Punjab-Haryana High Court
Lekh Raj vs Kalawati And Ors. on 6 February, 1997
Equivalent citations: II(1997)DMC256
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This revision filed under Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is directed against the order dated 16.7.1996 passed by the Additional Sessions Judge, Sirsa, whereby the order dated 6.1.1995 passed by the Judicial Magistrate directing respondents No. 2 and 3 to pay Rs. 400/- per month as maintenance to respondent No. 1 with effect from the date of her application i.e. 14.7.1988, under Section 125 of the Code stands modified and the petitioner has also been directed to pay Rs. 400/- per month by way of maintenance to respondent No. 1 with effect from the same date.
2. The necessary facts for the disposal of this petition which can be gathered from the record are that late Shri Shiv Dayal was married with Smt. Kako Bai in the year 1940 and out of this wedlock the present petitioner Lekh Raj was born. Smt. Kako Bai unfortunately expired in the year 1947. Late Shri Shiv Dayal remarried with Smt. Kalawati (respondent No. 1) in the year 1948 and out of this wedlock two male children were born i.e. respondents No. 2 and 3.
3. On 14.7.1988 Smt. Kalawati filed a petitioner under Section 125 of the Code claiming maintenance from her two real sons, respondents No. 2 and 3 and her step-son, the petitioner, on the usual grounds that she had no source of income, and her sons had neglected to maintain her.
4. The respondents No. 2 and 3 remained ex-parte. The petitioner opposed the petition inter alia on the plea that he being a step-son was not liable to pay maintenance to his step-mother Smt. Kalawati under Section 125 of the Code. The Judicial Magistrate, by his order dated 6.1.1995 accepted the plea of the petitioner, but allowed the petition in part and directed the real sons Kewal Krishan and Suresh Kumar to pay maintenance allowance at the rate of Rs. 400/- per month to their mother Smt. Kalawati with effect from the date of her application i.e. 14.7.1988.
5. Feeling dis-satisifed Smt. Kalawati filed a revision petition before the Sessions Court which was allowed by the Additional Sessions Judge by impugned order dated 16.7.1996, whereby, the petitioner was also directed to pay mainte- nance at the rate of Rs. 400/- per month to Smt. Kalawati with effect from the date of her application i.e. 14.7.1988. Feeling aggrieved, the petitioner has approached this Court under Section 401 of the Code.
6. I have heard the learned Counsel for the parties and have perused the record.
7. Mr. G.S. Bawa, Advocate, the learned Counsel for the petitioner has challenged the legality and validity of the impugned order dated 16.7.1996 passed by the Additional Sessions Judge inter alia on the ground that a step-son is not liable to pay maintenance to his step-mother under Section 125 of the Code and the learned Additional Sessions Judge, fell in error in stretching the language of the term 'mother' so as to include a 'step-mother' within the ambit of Section 125 of the Code. In support of this plea, learned Counsel has placed reliance upon a judgment of the Apex Court in Kirtikant D. Vadodaria v. State of Gujarat, 1996(3) RCR 147.
8. On the other hand Mr. Sanjiv Gupta, Advocate, the learned Counsel for respondent No. 1 has argued that keeping in view the aim and object of enactment of Section 125 of the Code, the Additional Sessions Judge was justified in directing the petitioner to pay maintenance allowance to his step-mother i.e. respondent No. 1. In support of this plea, the learned Counsel has also placed reliance upon the aforesaid decision of the Apex Court is Kirtikant's case.
