Tuesday, 19 May 2020

Bombay HC: Son can not refuse to pay maintenance to the mother taking a plea that his father is liable to maintain mother

 The argument of learned Advocate Shri R.N. Borulkar does not at all appeal to reason if special provision contained in Section 125(l)(d), Cr.P.C., 1973, is taken into consideration. No doubt, factually, the respondent No. 1 is legally wedded wife of respondent No. 2 but the petitioner, being real son of respondent No. l, cannot successfully absolve himself from his statutory duty towards his mother in the matter of providing monthly allowance for her maintenance if she is found penniless. It is to be noted that when application under Section 125 was filed in the Family Court in 1995, the respondent No. 1 was 58 years old. We are in the beginning of years 2000. Now the respondent No. 1 is approximately 62 years of age. Her husband i.e. respondent No. 2 was 63 years of age on the date of filing of the application for maintenance. Therefore, today, he is approximately, 67 years of age. The respondent No. 2 retired long back as a teacher. He is getting pensionary benefits. It has come in the evidence that he receives monthly pension of Rs. 2,496/-. The petitioner No. 2 is a patient of diabetes and sodalities and, therefore, he requires constant medical treatment. Respondent No. 1 has absolutely no source of income of her own. In the given circumstances, she cannot expect any monetary assistance from her husband i.e. respondent No. 2. Therefore, only remedy available to such a helpless mother is to claim maintenance from her son. It is very unfortunate that an affluent son tries to avoid his moral as well as statutory obligation in the matter of payment of maintenance to his mother on the ground that it is primary duty of respondent No. 2, being husband, to maintain respondent No. 1.(Para 14)

IN THE HIGH COURT OF BOMBAY

Criminal Revn. Appln. No. 272 of 1996

Decided On: 02.03.2000

 Mahendrakumar  Vs.   Gulabbai and Ors.

Hon'ble Judges/Coram:
B.B. Vagyani, J.

Citations: 2001 CriLJ 2111


1. Heard learned Advocate Shri R.N. Borulkar for the petitioner and learned Advocate Shri Darak for respondent Nos. 1 and 2.

2. The petitioner herein lingers ,under a false hope, in the corridors of the High Court, that he would be absolved from the liability imposed by the Judge, Family Court, Aurangabad, in the matter of payment of monthly allowance to his real mother, by way of maintenance.

3. The petitioner is the eldest son of the respondent Nos. 1 and 2. The daughter of the respondents is already married. Krishna kurnar, another son of the respondents, is married and has got a job in Bajaj Auto Ltd., Aurangabad. Jagdishkumar, youngest son of the respondents, was taking education when petition for grant of maintenance under Section 125, Cr.P.C. was filed by the respondents.

4. Respondent No. 1 (original petitioner No. 1) is an old lady. Respondent No. 2 (Original petitioner No. 2) is aged pensioner. Respondent No. 2 gets meagre pension. The respondents have no source of income besides the pension of respondent No. 2. They are required to spend on the education of their youngest son. Respondent No. 2 is a patient of diabetes and spondylitia. Therefore, he is required to spend major chunk of his pension on his aliment. The remainder of pension is insufficient for maintenance of three persons.

5. The respondents filed application No. 371/1995 under Section 125, Cr.P.C., 1973, against present petitioner for grant of maintenance . It is case of the respondents that the present petitioner is in the Government employment and gets inflated pay packet. The wife of the present petitioner is also earning hand and brings an attractive pay packet. The present petitioner has sufficient mens. The petitioner has refused and neglected to maintain his aged parents who are unable to maintain themselves. The respondents therefore, claim monthly allowance for their maintenance from their eldest son under Section 125(1)(d) of Cr.P. Code.

6. The present petitioner contested the application for grant of maintenance mainly on the ground that the respondent No. 2, being husband of respondent No. 1, is primarily responsible to maintain the respondent No. 1. Therefore, the respondent No. 1 is not entitled to get maintenance from the present petitioner. The respondent No. 2 has sufficient means to maintain himself and his wife and, therefore, respondent Nos. 1 and 2 cannot bring any action in the Court of law for grant of maintenance. The petitioner has further contended that the respondents have two more sons and one of them is earning substantial income. According to the petitioner, the respondents cannot pick and choose him for the purpose of claiming maintenance. Petitioner contends further that it is not his sole responsibility to maintain the respondents. The other sons are equally liable to maintain the respondents. The petitioner finally contents that the respondents did not discharge their parental duty properly when the present petitioner was a child. The grievance was made that the respondents did not care for the education of the petitioner. On this count also the respondents are not entitled to get maintenance.

