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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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