Karnataka High Court
Mohammad Faruq And Ors vs Salima on 4 September, 2023
-1-
NC: 2023:KHC-K:7024
RPFC No. 200027 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REVISION PETITION FAMILY COURT NO.200027 OF 2022
BETWEEN:
1. MOHAMMAD FARUQ
S/O DASTAGIRSAB SAVADI
AGE: 56 YEARS
OCC:HEAD CONSTABLE
MAHALINGPUR P.S.
NOW AT BANHATTI P.S.,
TQ: RABKAVI- BANHATTI
DIST: BAGALKOT- 587311.
Digitally signed
by
LUCYGRACE 2. MOHAMMAD SADIQ
Location: HIGH
COURT OF S/O DASTAGIRSAB SAVADI
KARNATAKA
AGE: 54 YEARS
OCC: POLICE
R/O. DISTRICT ARMED RESERVE POLICE
HEAD OFFICE
NAVANAGAR
BAGALKOT- 587101.
3. MOHAMMAD MUBARAK
S/O DASTAGIRSAB SAVADI
AGE: 48 YEARS
-2-
NC: 2023:KHC-K:7024
RPFC No. 200027 of 2022
OCC:POLICE
NAVANAGAR POLICE STATION
NOW AT BAGALKOT TOWN P.S.,
BAGALKOT- 587101.
...PETITIONERS
(BY SRI MARTHANDAPPA MALLESHAPPA
ALLUR, ADVOCATE)
AND:
SALIMA
W/O DASTAGIRSAB SAVADI
AGE: 60 YEARS
OCC: HOUSEHOLD
NOW RESIDING AT NIJAM
S/O ABDUL RAJAK KAZI
NEAR MULLA MASJID
SHAHAPUR DARWAZA
VIJAYAPURA-586101.
...RESPONDENT
(BY SRI BASAVARAJ R. MATH, ADVOCATE)
THIS RPFC IS FILED U/S. 19(4) OF THE FAMILY COURTS
ACT, PRAYING TO CALL FOR THE RECORDS AND ALLOW THE
REVISION PETITION AND SET ASIDE THE JUDGMENT AND
ORDER DATED 21.04.2022 PASSED BY THE PRL. JUDGE,
FAMILY COURT AT VIJAYAPURA IN CRL.MISC.NO.415/2019.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
-3-
NC: 2023:KHC-K:7024
RPFC No. 200027 of 2022
ORDER
The respondents are before this Court in revision petition being aggrieved by the order dated 21.04.2022 in Crl.Misc.No.415/2019 on the file of the Prl. Judge, Family Court, Vijayapura, whereby, the petition filed by the mother under Section 125 of Criminal Procedure Code, 1973 ("Cr.P.C." for short) was allowed in part and directed the petitioners herein to pay maintenance of Rs.4,000/- each to the respondent herein from the date of petition till her death.
2. The parties are referred to as per their ranking before the trial Court.
3. The facts of the case are that, petitioner - Salima filed petition under Section 125 Cr.P.C. seeking maintenance of Rs.10,000/- per month from each of the respondents contending that she is the mother of respondents and that the sons have neglected her and have refused to provide food, clothing and medicine and that the petitioner is aged about 58 years suffering from age related ailments and inspite of her sons having sufficient means, they have -4- NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 refused to look after her. It is the further contention that, the mother of the respondents died when the respondents were too young and the petitioner, who is the stepmother of respondents, looked after the respondents and now, after they have been employed in the Government Department, on the death of her husband, the respondents are not maintaining her inspite of they being capable of paying maintenance.
4. Objections were filed resisting the claim of the stepmother contending that, their father was staying in Jamakhandi along with the petitioner for about ten years. Thereafter, when their father was paralysed, the respondents were looking after them. In the year 2019-20, when the petitioner was suffering from illness, she was staying with respondent No.1 at Mahalingapur police quarters and he was looking after her there. Respondent No.1 was a bachelor and was looking after the petitioner very well. At present, respondent No.4 is residing at Jamakhandi and the petitioner is staying along with respondent No.4 at Jamakhandi. The specific ground urged by respondent Nos.1 to 3 is that, the -5- NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 petitioner-stepmother is residing at Jamakhandi, Bagalkot District and Vijaypura Court had no territorial jurisdiction to try the petition.
