Namburu Ramanamma vs Polavarapu Sarojamma and Another

T. Ranga Rao, J.—This revision is filed under Sections 397 and 401 of the Code of Criminal Procedure to set aside the orders passed in M.C. No. 14 of 1992 Dated 27.6.1995 on the file of the Additional Judicial Magistrate of First Class, Nellore.

That was a petition filed u/s 125 of the Code of Criminal Procedure by the petitioner claiming maintenance against the respondents and the learned Magistrate dismissed the said petition.

The facts in giving rise to the filing of the revision are, briefly, as follows :

The petitioner Namburu Ramanamma filed petition in M.C. No. 14 of 1992 on the file of IV Additional Judicial Magistrate of First Class, Nellore claiming maintenance at the rate of Rs. 500/- per month mainly contend- ing that she is the legally wedded wife of the second respondent and the first respondent is the daughter of the petitioner and second respondent and they are having movable and immovable properties. It is further alleged that the petitioner was a sickly woman and not in a position to maintain herself and requested to grant the maintenance.

The first respondent filed a counter admitting that she is the daughter of the petitioner and second respondent. It is further stated that the first respondent is living with her husband at Amuluru village and the petitioner is living in the house of her eldest daughter. It is further stated that the second respondent is ready and willing to maintain the petitioner and hence, she is not entitled to maintenance.

The second respondent also filed counter admitting that the petitioner is his wife and the first respondent is one of his daughters. It is further alleged that the petitioner has not imp leaded the two other daughters with malafide intention, except one daughter and the second respondent, her husband. He is willing to live with the petitioner and hence, requested to dismiss the petition.

On behalf of the petitioner, she herself examined as PW-1 and another witness was examined as PW-2 and marked Exs. P-l and P-2. On behalf of the respondents, R-l and R-2 are examined as RW-1 and RW-3 and another witness was examined as RW-2 and marked Exs. R-l to R-3.

The learned Magistrate dismissed the petition on a technical ground stating that the maintenance petition cannot be filed against two persons.

Aggrieved by the said order, the present Revision Petition is filed before this Court.

The point that arises for consideration is whether the petitioner is entitled to file petition u/s 125 of the Code of Criminal Procedure against two or more persons ?

The learned Counsel for the petitioner submitted that the Trial Court erroneously held that it is mentioned in Section 125, Cr. P. Code "any person" but not "persons" and as the petition was filed against two persons i.e., the respondents herein, the petition is not maintainable and dismissed. He further submitted that "person" is not defined in Criminal Procedure Code, and it is mentioned in Sub-Clause (y) of Section 2 of the Code of Criminal Procedure, 1973, that the words and expressions not defined in Cr. P. Code but defined in Indian Penal Code have the meaning respectively assigned to them in that Code and Section 11 of the Indian Penal Code defines "person" as to include any Company, Association or body of persons, etc., and the same definition is also adopted u/s 3(42) of the General Clauses Act. He further relied on a decision Dr (Mrs) Vijaya Manohar Arbat Vs. Kashirao Rajaram Sawai and Another, , and also on a decision Padmanabhan Bahuleyan, Pazhamkonathu Ezhukone v. Unikkali Karthjayani, Kallekal Pathen Kadayil, Ezhukone and Anr. 1978 MLJ 201.

But the learned Counsel for the respondents submitted that the Magistrate is justified in dismissing the petition u/s 125, Cr. P. Code as the petition was filed against the daughter and husband and she cannot file the petition simultaneously against both and she can choose the husband in the first instance and if he has no means to pay the maintenance, then only she can choose either the sons or daughter, but not all of them simultaneously.

It is useful to extract Section 125 of the Code of Criminal Procedure to appreciate the rival contentions of both parties :

Order for maintenance of wive, children and parents-(1) If any person having sufficient means neglects or refused to maintain :-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself;

a Magistrate of the First Class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, or such child, father or mother, at such monthly rate not exceeding five hundred rupees in whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct; provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

It is true that it is mentioned in Section 125 of the Code of Criminal Procedure that a Magistrate on neglect or refusal to maintain, order such person to make a monthly allowance for the maintenance of his wife, legitimate or illegitimate child, etc.

It is mentioned in Sub-clause (y) of Section 2 of the Code of Criminal Procedure as follows :

(y) Words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code.

It appears that the word "person" is not defined in the Code of Criminal Procedure, 1973. Therefore, in view of Section 2(y) Cr. P. Code, the words and expressions used and not defined in Cr. P. Code and defined in Indian Penal Code have the meaning respectively assigned to them. The word "person" is defined in Section 11 of the Indian Penal Code as follows :

"....The word "person" includes any Company or Association, or body of persons whether incorporated or not....."

The same is the definition adopted for the word "person" in Section 3(42) of the General Clauses Act.

Thus it is clear that the "person" includes any Company or Association or body of individuals. The Supreme Court referred to the Joint Committee Report in para 5 of the recommendations in Dr. Mrs. Vijaya Manohar Arbat''s case, as follows :

".....The Joint Committee in their report made the following recommendations (para-5)

The Committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recognised by making a provision that where the father or mother is unable to maintain himself or herself, an order for payment of maintenance may be directed to a son who is possessed of sufficient means. If there are two or more children the parents may seek the remedy against any one or more of them..."

Thus the Joint Committee Report clearly indicates that the intention of the Legislature is that the petitioner u/s 125 Cr. P. Code can claim maintenance against two or more persons. The Supreme Court also observed to the same effect. I am fortified by the decision in Padmanabhan Bahuleyan Pazhamkonthu Ezhukone''s case. It is held by the Kerala High Court as follows :-

"....Section 125 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 person concerned, the claimant may choose those persons who, according to him or her, is 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 fact, a neglected parent who seeks maintenance against a particular son or daughter leaving out others would be taking a risk in asmuchas the maintenance that would be ordered would be dependent on the means of the person actually on record and the means of the other children would not be taken into account whereas if all the children are impleaded, the parent concerned may get more, taking into account the sufficiency of means or all the persons concerned....."

The observation of the learned Magistrate is fallacious and leads to multiplicity of the proceedings also. If a mother is having two or three sons and if she intends to claim maintenance against the sons, she has to claim maintenance against her sons one after the other, as observed by the Magistrate. The contention of the learned Counsel for the respondents also does not stand for any reasoning. If the petitioner is having husband, sons and daughters and if she wants to claim maintenance against all of them, she has to file petition against her husband in the first instance and then against the sons, etc., and such a course will cause great hardship to the persons who claim maintenance u/s 125 of the Code of Criminal Procedure. The object of Section 125 of the Code of Criminal Procedure is to provide quick relief and to save the dependants from destitution and vagarancy and to serve the social purpose. Therefore, in view of the foregoing discussion, I have no hesitation to hold that the learned Magistrate committed grave error in dismissing the petition on the ground that the petition u/s 125, Cr. P. Code is not maintainable against two persons. The petitioner is perfectly entitled to file the petition against two or more persons claiming maintenance u/s 125, Cr.P.C. and the order of the learned Magistrate is not sustainable in law and liable to be set aside. The Magistrate has not disposed of the matter on merits and hence, remanded the matter to the lower Court for disposal according to law.

In the result, the Criminal Revision is allowed and the order of the learned Magistrate dated. 27.6.1995 in M.C. No. 14 of 1992 is set aside and the matter is remanded to the lower Court to dispose of the matter, according to law, as expeditiously as possible.