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Mrs Santoshi Dattatray Puri vs Mr Kalidas S/O Kashinath Puri And … on 3 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 906 OF 2016

Mrs. Santoshi Dattatray Puri,
Age 45 years, Occ. Service,
C/o House of Vishwanath Giri, … Petitioner.
Opp. Medical College, Somwanshi
Nagar, Aarvi, Latur.
VERSUS.

1 Mr. Kalidas s/o Kashinath Puri … Deleted

2 Mrs. Laxmibai w/o Kalidas Puri,
Age 66 years, Occ. Housewife,
R/o. C/o. Smt. Anusaya Adinath … Respondents.
Puri, Vishal Nagar, Swami
Samarth Nagar, Near Khandesari,
Aarvi, Latur.


Advocate for Petitioner : Mr. M.M. Dabholkar.
Advocate for respondents : Mr. S.S. Halkunde.

WITH
CRIMINAL WRIT PETITION NO. 817 OF 2016

Mr. Dattatray Kalidas Puri,
Age 45 years, Occ. Service,
C/o House of Vishwanath Giri, … Petitioner.
Opp. Medical College, Somwanshi
Nagar, Aarvi, Latur.
VERSUS.

1 Mr. Kalidas s/o Kashinath Puri … Deleted

2 Mrs. Laxmibai w/o Kalidas Puri,
Age 66 years, Occ. Housewife,
R/o. C/o. Smt. Anusaya Adinath … Respondents.
Puri, Vishal Nagar, Swami
Samarth Nagar, Near Khandesari,
Aarvi, Latur.

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Advocate for Petitioner : Mr. M.M. Dabholkar.
Advocate for respondents : Mr. S.S. Halkunde.

CORAM : K. L. WADANE, J.
Reserved on : 02nd April, 2018.
Pronounced on : 03rd April, 2018.

JUDGMENT

1. The petitioners have assailed the order passed

by the Appellate Tribunal dated 18.05.2016 in Appeal

presented under section 16 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007

(hereinafter referred as “Senior Citizens Act”). The

parties herein shall be referred in their original

status.

2. Applicant No. 1 Kalidas and applicant No. 2

Laxmibai have filed an application for maintenance

under the provisions of Section 5 of the Senior Citizen

Act on 23.11.2015 before the learned Tribunal at Latur

against the respondent No. 1 Dattatraya and his wife

respondent No. 2 Santoshi. The applicants have

contended that the respondent No. 2 is in government

service and getting Rs. 40,000/- per month by way of

salary. Likewise respondent No. 2 Santoshi is also a

government servant and serving as a nurse and getting

Rs. 45,000/- per month by way of salary.

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3. Applicants No. 1 and 2 have further contended

that both of them are old aged having no source of

earning. Applicant No. 1 alienated the ancestral

property in favour of respondent No. 1, as respondent

No. 1 assured him to pay Rs. 10,000/- per month by way

of maintenance. The applicant No. 1 is heart patient

and applicant No. 2 is a Asthama patient. Hence both of

them have claimed maintenance of Rs. 10,000/- per

month.

4. The petition was resisted by the respondents

on the ground that the applicants have sufficient

source of earning as well as they are holding immovable

property.

5. Considering the evidence on record, learned

Tribunal has awarded maintenance to the applicants at

the rate of Rs. 2500/- per month. The respondents

assailed this order before the Appellate Tribunal by

filing appeal. Same was heard and rejected by the

Appellate Tribunal. Hence, the original respondents

have preferred these two writ petitions.

6. During the pendency of these petitions

original applicant No. 1 Kalidas died, therefore his

name is deleted from the array of the petition.

7. I have heard the arguments of learned counsel

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for respondents as well as learned counsel for

applicant No. 2.

8. Learned counsel for respondents has submitted

that certain immovable property is in the name of

applicant No. 1 and by selling water the applicants are

getting sufficient income. Secondly; he argued that

respondent No. 2 Santoshi is not a children covered

under the definition of ‘children’ as defined in

section 2 of the Senior Citizen Act, therefore, order

directing the respondent No. 2 to pay maintenance is

without jurisdiction. The respondent No. 2 i.e.

daughter-in-law of the applicants is not liable to pay

the maintenance. Thirdly, learned counsel for

respondents has argued that the petition for

maintenance is not filed against another brother of

respondent No. 1 namely Someshwar and lastly learned

counsel for respondents argued that the respondent

No. 1 is ready to maintain his mother. He further

submitted that the petition before the Tribunal was

filed by the applicants on the instigation of other

siblings.

