JUDGMENT
Amitava Roy, J.
1. The judgment and order under challenge in the instant proceeding is one passed by the learned Principal Judge, Family Court, Guwahati on an application filed by the present opposite party Under Section 125 Cr.PC for maintenance for the petitioner. By the impugned judgment and order the learned court below has granted Rs. 500/- p.m. as maintenance to the opposite party payable by the petitioner herein.
2. I have heard Mr. H.N. Sarma, learned senior counsel assisted by Mr. K. Das for the petitioner as well as Mr. M.A. Sheikh, learned counsel for the opposite party.
3. Briefly stated the relevant facts are that the opposite party is the step mother of the present petitioner. She was married to the father of the petitioner when he (petitioner) was about 2 years old. Three daughters were born to the opposite party out of the wedlock. The O.P. in her application Under Section 125 Cr.PC alleged that after the death of her husband the petitioner started to torture her and ultimately drove her out of the house and took possession of her share of the property left by her husband.
Her daughters in the meantime, had been given in marriage and being driven out by the petitioner, she took shelter in the house of one her daughters. She prayed for a monthly maintenance of Rs. 700/- from the petitioner contending that he was a cultivator as well as a business man having landed property with an income of Rs. 2,500/- per month.
4. The petitioner in his written show cause while admitting the fact that the opposite party was married to his father and was his step mother denied the allegation of torture on her and contended that she had wilfully left the house and has been staying with her daughter voluntarily. While denying that he has any landed property, the petitioner contended that he was a daily labourer and that it was not possible for him to pay monthly maintenance of Rs. 700/- as claimed by the opposite party. He asserted that he always regarded her as his own mother and had shouldered the responsibility of the family including that of giving his three step sisters in marriage. It is his case that in the year, 1986 when the opposite party demanded her share in the properties of his father, there was a Panchayat where the properties were partitioned and the opposite party accepted her share thereof. Thereafter in the year 1992 she approached the petitioner to sell half bigha of land to him at a consideration of Rs. 13,000/-. The petitioner accordingly paid the aforementioned amount in instalments and an unregistered deed to that effect was also executed. He, therefore, contended that the opposite party was not entitled to any maintenance, she having left the house of her own. He, however, offered to maintain the opposite party if she returns to him.
5. The parties thereafter adduced evidence in support of their respective cases. The opposite party examined herself, her daughter Smti Bina Baroi, PW-2 and one Sri Hareswar Das (PW-3). On the other hand, the petitioner examined himself and two other witnesses, namely, Anil Chandra Das (DW-1) and Alaur Rahman (DW-2).
6. The evidence adduced on behalf of the opposite party is to the effect that she was the second wife of Sri Dhirendra Purkayastha, the late father of the petitioner. The petitioner was then 2 years old. She had 3 daughters through the said marriage who were all married. She was driven out from the house by the petitioner, as she raised objection to his ways of family life and therefore she was staying with her daughter and that she had no source of income. The evidence brought on record from the side of the petitioner is to the effect that the opposite party is staying with her daughter. There was a meeting over the claim of the parties pertaining to the properties left by the deceased husband of the opposite party, which she attended and in terms of the decision in the meeting, the petitioner paid Rs. 13,000/- to the opposite party.
7. The learned court below while passing the impugned judgment and order seems to have confined its attention to the plea of the petitioner that the properties after the death of his father had been partitioned, granting the opposite party her share thereof and the subsequent sale of the said share by the opposite party in favour of the petitioner for a sum of Rs. 13,000/-. The learned court below on a consideration of the evidence held that the opposite party had deprived her of the ancestral property and had driven her out without paying anything to her and thus she being an old lady was entitled to maintenance.
8. Mr. Sarma, learned senior counsel for the petitioner while assailing the impugned judgment and order has argued that the learned court below has totally misdirected herself in granting maintenance to the opposite party on the consideration that she had a share in the property left behind by her deceased husband and that the petitioner had illegally deprived her of the same. According to him, the learned court below ought to have examined at the out set as to whether the opposite party, being admittedly the step mother of the petitioner, was entitled to any maintenance under Section 125 Cr.PC as claimed by her. Referring to the said provision of law, the learned senior counsel has argued that the word ‘mother’ used therein does not contemplate a step mother and therefore the claim of the opposite party was wholly misconceived and untenable in law. He has argued that if this contention is upheld it is not necessary to go into the other aspects of the matter. According to him, the learned court below missed the real point involved and that the impugned judgment and order is clearly not sustainable in law and is liable to be set aside. Without prejudice to the above, he contended that admittedly the opposite party has three married daughters of her own and keeping in view the fact that the petitioner is her step son, he cannot in law be saddled with the liability of paying maintenance Under Section 125 Cr.PC. He has further submitted on instructions that the petitioner was at an relevant times ready to maintain the opposite party if she returns to his house. The learned senior counsel in support of his submission pressed into service the following authorities :
(1) AIR 1975 SC 113 Dhanraj, Appellant v. Smt. Surai Bai, Respondent.
(2) 1989 CRL. L.J. 673 Ayyagari Suryanarayana Vara Prasad Rao, Petitioner v. Ayyagari Venkatakrishna Veni and Anr., Respondents.
9. In reply Mr. Sheikh has submitted that this plea of untenability of the claim of the opposite party had neither been pleaded nor raised before the learned court below and therefore the same should not be entertained by this Court. He argued that admittedly the opposite party was married to the father of the petitioner when he (petitioner) was aged 2 years and that she had reared him up as her son and, therefore, he was liable in law to maintain her. He submitted that the facts and circumstances of the case was revealed that the opposite party was driven out of the house by the petitioner, depriving her of her share in her husband’s property. Drawing the attention of this Court to the written show cause submitted by the petitioner as well as the grounds taken in the revision petition, the learned counsel argued that it is clear therefrom that the petitioner had accepted the opposite party as his mother and, therefore, the learned court below was perfectly justified in awarding Rs. 500/- per month as maintenance. According to him, the opposite party was an old lady of 69 years and that if the order of maintenance passed is interfered with, it will result in serious prejudice to her.
