HIGH COURT OF CHATTISGARH AT BILASPUR
Misc. Criminal Case No.726 of 2005
Lochan Prasad
...Petitioners
Versus
Banmali
...Respondents
{Petition under Section 482 of the Code of Criminal
Procedure, 1973}
! Mr. P.K.C. Tiwary, Senior Advocate with Mr. Shashi Bhushan, Advocate for the petitioner
^ Mr. H.V. Sharma, Advocate for the respondent
Honble Mr. T.P. Sharma, J
Dated:01/09/2009
: Judgment
ORDER
(Passed on 1st September, 2009)
1. Quashment of the order dated 30-11-2004 passed by the
1st Additional Sessions Judge, Mahasamund in Criminal
Revision No.148/2004, modifying the order dated 9-3-2004
passed by the Judicial Magistrate First Class, Mahasamund, in
Misc. Criminal Case No.11/2002 under Section 125 of the Code
of Criminal Procedure, 1973 (for short `the Code’), by
invoking the inherent jurisdiction under Section 482 of the
Code has been prayed by the petitioner, who is son of the
respondent.
2. Brief facts leading to filing of this petition are that
the petitioner, who is son of the respondent through first
wife, is living separately from the respondent. The
respondent has filed an application under Section 125 of the
Code against his son i.e. the petitioner for maintenance on
the ground of his inability to maintain himself and willful
neglect by the petitioner having sufficient means to maintain
his father. The petitioner has filed detailed reply and
alleged that the respondent is having sufficient means to
maintain himself, he is residing with his second son born
through his second wife who was having sufficient means to
maintain the respondent, but only with a view to harass him,
the respondent has filed application for maintenance. The
petitioner is not having sufficient means and the respondent
is having sufficient means for his maintenance.
3. After affording opportunity of hearing to the parties,
learned Judicial Magistrate First Class, Mahasamund has
awarded maintenance of Rs.500/- per month to the respondent.
Order of the Judicial Magistrate First Class was challenged
in criminal revision and the said order was modified on the
ground that both the sons of the respondent are liable for
maintenance and the amount of maintenance was reduced to
Rs.250/- per month.
4. I have heard learned counsel for the parties, perused
the order impugned and record of the Courts below.
5. Learned Senior Advocate appearing on behalf of the
petitioner argued that the petitioner is under moral
obligation to maintain his father and the petitioner has
categorically deposed in his statement that if his father
will reside with him then he will maintain him even he will
maintain his step-mother also and provide sufficient food &
other things to his father & step-mother, but his father does
not want to reside with him and only with a view to harass
him, his father has filed application for maintenance.
Learned Senior Advocate further argued that the respondent
has partitioned his land, area comprising of 10.05 acres
which was recorded in the name of the respondent, presently
more than 4 acres of land is in possession of second son of
the respondent, about 4-5 acres of land has also been
purchased by the respondent in the name of the wife of his
second son, 1.5 acres of land is in possession of the
respondent along with his second son and virtually about 10
acres of land is in possession the respondent & his second
son which is sufficient for maintenance of the respondent,
his wife, his second son & family of second son of the
respondent. Learned Senior Advocate placed reliance in the
matter of Chaturbhuj v. Sita Bai1 in which it has been held
by the Apex Court that deserted wife earning some income does
not disentitle her from claim of maintenance and the income
not sufficient to maintain herself still makes her unable to
maintain herself. Learned Senior Advocate further placed
reliance in the matter of Ram Dew Shah and another v. Jagan
Nath Shah2 in which the Gauhati High Court has held that
claim of aged father for maintenance allowance by the
children having sufficient means, father having source of
income from rented house, his second wife also working person
and father being able to maintain himself, there is no point
to ask for maintenance.
6. On the other hand, learned counsel for the respondent
opposed the petition and submitted that the petitioner is son
of the respondent and he is under obligation to maintain his
father who is unable to maintain himself. Although second
son of the respondent is also having land, but it does not
absolve the petitioner from maintenance of his father.
Learned counsel further submits that only meager and token
amount of Rs.250/- per month has been awarded to the
respondent against the petitioner, therefore, the petitioner
has utterly failed to make out a case for quashment of the
order impugned in terms of Section 482 of the Code for
invoking the inherent jurisdiction.
7. Factual matrix of the case on the basis of evidence
adduced on behalf of the parties reveal that the respondent,
father of the petitioner, has partitioned his land between
his two sons including the petitioner, himself and his
daughters. The respondent has retained only 1 + acres of
land for himself and has partitioned the remaining land
between his both sons equally and both the sons are in
possession of about 4 acres of land each. Second son of the
respondent from his second wife is also having lands, he is
in possession of the land which he has received on partition
and another 4 acres of land which has been purchased in the
name of his wife. This shows that second son of the
respondent is having sufficient property. This is not the
case in which the petitioner is not having sufficient means.
The respondent is the person who has given 4 acres of land to
the petitioner on partition. The respondent himself has
retained only 1 + acres of land. This shows the bona fide
partition made by the respondent who has retained only 1 +
acres of land for himself.
8. After appreciating the evidence, learned Judicial
Magistrate First Class has awarded only Rs.500/- per month to
the respondent which has been reduced to Rs.250/- per month
by the revisional Court. It is not disputed that the
petitioner is not under obligation to maintain his father.
Taking into consideration the meager/token amount of
maintenance of Rs.250/- per month awarded against the son who
is in possession of 4 acres of land obtained from the
respondent on partition, I do not find any scope for
interference with the order impugned.
9. Consequently, the petition is liable to be dismissed and
it is hereby dismissed.
J U D G E