9. As against this learned counsel for applicant

No. 2 submits that there is no bar to file the petition

for maintenance against one of the child. Furthermore,

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the landed property which the applicant No. 1 has

allotted to the respondent No. 1 is in common

possession of the respondents No. 1 and 2. Therefore,

respondent No. 2 is also liable to pay the maintenance

amount.

10. Looking to the submissions made by both the

counsels, I am of the opinion that the respondent No. 2

namely Santoshi is not covered under the definition of

“children” of the Senior Citizens Act, which reads as

follows:

2(a) “Children” includes son, daughter, grandson

and grand-daughter but does not include a minor.

11. Admittedly, the respondent No. 2 Santoshi is

daughter-in-law of the applicants and therefore is not

a “child” within the meaning of definition of

“children”, therefore, obviously she is not responsible

to pay amount of maintenance.

12. As far as the aspect of maintainability of

application is concerned, Section 4 of the Senior

Citizens Act is very important to that effect, from

which it is crystal clear that a senior citizen

including parent who is unable to maintain himself from

his own earning or out of the property owned by him,

shall be entitled to make an application under section

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5 of the Senior Citizens Act against one or more of his

children, nor being a minor. The relations between the

parties are not in dispute, therefore, the applicants

have filed the petition for maintenance under the

provisions of Section 5 of the Senior Citizens Act is

maintainable against one of the children. Therefore

there is no bar to include all the children and make

them as respondents.

13. Learned counsel for respondents submitted that

the applicants have presented the application under

section 125 of the Code of Criminal Procedure before a

Criminal Court at Latur. Therefore, the present

proceeding is not maintainable, in view of the

provisions of section 12 of the Senior Citizens Act.

14. I have perused the documents produced on

record in this proceedings, from which it appears that

the applicants have filed proceedings under section 125

of the Code of Criminal Procedure, in which the

respondents have appeared and submitted their say. In

para No. 16 of their say they have contended that the

applicants have filed proceedings under the Senior

Citizens Act.

15. Thus from record it reveals that the

proceedings under section 125 of the Code of Criminal

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Procedure is still pending for consideration in the

Criminal Court at Latur and the petition presented

before the Tribunal and the appeal presented before the

Appellate Tribunal were disposed of, against which the

present two writ petitions are filed.

16. Looking to the section 12 of the Senior

Citizens Act it reveals that, this clause provides that

where a senior citizen or a parent is entitled for

maintenance under this Act and also under Chapter IX of

the Code of Criminal Procedure, 1973 relating to the

maintenance of wives, children and parents, the parents

or senior citizens will have the option to pursue their

claim either under the Code of Criminal Procedure, 1973

or under the provisions of this Act.”

17. In view of the aforesaid provision certainly

the applicants are not entitled to pursue both

remedies. However, looking to the facts and

circumstances of the case, the proceedings under

section 125 of the Code of Criminal Procedure is still

pending and it is not concluded. In such circumstances,

the respondents can very well raise this question

before the Criminal Court regarding the option on which

the Criminal Court may decide the maintainability of

proceedings under section 125 of the Code of Criminal

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Procedure.

18. The applicants are old aged persons. During

the pendency of the writ petitions one of the applicant

namely Kalidas died. From the record it appears that

the applicant No. 2 Luxmibai is also old aged. The

reasons recorded by the learned Tribunal as well as

Appellate Tribunal are appears to be just and proper.

Therefore, it is not necessary to disturb their

findings except the liability of payment of maintenance

by the respondent No. 2 Santoshi.

19. In such circumstances, following order is

passed.

O R D E R

i) Criminal Writ Petition No. 906 of 2016 is

allowed and the order to the extent of direction

given to the respondent No. 2 Santoshi

Dattatraya Puri (petitioner in Criminal Writ

Petition No. 906/2016) to pay maintenance to

applicants is set aside.

ii) Criminal Writ Petition No. 817 of 2016

stands dismissed.

iii) It is made clear that the applicant No. 2

is entitled for the maintenance at the rate of
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Rs. 2500/- (Rs. Two Thousand and Five Hundred

only) per month from the respondent No. 1

Dattatraya Kalidas Puri ( petitioner in Criminal

Writ Petition No. 817/2016)

20. Both criminal writ petitions stand disposed of

accordingly. No costs.

(K. L. WADANE, J.)

mkd

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