All children to be named to claim maintenance ?

IN THE HIGH COURT OF ORISSA, CUTTACK

RPFAM NO. 21 of 2014

Subash Darjee 
Vs
Basanti Darjee

P R E S E N T:

MR. JUSTICE S.K. SAHOO
Dated: 21.09.2016
Citation: 2017 CRLJ (NOC)90 Orissa

This revision petition has been filed by the petitioner Subash Darjee challenging the impugned order dated 30.11.2013 passed by the learned Judge, Family Court, Balangir in C.M.C. No. 1/37 of 2012-13 in rejecting the application filed by the petitioner to hold that the application filed by the opposite party Basanti Darjee, the mother of the petitioner under section 125 of 2 Cr.P.C. as not maintainable for not impleading the other sons and daughters of the opposite party as parties in the application.

2. The opposite party Basanti Darjee filed an application under section 125 of Cr.P.C. claiming maintenance against the petitioner Subash Darjee. It is her case that she is a widow and the petitioner is her eldest son and her husband died on 21.04.2008 and she is blessed with two other sons and two daughters but the other sons are living hand to mouth for which they were not made parties in the proceeding. It is her further case that the late husband of the opposite party left behind some properties which have been forcibly occupied by the petitioner and there are also rented houses and shop rooms and the petitioner is appropriating all the rents and profits of the house properties. It is her further case that the opposite party and her daughter have filed Civil Suit No. 144 of 2011 in the Court of the learned Civil Judge (Senior Division), Balangir for partition and other reliefs and the petitioner and other children of the opposite party are parties to the said suit. It is the case of the opposite party that the petitioner drove her out of the ancestral house and she was not provided with food and clothing and abusive language was hurled at all times and the petitioner had no respect for her. It is her further case that she is an old 3 lady and suffering from various ailments and the petitioner has denied food and clothing to her and she is unable to maintain herself out of the properties left behind by her late husband because of the high handed and illegal action of the petitioner and that the petitioner had gone to the extent of assaulting her for which she approached the police on several occasions for protection. It is further stated in her application that the petitioner is a man of means and he is in forcible possession of all the properties left behind by his father and also working as a lecturer in Dahimal College, Tusura and he is also running a coaching centre and his monthly income is around Rs.70,000/-. In spite of having sufficient means, the petitioner is refusing and neglecting to maintain her and accordingly, the monthly maintenance of Rs.7,000/- from the date of application i.e. 02.01.2012 was claimed by the opposite party against the petitioner.

3. On being noticed, the petitioner filed his show cause, inter alia, disputing the averments made in the 125 Cr.P.C. application. It is the case of the petitioner that another son of the opposite party namely Bikash Ranjan Darjee is having flower shop nearer to the Samaleswari Temple namely “Mahalaxmi Pushpa Bhandar” and his monthly income is not less than 4 Rs.20,000/- and that he is also a Railway and Air E-ticket travel agent and his income is not less than Rs.5000/- per month. It is further stated in the show cause that the opposite party and her son Bikash and daughter Kamalini were jointly residing in the dwelling house which measures an area of 3440 Sq. feet. It is further stated in the show cause that the petitioner has got no objection if the opposite party stays with his family but she is adamant and stays with her other son Bikash and daughter Kamalini and the later works as an Assistant Teacher in Khamarmunda Government Primary School and getting a salary of Rs.20,603/-. While disputing his own income, the petitioner stated in his show cause that he only gets Rs.3000/- while working as a lecturer in Political Science in the Privately Managed College of Dahimal. It is further stated that Nalini, Kamalini and Bikash have joined hands for not providing basic necessities of life to the opposite party.

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4. The petitioner filed an application with a prayer to dismiss the 125 Cr.P.C. application on the ground that the other sons and daughters have not been arrayed as opposite parties and that the petitioner has been singled out by the opposite party with an ulterior motive. The opposite party filed her 5 objection that the application filed by the petitioner regarding maintainability is a frivolous one and liable to be dismissal.

5. The learned Judge, Family Court, Balangir vide impugned order has been pleased to hold that the petitioner is the master of litigation and he/she would decide against whom he/she would fight out the litigation. It is further held that the opposite party has not arrayed her other sons and daughters except her eldest son (petitioner) as a party and there is nothing provided under section 125 Cr.P.C. that such a prayer of the opposite party against the petitioner is not maintainable in law and accordingly, the petition filed by the petitioner challenging the maintainability of the 125 of Cr.P.C. application on the ground that the other sons and daughters have not been arrayed as opposite parties was turned down.

6. The learned counsel for the petitioner contended that the other sons and daughters are equally liable to maintain the opposite party and in the objection, the petitioner has specifically stated that the other son and daughter of the opposite party have sufficient means to maintain the opposite party and therefore, in the fitness of things, the learned Judge, Family Court, Balangir should have directed the opposite party to at least implead her other sons as parties. He further contended 6 that what would be the quantum of maintenance against the other sons is a complete different aspect which is to be adjudicated at the appropriate stage but the other sons of the opposite party being the necessary parties for better adjudication of application under section 125 Cr.P.C., they should have been arrayed as opposite parties along with the petitioner.