5. The trial Court, on the basis of the pleadings, framed the following points for consideration:
"(1) Whether the petitioner proves that the respondent No.1 to 4 have neglected and refused to maintain her?
(2) Whether the petitioner is entitled for maintenance? If so, to what extent? and from whom?"
6. In order to substantiate their claim, the petitioner examined herself as PW.1 and the respondents were examined as RWs.1 to 4 and got marked documents at Exs.R-1 to R-3.
7. The trial Court, vide impugned order held that the stepmother is entitled for maintenance of Rs.4,000/- each per month from her step sons-respondent Nos.1 to 3. Aggrieved by which, the present petition by the sons. -6-
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022
8. Heard Sri Marthandappa Malleshappa Allur, learned counsel for the petitioners and Sri Basavaraj R.Math, learned counsel for the respondent.
9. The sum and substance of the arguments advanced by learned counsel for the petitioners herein is that, the petition before the Family Court was not maintainable and the Family Court lacked territorial jurisdiction since the petitioners' mother was not residing at Vijayapura and no material has been placed to evidence her residence at Vijayapura and in light of the same, learned counsel for the petitioners would contend that the trial Court had no jurisdiction to entertain the petition filed by the respondent herein.
10. The other line of arguments by the learned counsel for the petitioners is that, under Section 126 of the Code of Criminal Procedure, 1973 ("Cr.P.C."), the petition before Vijayapura Court by the mother lacks jurisdiction since the place for initiating proceedings where the parents reside is not available, and the petition has to be filed where -7- NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 the person from whom the maintenance is claimed. In light of the said circumstances, it is contended that the petition ought to have been dismissed for want of territorial jurisdiction. Apart from the territorial jurisdiction, learned counsel for the respondents-petitioners herein also would contend that the quantum of maintenance awarded by the Family Court is not justifiable since the petitioner - stepmother has been residing with the petitioners' younger brother by name Mohammed Mustak, who has been providing all the necessities for her maintenance and as such, sought to dismiss the petition filed by the respondent- mother. In addition, learned counsel for the petitioners would contend that the awarding of Rs.4,000/- per month by each of the petitioners by way of maintenance has been wrongly arrived at, by the Family Court.
11. Per contra, learned counsel for the respondent would justify the order of the Family Court and would contend that the territorial jurisdiction as contended by the petitioners was only with regard to the residence of the mother, which was rightly considered by the Family Court -8- NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 holding that the Family Court had territorial jurisdiction to proceed, since the petitioner-step mother was residing at Vijayapura. Learned counsel would also contend that it is for the first time the petitioners have raised the contention that the petition by the mother is not maintainable before the Vijaypura Court and the petition has to be filed at the place where the person against whom the maintenance is sought is residing, in light of Section 125 Cr.P.C. and in the absence of having taken any such contention before the trial Court and more particularly, even in the petition filed before this Court, the petitioners are not entitled for any relief. Learned counsel would contend that the petition initiated under Section 125 Cr.P.C. is a beneficial legislation and the said contention of the petitioners is highly unsustainable and hence, sought for dismissal of the petition.
12. In addition, learned counsel for the respondent - mother would contend that, Section 125 Cr.P.C. is a summary proceeding and in view of the negligence of the petitioners herein, the Family Court was justified in awarding monthly maintenance of Rs.4,000/- each from her sons on -9- NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 considering the financial capacity of the sons and would contend that the same does not call for any interference.
13. In view of the rival contentions urged by the learned counsel for the parties, the point that arises for consideration are as under:
"(i) Whether, in accordance with Section 126 Cr.P.C. providing for procedure, the applicant-
mother needs to file petition for grant of maintenance at the place of residence of the petitioners-sons in the facts and circumstances of the present case?
(ii) Whether the award of maintenance by the Family Court to the extent as stated in the impugned order is justifiable?"
14. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
15. Section 125 of Cr.P.C. reads as under:
"125. Order for maintenance of wives, children and parents.-(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
- 10 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:"
It is clear from the above provision that if any person having sufficient means neglects or refuses to maintain, his wife, his legitimate or illegitimate minor child whether married or not, whether legitimate or illegitimate child who has attained majority, where such child is, by reason of any physical or mental abnormality or injury, his father or mother unable to maintain themselves are entitled to file a petition under Section 125 Cr.P.C.
- 11 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022
16. A plain reading of Section 125 Cr.P.C. evidences that the father or mother includes the stepfather and stepmother and it is thus, clear that the petition for maintenance by the stepmother is maintainable and the only ground that needs to be proved by the parents is that, they are unable to maintain themselves. The other provision that needs to be considered is Section 126 Cr.P.C. Section 126 Cr.P.C. provides the proceedings under Section 125 Cr.P.C. may be taken against any person where he resides as per clause (a) to (c), which reads as under:
"126. Procedure.-- (1) Proceedings under section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
- 12 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just."
(Emphasis supplied)
17. This Section has, however, given the benefit to the wife and children to initiate the proceedings at the place where they reside and not given to the parents unlike sub- sections (b) and (c) of Section 126(1) Cr.P.C., an application by the father/mother seeking maintenance has to be filed where the person from whom maintenance is claimed, as contended by the petitioners placing reliance on the decisions of the Apex Court in the case of Vijay Kumar
- 13 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 Prasad vs. State of Bihar & others1 (Vijay Kumar Prasad) at para Nos.13, 14 and 15 has held as under:
"13. It is to be noted that clauses (b) and (c) of sub-section (1) of Section 126 relate to the wife and the children under Section 125 of the Code. The benefit given to the wife and the children to initiate proceeding at the place where they reside is not given to the parents. A bare reading of the section makes it clear that the parents cannot be placed on the same pedestal as that of the wife or the children for the purpose of Section 126 of the Code.
14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike 1 AIR 2004 SC 2123 : (2004) 5 SCC 196
- 14 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 clauses (b) and (c) of Section 126(1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives.
15. As has been noted in Jagir Kaur case [AIR 1963 SC 1521 : (1963) 2 Cri LJ 413] the expression "is"
cannot be given the same meaning as the word "resides" or the expression "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. No finding has been recorded by the High Court on this particular aspect which needs a factual adjudication. The stand of the appellant is that he practises in Patna and was not present in Siwan physically when the application was filed for maintenance. Respondent 2, the father has indicated about the son practising in the Patna High Court. Obviously, if his son was practising at the time of presentation of the petition in the Patna High Court, he could not have been physically present at Siwan, whatever extended meaning may be given to the expression "is". In view of this the position is clear that the court at Siwan has no jurisdiction to deal with the petition. One thing may
- 15 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 be noted, which can clear a lot of cobwebs of doubt. The expression "is" cannot be construed to be a fleeting presence, though it may not necessarily be for considerable length of time as the expression "resides" may require. Although the expression normally refers to the present, often it has a future meaning. It may also have a past signification as in the sense of "has been". (See F.S. Gandhi v. CWT [(1990) 3 SCC 624 : 1990 SCC (Tax) 364 : AIR 1991 SC 1866] .) The true intention has to be contextually culled out."
18. At this stage, it is necessary to understand Sections 125, 126 of Cr.P.C. A plain reading of Section 126 Cr.P.C. would envisage that, the proceedings under Section 125 may be taken against any person in any district where he is residing or where he or his wife resides or where he last resided with his wife. The circumstances that are forthcoming in this petition warrants to refer to the provisions of Section 8 of Indian Penal Code (hereinafter referred to as 'the IPC' for short), which deals with "Gender" and the same reads as under:
"8. Gender.- The pronoun "he" and its derivatives are used of any person whether male or female"
- 16 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 On a careful reading of the said provision makes it clear that the word "he" used under Section 126 (1)(a) of Cr.P.C., includes any person, whether a male or female as envisaged under Section 8 of IPC, and he cannot be referred to only husband, if Section 8 of IPC is considered, together with Section 126 (1) (a) of Cr.P.C. it would mean to include both, likewise it cannot be assumed that there is exclusion of the parents to file petition for seeking maintenance from the sons at the place where they reside. The word "he" should be emphasized to include the stepmother, who has filed petition seeking maintenance from her stepsons at the place where she resides. If such petitions are dismissed on the ground of lack of jurisdiction, the entire object of Section 125 of Cr.P.C. would be diluted.
