K.A. Vishnumurthy vs K.S. Achutha Bhat

Aravind Kumar, J.—First respondent in C. Misc. No. 48/2011 is calling in question order dated 25.08.2014 passed by Family Court, Mysore, whereunder petition filed by the father under Section 125 of Cr.P.C. claiming maintenance of Rs. 10,000/- per month, came to be allowed in part and respondents 1 and 2 therein namely, sons have been directed to pay maintenance at Rs. 2,500/- per month each to the petitioner from the date of petition.

I have heard the arguments of Sri. R.V. Jayaprakash, learned counsel appearing for revision petitioner namely, respondent No. 1 before the Family Court and perused the order in question.

The contention of revision petitioner is that first respondent herein had filed a frivolous petition under Section 125 of Cr.P.C. seeking maintenance from respondents 1 and 2, making false claim and contending before the Family Court that present petitioner is the only son, though second respondent herein is also another son through first wife of petitioner and suppressing this fact, he has obtained the order from Family Court. He would elaborate his submission by contending that admissions given by P.W. 1 with regard to amount he is receiving by way of interest on his Fixed Deposit and also pension, has not been considered in proper perspective by the Family Court and thereby, it has resulted miscarriage in the administration of justice. He would further contend that there was a partition entered into between the family members and petitioner herein had given up his entire claim over the properties of joint family and the property obtained by his father under said partition had been transferred to second respondent herein on the same day and petition in question had been filed at the instigation of second respondent herein for extracting more money from petitioner and this aspect has not been properly considered by the Family Court in the light of evidence available and as such, order in question is liable to be set aside.

Having heard the learned Advocate appearing for the petitioner and on perusal of order passed by the Family Court, it would indicate that revision petitioner herein is the son of first respondent herein. First respondent is aged about 80 years as on the date of filing of petition. It is not in dispute that he had married for the second time and through second wife, petitioner herein and three daughters were born and out of the wedlock with his first wife, second respondent herein was born. These are undisputed facts and so also the fact that there was a partition in the family or settlement arrived at on 17.10.1995 between members of the family under which properties of joint family came to be divided and there was no property allotted to the share of petitioner herein.

Section 125 of Cr.P.C. is a succour provided to the wife, children and parents to seek for maintenance from husband, children, where there is neglect, refusal to maintain and also where such applicants are unable to maintain himself or herself. This Court is of the considered view that it would be necessary to notice the fact that ageing has become a major social challenge. Because of decline of joint family system and large number of elderly persons are not being looked after by their families. They are forced in their twilight years to be all alone and are exposed to neglect and not financially supported by their family members. To overcome this social challenge and in order to give more attention to care and protection of elderly persons, a provision available under Code of Criminal Procedure, 1973, namely Section 125 and under this provision parents can claim maintenance from their children. In fact, legislature having been noticed this provision and also having been found that procedure contemplated under Section 125 of Cr.P.C. is cumbersome and time-consuming, has now brought about a legislation called as "The Maintenance and Welfare of Parents and Senior Citizens Act, 2007". Objects and reasons to bring in the said enactment reads as under:

"Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents."

Said statute enables the parents to seek for maintenance and Section 12 of the said Act would indicate that dehors Section 125 of Cr.P.C. they would be entitled to seek for maintenance under the said Act. As such, it would be appropriate to clarify at this juncture itself that an order passed by Family Court or by this Court in the present revision petition, would not come in the way of first respondent enforcing his right under the said Act also.

