D. Shanmugham vs Pottiammal

M. Karpagavinayagam, J.—This is a revision filed by the petitioner Shanmugham, eldest son of the respondent Pottiammal, against the order

of maintenance dated 12-2-1993, in M.S. No. 2 of 1992, on the file of Judicial Magistrate No. 2, Kancheepuram, on the application filed by

respondent/mother, claiming maintenance under S. 125, Cr.P.C.

On 5-1-1992, the petition under S. 125, Cr.P.C. was filed by the respondent/mother in M.C. No. 2 of 1992 before the learned Judicial

Magistrate No. 2, Kancheepuram. The petitioner being the eldest son of the respondent herein has filed his counter on 18-3-1992. Thereafter,

mother/Pottiammal was examined before the trial Court on 4-6-1992 and 10-7-1992. The son/Shanmugham was examined on 28-1-1993. After

the evidence of both mother and son was over and after hearing both the parties, learned Judicial Magistrate by his order dated 12-2-1993,

allowed the claim case of the respondent herein, directing the petitioner to pay a sum of Rs. 300/- per month as maintenance to his mother, the

respondent herein, from the date of application viz. 6-1-1992. Aggrieved over this order, the present revision has been resorted to by the

petitioner, the eldest son of the respondent/mother.

Heard the learned counsel appearing for the revision petitioner. Though notice had been served on the respondent, she has not appeared either

in person or through any counsel.

The contention of the respondent/mother in her petition is that while her husband died in the year 1972, the properties acquired by her husband

were looked after by the petitioner, her eldest son, and that they were living together for seven years and when her second son demanded for

partition of the joint family properties, the petitioner drove away the respondent and her second son and that the joint family properties of 10 acres

land, two pumpsets and 40 coconut trees are being enjoyed by the petitioner son alone and when she demanded some amounts for maintaining

herself from her eldest son/petitioner, he refused to pay the same, which necessitated the respondent/mother to file the said petition before the trial

Court for awarding maintenance. Of course during her cross-examination she admits that she is now living with her second son, who is earning

about Rs. 600/- per month from out of his job in Christian Mission Hospital, Kancheepuram.

The petitioner, who is the eldest son of the respondent contended that except the poramboke land to the extent of one acre, the other properties

are his self acquired properties and that he filed a civil suit in O.S. No. 1826 of 1991 on the file of District Munsif Court, Kancheepuram, against

his mother and his younger brother, for the relief of permanent injunction, restraining them from interfering with his possession and enjoyment of the

properties and that from the year 1972, when his father died, the respondent/mother had been staying along with her second son Mani and that for

the past 20 years she had never come to his house and took food or shelter even on a single day and that she is not entitled to any maintenance,

since she had been living with her second son, who in earning Rs. 2,000/- per month, from out of his job in Christian Mission Hospital,

Kancheepuram and also Rs. 1,000/- p.m. from his private clinic. He admits in the course of cross examination that he has got one acre of

poramboke land which is the joint family property. He stated that in the year 1985, his younger brother got married in his house and he handed

over the said house to his younger brother, but the same house was now in his possession and enjoyment and not in the possession of either his

younger brother or his mother/respondent. He specifically deposed that he has taken back the house which was previously handed over to his

brother, the second son of the respondent, at the time of his marriage. He also admitted in his cross-examination that his mother had been living

with her second son only after his marriage held in 1985. The variation between his chief and cross-examinations would make it clear that his

contention that after the death of his father, his mother/respondent was living with her second son and she never came to his house for taking food

or shelter even on a single day, cannot be true.

The conduct of the petitioner in filing the civil suit for permanent injunction against his mother/respondent herein and his brother in respect of all

the properties including the joint family property is apparent that he is not inclined either to give maintenance to his mother or to allow her to enjoy

the landed or house properties, which are admittedly in possession of the petitioner. Merely because she had been staying along with her second

son, it cannot be contended that she is not entitled to get maintenance from her first son, the petitioner, especially when he is proved to be in an

affluent circumstances. Section 125(1)(d) Cr.P.C., provides that if any person having sufficient means neglects or refuse to maintain his father or

mother, who is unable to maintain himself or herself, the Magistrate, upon proof of such neglect or refusal, order such person to make a monthly

allowance for the maintenance of his father or mother, at such monthly rate not exceeding five hundred rupees. In this case, it has been established

as referred in the judgment of the Court below, that the respondent/mother was not able to maintain herself and the petitioner/son was having

sufficient means and as such, the respondent/mother is entitled to maintenance as awarded by the Court below.

Coming to the quantum of maintenance of Rs. 300/- per month, taking into consideration, the present income of the petitioner and the means as

spoken to by the respondent/mother herself and the fact that the petitioner has to maintain himself and his own family members, I feel that it is a fit

case in which this Court has to interfere to reduce the quantum fixed by the learned Judicial Magistrate. In that view, instead of fixing the rate of

maintenance at Rs. 300/- per month, interest of Justice would be met, if the same is reduced to Rs. 250/- p.m., for the reason that the second son

of the respondent/mother is also duty bound to maintain her, which he had done all along for the past years from 1985.

In view of the above discussion, the maintenance amount fixed by the Court below is modified into Rs. 250/- per month and the same shall be

paid from the date of maintenance petition. With this observation and modification, the revision is dismissed.

Revision dismissed.