Irudayamary vs Amirtharaj

Padmini Jesudurai, J.—The short question involved in this Revision is whether an earning married daughter can be directed u/s 125 Cr.P.C,

to pay maintenance to her father, having no means?

The respondent/father filed M.C.120 of 1981 u/s 125 Cr.P.C. in the Court of the Second Metropolitan Magistrate, Egmore, Madras, seeking

maintenance from his daughter, the petitioner herein, on the following averments. The respondent is a widower suffering from asthma. He has four

daughters, including the petitioner herein. He had educated the petitioner and after undertaking Nurses'' Training Course, the petitioner was

employed as a Staff Nurse in the Mother-Child Welfare Hospital at Egmore, drawing a salary of Rs. 1000/- per month. After her marriage, the

petitioner neglected and refused to maintain him and he has no means to maintain himself. He, therefore, sought maintenance of Rs. 200/- per

month from the petitioner.

The petitioner resisted the claim contending that she had had free education and it was her elder sister who had spent for her and the respondent

derives income by way of interest in certain deposits of his provident fund amount and was, therefore, not entitled for maintenance. She also

alleged that the other three daughters of the respondent, were presently maintaining him.

During the enquiry, the respondent was examined as P.W.1 and the petitioner was examined as R.W.1. The notice sent by the respondent to

the petitioner was marked as Ex.R-1 and the reply notice as Ex.R-2. The learned Magistrate found that the respondent had no means to maintain

himself, though the other three daughters were contributing a little towards his maintenance and the same was insufficient and the petitioner, being

well employed, had means and had neglected and failed to maintain her father. Considering the fact that the other three daughters were paying

something towards the maintenance of the respondent, he directed the petitioner to pay Rs. 75/- per month to the respondent for his maintenance.

Aggrieved with the order, this Revision has been filed.

Thiru A. Raghunathan, learned counsel for the petitioner urged two contentions in support of his prayer. It was initially submitted that a married

daughter could not be said to have failed and neglected to maintain her parent and such an idea was inconceivable. According to the learned

counsel, the petitioner was married and had her own family to look after and as such, no liability could be cast on a married daughter to maintain

her parents.

The above contention has to be straight away rejected in view of the direct decision of the Supreme Court in Dr (Mrs) Vijaya Manohar Arbat

Vs. Kashirao Rajaram Sawai and Another, . When the same question came up for consideration before the Supreme Court, drawing strength from

the use of the pronoun ""his"" in clause (d) of Section 125, the Court, rejected it by referring to Section 2(y), Cr.P.C. and Section 8 of the I.P.C.

and Section 16(1) of the General Clauses Act and held as follows:

Therefore, the pronoun ""his"" as used in Clause (d) of Sec.125(i) Cr.P.C. includes both male and female. In other words, the parents will be entitled

to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. Before ordering

maintenance in favour of a father or a mother against their married daughter, the Court must be satisfied that the daughter has sufficient means of

her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself

or herself.

Thus it is seen that when a doubt was raised whether the liability to maintain the parents could be cast on a married daughter, the court dispelled

the doubt and Laid down that the liability created u/s 125(1)(d) is equally on the sons as well as the daughters to maintain their father or mother,

who is unable to maintain himself or herself. The first contention of the learned counsel for the petitioner is, therefore, legally unsustainable.

It was then contended that the respondent has four daughters and the petitioner has been singled out for claiming maintenance and as such, the

order granting maintenance has to be set aside. The Joint Committee on the Criminal Procedure Code Bill, 1973, in its Report, has observed as

follows:

If there are two or more children, the parents may seek their remedy against anyone or more of them.

In A. Ahathinamaligai alias Muniswami v. Arumugham 1987 L.W. (Crl.) 278 , when a father sought maintenance from one of his sons, I have

held that such a claim could be made and it was not necessary that the claim must be made against all the children. The respondent, therefore, is

entitled to seek an order of maintenance from the petitioner alone.

Even on facts it is seen that the respondent has not made an arbitrary selection for claiming maintenance. Among his other daughters, one is a

staff nurse in the Government Stanley Medical College Hospital, Madras, another is a Physio Therapist in the General Hospital, Madras, while the

youngest is employed in the Finger Print Bureau in the I.G.''s Office at Madras. A.1 of them are married and have families of their own. The

respondent has stated that after his wife''s death, he was afflicted with asthma and for his maintenance, the other three daughters are paying him

money, whenever he asks them, but that when he approached the petitioner, the petitioner drove him away asking him not to come anywhere near

her house. Thus there is reason enough for the respondent to file this application against the petitioner alone. It is not denied that the petitioner is

one of the daughters of the respondent and that she is employed as a staff nurse in a Government Hospital and has sufficient means independent of

the means of her husband. The learned Magistrate has found that the respondent has no means to maintain himself. In such a situation, taking into

account the fact that the other three married daughters are contributing to the maintenance of the respondent, the learned Magistrate has fixed a

very paltry sum of Rs. 75/- per month, as the share of the petitioner towards the maintenance of her father. I see no error or illegality in the order

of the learned Magistrate.

This revision is accordingly dismissed.