Saraswati Devi vs Sunder Singh

A.L. Vaidya, J.—The facts giving rise to the present petition are that Smt. Saraswati Devi, who happens to be the step-mother of Respondent Shri Sunder Singh, preferred a petition before the Chief Judicial Magistrate, Kullu, u/s 125 of the Code of Criminal Procedure and prayed that the present Respondent be directed to pay the monthly allowance of Rs. 500/- in favour of the Petitioner, as she had no source of income. It was also pleaded by the step-mother before the trial Magistrate that she was issueless and her husband died in the year 1.985 and thereafter, she inherited the property of her husband, for which she had filed a suit against the present Respondent, which was compromised and the court decreed the suit on 3rd of January, 1986, awarding maintenance of Rs. 150/- per month to the Petitioner. As the amount awarded in that suit was not sufficient to maintain herself, therefore, petition u/s 125 of the Code of Criminal Procedure was preferred.

This petition was contested by the Respondent on two grounds, firstly, the step-mother has got no legal right to claim the maintenance, u/s 125 of the Code of Criminal Procedure, from the step-son, and secondly, she had already been granted maintenance through the decree of civil court, and the present petition, as such, was not maintainable.

The trial Magistrate dis-allowed the prayer of the present Petitioner, holding that step-mother has got no right to claim maintenance from the step-son u/s 125 of the Code of Criminal Procedure. It was also held by the trial Magistrate that in view of the civil court decree, the present petition was not maintainable.

The aforesaid order was assailed before the Additional Sessions Judge, Kullu in a Revision Petition preferred by the present Petitioner and the learned Judge after hearing the parties, maintained the order of the trial Magistrate and dismissed the revision petition.

The aforesaid orders, dis-allowing the prayer of the Petitioner for maintenance u/s 125 of the Code of Criminal Procedure, have been assailed in the present petition preferred u/s 482 of the Code of Criminal Procedure on various pleas.

The learned Counsel for the parties have been heard and the records have been minutely scrutinised.

The learned Counsel for the Petitioner has contended that the word "mother" used u/s 125 Code of Criminal Procedure includes the step-mother also. The learned Counsel''s line of arguments in this behalf has been that provisions of Section 125 Code of Criminal Procedure have been provided with the object of enabling deserted wives, helpless and deserted children and destitute parents, to secure the much needed relief, so as to prevent vagrancy. It has further been contended that in the present case, admittedly, the Petitioner was the step-mother of the Respondent, she comes within the purview of Section 125 Code of Criminal Procedure and was entitled for maintenance, if she proved her case to that effect. It is not so simple a matter, as has been contended on behalf of the Petitioner.

u/s 125(d) of the Code of Criminal Procedure, the father or a mother, unable to maintain himself or herself, can ask from the son, who has sufficient means, and who neglects or refuses to maintain the parents, a maintenance not exceeding five hundred rupees per month.

The expression "his father or mother" occurring in Section 125 Code of Criminal Procedure referred to above, nowhere specifically included the step-father or step-mother also. "Mother" in its ordinary sense means, the lady who has given birth to the person, from whom, the maintenance is asked for u/s 125 Code of Criminal Procedure This provision is a special provision enacted to cover a set of persons within its purview. It is not a general provision; through which maintenance could be asked by any person and for that purpose, the other laws governing the parties could be made use of. The step-mother, under certain circumstances, could ask for maintenance from her step-son under the provisions of personal law of the parties, and in the present case, such a right can be availed of under the Hindu Adoptions and Maintenance Act, as the present parties, admittedly, are Hindus.

The learned Counsel for the parties have tried to find some support from the decided case law.

In Ganga Sharan Varshney Vs. Shakuntala Devi and Another, it has been held that a step-mother can file an application for maintenance, and such application can be filed at a place where she resided. In this case, the point in dispute was the jurisdiction of a particular court, and with that background, it had been held that Section 125(1)(b) of the Code of Criminal Procedure should be liberally construed and should mean to enable the claimant in general whether wife, or child, or illegitimate child or mother or father to claim maintenance at the place where she or he resides, and, therefore, a mother can file an application for maintenance u/s 125 Code of Criminal Procedure in the district where she resided.

The question, whether step-mother has got any legal right u/s 125 Code of Criminal Procedure to claim maintenance from the step-son, was not at all involved in the aforesaid case, and the ratio, as such, is not at all, available to settle the controversy in the present proceedings.

