The learned counsel for the petitioners rightly placed reliance on the decision of the Hon'ble Apex Court in Vijay Kumar Prasad V. State of Bihar reported in 2004 (5) SCC 196. The Hon'ble Apex Court in that decision has held as follows :
"12. ... the crucial expression for the purpose of jurisdiction in respect of a petition which is filed under Section 125 CrPC, 1973 by a father is not where parties reside and is .
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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.09.2008
CORAM
MR. JUSTICE K.N. BASHA
Citation;AIR 2009(NOC)1638(MADRAS)
Gnanasoundari Vs. K.S.Subramaniam
The petitioners, who are the wife and daughters of the respondent herein, have come forward with this petition seeking for the relief of quashing the proceedings initiated by the respondent for claiming maintenance under Section 125 Cr.P.C. pending in M.C.No.1 of 2004 on the file of the learned Judicial Magistrate, Dharapuram.
2. The learned counsel for the petitioners contended that the petitioners being the wife and daughters of the respondent herein, the respondent cannot claim any maintenance against them by invoking the provision under Section 125 Cr.P.C. It is contended that only the father can claim maintenance against his son and not against others, viz., wife and daughters. The learned counsel for the petitioner, therefore, submitted that on that ground itself the proceedings is liable to be quashed.
3. The learned counsel for the petitioners further submitted that the proceedings were initiated under Section 125 Cr.P.C. before the learned Judicial Magistrate, Dharapuram where the respondent was residing, whereas, the petitioners were residing, admittedly, at Thavittupalayam, Anthiyur, Bhavani Taluk, Erode District, which comes under the jurisdiction of the learned Judicial Magistrate, Bhavani, and as such proceedings initiated under Section 125 Cr.P.C. is itself not maintainable. The learned counsel in support of such contention placed reliance on the decision of the Hon'ble Supreme Court in Vijay Kumar Prasad V. State of Bihar reported in 2004 (5) SCC 196.
4. Per contra, Mr.P.Palaninathan, learned counsel for the respondent who is appearing as legal aid counsel, contended that the petition filed under Section 125 Cr.P.C. claiming maintenance by the respondent against the petitioners is very much maintainable. It is contended that as per the provision under Section 125 (d) Cr.P.C., the petitioners are bound to maintain the respondent in the event of the respondent is not able to maintain himself. It is also pointed out by the learned counsel for the respondent to the effect that already the respondent has given the share of the ancestral properties in favour of the petitioners and now he has been left at lurch and he is struggling for maintaining himself. It is further submitted that the first petitioner/wife of the respondent is working as an Assistant in Khadi Craft, the second and fourth petitioners are doing business and earning good income and the third petitioner is working as a Teacher in Government School and in spite of the petitioners earning good income they are refusing to give any maintenance amount to the respondent after receiving the ancestral property from the respondent which caused great hardship to the respondent.
5. I have carefully considered the rival contentions put forward by either side and also perused the impugned maintenance petition and other materials available on record.
6. This is an interesting case, wherein, the main question raised for consideration of this Court is to the effect whether the head of the family, viz., the father of the children and husband of the wife, can seek the relief of maintenance against wife and children, namely, daughters. Before proceeding to consider the question involved in this matter, it is relevant to refer the provision under Section 125 Cr.P.C. which reads hereunder :
"125. Order for maintenance of wives, children and parents.
(1) If any person leaving sufficient means neglects or refuses to maintain-
(a) His wife, unable to maintain herself, or
(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,"
The reading of the above said provision makes it crystal clear that the object of legislation of the above said section itself is to protect mainly the interest of women, viz., wife and children.
7. The Hon'ble Apex Court while dealing with the object of provision under Section 125 Cr.P.C. has also held in Ramesh Chander V. Veena Kaushal reported in AIR 1978 SC 1807 that,
"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause the cause of the derelicts."
8. Regarding the main question involved in this case, it is relevant to refer the decision of the Hon'ble Apex Court in Vijay V. Kashirao reported in AIR 1987 SC 1100 in which it was held that,
"6. There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm."
