Bombay High Court
Rafiuddin S/O Quazi Zainul Abedin vs Smt. Saleha Khatoon D/O Yaqub Ali ... on 17 September, 2007
Equivalent citations: 2007(109)BOM.L.R.2059, 2008(1)MHLJ18, AIR 2008 (NOC) 776 (BOM.) (NAGPUR BENCH), 2008 CRI. L. J. (NOC) 291 (BOM.) = 2008 (1) AIR BOM R 411 (NAGPUR BENCH) 2008 (1) AIR BOM R 411, 2008 (1) AIR BOM R 411
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
Page 2061
1. Rule. Returnable forthwith.
2. Heard Finally with consent of parties.
3. This is a revision against the order passed by the Judge, Family Court.
4. The non-applicant in the petition before the family court has preferred this revision application. The respondent herein is the mother of the present applicant Rafiuddin. She was divorced by her husband in the year 1973-74. She submits that she has no source of income and nobody is ready to maintain her and she is living all alone. She claims maintenance from the present applicant.
5. The present applicant resisted the application before the Family Court. He contended that the respondent had sufficient means of maintenance, in as much as she holds large immoveable property. Her husband had given her one time maintenance and since she holds a large property, she is not entitled to claim maintenance. He also submitted that he has very meagre source of income. He has to educate and marry his three daughters. He has to maintain two establishments and he cannot, therefore, pay maintenance.
6. The learned judge of the Family Court found that the respondent has no source of income while the present applicant has sufficient means to pay the maintenance. He ordered the present applicant to pay maintenance of Rs.1500/-. Being aggrieved by that order, this revision has been preferred.
7. I have heard the learned Counsel for the applicant and the respondent.
8. Shri A.C. Dharmadhikari, learned Counsel for the applicant, challenged the order of the Family Court on three counts. Firstly; he challenged the order on the ground of lack of territorial jurisdiction, Secondly; on the ground that since the husband is alive and there is also an order to pay maintenance against him of Rs.75/-per month, she could not claim maintenance from son, and, thirdly; the quantum of maintenance being excessive.
9. Shri Dharmadhikari contended that the petition ought to have been filed where son lives and not at the place the present respondent lives. He invited my attention to the provisions of Section 126 of Cr.P. Code. Section 126 of Cr.P. Code does contemplate that the proceedings instituted by father or mother could Page 2062 be instituted against son at a place where the son resides. The Supreme Court in (Vijay Kumar Prasad v. State of Bihar and Ors.) has so held and observed as follows An application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives. The expression 'is' in Section 126(1)(a) cannot be given the same meaning as the word 'reside' or the expression ' the last resided'. It connotes in the context the presence or the existence of the persons in the district where the proceedings are taken. It is wider in its concept than the word 'resides' and what matters is his physical presence at the particular point of time. Thus where the son was practising in the Patna High Court at the time of presentation of petition at Siwan by his father claiming maintenance, he could not have been physically present at Siwan, whatever extended meaning may be given to the expression 'is'. In view of this, the Court at Siwan would have no jurisdiction to deal with the petition.
10. The ratio of the above decision cannot be applied to the case at hand. In the reported case, the son against whom an application was made by father had filed an application for transfer of case to Patna on the ground that he has an apprehension that he may not get justice at Siwan and secondly Siwan court did not have jurisdiction because he himself lives at Patna. The High Court did not find favour with the son. However, the Supreme Court accepted the plea that Siwan court could not assume jurisdiction as son was residing at Patna. The Supreme Court transferred the case to Patna. It is, therefore, clear that son had challenged the jurisdiction of Siwan court during the pendency of application itself and had not submitted to the jurisdiction of Siwan court. In the instant case, the applicant submitted to the jurisdiction of family court at Nagpur and trial was held and a decision has been rendered on merit. No plea of want of jurisdiction was ever raised during the course of the trial. Mr.Vyawahare, learned Counsel for the respondent, submitted that once such decision is rendered, it cannot be set aside on the ground of want of territorial jurisdiction. He relied on the provisions contained in Section 462 of Cr.P. Code. Section reads as follows
462. Proceedings in wrong place.-No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the injury, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
The wording of Section 462 of Cr.P.Code is very clear that the order shall not be set aside on the ground that the trial, enquiry or proceedings took place in a wrong district or place. The contention of Mr.Vyawahare, therefore, has to be upheld. This Court, therefore, in revision cannot set aside the order of the Family court on the ground of want of territorial jurisdiction. Lack of territorial jurisdiction may at the most Page 2063 be irregularity and not an illegality. The order, therefore, cannot be set aside on that count.