The learned Counsel for the Petitioner has also tried to take some benefit from Pokuru Rangaiah Vs. Pokuru Chinnaiah and Another, I think, this case will, also be not helpful to settle the question involved in the present proceedings. In this reported case, the right of a Hindu woman to claim the maintenance under the Hindu Adoptions and Maintenance Act, has been discussed, and as to whether such a right is available under the Hindu Adoptions and Maintenance Act to a woman, in particular from her step-son. It has been held in this case that the right of a Hindu woman or widow to maintenance is founded on relationship, and a step-son has no statutory obligation to maintain his step-mother unless any portion or share of his father in the joint family property is allotted, devolved or taken by him, whereas in the case of a son, natural or adopted, and a husband, the primary liability to maintain his mother or wife, as the case may be, is a matter of a personal obligation arising out of relationship, irrespective of their possession of ancestral or self acquired property. That means, under the Hindu Adoptions and Maintenance Act, a woman would be entitled for maintenance from the step-son, in case, he acquired any portion of property of his father in the joint family property. Again, the proposition that step-mother can maintain the petition, u/s 125 Code of Criminal Procedure is not answered by this case.

On the other hand, the Respondent has relied upon Rewalal and Another Vs. Smt. Kamlabai, the relevant point in issue in the present proceedings have been answered in this case. Paras 6 and 7 are reproduced hereunder:

However, the case of a ''step mother'' was altogether different. As already mentioned above, as per its natural meaning, the word ''mother'' meant a female parent i.e. a woman who has given birth to a child. As per the said meaning, it did not include a ''step mother''. See Ramabai v. Dinesh 1976 M.L.J. 565. Again, as in the particular context the word ''mother'' received colour from the word ''father'', its natural meaning got extended so as to include an adoptive mother''. But, then, there was nothing in the particular context which could provide a reason, for extending the abovesaid extended meaning of the word ''mother'' any further so as to include a ''step mother'' also within its compass.

In the opinion of this Court, therefore, when Section 125 Code of Criminal Procedure provided that a ''mother'' unable to maintain herself was entitled to claim maintenance under the said Section it meant that a ''natural'' ''mother'' i.e. the woman who had given birth to the child and an ''adoptive mother'' i.e. the woman who had taken the child in adoption were alone entitled to make such a claim against the ''natural son'' and the ''adopted son'' respectively. A ''step mother'' was not entitled to make any such claim against her ''step son'' under the said Section.

In 1989 Crl. L.J. 673 ANDHRA PRADESH HIGH COURT (DB), Ayyagari Suryanarayana Vara Prasada Rao v. Ayyagari Venkatakrishna Venkatakrishna Veni and Anr., it has been held that step-mother cannot attain status of mother for purpose of claiming maintenance u/s 125. Code of Criminal Procedure It has further been held that the step-mother may seek the other remedies open to her in law.

Thus, on the basis of the aforesaid precedents, the interpretation given to the word word ''step mother'' by the two courts below does not suffer from any legal infirmity. The word ''mother'' used u/s 125 of the Code of Criminal Procedure, relates to the real mother, who has given birth to the son and admittedly, the step mother does not come within this purview.

In the present case, parties were at litigation earlier also, and the present Petitioner had filed a suit for declaration with a relief for possession of the property left by her husband. The suit was filed against Sunder Singh, the present Respondent and other heirs of the deceased husband of the Petitioner. In the alternative, the present Petitioner in that suit prayed for a maintenance of Rs. 300/- per month. The certified copies of the judgment and decree on record are Exp.P. 1 and Ext.P. 2. The suit was compromised and on the basis of compromise, a conditional decree in terms of the compromise in favour of the Plaintiff and against the Defendant for possession of 1/4th share of the land described in the decree was passed subject to the condition that the Plaintiff shall not be entitled to execute the decree in her favour till Defendants No. 1 to 5 go on paying the maintenance allowance of Rs. 150/- per month and make successive six defaults for six months. It was also ordered that monthly maintenance allowance of Rs. 150/- shall commence from January, 1986 and shall be payable on the expiry of the month only.

It is not being disputed in the present proceedings that as per aforesaid decree, the Respondent is paying Rs. 150/- per month to the Petitioner regularly.

On the basis of the aforesaid civil litigation between the parties, the Petitioner, otherwise, is, legally not entitled to ask for maintenance u/s 125 Code of Criminal Procedure In case, as has been referred earlier, she has got any right, she can avail that, in accordance with law.

Through the petition, preferred u/s 125 of the Code of Criminal Procedure, the Petitioner has asked for enhancement of maintenance amount from Rs. 150/- to Rs. 500/-. It may not be out of place to mention here that maintenance allowance awarded u/s 125 Code of Criminal Procedure can be altered u/s 127 Code of Criminal Procedure on proof of a change in the circumstances of any person, receiving, u/s 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit, provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded. The alteration asked for, can be made available to the Petitioner, in case, she had been granted this Rs. 150/- per month as monthly maintenance allowance u/s 125 of the Code of Criminal Procedure. As, it has not been so done accordingly, she has got no right to ask for alteration, which could be granted u/s 127 of the Code of Criminal Procedure. In this view of the matter, the petition is also not legally maintainable.

No other point has been stressed.

In view of the foregoing reasons, I do not find any merit in the present petition and dismiss the same, with no order as to costs.