Patna High Court - Orders
Ashok Kumar Thakur @ Ashok Kumar vs State Of Bihar & Ors on 28 February, 2009
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.10662 of 2004
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Ashok Kumar Thakur @ Ashok Kumar aged about 28 years son of late Yogendra Thakur working
as Orderly, Barauni Refinery Hospital, Begusarai, P.S.-Mufassil, District-Begusarail.
.... .... Opposite party no.1-Petitioner
Versus
1. The State of Bihar. .... .... Opposite 1st party
2. Manju Devi @ Dulari Devi wife of Late Yogendra Thakur.
3. Ajay Kumar.
4. Vijay Kumar
Both sons of late Yogendra Thakur.
All residents of Azad Chauk, Gangjala, Ward No.10, Saharsa, P.S. and District-
Saharsa.
.... .... Petitioners - opposite 2nd parties
5. Bechani Devi wife of late Yogendra Thakur (as has been impleaded by the opposite 2 nd
parties in the maintenance case but denied by the petitioner) residents of Azad Chauk,
Gangjala, Ward No.10, Saharsa, P.S. +District-Saharsa.
.... .... Petitioner no.2 - Opp. 3rd party.
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For the Petitioner : Mr. V. Nath, Advocate
Mr. Neeraj Kumar, Advocate
Mr. Md. W. Rahman, Advocate
Mr. C. Verma, Advocate
For the opposite party : Mr. Pramod Mishra, Advocate
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11. 28.2.2009. By this application under Section 482 of the Code of Criminal Procedure, order dated 11.2.2004 passed in Criminal Revision No.296/2003 has been challenged. The case originated from a claim for maintenance made by the opposite party no. 2 to 4 under Section 125 of the Criminal Procedure Code.
A Misc. Case No.29 of 1997 was instituted against the petitioner in the Court of Chief Judicial Magistrate, Saharsa under Section 125 of the Criminal Procedure Code claiming maintenance of Rs.500/- per month for each of the opposite party no. 2 to 4. Opposite party no.2 claimed herself to be the wife of one Yogendra Thakur and opposite party -2- no. 3 and 4 were her minor sons. The present petitioner is also son of one Yogendra Thakur, who passed away on 6.2.1995. The matter was contested by the petitioner but Sub Divisional Judicial Magistrate, Saharsa vide order dated 24.7.2003 directed payment of maintenance at the rate of Rs.500/- per month to each of the applicants. This order came to be challenged in Criminal Revision No.296/2003 before the Sessions Judge, Saharsa. The revision application was dismissed after detailed consideration vide order dated 11.2.2004, which is now being challenged again under Section 482 Cr.P.C.
The primary contention of the learned counsel appearing on behalf of the petitioner is that both the Courts below failed to take into consideration the evidence on record that the opposite parties in question had sufficient means to take care of themselves and he had no legal duty to maintain his stepmother or stepbrothers under Section 125 of the Cr.P.C. In this regard, he relies on two decisions which have been rendered by the Hon‟ble Supreme Court, which are cases of Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479 and Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636.
Learned counsel representing opposite party no. 2 to 4 also relies on paragraph 15 of the decision rendered in the case of Kirtikant D. Vadodaria (supra), where the Hon‟ble Supreme Court has observed thus: -
"15. The point in controversy before us however is whether a „stepmother‟ can claim maintenance from the stepson 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 -3- 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 special object the provisions of Section 125 of the Code have to be given a liberal construction to fulfill and achieve this intention of the legislature. Consequently, to achieve this objective, in our opinion, a childless stepmother may claim maintenance from her stepson 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 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 again her stepson to claim maintenance. Since, in this case we are not concerned with, we express no opinion, on the question of liability, if any, of the stepson to maintain the stepmother, out of the inherited family estate by the stepson and leave that question to be decided in an appropriate case. Our discussion is confined to the obligations under Section 125 CrPC only."
Learned counsel for the petitioner submits that his primary challenge is to the order granting payment of maintenance to opposite party no.2, the stepmother, keeping in mind the law laid down in the case of Sabitaben (supra) as well as the observations of the Hon‟ble Supreme Court with regard to a stepmother‟s status to claim such maintenance under Section 125 Cr.P.C. Submission is that since a second marriage -4- under the Hindu Marriage Act, 1955 is prohibited and such marriage has no legality in the eye of law, therefore, keeping the facts of the present case that opposite party no.2 is the second wife, the petitioner has no legal obligation towards her though with regard to payment to the two minor children, who happen to be stepbrothers, the petitioner does not challenge the same as emphatically as the order directing payment of maintenance to opposite party no.2 is concerned.
On reading the two decisions of the Hon‟ble Supreme Court, the ratio which emerges is that prima facie a stepmother is not entitled to claim maintenance under Section 125 of the Cr.P.C. No doubt Hon‟ble Supreme Court in paragraph 15 of the decision rendered in the case of Kirtikant (supra) has provided a window for such claim but there too it has laid down certain conditions before the law can be expanded to include claim by a stepmother.
Keeping the law laid down in this regard the two orders under challenge, namely, order dated 11.2.2004 passed in Criminal Revision No.296/2003 as well as the order dated 24.7.2003 passed by the Sub Divisional Judicial Magistrate, Saharsa in Misc. Case No.29/1997 is set aside to the extent that the petitioner is not liable to pay maintenance to the stepmother, namely, opposite party no.2, but in so far as the order for payment of maintenance to opposite party no. 3 and 4 are concerned the same is upheld and not interfered with.
The application is allowed to the extent indicated above.
(Ajay Kumar Tripathi, J.) Pawan/-