11. This takes me to the second leg of argument. The relationship is not disputed. It is also not disputed that the respondent was divorced by her husband in 1973-74. Shri Dharmadhikari contended that the primary responsibility to maintain the wife is that of the husband and husband is alive in this case. He also contended that the respondent has four other sons but the application is filed only against the present applicant. The other sons, according to him, are also well to do. There is no doubt that the primary responsibility would be that of the husband. However, that cannot absolve the son of his own responsibility. Even though the husband may be alive, the mother still has a right to claim maintenance from the son, as son is one of those persons from whom a woman can claim maintenance under Section 125 of Cr.P. Code. This Court in 2000(2) Mh.L.J.378 (Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad and Anr.) has observed as follows
16. The argument of learned Advocate Shri Borulkar in the context is also liable to be rejected on another ground. If the logic put forth by learned Advocate Shri R.N. Borulkar is accepted then in that event the mother would be prevented from claiming maintenance from her earning son so long as her husband is alive. The law does not at all contemplate suspension of right of maintenance so far as mother is concerned. Though respondent no.1 is legally wedded wife of respondent no.2, she has claimed maintenance from her son as the mother under Section 125(1)(d) of Criminal Procedure Code, 1973. Therefore, the claim of respondent No.1 as a mother cannot be rejected on the logic of learned Advocate Shri Borulkar, if she is otherwise, on proof, entitled to claim maintenance from her earning son. The petitioner cannot be permitted to change the complexion of the claim of mother simply on the ground that she is legally wedded wife of the respondent no.2.
12. Thus, from this decision, it is clear that irrespective of the fact that the husband is alive, the mother would be entitled to claim maintenance subject to other provisions of Section 125 of Cr.P. Code from the son. In the instant case, Mr.Dharmadhikari submitted that the respondent had filed an application under Section 125 of Cr.P. Code against her husband and the court had awarded Rs.75/ per month and that order is still in existence. It is also contended that the respondent could have applied for enhancement of maintenance from the husband. He further submits that she could not file second application under Section 125 of Cr.P.Code when once she is awarded maintenance. A second application under Section 125 of Cr.P. Code may not be maintenable against the same person but when it is filed against the different person, it is so maintenable. Section 125 of Cr.P.C. permits maintenance being claimed from husband, son as well as daughter. Therefore, there should be no difficulty in claiming maintenance from all three or any one of them or even two. Although she may have been granted maintenance Rs.75/-per month, that does not stop her from claiming maintenance from Page 2064 the son also, as the liability is of all the three under section 125 of Cr.P. Code. It can be said that she has an independent cause of action and right against the son. The maintenance awarded to her against the husband is too meagre by any standard. It is her choice if she should apply for enhancement against her husband or to claim additional maintenance from her son. It is also her choice as to from which of her sons she should claim maintenance.
13. The next thing that needs to be considered is quantum of maintenance. The lower court has awarded the maintenance of Rs.1500/-per month. It appears that until this application was granted, perhaps she was not getting anything except the lump sum maintenance given by her husband. The present applicant is a married man having three grown up daughters and who are to be educated and to be married. Naturally, he is required to spend for the education and even for the marriage. It is his case that he has to maintain two establishments since his family resides at Bhopal and he resides at the place of his employment. It is also clear that he has incurred a loan for building the house. To own a house can be said to be a natural desire. His take home salary is only Rs.6375/-. It appears that the respondent has a own house. She is not required to spend anything for hiring house etc. Considering the fact that the present applicant has to maintain family of three daughters and wife and has to educate them, the maintenance of Rs.1500/-certainly errs on a higher side. In the circumstances, I find that the maintenance of Rs.1000/-would be adequate. I would, therefore, allow the revision petition partly and reduce the maintenance from Rs.1500/-to Rs.1000/- per month.