7. Both the contesting parties led oral evidence, in the Family Court. After hearing both the sides and taking into consideration the evidence brought on record, the Judge, Family Court, partly allowed the application filed by the respondents for maintenance and consequently, the present petitioner has been directed to pay monthly allowance of Rs. 200/- to the respondent mother by way of her maintenance from the date of order i.e. 14-7-1996. The claim of the father (respondent No. 2) has, however, been rejected by the Judge, Family Court, on the ground that he is able to maintain himself.

8. Feeling dissatisfied by the order of maintenance passed by the Judge, Family Court, petitioner (original respondent) has filed present criminal revision application.

9. Learned Advocate Shri R.N. Borulkar vehemently submitted that the respondent No. 2 is the husband of respondent No. 1 and, this being the position, it is his primary responsibility to maintain his wife i.e. respondent No. 1. Learned Advocate Shri R.N. Borulkar has advanced a proposition that , so long as husband is alive, it is his primary responsibility to maintain his wife and, therefore, the present petitioner cannot be compelled to pay maintenance to the respondent No. 1, though she happens to be his mother.

10. Learned Advocate Shri Darak for respondents forcefully submitted that the respondent No. 1 is aged mother of the present petitioner. She has no independent source of income and, therefore, she is unable to maintain herself. Respondent No. 2 has no sufficient means to maintain the respondent No. 1 .The present petitioner has sufficient means and, therefore, he is under statutory obligation to maintain his aged mother whose claim squarely falls within the ambit of Section 125(1)(d) of Cr.P.C. 1973. According to him, the status of respondents inter se is irrelevant for deciding the claim of mother.

11. I gave anxious consideration to the rival submission made at the Bar. It is not out of place to remember the mandate of Manu in the matter of maintenance of parents, wife and child. Manu said, "the aged parents, a virtuous wife and an infant child must be maintained even by committing a hundred misdeeds" Manu does not speak of solitary duty, it is moral duty of a person to maintain aged parents, virtuous wife and infant child. In discharge of this pious duty, Manu went to such an extent that he made hundred misdeeds pardonable.

During course of time, this moral duty assumed a legal character. The need was felt to introduce an enactment in this behalf. The Legislature, therefore, enacted Section 125 of Cr.P.C. to enforce social and moral obligations. Section 125 of Cr.P.C. reads as under :

125. Order for maintenance of wives, children and parents -- (1) If any person, having sufficient means neglects or refuses to maintain --

(a) his wife, unable to maintain herself or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself or

(d) his father or mother, unable to maintain himself or herself.

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, father or mother, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :

.... .... .... ....

12. In old Cr.P.Code, 1898, parents did not find place in Section 488. On witnessing plight of old parents, need to take revolutionary decision was felt.

The joint Committee of Parliament, while pleading the case of parents for maintenance, observed :

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 the mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means. If there are two or more children, the parents may seek the remedy against anyone or more of them.
Thus, parents are brought under protective umbrella of maintenance by enacting Section 125(l)(d) of Cr.P.C., 1973. By virtue of the special provision contained in Section 125(l)(d), Cr.P.C., 1973, the Magistrate is now competent to pass an order against a son for payment of monthly allowance for maintenance of the father or mother, who is unable to maintain himself or herself.

13. Under the circumstance, son is legally bound to maintain his mother if it is shown that mother is unable to maintain herself. It is not at all desirable that an earning son, who is well placed in the society, having possessed of sufficient means, shall allow his penniless mother to face starvation . The Indian Society casts a moral obligation on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is bounden duty of a son to look after his parents when they become old and infirm.

In addition to moral obligation, statutory obligation is imposed on the son, by virtue of Section 125(l)(d), of Cr.P.C., 1973, to maintain his aged parents, who are unable to maintain themselves. The whole purpose of rendering financial assistance to parents having no means to maintain themselves is to avoid starvation and penury.