Now turning my attention to the facts of present case and undisputed facts having already been stated hereinabove, contentions raised by Sri. Jayaprakash, learned counsel appearing for revision petitioner, requires to be examined with utmost circumspection. At the outset, it requires to be noticed that in the instant case first respondent - father while seeking payment of maintenance from his son namely, petitioner herein has stated in his petition that there was one more property bearing house No. 2803/8 situated at Mysore purchased by him in the name of his wife - Smt. Kamala under a sale deed dated 19.02.1975 and revision petitioner herein had obtained a Will through coercion from his deceased mother Smt. Kamala and signatures found in the said Will are forged. It was also contended by him that after the death of petitioner''s wife namely, mother of revision petitioner herein, he began to show hostile attitude towards him and on the pretext of taking care of his father revision petitioner has taken-away gold ornaments which belonged to his mother valued at Rs. 4 lakhs and it was also alleged that a sum of Rs. 3 lakhs cash kept by him (i.e., father) alleged to have been knocked away. It was also alleged by father that silver articles kept in two lockers valued at Rs. 3 lakhs was also taken away by the revision petitioner herein.

It is no doubt that said averments came to be denied by revision petitioner in toto before Family Court in the statement of objections filed by him. Clause (d) of Sub-section (1) of Section 125 of Cr.P.C. would enable the father or mother, as the case may be, to seek for maintenance not only in the case of neglect or refusal by the children, but where they are unable to maintain himself or herself, as the case may be. In the instant case, first respondent who is aged about 80 years as on the date of filing of petition, has stated that on account of his ill-health he had to shift from Mangalore to Mysore on account of he being unable to get accustomed to the weather of Mangalore. He has also admitted this fact in his cross-examination that due to said reason he got admitted to "Pejawara Dhama Vruddashrama" (old age home situated at Mysore). As such, contention of Sri. Jayaprakash, learned counsel for revision petitioner that, only when the petitioner is able to establish or prove that there was refusal on the part of son to maintain the father, he would get a cause of action to file a petition under Section 125 of Cr.P.C. cannot be accepted and said contention stands rejected.

Insofar as, contention regarding right of petitioner to pay maintenance to his father on account of a settlement deed having been entered into between the members of family is examined in the background of evidence which has been succinctly scrutinized by the Family Court, it would not detain this Court too long to reject the said contention, inasmuch as, distribution of properties between the family members, would not be a ground for revision petitioner to stave off his liability to maintain his father or mother, as the case may be. It might be true that petitioner herein might not have stated that his son had refused to maintain his father, but the averments made in the petition would clearly indicate that there was a justifiable cause for the father to recause himself from the company of his son namely, petitioner herein and seek umbrage to live in a old age home. Father has stated in his evidence that he requires to pay a sum of Rs. 4,500/- towards old age home expenses and he also requires a sum of Rs. 5,000/- towards medical expenses. Father has admitted in his evidence that he is getting a monthly pension through LIC policy scheme in a sum of Rs. 750/- per month and the fact that he is getting interest on the fixed deposit every 2 to 3 months has been taken note by the Family Court. It has been held by the Family Court that receipt of said amounts by father would not be sufficient to maintain himself. Taking note of the fact that father is in his 80''s suffering from various ailments, which requires to be attended to and expenses towards medical expenses will have to be met, this Court is of the considered view that Family Court has rightly directed the revision petitioner to pay a sum of Rs. 2,500/- per month to his father, which order cannot be construed as a finding recorded without proper appreciation of evidence. Hence, said contention also requires to be rejected and accordingly, it is hereby rejected.

Insofar as, financial capacity of present petitioner is concerned, it is an admitted fact that revision petitioner is having sufficient means and in his evidence he has admitted that he is getting income of Rs. 25,000/- per month apart from his business income and as such, Family Court has rightly held that father would be entitled to seek maintenance of Rs. 5,000/- from both sons. By taking into account the income that father was getting by way of interest on his fixed deposit, Family Court has directed each of the son to pay Rs. 2,500/- per month. Said order does not suffer from any error either in law or on facts, calling for exercise of revisional jurisdictional by this Court.

I find no ground to either admit this revision petition or order notice to respondents. Hence, revision petition is hereby dismissed. Order dated 25.08.2014 passed by Family Court, Mysore, is hereby affirmed.