A. Ahathinamiligai vs Arumughnam

The present revision is by the son of the respondent, who has been directed by the Chief Metropolitan Magistrate, Egmore, by an order under

S. 125, Cr.P.C. to pay monthly maintenance to the respondent at the rate Rs. 250/- per mensem.

The facts giving rise to the present revision are briefly as follows. The respondent filed an application under S. 125 Cr.P.C. on the allegation that

the petitioner is his son and that he is aged 60 years and is living with his wife who is aged 56 years and also with his five children who are

unemployed and that he was managing his big family with the income of the petitioner whose marriage he conducted in 1980 by borrowing a sum

of Rs. 10,000/-, and that even while the above debts were still outstanding, the petitioner left home contracting a second marriage with one

Karpagam on 3-6-1982, and thereafter had stopped coming to his house and had taken up a permanent residence elsewhere with his second wife

and the petitioner and his wife being too old and sick, where not able to maintain themselves and were starving without food and any means of

livelihood. The petitioner was a watchman in Madras Telephones godown and getting a pay of Rs. 600/- per month besides earning about Rs.

500/- by sale of raffle tickets and plastic articles. The respondent sought an order of maintenance at the rate of Rs. 300/- per month.

This action of the respondent was resisted by the petitioner on the ground that besides himself the respondent had other sons and daughters and

some of whom were earning and were living with the respondent and that, therefore, he is not liable to pay maintenance. Further, he contended that

his monthly pay was only Rs. 420/-, and he has no other source of income and he had to maintain his family from out of his pay and prayed for

dismissal of the petition filed by the respondent.

In the Court below, the respondent examined himself as P.W. 1, and the petitioner examined himself as R.W. 1. On behalf of the respondent,

Ex. P-1, showing the marriage between the petitioner and one Karpagam was marked. No documents were marked on the side of the petitioner.

The learned Chief Metropolitan Magistrate on the basis of the materials placed before him found that the respondent had no means to maintain

himself and that the averments of the petitioner that some of the other brothers and sisters in the family were earning had not been substantiated and

that the petitioner had neglected and failed to maintain the respondent and fixing the pay of the petitioner at Rs. 612/-, per month, ordered monthly

maintenance to be paid to the respondent at the rate of Rs. 250/-. Aggrieved with the above order, this revision has been filed.

Thiru S. Kanakasabai, learned counsel for the revision petitioner submitted that the liability of the petitioner to maintain the respondent could not

be fixed on him alone and that his liability to maintain was coexistent with the liability of his four brothers and three sisters who were also equally

bound to maintain their father, the respondent herein, and that the respondent could not succeed unless his four other sons and three daughters

were also made parties in these proceedings, and maintenance was claimed against them as well. According to the learned counsel, the words ''any

person'' found in Clause (1) of S. 125, Cr.P.C. would include the sons as well as daughters and the word ''his'' in sub-clause (d), of S. 125,

Cr.P.C. would include ''her'', and therefore, it was not open to the respondent to pick out one among his several children and make him liable to

pay maintenance. In the alternative, it was also submitted that the respondent had not established that he had no means to maintain himself since

there was no averments that some of his other children who were living with him were also earning. He also submitted that the amount awarded

also was excessive. Per contra, Mrs. Sudha Ramalingam, the learned counsel for the respondent submitted that S. 125, Cr.P.C. created a

statutory obligation on the persons mentioned in the section and the liability created by the statute should be subject to the conditions laid down in

the statute itself, and when S. 125, Cr.P.C. did not stipulate that proceedings had to be instituted only against all the children, such a condition

could not be imported into the section and it was open to a parent to seek maintenance from any one of his children, who having means had

neglected and failed to maintain the parent. The learned counsel also placed certain decisions to which I shall refer later.

The question that arises for consideration is whether this Court under its revisional jurisdiction is to set aside the order of the learned Chief

Metropolitan Magistrate as manifesting any illegality or error resulting in miscarriage of justice.

No serious averments has been made by the petitioner that his father, the respondent, has any independent source of income. The respondent is

aged 60 years and is living with his wife aged about 56. All that the petitioner would say is that besides himself, the respondent has four other sons

and three daughters some of whom are earning and are living with the respondent. The respondent has denied the several suggestions that have

been put to him that his other children are employed and are giving him money. There is no document to indicate the contrary. On a consideration

of this material, the Court below found that when admittedly the respondent has no independent income or employment of his own, the vague

averments of the petitioner that the other children are employed and give money to the respondent cannot be accepted. I am unable to see any

perversity or error in the above finding. It is also clear that the petitioner has means and has failed and neglected to maintain the respondent. All

necessary ingredients of S. 125, Cr.P.C., therefore, are clearly made out.

