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Mevaram Sen vs Komalprasad Sen on 5 April, 2018

THE HIGH COURT OF MADHYA PRADESH
CRR No. 758/2017
(Mewaram Sen Vs. Komal Prasad Sen Anr.)
Gwalior, Dated: 5/4/2018
Shri Arvind Kumar Dwivedi, Counsel for the
applicant.
This revision under Section 397/401 of CrPC has
been field against the order dated 5/7/2017 passed by
Principal Judge, Family Court, Shivpuri in MCRC No.
273/2015 by which the applicant has been directed to
pay Rs.2,500/- to each of the respondents by way of

monthly maintenance.

The necessary facts for the disposal of the present
revision in short are that the respondents, who are the
parents of the applicant, had filed an application under
Section 125 of CrPC on the ground that the applicant is
the real son of the respondents and was born on
30/9/1980. As the applicant was the eldest child of the
respondents, therefore, he was brought up with love and
affection and in spite of the fact that respondent No. 2 is
suffering from Asthama, there were no lapses in the
education of the applicant so that he may get good job in
future. For bearing educational expenses, the
respondents were compelled to take loan on various
occasions and ultimately, the applicant got a job in the
Indian Army. In the year 2006, the marriage of the
applicant was performed by the respondents by spending
beyond their strict financial condition and for bearing the
marriage expenses, they had taken loan. It was further
alleged that now the respondents are not financially
strong and because of old age, they are suffering from
various diseases and have no source of income, whereas
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the applicant is having sufficient income being the
Government employee. On 3/4/2015, the respondents
went to the house of the applicant and requested for
maintenance amount, but they were insulted and ousted
by the applicant from his house. Accordingly, a notice was
given, but no maintenance has been paid to them
whereas the applicant has additional income from the
agricultural land as well as by way of rent form his house
situated in Dabra, District Gwalior. Accordingly, an
amount of Rs.20,000/- was sought by way of
maintenance.

The applicant filed his reply and denied the
allegations made in the application. However, his
relationship with the respondents was not disputed. It
was denied that the respondents are suffering from any
disease. It was denied that the respondents had ever
taken any loan for bearing his educational expenses. On
the contrary, it was alleged that respondent No. 1 himself
is working as a barber and has two employees. He is
earning Rs.300-400/- per day whereas the younger
brother of the applicant is running a separate salon and is
earning Rs.400-500/- per day. Respondent No. 2 has 8
bighas of agricultural land and is earning Rs.2 lacs – 2.5
lacs per annum and the respondents are earning
Rs.5,000/- per month by way of rent of a house which
has been let out by the respondents. It was denied that
the respondents had ever come to the house of the
applicant. On the contrary, it was alleged by the applicant
that on most of the times, he remains on his duty and
3

being a Constable in the Indian Army, he rarely gets any
leave. As the applicant was not in a position to keep his
family along with him, therefore, he had left them with
the respondents, but they were ousted from his house by
the respondents and his younger brother Nandkishore
and now he has taken house on rent for lodging and
boarding of his family. It was denied that the monthly
income of the applicant from his service is Rs.30,000/-. It
was alleged that his younger brother is earning
Rs.12,000/- per month whereas respondent No. 1 is also
earning Rs.12,000/- per month independently and apart
from that he is earning Rs.5,000/- per month by way of
house rent. Accordingly, the application filed by the
respondents be dismissed.

Respondent No. 1 examined himself in support of
his evidence. He specifically stated that he and his wife
(respondent No. 2) are jobless and respondent No. 2 is
suffering from Asthama. The respondents have to bear
their medical expenses. The applicant is having an yearly
income of Rs.3,00,000/- and he is also earning
Rs.12,000/- per month by way of rent from his house.
Respondent No. 1 was cross-examined. He admitted that
he has three sons and two daughters. The second son is
Hariom, who is also working in military and is earning Rs.
35,000/- per month. The age of the applicant is around
37 years whereas the youngest son Nandkishore is two to
three years younger than Hariom. He further admitted
that earlier, he was working as a barber and at present,
his younger son is also working as a barber and is
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earning Rs.100-150/- per day. He denied that he is
having any independent source of income. He further
admitted that respondent No. 2 is having an agricultural
land, but denied that any agricultural activity is going on.

