Madhya Pradesh High Court
Smt. Kankubai vs Rajesh Kumawat on 4 August, 2015
1
HIGH COURT OF MADHYA PRADESH : BENCH AT
INDORE
SINGLE BENCH : HON'BLE JUSTICE SMT. S.R. WAGHMARE
M.Cr.C. No.8698/2014
Smt. Kunkubai w/o Late Shri Shivnaraya ji Kumawat.
....... Petitioner.
versus
Rajesh Kumawat s/o Late Shri Shivnaraya ji Kumawat.
...... Respondent.
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Shri V.A. Katkani, learned Counsel for the
petitioner.
Shri Ajay Kanthed, learned Counsel for the
respondent.
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ORDER
(Passed on ...... of August, 2015) By this petition u/S.482 of Cr.P.C the petitioner Kunkubai has challenged the order dated 27.09.2014 passed by the II Additional Sessions Judge, Ratlam in Criminal Revision No.07/2014 rejecting the application filed by petitioner u/S.125 of Cr.P.C.
Briefly stated the facts of the case are that the petitioner Kunkubai is the mother of the respondent Rajesh and had filed an application for grant of maintenance u/S.125 of Cr.P.C. claiming that her husband had died on 14.07.2007. She also admitted that she has two sons one is Rajesh, respondent No.1 and another is Subhash. Similarly it is admitted that 2 respondent Rajesh has married twice and his first wife Rekha died during child birth in 1995 itself. However she gave birth two daughters namely Yashwini and Ruchika, thereafter respondent Rajesh re-married one Anusuiya and again who gave birth two daughters after two daughters were born respondent Rajesh abandoned his old mother as well as daughters by previous marriage and hence the petitioner Kunkubai demanded maintenance of Rs.1500/- stating that she lived at rental house whereas Rajesh lives in house No.4, in Madhuvan Township, Ratlam at two storeyed building and he also had lot of tenant and from the rental alone he is earning Rs.10,000/- per month, whereas petitioner Kunkubai was an old lady and now could not earn her livelihood and despite demanding maintenance he has driven out his old mother quarreling with her and even physically beating her. Respondent Rajesh worked as Assistant Superintendent in the Post Office at Mandsour and earns Rs.45,000/- to Rs.50,000/- per month. The respondent son Rajesh however resisted the claim admitting that he is working on the post of Assistant Superintendent at Mandsour but earns only Rs.39,742/- out of which after deduction he was left with Rs.19,993/- and he had very little to give as maintenance to his mother.
On considering the Provisions of S.126 sub S.1(a) of Cr.P.C. had held that Court did not have any jurisdiction to pass any order regarding the maintenance on filing of the present revision petition u/S.482 of Cr.P.C. The Revisional Court also held that the dismissal was proper 3 since respondent Rajesh lived at Mandsour, whereas the Ratlam Court did not have any jurisdiction to pass any order.
Counsel for the petitioner has vehemently urged the fact that the learned Judge of both the Courts below have failed to consider that petitioner Kunkubai is a poor lady, aged 60 years and is looking after her grand daughters. Moreover S.126 of Cr.P.C. categorically stated that proceeding u/S.125 of Cr.P.C. have been taken against any person in any district where 'he' is indicating that definitely lower Court and the trial Court were clothed with jurisdiction to pass interim order of maintenance, which he failed to do. Counsel prayed that the impugned order be set aside and appropriate interim maintenance be granted to the petitioner Kunkubai. He also pointed out from the impugned para 5 of the Revisional Court judgment that petitioner was living in joint family with her other son and it is only due to the Govt. job that respondent son Rajesh has changed resident according to his allotment of job. Similarly petitioner has also pointed out that the second wife Aunsuiya has also purchased a plot in the Madhuvan Township at Ratlam itself, by registered sale deed and in this light also it can not be stated that the respondent son and his wife did not have house at Ratlam. Counsel urged that the only basic ingredients were required to be proved that the petitioner's mother was without any source of living, which has not been done. Counsel prayed that the application be allowed.
Counsel for the respondent/State on the other hand 4 has vehemently opposed the prayer of Counsel for the petitioner stating that the petitioner had second son and it was established that respondent Rajesh lived at Mandsour due to his service. Besides he also stated that his daughters were already married and the petitioner mother Kunkubai had no reason to live separately at Ratlam. Moreover there was no interim order passed by the trial Court at Ratlam and the Revisional Court regarding geographical jurisdiction could not be extended to Ratlam. He also placed reliance in the matter of Vijay Kumar vs. State of Bihar [2004(3) MPLJ 560] to state that interpretation of the true word 'resides' has to be culled contextually and the Court held thus:
"As has been noted in Jagir Kaur's case (supra) the expression "is" 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. 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 Siman physically when the application was filed for maintenance. Respondent No. 2- father has indicated about the son practising in the Patna High Court. Obviously if his son was practising at the time of presentation of 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 Siman has no jurisdiction to deal with the petition. One thing may be noted, which can clear lot of cobwebs of doubt. The expression "is" cannot be construed to be a fleeting presence, though it may not necessarily 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 (Dead) by LRs. V. Commissioner of Wealth Tax, Allahabad (AIR 1991 SC 1866). The true intention has to be contextually culled out."
5Counsel contented that since the respondent Rajesh lived at Mandsour where he has been established and not resided at Ratlam and the plot belongs to his wife and was purchased by her parents. Counsel prayed that the petition is without merit and the same be dismissed.
On considering the above submissions, I find that the Provisions of Section 125 & 126 of Cr.P.C. were meant to prevent vagrancy and upon proving such negligence, monthly allowance for maintenance could be made by Magistrate as it deems fit under the circumstances. Moreover even if the Provisions of Section 126 (1)(a) of Cr.P.C. are considered the word 'he' is interpreted in it proper prospective to include 'she' also willfully avoiding payment or neglecting to pay are also to be considered. Merely stating that the provisions are confusing and that there is no specific provision would not unable the Revisional Court to recuse itself from passing the proper order regarding interim maintenance. I find that it is an admitted position that respondent son Rajesh is earing Rs.39,742/- per month and he could definitely pay some amount to his old mother by way of interim relief, and maintenance. The fact that the grand daughter is already married would not stand in the way of the Court to grant maintenance to the petitioner. The trial Court findings regarding jurisdiction and both the impugned orders are set aside.
6It is directed that the Magistrate has ample power u/S.125 and 126 sub S.1 (a) of Cr.P.C. for grant of maintenance. It cannot be expected that in this old age mother could not be put to travel to Mandsour for filing the case of maintenance. However considering the spirit of the provisions of S.125 & 126(1)(a) of Cr.P.C. and agitating old mother, both the order needs to be set aside. They are hereby set aside. The respondent Rajesh shall pay Rs.2,000/- per month as maintenance to his mother Kunkubai by way of interim relief.
Needless to say that this Court has not granted permanent maintenance; it shall be considered by the trial Court on its own merit.
With the aforesaid observations and directions, the petition is allowed to the extent herein above indicated.
(Mrs. S.R. Waghmare) Judge Jyoti