The learned counsel for the petitioner, however, submitted that he cannot be directed to pay maintenance unless, all the children of the

respondent are made parties in these proceedings and maintenance is claimed from all of them and it is not open to respondent to pick out one

among the several children and seek an order of maintenance against him alone. Art. 14 of the Constitution, the learned counsel submitted, was

violated.

To appreciate the above legal contention, one has to keep in mind the object of S. 125, Cr.P.C. The liability to maintain is given statutory

recognition under the personal law of different religious denominations. Independent of that liability S. 125, Cr.P.C. has been enacted. This

provision is enacted on public grounds based upon social necessity,. It is a speedy remedy that is given to starving wives, children and parents for

the specific purpose of preventing vagrancy and destitution. That starvation should not throw such people into streets inducing them to perpetrate

crime or making them possible victims of crime, this provision is made for providing such people with the cheap and speedy but limited remedy

available under S. 125, Cr.P.C. It is clear that the object, therefore, is preventive and not punitive. The section has been enacted to prevent

starvation and not to punish any one for the failure or neglect to maintain others. When an order of maintenance is passed against any one under S.

125, Cr.P.C. it is not to punish that person for the past neglect or failure to maintain. The object is merely to prevent the starvation of the person in

whose favour the orders is passed. The procedure has been simplified under S. 125, Cr.P.C. so that the cumbersome procedure that has

necessarily to be followed in enforcing a civil right of maintenance may be avoided. The jurisdiction of the criminal Court being summary in nature,

is independent of and auxiliary to that of the civil court. This being the object behind the above provision, it is clear that any parent who is unable to

maintain himself or herself and who has a child, who has means, can resort to the above section for securing maintenance. The liability of a son to

pay maintenance under the above provision is distinct from and independent of the liability of the other children in the family to maintain the parents.

It cannot, therefore, be accepted as a position of law that unless all the children are made parties in a claim for maintenance by the parent, the latter

would not be entitled for an order of maintenance. In fact, a similar view has been taken by the Kerala High Court in Bahuleyan v. Karthiyani,

1978 KLT 73, wherein a similar legal contention was unsuccessfully put forth on behalf of an affluent son from whom his indigent mother sought

maintenance. P. Janaki Amma J. has observed as follows -

S. 125, as already stated, does not say that the claimant should bring on record all the persons against whom he or she is entitled to claim

maintenance. The liability being dependent on the means of the persons concerned, the claimant may choose those persons, who, according to him

or her, are having sufficient means. The proceedings being of a summary nature, the Court also is not bound to enquire whether there are other

persons against whom the liability to maintain is cast under the personal law and is not bound to insist that such persons should be brought on

record so that the proportionate liability of each of such persons can be fixed.

In Raj Kumari Vs. Yashodha Devi and Another, , the Punjab High Court has held that the words ''any person'' and ''such person'' in S. 125,

Cr.P.C. connote only father or son or husband and do not include a daughter. It is, therefore, open to a person who is unable to maintain himself

or herself, to claim maintenance from any one of the children whom he or she finds has sufficient means and yet has neglected or refused to

maintain the parent. It is not necessary that in an application under S. 125, Cr.P.C., all children should be shown as respondents and maintenance

should be sought for from all of them. I am unable to accept the contention of Thiru Kanaksabhai to the contrary.

Regarding the quantum of maintenance awarded by the Court below, it is seen that even according to the respondent, the petitioner is married

and has a daughter and is living in an independent house. The Court below has fixed the pay of petitioner at Rs. 612/-. A sum of Rs. 250/- out of

this Rs. 612/- would leave only Rs. 362/- for the petitioner, his wife and child. Under the circumstances, I feel that a sum of Rs. 150/- per mensem

would be a reasonable sum.

It is submitted that the petitioner has been paying the respondent maintenance at the rate of Rs. 100/- per mensem pending disposal of this

criminal revision petition as per order of this Court. The petitioner shall continue to pay maintenance at the rate of Rs. 100/- per mensem till the

disposal of this criminal revision case and thereafter shall pay maintenance at the rate of Rs. 150/- per mensem.

In the result, the revision is partly allowed.

Order accordingly.