9. The Hon'ble Apex Court in the very same decision ultimately held that,
"13. After giving our best consideration to the question, we are of the view that Section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself. Section 488 of the old Criminal Procedure Code did not contain a provision like Clause (d) of Section 125(1). The legislature in enacting Criminal Procedure Code, 1973 though it wise to provide for the maintenance of the parents of a person when such parents are unable to maintain themselves. The purpose of such enactment is to enforce social obligation and we do not think why the daughters should be excluded from such obligation to maintain their parents".
10. In view of the above settled position of law laid down by the Hon'ble Apex Court, this Court is constrained to hold that the petition filed for the maintenance by the respondent is maintainable as against the daughters/petitioners 2 to 4 but not against the wife/the first petitioner. The husband/respondent is entitled to claim maintenance only as per the provisions under Sections 24 and 25 of the Hindu Marriage Act, 1955 and not as per the provision under Section 125 Cr.P.C.
11. However, the learned counsel for the petitioners put forward a contention in respect of jurisdiction of the Court. It is pointed out by the learned counsel for the petitioners that the respondent initiated maintenance proceedings under Section 125 Cr.P.C. before the learned Judicial Magistrate, Dharapuram, where the respondent was residing whereas, the petitioners are admittedly residing at Thavittupalayam, Anthiyur, Bhavani Taluk, Erode District, which comes well within the jurisdiction of the Judicial Magistrate, Bhavani, and as such the petition is itself not maintainable.
12. The learned counsel for the petitioners rightly placed reliance on the decision of the Hon'ble Apex Court in Vijay Kumar Prasad V. State of Bihar reported in 2004 (5) SCC 196. The Hon'ble Apex Court in that decision has held as follows :
"12. ... the crucial expression for the purpose of jurisdiction in respect of a petition which is filed under Section 125 CrPC, 1973 by a father is not where parties reside and is .
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. .... proceedings under Section 125 of the Code are of civil nature. Unlike 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. .... the expression is in S.126 (1)(a) 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. .... 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 . The true intention has to be contextually culled out."
13. Therefore, in view of the above settled position of law which is squarely applicable to the fact of the case on hand in which the respondent has filed the petition for maintenance under Section 125 Cr.P.C. before the learned Judicial Magistrate, Dharapuram, where the respondent was residing whereas the petitioners are admittedly residing at Thavittupalayam, Anthiyur, Bhavani Taluk, Erode District, which comes well within the jurisdiction of the Judicial Magistrate, Bhavani, this Court is constrained to transfer the case pending in M.C.No.1 of 2004 on the file of the learned Judicial Magistrate, Dharapuram, to the learned Judicial Magistrate, Bhavani. The learned Judicial Magistrate, Dharapuram, is directed to transfer entire case records to the learned Judicial Magistrate, Bhavani, within a period of two weeks from the date of receipt of a copy of the order of this Court.
14. It is seen from the petition filed by the petitioners that the petitioners have been set ex-parte by the learned trial Magistrate on 30.01.2004 and as per the submission of the learned counsel for the petitioners no final order was passed till date in M.C.No.1 of 2004 and the petition filed by the petitioners 1 and 2 in C.M.P.No.552 of 2004 on 19.02.2004 and the petition filed by the petitioners 3 and 4 in C.M.P.No.801 of 2004 on 20.02.2004 seeking to set aside the ex-parte order dated 30.01.2004 are still pending. Therefore, this Court is constrained to direct the learned Judicial Magistrate, Dharapuram, to transfer the case records in M.C.No.1 of 2004 along with the petitions in CM.P.Nos.552 of 2005 and 801 of 2004 to the file of the learned Judicial Magistrate, Bhavani.
15. It is made clear that it is open to both the parties to raise all the points on merits before the learned trial Magistrate.
16. In view of the aforesaid reasons, the proceedings pending in M.C.No.1 of 2004 on the file of the learned Judicial Magistrate, Dharapuram, is hereby quashed insofar as the petitioner No.1/wife of the respondent is concerned.
17. Before parting with the matter, this court is constrained to place it on record the commendable service rendered by Mr.P.Palaninathan, learned counsel who has appeared as Legal Aid Counsel for the respondent by arguing vehemently and placing reliance on the relevant authorities. Mr.P.Palaninathan, learned counsel is entitled to get a remuneration of a sum of Rs.2,500/- (Rupees two thousand five hundred only) from the Madras High Court Legal Services Committee, High Court, Chennai.
With the above directions, this petition stands disposed of. Consequently, connected miscellaneous petition closed.
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