14. The argument of learned Advocate Shri R.N. Borulkar does not at all appeal to reason if special provision contained in Section 125(l)(d), Cr.P.C., 1973, is taken into consideration. No doubt, factually, the respondent No. 1 is legally wedded wife of respondent No. 2 but the petitioner, being real son of respondent No. l, cannot successfully absolve himself from his statutory duty towards his mother in the matter of providing monthly allowance for her maintenance if she is found penniless. It is to be noted that when application under Section 125 was filed in the Family Court in 1995, the respondent No. 1 was 58 years old. We are in the beginning of years 2000. Now the respondent No. 1 is approximately 62 years of age. Her husband i.e. respondent No. 2 was 63 years of age on the date of filing of the application for maintenance. Therefore, today, he is approximately, 67 years of age. The respondent No. 2 retired long back as a teacher. He is getting pensionary benefits. It has come in the evidence that he receives monthly pension of Rs. 2,496/-. The petitioner No. 2 is a patient of diabetes and sodalities and, therefore, he requires constant medical treatment. Respondent No. 1 has absolutely no source of income of her own. In the given circumstances, she cannot expect any monetary assistance from her husband i.e. respondent No. 2. Therefore, only remedy available to such a helpless mother is to claim maintenance from her son. It is very unfortunate that an affluent son tries to avoid his moral as well as statutory obligation in the matter of payment of maintenance to his mother on the ground that it is primary duty of respondent No. 2, being husband, to maintain respondent No. 1.

15. The plain reading of S. 125 of Cr. P.C. would clearly indicate that person having sufficient means in case of neglect or refusal, is liable to maintain his father or mother unable to maintain himself or herself. The law contained in S. 125, Cr. P. Code does not contemplate preferential rights. We cannot import an altogether different idea in S. 125, Cr. P.C. Moreover, the Legislature does not at all so intend. Simply because the wife stands at Serial No. (a) and father or mother stand at serial No. (d) it cannot be said that Legislature intends to introduce a preferential right to the wife. The right of maintenance given under S. 125, Cr. P.C. to four categories of the persons is their independent statutory right created in their favour to avoid starvation. The statutory rights conferred on the wife, children and parents under S. 125, Cr. P. Code are not mutually exclusive but are co-extensive.

16. The argument of learned Advocate Shri Borulkar in this context is also liable to be rejected on another ground. If the logic put forth by learned Advocate Shri R.N. Borulkar is accepted then in that event the mother would be prevented from claiming maintenance from her earning son so long as her husband is alive. The law does not at all contemplate suspension of right of maintenance so far as mother is concerned. Though respondent No. 1 is legally wedded wife of respondent No. 2 she has claimed maintenance from her son as a mother under Section 125(1)(d) of Cr. P.C., 1973. Therefore, the claim of respondent No. 1 as a mother cannot be rejected on the logic of learned Advocate Shri Borulkar, if she is otherwise, on proof, entitled to claim maintenance from her earning son. The petitioner cannot be permitted to change the complexion of the claim of mother simply on the ground that she is legally wedded wife of the respondent No. 2.

17. Admittedly, the petitioner is in the Government service. The petitioner, therefore, has sufficient means. His wife, who is serving, is not dependent on him. Two minor children are dependent on him. The respondent No. 1 has got statutory right to claim maintenance from her son provided she is unable to maintain herself. In the instant case, it is proved that the petitioner has sufficient means and the respondent No. 1 is unable to maintain herself.

18. In order to succeed in the matter of claim of maintenance, the respondent No. 1 has to further show that the petitioner has neglected or refused to maintain her. If required proof of such neglect or refusal is tendered, the Magistrate is competent to make a monthly allowance for the maintenance of mother.

19. It is tried to be argued on behalf of the petitioner that the proof on the point of neglect or refusal is totally lacking in this particular case. I do not agree with Mr. R.N.' Borulkar.

20. The neglect or refusal may be express or implied and in the circumstances of a particular case, it becomes a matter of inference to be drawn by the Court from the conduct of the non-claimant. In order to buttress this view, one can lay hand on Mt. Dhan Kaur v. Niranjan Singh, MANU/PH/0224/1959 : 1960 Cri LJ 1494 : MANU/PH/0148/1960 : AIR 1960 P&H 595. It has been held that neglect or refusal may be express or implied and, in the circumstances of a particular case, it may be inferred by the Court from conduct of party from whom maintenance is claimed.

21. A reference can also safely be made to 1990 Cri LJ 830 (All) (Mithlesh Kumari v. Bindhawasani). In para 8 of the judgment it is observed that neglect or refusal can be inferred from the words and conduct of the husband. If there is a justification to live separately, neglect can be inferred.

22. The petitioner is since beginning complaining that he is not under moral or legal obligation to maintain his mother on the ground that the respondent No. 2, who happens to be her husband, is alive. He is not at all ready to spare anything for his mother. He is labouring under misconception that so long as his father is alive, it is his duty to maintain respondent No. 1, who happens to be his wife. From this conduct of the petitioner one can draw a legitimate inference of refusal.

