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CR.RA/759/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 759 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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HASMUKHBHAI
NARANBHAI VIRAMIYA & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=================================================
Appearance :
MR
PRADEEP PATEL for Applicant(s) : 1 - 2.
PUBLIC PROSECUTOR for
Respondent(s) : 1,
RULE SERVED for Respondent(s) : 2,
MR JL
HAJARE for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 09/02/2011
ORAL
JUDGMENT
1. Petitioners
are sons of respondent No.2. Respondent No.2 father had filed
Criminal Miscellaneous Application No.585 of 2008 before the Family
Court, Rajkot seeking maintenance from his sons contending that in
old age he has no independent source of income and he is unable to
maintain himself.
2. Learned
Judge of Family Court, Rajkot by impugned order dated 9.9.2010
allowed the application partly and directed both the sons to pay
Rs.600/- each per month to the father. He thus received a total of
Rs.1200/- by way of maintenance from two sons.
3. In
the present case, the petitioners have opposed the order of
maintenance on various grounds, namely, that the father had deserted
the family many years back and has started leaving with another lady
without any valid marriage. From such cohabitation he also has one
son and one daughter against whom no claim is made. It is also the
case of the petitioners that the petitioners are willing to look
after the father if he resides with them. The case of the petitioners
further is that they do not have sufficient means to pay maintenance
to the father.
4. Counsel
for the petitioners drew my attention to the evidence on record to
point out that the cohabitation of the father with another lady and
this lady giving birth to two children out of such cohabitation are
admitted by him. Counsel for the petitioners submitted that the
father had not supported the family yet sold away certain immovable
properties from which he has received considerable amount. He also
instituted several proceedings seeking eviction of the petitioners
from the residential premises occupied by them.
5.
Counsel for the respondent No.2 was absent on numerous occasions, I,
therefore, had no benefit of his arguments.
6. So
far as the contention that the father has sold certain immovable
properties and raised considerable amount which could be source for
his sustenance is concerned, admittedly there is no evidence on
record in this regard. Such oral averments, raised for the first time
in the High Court, cannot be accepted.
7. In
so far liability of the petitioners to maintain their father, who has
no independent source of income, flows clearly from sub-Section(1) of
Section 125 of the Criminal Procedure Code. It reads as follows:-
“Section125.
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 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, as such
magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
xxx xxx xxx
8. In
absence of anything on record to suggest that the father had any
source of income whatsoever, the Family Court rightly believed that
he was unable to maintain himself, particularly, looking to his age
of about 72 years.
9. It
has also come on record that the father is not only aged but he is
also infirm and suffers from sickness time and again.
10. Regarding
ability of the petitioners to pay maintenance, learned Judge though
discarded the averment of the father that the sons are earning
Rs.12,000/- to 20,000/- per month, on the basis of evidence on
record, learned Judge believed that the petitioner No.1 would be
earning approximately Rs.3000/- per month and petitioner No.2
Rs.3,500/- per month. Considering their family liabilities, he asked
them to pay Rs. 600/- each to the father. With this assessment or the
ultimate direction, I find no infirmity whatsoever.
11.
It is true that the father had admitted that he had entered into an
agreement of friendship with one lady in the year 1990 and from such
cohabitation two children were also born. However, the petitioners
are currently stated to be aged 52 years and 48 years respectively.
In the year 1990, therefore, they were fully grown up in the age
group of 28 and 22 respectively. It, therefore, cannot be stated that
the father abandoned them in their infancy. Further the fact that the
father has not claimed any maintenance from other son, can hardly be
a ground to absolve these petitioners from their responsibility to
look after their father in his old age.
12. Under
the circumstances, the petition is dismissed. It is, however,
clarified that if the petitioners have any evidence to show that the
father, by virtue of sale of properties, has received considerable
amount, which could be his source of income, it would be open for
them to file application under Section 127 of the Criminal Procedure
Code before the Family Court.
13. With
above observations, petition is dismissed. Interim relief stands
vacated. Rule discharged.
(Akil
Kureshi, J. )
sudhir
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