19. Thus, Sections 125 and 126 of Cr.P.C., provide remedy for a father or mother to seek maintenance against the son, if they are incapable to maintain themselves. The facts of the case in Vijay Kumar Prasad stated supra was that the appellant therein was living in Patna and a practicing
- 17 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 lawyer in the High Court of Patna, the proceedings instituted by the father at Siwan was not maintainable for territorial jurisdiction and was liable to be transferred to Patna. The issue certainly is of significance if looked from the angle of parents who have been neglected by their children in order to get benefit under the said provision. If Section 125 Cr.P.C. is taken into consideration, the intent of the Legislature is to see that the parties, who are unable to maintain are not put to destitution and provide justice at the door steps, and from that domain, the Legislature intended to incorporate Section 125 Cr.P.C. The very intent of saying that the parents have to file a petition for maintenance at the place of residence where the children reside was not the intent as envisaged under Sections 125 or 126 of Cr.P.C. and the word used 'he' under Section 126 (1) (a) has to be read with Section 8 of IPC and would mean 'he' to include 'she'.
20. The judgment relied by the learned counsel for the petitioners is not applicable to the facts and circumstances of the present case, since the written statement and the petition filed before this court regarding
- 18 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 territorial jurisdiction in terms of Section 126 of Cr.P.C. was not stated and it is for the first time by way of argument, learned counsel for the petitioners sought to contend that the petition before the Family Court at Vijayapura lacks territorial jurisdiction in terms of Section 126 Cr.P.C.
21. Since the jurisdiction of the Court in terms of Section 126 Cr.P.C. was not raised by the petitioners herein, this Court is of the considered view that it would be improper to allow the petitioners herein to raise the issue against territorial jurisdiction for the first time before this Court and therefore, this Court holds that the present petitioners are not entitled to object to the proceedings under Section 125 Cr.P.C. before the Family Court at Vijayapura and accordingly, this Court answers the issues in favour of the respondent-stepmother.
22. The other contention of the petitioners herein is that petitioner No.1 is married and has got three sons; petitioner No.2 has two sons and one daughter and petitioner No.3 has two daughters and one son and the
- 19 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 income which they receive is only sufficient to maintain their family members and awarding of Rs.4,000/- each to the respondent-step mother is contrary to the material on record is unsustainable as the material speaks about the respondents are Government servants and have sufficient means to maintain the wife and children and it is the responsibility of the petitioners to maintain their wife and children and they cannot contend that, in addition, they have to maintain their parents and the term "parents" includes stepfather and stepmother also.
23. Though respondent No.4 - Mohammad Mustak before the Family Court has been looking after the mother, the Family Court has rightly held that the petition against the said respondent is not maintainable and dismissed the same. The Family Court on re-assessing the entire material and evidence on record has rightly held that the stepmother is entitled for maintenance from her sons, whether the real sons or the stepsons as envisaged under Section 125 Cr.P.C. and considering the age and relationship between the respondents therein and avocation of the respondents, the
- 20 -
NC: 2023:KHC-K:7024 RPFC No. 200027 of 2022 Court has rightly awarded Rs.4,000/- each by the sons. Therefore, this Court is of the considered view that the order of the Family Court does not call for any interference and accordingly, this Court pass the following:
ORDER
(i) The revision petition filed by the petitioners -
sons is hereby dismissed.
(ii) The impugned order dated 21.04.2022
passed by the Family Court in
Crl.Misc.No.415/2019 is hereby confirmed.
Sd/-
JUDGE S* List No.: 1 Sl No.: 56