Gujarat High Court
Saberabanu Wd/O Ismail Morisvala vs State Of Gujarat & on 21 January, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
SABERABANU WD/O ISMAIL MORISVALA....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/579/2010 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 579 of 2010 ================================================================ SABERABANU WD/O ISMAIL MORISVALA....Applicant(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance: MR MP SHAH, ADVOCATE for the Applicant(s) No. 1 MS. KRUTI M SHAH, ADVOCATE for the Applicant(s) No. 1 MS. MAITHILI MEHTA APP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 - 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 21/01/2013 ORAL ORDER
Learned Principal Judge, Family Court, Surat, by his order dated 01.10.2010 dismissed the application of the wife, the applicant herein, under section 125 of the Criminal Procedure Code, 1973, for maintenance against the respondents. Therefore, the present Revision Application is filed.
1.1 Notice was issued. However, nobody appeared on behalf of the private respondents. Even after issuance of Rule, which was served on respondents Nos. 2 to 4, none has filed appearance.
Heard learned advocate Ms. Medha Pandya holding brief for learned advocate Ms. Kruti M. Shah for the applicant as well as learned A.P.P. Ms. Maithili Mehta for the State.
3. The relevant facts are that marriage of the applicant took place on 13. 08.1995 as per customs of Muslim Shariyat with the deceased father of respondents Nos. 2, 3 and 4. Respondents Nos. 2 to 4 are thus step-sons, and the applicant is step-mother. It is the further case of the applicant that she was illiterate, and was harassed after marriage, and was forced to leave her matrimonial house. It is the case of applicant that the step-sons are liable to maintain her, as there is no arrangement made by her deceased husband and their father, for her maintenance, and she is staying at her sister s home. It is also the case of the applicant that respondents Nos. 2 to 4 are engaged in yarn and cloth business earning Rs.50,000/- to Rs.60,000/- per month.
4.1 On going through the impugned judgment, it is seen that the only ground which has weighed with the Family Court in rejecting the application under section 125 of the Code is that the applicant is step-mother of respondents Nos. 2 to 4 and the maintenance claim is from the step-sons. It is also reasoned that when the applicant had come to stay at the matrimonial home after her marriage, respondents Nos. 1 and 2 were not staying with them, and further that there is no evidence that the applicant has brought up the step-sons.
4.2 Learned advocate for the applicant relied on a decision of Orissa High Court in Pitei Bewa v. Laxmidhar Jena (1985 Cr.L.J. 1124 (Orissa High Court) to submit that the expression `mother in section 125(1)(d) of the Code includes `step-mother . Learned advocate for the applicant, therefore, submitted that the applicant is entitled to claim maintenance as step-mother.
5. As the only ground on which the Family Court has not entertained the application for maintenance is that since the applicant is step-mother, there is considerable substance in the legal submission canvassed by learned advocate for the applicant. In Kirtikant D. Vadodaria v. State of Gujarat [(1996) 4 SCC 479], the Supreme Court considered the expression `mother with respect to section 125(1)(d). After considering the decisions of different High Courts, taking a divergent view, it was observed by the Apex Court to hold as under:
The point in controversy before us however is whether a 'step-mother' can claim maintenance from the step-son or not, having regard to the aims and objects of Section 125 of the Code. While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. 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 special purpose. The dominant purpose behind the 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 out opinion, a childless step-mother may claim maintenance from her step-son provided she is 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 an interpretation would be in accord with the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act.1956 because to exclude altogether the personal Law applicable to the parties from consideration in matters 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. Since, in this case we are not concerned with, we express no opining, on the question of liability, if any, of the step-son to maintain the step-mother, out of the inherited family estate by the step-son and leave that question to be decided in an appropriate case. Our discussion is confined to the obligations under Section 125 Cr.P.C. only.
(Para
15) 5.1. In Karodiben v. Rajubhai Mahendrasingh [1997 (4) Crimes 259], this High Court relied on Kirtikant Vadodaria (supra), to hold that the step-mother having minor children cannot be classified as `mother for the purpose of section 125 of the Code. In Kirtikant Vadodaria (supra), the step-mother was held not entitled to maintenance as she has got five natural born sons who are major and well-to-do and capable of maintaining their mother. Moreover, the husband was also alive possessing sufficient means and property enabling him to maintain and support his second wife the step mother.
6. In the facts of the present case, the husband of the applicant has died. So far as the aspect as to whether the applicant had any child born out of marriage with the deceased father, no facts are available. As per the dictum of law laid down by the Supreme Court in Kirtikant Vadodaria (supra), the above are the relevant aspects for deciding whether the step-mother is entitled to maintenance from the step-sons.
6.1 It is seen from the impugned judgment that while dismissing the application, the Family Court has relied on decisions in Savitaben Somabhai Bhatiya v State of Gujarat (AIR 2005 SC 1809) as well decision of this court in Dhiren Jayantilal Shah v. Chetna Dhirenbhai Shah [2005 (3) GLH 281]. In Savitaben (supra) what is laid down is that the scope of phrase `wife under section 125 cannot be expanded to include woman who is not lawfully married. The decision in Dhiren Jayantilal (supra) relied on by the Family Court is in respect of claim of interim alimony under the Hindu Marriage Act, 1955, and was altogether on a different point. In placing reliance on both the aforementioned decisions, and thereby rejecting the application of the applicant under section 125 of the Code, the Family Court has completely misdirected itself.
7. In the aforesaid facts and circumstances, it is expedient that the Family Court examines the application of the applicant step-mother under section 125 of the Code of Criminal Procedure, 1973 seeking maintenance against her step-sons respondents Nos. 2 to 4, in light of and keeping in view the law laid down by the Apex Court in Kirtikant Vadodaria (supra). The matter, therefore, requires to be remitted back to the Family Court, Surat, for consideration afresh. The claim and prayer of the applicant having regard to the aspects discussed in Kirtikant Vadodaria (supra) as well as from the other relevant considerations, which would be germane in determining the claim of maintenance by the applicant shall be considered by the Family Court, and it shall take a fresh decision.
8. Accordingly, the Family Court, Surat is directed to reconsider and decide afresh Criminal Miscellaneous Application No. 138 of 2010 of the applicant filed before it under section 125 of the Code of Criminal Procedure, 1973, and render a fresh decision after giving opportunity of hearing to both the sides. Such exercise shall be completed by the Family Court, Surat, expeditiously and before 30.04.2013. It is clarified that this court has not gone into merits of the matter, and the Family Court shall examine and decide the matter afresh in light of the above observations and decision of the Apex Court in Kirtikant Vadodaria (supra), and in accordance with law.
In the above view, the order dated 01.10.2010 passed by the Family Court, Surat in Criminal Application No. 138 of 2010 is hereby set aside.
10. Rule is made absolute to the aforesaid extent.
(N.V.ANJARIA, J.) sndevu Page 5 of 5