Learned counsel for the opposite party on the other hand placed reliance in case of A. Ahathinamiligai -Vrs.- Arumughnam reported in 1988 Criminal Law Journal 6 wherein it is held that it cannot be accepted as a proposition of law that unless all the children are made parties in a claim for maintenance by the parents, the latter would not be entitled for an order of maintenance. Learned counsel for the opposite party further placed reliance in case of Mahendrakumar -Vrs.- Gulabbai reported in 2001 Criminal Law Journal 2111 wherein the decision of the Madras High Court in case of A. Ahathinamiligai (Supra) was relied upon and similar view was taken. Learned counsel for the opposite party further relied upon in case of Bharat Lal -Vrs.- Bhanumati reported in 1995 MPLJ 319 wherein it is observed that it was not desirable even though a son or a daughter has sufficient means, his or her 7 parents would starve. It is also their duty to look after their parents when they become old and infirm. The learned counsel for the opposite party further placed reliance in case of Anima Majhi -Vrs.- Arun Majhi reported in (2005) 2 CALLT 553 wherein it is held that the mother is residing at the charity and mercy of her daughter at the latter’s house will not absolve the son of his solemn legal duty to maintain her. Learned counsel for the petitioner on the other hand placed reliance in case of Smt. Kuni Dei @ Kuni Behadi -Vrs.- Pabitra Mohan Behadi reported in 2013 (II) Orissa Law Reviews 599 in which a Division Bench of this Court has been pleased to observe that in a proceeding under section 125 Cr.P.C., the major sons have equal responsibility to maintain the parents and therefore, both Pabitra and his three sons are duty bound under the provisions of law to maintain Kuni by paying maintenance for her sustenance.

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7. Section 125(1)(d) of Cr.P.C., inter alia, indicates that if any person having sufficient means neglects or refuses to maintain his father or mother who is unable to maintain himself or herself then a Magistrate of the First Class upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his father or mother. Proceedings under Chapter-IX of the Code are in the nature of civil proceeding. Proceedings of the Civil Court are substantial whereas the proceedings under Chapter-IX of the Code are of a summary nature. The strict formula applied for adjudication of a civil proceeding or petition filed therein cannot and should not be mutatis and mutandis applied in proceeding under section 125 of Cr.P.C. Before passing an order of maintenance under section 125 of Cr.P.C., the Court has to be satisfied that the person against whom the maintenance is claimed has sufficient means and the person claiming maintenance is unable to maintain herself or himself and that the person against whom maintenance is claimed is neglecting or refusing to maintain the person enumerated under clause (a), (b), (c) and (d).

In case of Basanta Kumari Mohanty -Vrs.- Sarat Kumar Mohanty reported in Vol.53 (1982) Cuttack Law Times 53, it is held as follows:-

“7. No doubt an order under section 125 can
be passed only if a person having sufficient
means neglects or refuses to maintain his
wife, child, parents etc. It is, however, well
settled that the expression ‘means’ occurring
in section 125 does not signify only visible
means, such as, real property or definite
employment and if a man is healthy and ablebodied,
he must be held to be possessed of
means to support his wife, child etc. The
Courts have gone to the extent of laying
down that the husband may be insolvent or a
professional beggar or a minor or a monk,
but he must support his wife so long as he is
able-bodied and can eke out his livelihood.”

8. In the present case, admittedly the other sons and daughters of the opposite party have not been impleaded as parties to the proceeding under section 125 of Cr.P.C. Though it is stated by the opposite party in her maintenance application that the other sons are living from hand to mouth but in the show cause, the petitioner has denied the same and stated specifically what one of the other sons of the opposite party was doing and what is his income. It is not disputed that the daughters of the opposite party are married. Whether the other sons of the petitioner are living from hand to mouth and whether they have got sufficient means are to be adjudicated at the appropriate stage of the proceeding by the Magistrate. Since there is nothing on record that the other sons of the opposite party are physically incapable and not able-bodied, therefore, it is necessary that they should be made as opposite parties in the 125 Cr.P.C. application as they have equal responsibility to 10 maintain the opposite party. The opposite party is at liberty to claim or not to claim any maintenance amount against the other sons and similarly whether those sons are liable to pay maintenance to the opposite party or not in view of their means and what would be the quantum of maintenance against each of the opposite parties has to be decided by the Magistrate at the appropriate stage. I am of the view that by impleading the other sons as opposite parties in the 125 Cr.P.C. application, the opposite party will not be prejudiced in any way rather if they are not made as opposite parties and the petitioner succeeded in establishing by way of evidence that they are also having sufficient means and that they are also equally liable to maintain the opposite party, in that event the Magistrate cannot pass any order of maintenance against the other sons if they not made parties in the 125 Cr.P.C. application.

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Therefore, I am of the view that even though the option lies with the opposite party to claim maintenance against one of the sons amongst all her children but in the interest of justice and in peculiar facts and circumstances of the case, I am of the view that for proper adjudication of the maintenance proceeding, it is necessary that the other two sons namely Bikash Ranjan Darjee and Rasbihari Darjee should also be 11 arrayed as opposite parties in the 125 Cr.P.C. proceeding. It is not necessary to make the daughters as opposite parties as they are married.

At this juncture, the learned counsel for the opposite party submits that the opposite party shall make an application before the learned Judge, Family Court, Balangir within fifteen days to implead the other two sons of the opposite party namely Bikash Ranjan Darjee and Rasbihari Darjee as opposite parties. If such an application is filed, the learned Judge, Family Court, Balangir shall allow such application, implead them as parties, issue notice to them and then proceed in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the prayer of the opposite party to claim maintenance either against the petitioner or against the other sons which is to be decided strictly as per of the evidence adduced by the respective parties during course of proceedings under section 125 of Cr.P.C.

It is submitted by the learned counsel for the opposite party that the maintenance proceeding is of the year 2012 and therefore, direction may be given for expeditious disposal. Considering the submission, the learned Judge, Family Court, Balangir is directed to expedite the matter and try to 12 dispose of the 125 Cr.P.C. proceeding within a period of six months from the date of service of notice on Bikash Ranjan Darjee and Rasbihari Darjee.

With the aforesaid observation, the RPFAM is allowed.

S.K. Sahoo, J.
Orissa High Court, Cuttack
The 21th September, 2016/Sukanta

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