the petition filed by the petitioner challenging
the maintainability of the 125 of Cr.P.C. application on the
ground that the other sons and daughters have not been arrayed
as opposite parties was turned down.
6. The learned counsel for the petitioner contended that
the other sons and daughters are equally liable to maintain the
opposite party and in the objection, the petitioner has
specifically stated that the other son and daughter of the
opposite party have sufficient means to maintain the opposite
party and therefore, in the fitness of things, the learned Judge,
Family Court, Balangir should have directed the opposite party to
at least implead her other sons as parties. He further contended 6
that what would be the quantum of maintenance against the
other sons is a complete different aspect which is to be
adjudicated at the appropriate stage but the other sons of the
opposite party being the necessary parties for better
adjudication of application under section 125 Cr.P.C., they
should have been arrayed as opposite parties along with the
petitioner.
Learned counsel for the opposite party on the other
hand placed reliance in case of A. Ahathinamiligai -Vrs.-
Arumughnam reported in 1988 Criminal Law Journal 6
wherein it is held that it cannot be accepted as a proposition of
law that unless all the children are made parties in a claim for
maintenance by the parents, the latter would not be entitled for
an order of maintenance. Learned counsel for the opposite party
further placed reliance in case of Mahendrakumar -Vrs.-
Gulabbai reported in 2001 Criminal Law Journal 2111
wherein the decision of the Madras High Court in case of A.
Ahathinamiligai (Supra) was relied upon and similar view was
taken. Learned counsel for the opposite party further relied upon
in case of Bharat Lal -Vrs.- Bhanumati reported in 1995
MPLJ 319 wherein it is observed that it was not desirable even
though a son or a daughter has sufficient means, his or her 7
parents would starve. It is also their duty to look after their
parents when they become old and infirm. The learned counsel
for the opposite party further placed reliance in case of Anima
Majhi -Vrs.- Arun Majhi reported in (2005) 2 CALLT 553
wherein it is held that the mother is residing at the charity and
mercy of her daughter at the latter’s house will not absolve the
son of his solemn legal duty to maintain her.
Learned counsel for the petitioner on the other hand
placed reliance in case of Smt. Kuni Dei @ Kuni Behadi -Vrs.-
Pabitra Mohan Behadi reported in 2013 (II) Orissa Law
Reviews 599 in which a Division Bench of this Court has been
pleased to observe that in a proceeding under section 125
Cr.P.C., the major sons have equal responsibility to maintain the
parents and therefore, both Pabitra and his three sons are duty
bound under the provisions of law to maintain Kuni by paying
maintenance for her sustenance.
7. Section 125(1)(d) of Cr.P.C., inter alia, indicates that
if any person having sufficient means neglects or refuses to
maintain his father or mother who is unable to maintain himself
or herself then a Magistrate of the First Class upon proof of such
neglect or refusal, order such person to make a monthly
allowance for the maintenance of his father or mother.
Proceedings under Chapter-IX of the Code are in the
nature of civil proceeding. Proceedings of the Civil Court are
substantial whereas the proceedings under Chapter-IX of the
Code are of a summary nature. The strict formula applied for
adjudication of a civil proceeding or petition filed therein cannot
and should not be mutatis and mutandis applied in proceeding
under section 125 of Cr.P.C. Before passing an order of
maintenance under section 125 of Cr.P.C., the Court has to be
satisfied that the person against whom the maintenance is
claimed has sufficient means and the person claiming
maintenance is unable to maintain herself or himself and that
the person against whom maintenance is claimed is neglecting or
refusing to maintain the person enumerated under clause (a),
(b), (c) and (d).
In case of Basanta Kumari Mohanty -Vrs.- Sarat
Kumar Mohanty reported in Vol.53 (1982) Cuttack Law
Times 53, it is held as follows:-
“7. No doubt an order under section 125 can
be passed only if a person having sufficient
means neglects or refuses to maintain his
wife, child, parents etc. It is, however, well
settled that the expression ‘means’ occurring
in section 125 does not signify only visible
means, such as, real property or definite
employment and if a man is healthy and ablebodied,
he must be held to be possessed of
means to support his wife, child etc. The
Courts have gone to the extent of laying
down that the husband may be insolvent or a
professional beggar or a minor or a monk,
but he must support his wife so long as he is
able-bodied and can eke out his livelihood.”
8. In the present case, admittedly the other sons and
daughters of the opposite party have not been impleaded as
parties to the proceeding under section 125 of Cr.P.C. Though it
is stated by the opposite party in her maintenance application
that the other sons are living from hand to mouth but in the
show cause, the petitioner has denied the same and stated
specifically what one of the other sons of the opposite party was
doing and what is his income. It is not disputed that the
daughters of the opposite party are married. Whether the other
sons of the petitioner are living from hand to mouth and whether
they have got sufficient means are to be adjudicated at the
appropriate stage of the proceeding by the Magistrate. Since
there is nothing on record that the other sons of the opposite
party are physically incapable and not able-bodied, therefore, it
is necessary that they should be made as opposite parties in the
125 Cr.P.C. application as they have equal responsibility to 10
maintain the opposite party. The opposite party is at liberty to
claim or not to claim any maintenance amount against the other
sons and similarly whether those sons are liable to pay
maintenance to the opposite party or not in view of their means
and what would be the quantum of maintenance against each of
the opposite parties has to be decided by the Magistrate at the
appropriate stage. I am of the view that by impleading the other
sons as opposite parties in the 125 Cr.P.C. application, the
opposite party will not be prejudiced in any way rather if they
are not made as opposite parties and the petitioner succeeded in
establishing by way of evidence that they are also having
sufficient means and that they are also equally liable to maintain
the opposite party, in that event the Magistrate cannot pass any
order of maintenance against the other sons if they not made
parties in the 125 Cr.P.C. application.
Therefore, I am of the view that even though the
option lies with the opposite party to claim maintenance against
one of the sons amongst all her children but in the interest of
justice and in peculiar facts and circumstances of the case, I am
of the view that for proper adjudication of the maintenance
proceeding, it is necessary that the other two sons namely
Bikash Ranjan Darjee and Rasbihari Darjee should also be 11
arrayed as opposite parties in the 125 Cr.P.C. proceeding. It is
not necessary to make the daughters as opposite parties as they
are married.
At this juncture, the learned counsel for the opposite
party submits that the opposite party shall make an application
before the learned Judge, Family Court, Balangir within fifteen
days to implead the other two sons of the opposite party namely
Bikash Ranjan Darjee and Rasbihari Darjee as opposite parties.
If such an application is filed, the learned Judge, Family Court,
Balangir shall allow such application, implead them as parties,
issue notice to them and then proceed in accordance with law.
It is made clear that this Court has not expressed
any opinion on the merits of the prayer of the opposite party to
claim maintenance either against the petitioner or against the
other sons which is to be decided strictly as per of the evidence
adduced by the respective parties during course of proceedings
under section 125 of Cr.P.C.
It is submitted by the learned counsel for the
opposite party that the maintenance proceeding is of the year
2012 and therefore, direction may be given for expeditious
disposal. Considering the submission, the learned Judge, Family
Court, Balangir is directed to expedite the matter and try to 12
dispose of the 125 Cr.P.C. proceeding within a period of six
months from the date of service of notice on Bikash Ranjan
Darjee and Rasbihari Darjee.
With the aforesaid observation, the RPFAM is
allowed.
…………………………
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 21th September, 2016/Sukanta
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