23. The petitioner has come up with a specific case that he was not properly maintained by the respondents. They did not care for his education. He made serious grievance that his father did not give him 25 paise for pencil and eraser. According to him, his maternal uncle helped him to complete his education. Pointing out this circumstance, the petitioner tries to avoid payment of maintenance to his mother. It is to be noted that the statutory claim for maintenance of mother, as envisaged under S. 125(l)(d), Cr. P.C., 1973, is not dependent on her having discharged parental obligations during the childhood of the petitioner. A reference, with profit, can be made to Pandurang v. Babura, 1980 Cri LJ 256 (Bom).

24. In this case the father was the claimant. The son from whom maintenance was claimed raised a plea that the father had not cared him and his younger brother and had married second time after death of their mother. It was specifically contended that he was brought up by maternal grandfather and then by aunt. The Division Bench of this Court negatived the plea raised by the son and has held that the obligation to maintain an aged, infirm parent, who is unable to maintain himself or herself does not at all depend upon fulfillment of the parental obligation to maintain and bring up the children during the childhood of the children. The son cannot, therefore, ask to be relieved from the statutory obligation on any such moral considerations.

25. This moral and emotional earthquake of the son is capable of collapsing homes, weakling values, shattering families and threatening to crack open the very foundation of our Indian Culture. In highly sophisticated computer age, this is a message of gloom and doom without single word of hope. The petitioner is scratching his old scars. He is unmindful of good number of things. Because of his mother, he has been this beautiful world. Parents give each child name, places the child in a social class and gives national and religious identity. Parent plugs child into society in which he or she will live and grow.

26. Learned Advocate Shri R.N. Borulkar then submits that respondent No. 1 cannot claim maintenance from petitioner alone. She has another earning son and, therefore, another son is also equally liable to look after the mother. On this ground the impugned order of maintenance is also challenged by the petitioner. This argument is not tenable in law. In this behalf one can refer to the observations of the Joint Committee of the Parliament, referred supra. At the cost of repetition, I would like to reproduce some of the observations made by the Joint Committee of the Parliament.

If there are two or more children, the parents may seek remedy against anyone or more of them.
If the intention of the Legislature in enacting the special provision for parents is taken into consideration then there is no manner of doubt that the parents can claim maintenance from anyone or more of them. The choice is given to the parents. It is not the choice of the non-claimant. It is the choice of the claimant which is relevant. In this behalf I would like to refer a case decided by Madras High Court, reported in 1986 Cri LJ 6 (A. Ahathinamiligalv. Arumugham). Somewhat similar situation had arisen before Madras High Court. An application by parent was resisted by son on the ground that besides himself, respondent in that case had other sons and daughters and some of whom were earning and were living with the respondent. The single Judge of the Madras High Court negatived the objection of the son and observed (para 10) :--

When an order of maintenance is passed against any one under S. 125 it is not to punish that person for the past neglect or failure to maintain. The object is merely to prevent starvation of the person in whose favour the order is passed. The procedure has been simplified under S. 125 so that the cumbersome procedure that has necessarily to be followed in enforcing a civil right of maintenance may be avoided. The jurisdiction of the Criminal Court being summary in nature, is independent of and auxiliary to that of Civil Court. This being the object behind the provision, it is clear that any parent who is unable to maintain himself or herself, or who has a child, who has means, can resort to the above section for securing maintenance. The liability of a son to pay maintenance under the above provision is distinct from and independent of the liability of the other children in the family to maintain the parents. It cannot, therefore, be accepted, as a proposition of law that unless all the children are made parties in a claim for maintenance by the parent, the latter would not be entitled for an order of maintenance.
27. Learned Judge, Family Court, has awarded very reasonable amount of maintenance to the mother. Admittedly, petitioner is getting net income of Rs. 3.000/- per month. He also gets income by way of rent of the house. So far as his family is concerned, there is a financial assistance to him by his wife. The Judge, Family Court, has also taken into consideration that the respondent No. 1 is getting financial assistance from her another earning son intermittently. Under the circumstance, it cannot be said that the quantum of maintenance fixed by the Judge, Family Court, is harsh and beyond the paying capacity of the petitioner.

28. The impugned order of maintenance passed by the Judge, Family Court, in favour of mother, does not at all suffer from any illegality. The present criminal revision application is, therefore, without any merits.

29. In the result, criminal revision application filed by the petitioner stands dismissed. Rule is accordingly discharged. The petitioner to pay Rs. 1000/- to the respondent No. 1 by way of the costs of this criminal revision application.




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