The applicant has also examined himself and he
pleaded that his younger brother is in Army and is having
a monthly salary of Rs.44,000/-. He is living all alone and
pays the maximum part of his salary to the respondents.
The younger son is running a Hair-cutting Salon and is
earning Rs.400-500/- per day and resides with the
respondents. It was further alleged that respondent No. 1
is also running a Hair-cutting Salon and is residing in his
own house. Respondent No. 2 has a house situated at
Kamla Ganj which has been let out and is getting
Rs.5,000/- per month by way of rent. Respondent No. 2
is having 5 bighas of land, yielding two crops a year. The
applicant is working in the Indian Army, having two
children. He has to bear the educational expenses of his
children also. In cross-examination, the applicant
admitted that the respondents are their parents. He
further admitted that his youngest brother and younger
sister are unmarried and they are residing with the
respondents. He further admitted that he is living
separately from the respondents. However, he explained
that in the year 2015, his family members were beaten
by his brother Nandkishore. His younger brother Hariom
is also working in Indian Army on the same post. He
further admitted that he is senior to his brother by one
year. He further admitted that he has not produced any
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document to show that his younger brother is earning
Rs.44,000/- per month. He further denied that he is
earning Rs.48,000/- per month. He further admitted that
Court litigations is pending between his younger brother
Hariom and his family. However, he denied that he knows
that Hariom’s wife has instituted 4 to 5 cases against
Hariom.

The Trial Court, after considering the evidence of
the parties and the documents on which the reliance was
placed, allowed the application and directed the applicant
to pay Rs.2,500/- per month to each of the respondents.

Challenging the order passed by the Trial Court, it is
submitted by the counsel for the applicant that the
applicant has two more brothers and it is their joint
liability to look after their parents and, therefore, the
applicant alone cannot be held liable for maintaining his
parents. He further submitted that the respondents are
having independent source of income and, therefore,
even otherwise, they are not entitled for maintenance.

None appears for the respondents though served.

Considered the submissions made by the counsel
for the applicant as well as perused the record.

During arguments, the counsel for the applicant
fairly conceded that he has not filed any document to
show that respondent No. 1 is a barber and he has also
not filed any document to show that his parents are
having any income from rent. The counsel for the
applicant also fairly conceded that the respondents can
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claim maintenance from any of their child and it is not
obligatory for them to claim equal maintenance from all
the children. The counsel for the applicant submitted that
if the respondents are ready and willing to stay with the
applicant, then the applicant is ready and willing to keep
the respondents with him and he would look after them.
When it was pointed out to the counsel for the applicant
that the applicant himself has admitted that the
respondents are living with their unmarried son and
daughter and whether the applicant is ready and willing
to keep his unmarried siblings with him or not, then he
fairly conceded that he is not ready to keep his unmarried
siblings with him.

Thus, under these circumstances, the offer given by
the counsel for the applicant that he is ready and willing
to keep the respondents with him, cannot be accepted
because it appears that such an offer has been made with
a view to avoid the payment of maintenance amount.
Nothing has been placed on record by the counsel for the
applicant to show that the respondents cannot claim
maintenance from their one child only and they are under
obligation to claim maintenance from all the children. If
the respondents are of the view that out of their five
children, only the applicant is in a position to maintain
themselves or is financially sound, then it cannot be said
that the respondents have committed any mistake by
filing an application under Section 125 of CrPC against
the applicant only. The applicant has also admitted in his
evidence that his younger brother Hariom, who is in the
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Army, is also facing various cases instituted by his wife
and, therefore, it can be inferred that the elder son of the
respondents namely Hariom, who is in Indian Army, is
also under obligation to bear additional expenses for
defending in the cases instituted by his wife and,
therefore, if the respondents have decided not to claim
any maintenance from their elder son Hariom, then it
cannot be said that there was any malafide intention of
the respondents in not claiming any maintenance from
Hariom. So far as the youngest son of the respondents is
concerned, it is clear that he is working as a barber and
is earning Rs.12,000/- per month. Since, the income of
the youngest son of the applicant is not a handsome
income, therefore, if the respondents have decided not to
claim any maintenance from their youngest son, then
again it cannot be said that there is any malafide
intention on their part. Admittedly, the respondents are
also under obligation to maintain their younger daughter
and to bear her marriage expenses.

Under these circumstances, this Court is of the
opinion that the Trial Court did not commit any mistake in
allowing the application filed by the respondents for grant
of maintenance.

Accordingly, order dated 5/7/2017 passed by the
Principal Judge, Family Court, Shivpuri is hereby affirmed
and the revision fails and is hereby dismissed.

(G.S. Ahluwalia)
AKS Judge

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