Bhawad vs Sau. Alka on 14 January, 2010

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                           BENCH AT AURANGABAD




                                                   
                 CRIMINAL WRIT PETITION NO. 955 OF 2009


           Shivaji s/o Baburao Bhabad @




                                                  
           Bhawad, Age : 45 years, Occ.
           Service, Resident of Vehlgaon,
           Taluka Nandgaon, Dist. Jalgaon                            PETITIONER




                                       
           VERSUS


           1.
                      
                 Sau. Alka w/o Shivaji
           Bhabad @ Bhawad, Age : 39
                     
           years, Occupation Household,

           2.   Kiran s/o Shivaji Bhawad,
           Age : 21 years, Occupation
      

           Labour Work,
   



           Both resident of Hatgaon, Taluka
           Chalisgaon, District Jalgaon.

                                                            RESPONDENTS





                                         ...

Mr. Paresh B. Patil, Advocate for the petitioner
Mrs. M.L.Sangit, Advocate for the respondents
…

                                        [ CORAM : P. R. BORKAR, J. ]

                                    DATE       :        14TH JANUARY, 2010

     ORAL JUDGMENT

1. Heard Shri. P. B. Patil, learned counsel for the petitioner

and Mrs. M.L. Sangit, learned counsel for the respondents.

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2. Rule. Rule made returnable forthwith.

With consent of parties, the matter is taken up for final

hearing.

3. Briefly stated, it is the case of the present petitioner that he

is husband of respondent No.1 and father of respondent No.2. The

respondents had filed Criminal Misc. Application No. 156 of 1999, under

Section 125 of Code of Criminal Procedure. Maintenance amount of Rs.

600/- per month was awarded to respondent No.1 and maintenance

amount of Rs.500/- per month was awarded to respondent No.2.

Thereafter, Criminal Misc. Application No. 129 of 2005 came to be filed

stating that respondent No.2 attained majority on 14th April, 2008 and

was earning, and, as such, not entitled to get maintenance, and

therefore, order of maintenance awarded to respondent No.2 be

cancelled.

4. Respondent No. 1 filed her written statement at Exh.8 and

denied that the respondent No. 2 had attained majority, and stated that

respondent No.2 was studying in 10th standard at Deolali, Nashik, and if,

maintenance is cancelled, he would not be able to complete his

education and starve.

5. The learned Judicial Magistrate First Class, Chalisgaon,

decided the application by his Judgment and order passed on 1st

February, 2008 and observed in paragraph No. 14 that the applicant in

his affidavit stated that respondent No. 2 had become major and also

filed Birth Certificate at Exh.11, but it does not bear the name of

respondent No. 2 – Kiran. However, in cross-examination, respondent

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No. 1 admitted that the Birth Certificate is of respondent No. 2 and that

he completed 20 years. But, according to her, respondent No.2 was

studying in 12th standard and was not able to maintain himself and

required maintenance for his education and livelihood. The learned trial

Court held that there is no change in the circumstances and dismissed

the application.

6. Against the said order of dismissal, Revision Application No.

44 of 2008 came to be filed in Sessions Court at Jalgaon. The learned

Sessions Judge decided revision application on 29th July, 2009 and held

that mother with whom such son is staying would be entitled for

maintenance after taking into consideration the amount which would be

required to be spent on maintenance of son. The learned Judge relied

upon the case of Geetanjali Gajanan Tendulkar V. Gajanan Dinkar

Tendulkar (1989 [1] Bombay Cases Reporter 334.

7. Heard counsel for both sides.

8. Section 125 (1) of Code of Criminal Procedure is as

follows :

“125. (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

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(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.”

9. To a specific query, Mrs. M.L. Sangit, learned counsel for

the respondents fairly admitted that it is not the case of respondents that

respondent No.2 is a child though attained majority, that by reason of

any physical or mental abnormality or injury, he was unable to maintain

himself. She stated that he is a normal child studying in 12th standard.

She further added that no such case was made out before the trial Court

and present case does not fall under clause (c) of Section 125 (1) of

Criminal Procedure Code and this case falls under clause (b) of Section

125 (1) of Criminal Procedure Code. Here, the son has attained

majority, and as per clause (b), only minor son is entitled to the

maintenance who is unable to maintain itself and it does not include

major son. The learned counsel for respondents, Mrs. M. L. Sangit relied

upon paragraph No. 4 of Judgment of Gitanjali’s case (cited supra) :

“4. I do not think that the law could be that inert. It is not
so much of law as it is of life. The rule of law must run
close to rule of life. The idea of granting maintenance is to
see that the wife and children get a standard of living on par
with the husband. Whether it is a full meal or half a meal,
each one is entitled to a share. If a son reaches the age of

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eighteen, it does not mean that as from that date he has to
starve. That is not the law. It only means that as from the
age of eighteen the law takes note of the fact that he has

capacity to earn. But if he still depends on his mother either
for study or for shelter, that fact will have to be taken into

account, when a mother (or wife) is given maintenance. He
is not given any maintenance. But the one who looks after
him gets it.

The above said are observations made in a matrimonial

petition filed by wife as against the husband on the ground of desertion

and cruelty.

The wife took out a notice of motion for interim

maintenance and costs. Thus, it was a matrimonial petition filed by the

wife against husband and it is not case that son who was major has

made application for maintenance. It is also clear from the final order

passed that the maintenance was awarded only to wife Gitanjali. The

learned Judge of the Family Court, who dismissed the notice of motion,

has refused to grant maintenance on the grounds that the petitioner

approached the Court after nineteen years and that she was residing

with a major son. It was held therein that merely because the petitioner

did not approach the Court for nineteen years or that she was having a

son who had attained age of majority, are no reasons to deny

maintenance to her. There is nothing in the Judgment cited to indicate

that major son was petitioner before the Court along with his mother.

So, the learned Sessions Judge did not correctly consider the ratio.

11. On the other hand, learned counsel for the petitioner relied

upon the case of Jagir Singh V. Ranbir Singh and another (AIR 1979

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Supreme Court 381). The Supreme Court has observed in paragraph

No. 8 that the order of maintenance made in favour of the major son

must be deemed to be an order made under Section 125 of the new

Code. It does not automatically cease to be effective on coming into

force of the new Code. Once the order under Section 488 of the old

Code is deemed to be an order under Section 125 of the new Code, it

must be so deemed for all purposes including the application of Section

127 of the new Code. It is further observed that the admitted attainment

of majority of the son and change of the law were surely circumstances

which entitled the father to have the order passed in favour of the son,

cancelled.

12. In view of the said ratio laid down by the Supreme Court, in

my opinion, the present petition must succeed. The orders passed by

both, Magistrate and the Sessions Judge are hereby set aside. It is held

that respondent No.2 – Kiran would not be entitled for maintenance

under Section 125 of Code of Criminal Procedure from the date on

which he attained majority.

13. The petition accordingly disposed of. Rule made absolute.

[ P. R. BORKAR ]

JUDGE
srm/WP/955/09

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