9. I have considered the respective arguments and have carefully gone through the said decision of the Apex Court.
10. It may be stated that the question as to whether a step-son is liable to pay maintenance to his step-mother under Section 125 of the Code was the subject matter of a reference before a Division Bench of this Court (to which I was a Member) in Criminal Misc. No. 3953 of 1995 and Criminal Misc. No. 18502-M of 1994 titled as Rajinder Kumar Sharma v. Smt. Raj Sharma. While answering this reference by order dated 6.7.1995, it was held that a step-mother is not entitled to claim maintenance from her step-son under the said provision. It is correct that in the past there had been a controversy amongst the various High Courts regarding the interpretation of the term mother' as used in Section 125(l)(d) of the Code. This entire controversy has been set at rest by the Apex Court in its decision rendered in Kirtikant's case (supra). While considering the various judgments delivered by different High Courts on this point, their Lordships were pleased to conclude as under:
"In view of the above discussion it follows that the expression "mother' Clause (d) of Section 125(1) of the Code, means and is referable only to the real or natural mother, who has actually given birth to the child and if that be so, the view taken by the Gujarat High Court in Havahen Beline's case (supra) that the word mother' occurring in Clause (d) of Section 125(1) includes a woman who has the status of a step-mother' by reason of her lawful marriage with the father of the person sought to be made liable for maintenance under Section 125, cannot be accepted."
Therefore, it is now beyond the pale of controversy that the expression 'mother' as used in Section 125 of the Code, does not include step-mother.
11. The learned Counsel for respondent No. 1 while laying stress on the observations made by their Lordships of the Supreme Court in para 15 of the judgment in the aforesaid case, has argued that the present case is a fit one wherein the Additional Sessions Judge was justified in directing the petitioner (the step- son) to pay maintenance to respondent No. 1 (the step-mother). This argument appears to be misconceived.
12. While dealing with the ambit and scope of the provisions contained in Section 125 of the Code in the aforesaid case of Kirtikant D. Vadodaria, their Lordships of the Apex Court held as under :
"The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this (sic) benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. Having regard to this social object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the Legislature. Consequently, to achieve this objective, in our opinion, a childless step-mother may claim maintenance from the step-son provided she is a widow or her husband, if living is also incapable of supporting and maintaining her. The obligation of the son to maintain his father, who is unable to maintain himself, is unquestionable. When she claims maintenance from her natural born children, she does so in her status as their 'mother'. Such as interpretation would be in accordance with the explanation attached to Section 20 of the Hindu Adoptions and Mainte- nance Act, 1956 because to exclude altogether the Personal Law applicable to the parties from consideration in matter of maintenance under Section 125 of the Code may not be wholly justified. However, no intention of Legislature can be read in Section 125 of the Code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her step-son to claim maintenance."
The underlined portion of the above observations leaves no doubt that it is only a childless step-mother who is a widow and unable to maintain herself, who has been recognised by the Apex Court to claim maintenance from her step-son under the said provisions.
13. In the aforesaid case before the Apex Court, the step-mother had her husband alive and five natural born sons who were all major. The husband and three major sons were well to do and capable of maintaining the petitioner. In these circumstances their Lordships were pleased to hold that the step-mother would not be entitled to claim maintenance from her step-son under Section 125 of the Code when her real husband and real sons were alive and were capable of maintaining her.
14. In the present case, it is not disputed that Smt. Kalawati respondent No. 1, has her two reals sons Kewal Krishan and Suresh Kumar (respondents No. 2 and 3 herein) who have been found to be capable to maintain her by the Judicial Magistrate which fact has not been challenged by Smt. Kalawati, the mother. Therefore, even in the face of the extended meaning given to the expression 'mother' under the circumstances mentioned in para 15 of the aforesaid judgment Smt. Kalawati respondent No. 1 (herein) is not entitled to claim any maintenance from her step-son i.e. the petitioner, for the obvious reason that shs has got her two real sons who are capable of maintaining her. In view of this finding, I need not go into other pleas raised on behalf of the petitioner, at the Bar.
15. As a result of the above discussion, this petition is allowed. The impugned order dated 16.7.1996 passed by the Additional Sessions Judge, direct- ing the petitioner to pay maintenance to respondent No. 1, is hereby set aside. However, the order dated 6.1.1995 passed by the Judicial Magistrate, 1st Class, Sirsa directing respondent Nos. 2 and 3 (herein) to pay maintenance to their mother respondent No, 1, shall remain unaffected by this order.