JUDGMENT
S.K. Kar, J.
1. This is in application under Sections 397 and 401, CrPC, read with Section 482, CrPC, for setting aside the judgment and order dated 30.12.1994 passed by the learned Judicial Magistrate, 1st Class, Dibrugarh in Case No 76m/93 by which maintenance allowance of Rs. 100. 00 per month was granted to the opposite party.
The facts of the case briefly be stated are as follows :
The opposite party herein married for the second time while he started living in Assam. He donated his share of parental properties situated at Bihar to his first wife and two children living there. The opposite party started staying at Dibrugarh in Assam marrying for the second time. After few months, the first wife of the opposite party alongwith the children came to Dibrugarh and started living with the opposite party and the sons were helping the opposite party in selling the vegetables in a shop under Dibrugarh Municipal Board. Thereafter, the two sons from the side of the first wife demanded Rs. 600.00 and Rs. 5000.00 respectively for starting business of their own and in opposite party paid the said amounts to them. It has come to the knowledge of the opposite party six months subsequent thereto that the vegetable stall within the Dibrugarh Municipal Board, had since been mutated in the name of the present petitioners, which the opposite party thought of handing over to the children of the second wife. The opposite party lodged an objection before the Dibrugarh Municipal Board and on compromise, the petitioners agreed to retain the vegetable shop and to pay him @ Rs. 300.00 per month. After few years, the petitioners stopped paying the aforesaid amount of Rs. 300.00 per month and the vegetable shop was, not returned to the opposite party. Rather the first wife started staying along her sons separately. In the meanwhile, the opposite party having been developed eye troubles become blind, and as there were no means of livelihood, the second wife approached the petitioners for payment of Rs. 300.00 per month but they refused to pay the same. Thereafter the second wife of the opposite party alongwith her children also started living separately. The opposite party being aged and a blind person has been living without any support. The petitioners are running their business in the vegetable shop and other business earning minimum Rs. 3000.00 per month and the children of 2nd wife are still minor without any income, therefore, the opposite party has claimed Rs. 5000.00 per mouth as maintenance from the petitioners.
3. The petitioners herein contested the said Case No. 76/93 as the opposite party by filing written statement stating, inter alia, that right from the beginning the present opposite party tortured their mother and ultimately drove her out of his house for which she had to take shelter in the house of her relatives alongwith her children and that the opposite party had never cared for them. Instead, he married the 2nd wife in the year, 1965, and is living with her and that the petitioners are not living with him. The opposite party has children from the side of the 2nd wife who are major and that he was not a blind person and was having income of more than Rs. 2000.00 per month.
4. During the course of hearing before the learned Courts below, the opposite party examined himself and another witness. The present petitioners examined altogether four witnesses including some of them.
5. I have examined the entire materials on record, particularly, the evidence adduced by both the parties. The opposite party examined himself as PW-1 and deposed before the learned court below that the present petitioners are his sons from his first wife and he gifted his property to them and when he came to Dibrugarh they demanded Rs. 600.00 for vegetable business and Rs. 5000.00 for contract works which he paid to them and they used to give him @ Rs. 300.00 per month. But thereafter they refused to pay the aforesaid amount of Rs. 300.00. During cross-examination this witness stated that he has four sons and two daughters from his second wife and his second wife is also a working woman. He married for the second time in the year, 1964 for which his parents denounced him. He specifically stated that he has a rented house but he denied that he earned Rs. 1000.00 per month from the said rented house. He has no tax receipt as regard payment of tax to Municipal Board. He further stated that he did not file any complaint before the Municipal Board alleging that his sons have forcibly grabbed his vegetable shop. The other witness examined by him deposed that the opposite party has been surviving on begging. Neither he has any cultivable land nor any rented house but his second wire if she gets the work of maidservant usually she earns Rs. 5.00 to Rs. 10.00 per day. During cross-examination this witness stated that no summon had been issued to him to appear before the Court but he came to the Court as the opposite party requested him to do so. According to him, there are none but the present petitioners, earning Rs. 6000.00 per month, to provide maintenance to the opposite party. The opposite party thus failed to substantiate the allegation brought by him.
6. Section 125, CrPC, makes provision for providing maintenance allowance by the children having sufficient means, to their father or mother who is not possessing sufficient means to maintain him or herself. In the instant case, it is clear from the evidence on record that the opposite party has the source of income from his rented house. Further, he has grown up children – four sons and two daughters, from his second wife and his second wife is also a working person earning Rs. 5.00 to Rs. 10.00 per day. Therefore, the opposite party is able to maintain himself and there is no point for asking maintenance only from two sons of his earlier marriage, particularly when four of his sons by 2nd marriage major and earning members of the family with whom the opposite party is residing. The impugned order thus cannot be sustained.
7. In the result, the petition is allowed. The impugned order judgment dated 30.12.1994 in question stands quashed.