10. I have extended my anxious consideration to the rival contentions of the parties. The plea of maintainability of the claim of the opposite party as raised in the instant proceeding being a pure question of law, I am inclined to examine the same, more particularly, as the same has a vital bearing on the out come thereof. Section 125 Cr.PC under which the application had been filed by the opposite party claiming maintenance inter alia mentions that if any person having sufficient means neglects or refuses to maintain his father or mother unable to maintain himself or herself, the appropriate court upon proof of such neglect or refusal may direct such person to pay monthly allowance as maintenance as it may think fit and proper. Though the explanation to Sub-section 1 of Section 125 Cr.PC indicates inter alia as to what the word ‘wife’ would connote for the purpose thereof, no such provision is available therein explaining the meaning and purport of the word ‘mother’ used in the said section of the Cr.PC.
11. It would be profitable at this stage to refer to a decision of the Apex Court rendered in Yamunabi v. Anatrao, AIR 1988 SC 644, where the question which had arisen for consideration was whether in interpreting the expression ‘wife’, ‘mother’, ‘father’ and ‘child’ used in Section 125 Cr.PC recourse to the provisions of personal law is permissible. The Apex Court while holding that one who intends to take benefit under Sub-section (1)(a) of Section 125 Cr.PC has to establish the necessary conditions enumerated therein, answered the question in the affirmative. In view of the above judicial dicta it would thus be open for the court to refer to the personal law of the parties to ascertain the true meaning of the word ‘mother’ for our present purpose. The decision of the Andhra Pradesh High Court in Ayyagari Suryanarayana Vara Prasad Rao v. Ayyagari Venkatakrishna Veni and Anr. (supra) is relevant in this context. A Division Bench of that court was seized with a question as to whether a ‘step mother’ is entitled to maintenance Under Section 125 Cr.PC. In answering this question, their Lordships of the said Court referred to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the ‘Act’) dealing with the maintenance of children and aged parents. In the explanation to the said section of the ‘Act’, it is provided that the word ‘Parents’ would include a childless step mother. The said provision of the Act makes it incumbent for a Hindu, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. The Court held that according to Hindu Law ‘mother’ is one who has given birth to the child and therefore though a step mother can be a dependant, but she cannot as a matter of right, claim maintenance under Section 125 of Cr.PC. The Court further noticed that the respondent-step mother therein had her own children and therefore was not childless. In this connection their Lordships also noticed that in the case of adoption of a son, he becomes aurasa son to the adoptive mother whereby she gets the status of mother, an analogy not applicable to the case of a step mother.
12. Having regard to the fact that the claim of the opposite party had been made under Section 125 Cr.PC, her entitlement thereto has to be ascertained in the touchstone of the requirements of the said provision of the Code. The opposite party being a step mother of the petitioner, as a dependent under the Act may have her claim against him subject to the fulfilment of the conditions enumerated under the provisions thereof but the same cannot be taken to be the basis to allow her claim for maintenance Under Section 125 Cr.PC. The reference to the personal law of the parties is only for the limited purpose of understanding the meaning and purport of the expression ‘mother’ for the case is hand. The parties being Hindus, in the instant case, Section 20 of the Act is relevant for resolving the controversy. As alluded above, explanation to the above section of the Act provides that the word ‘parents’ includes a childless step mother. The Act condifies the law relating to adoption of maintenance amongst the Hindu and the context as well as the setting in which the explanation has been provided is thus relevant for the present purpose. In absence of any indication in Section 125 Cr.PC with regard to the meaning to the word ‘mother’ intended to be provided by the legislature, I am of the view that useful and necessary guidance can be drawn from the explanation to Section 20 of the Act. In my view, from the language used in the explanation, a step mother with a child would not come within the sweep of the expression ‘parents’ entitled to maintenance under Section 20 of the Act. If that be so, I am not inclined to hold that a step mother with a child can be construed to be a ‘mother’ Under Section 125 Cr.PC entitled to maintenance thereunder. The entitlement under Section 125 Cr.PC is conditioned by the requirements incorporated therein and it would not be permissible to travel beyond the meaning provided to the expression ‘parents’ in the personal law of the parties, to confer a benefit to a person under law to which he or she otherwise not entitled under personal law. I would add that by saying so it, this Court may not be understood to hold that a step mother with a child is not a dependent under the Act but as her claim in issue is Under Section 125 Cr.PC, I do not consider it necessary to dilate any further on that aspect of the matter. Different considerations would follow while dealing with a claim of the dependants under the Act for maintenance and considering the state of materials on record and the nature of the present proceeding, any exercise in that line is not called for.
13. In view of the above discussion, I am of the considered view that the opposite party in the instant case, who is not a childless step mother of the petitioner, is not entitled to claim maintenance Under Section 125 Cr.PC. In that view of the matter the petition has to succeed. The impugned judgment and order is thus not sustainable in law and is hereby set aside. The finding of this Court as above would, however, not come in the way of the opposite party to pursue any other remedy available to her under the personal law or otherwise. The decision rendered herein is only in the context of her claim for maintenance under Section 125 Cr.PC as the step mother of the petitioner. The petition is, thus, allowed.
Considering the facts and circumstances of the case, there would be no order as to costs.