It is not a defence for the child to contend that the parent is not residing with him and that he/she will maintain the parent only if the parent is so willing to reside with him.

  First of all it is contended that the claimant is residing

separately without sufficient cause. The contention stems from

a very basic misconception that like the wife the mother is also

bound to stay with the child from whom she claims maintenance

to justify her claim. There is nothing in the provisions of Section

125 Cr.P.C which can even remotely suggest that a child against

whom the claim for maintenance is staked by the parent can

resist the claim successfully on the plea that the parent is

refusing to live with him/her. Such a plea is not recognised by

law at all. Individuality of the hapless parent is recognised by

law and the law does not oblige or compel such claimant/parent

to necessarily reside with the child to entitle him/her to claim

maintenance. The absence of a provision similar to Section 125

(3) (its second proviso), 125(4) and 125(5) Cr.P.C in respect of

the parents is in this context significant. I am certainly of the



opinion that the law permits the parent to claim maintenance

from the child and it is not a defence for the child to contend that

the parent is not residing with him and that he/she will maintain

the parent only if the parent is so willing to reside with him.

Such a plea is not available to a child facing the claim for

maintenance of the parent. Under Section 125 Cr.P.C a father,

mother, wife and children are entitled to claim maintenance. But

it is significant that the legislature has advisedly chosen to make

Section 125(3) (ie. its second proviso), (4) and (5) applicable only

to wives and no others.        The classification is deliberate and

justified absolutely considering the very special and different

nature of the relationship between the spouses.                 The

fundamental matrimonial obligation of the spouse to cohabit is

recognised and respected in Chapter IX of the Code.             The

conclusion is inevitable from the scheme of Section 125 Cr.P.C

that the parent, wife or child is entitled to be maintained

wherever they are. The obligation of a person having sufficient

means to maintain his parent, child or wife does not ordinarily

depend on the place of residence of such parent, child or wife.

But in so far as the wife (alone) is concerned, the law stipulates

in Section 125 (3) (its second proviso), (4) and (5) that if a



husband offers to maintain his wife on condition that she lives

with him and she refuses to accept such offer, he will be liable to

pay separate maintenance only if she has sufficient reason/just

ground to justify such separate residence.         Going by the

language of Section 125 Cr.P.C or its broad scheme, it is not

possible to assume that all claimants are bound to accept such

an offer to maintain on condition of cohabitation or that they are

bound to show sufficient reason or just ground to justify the

refusal to so cohabit.    It is not possible to assume that the

expression `wife' in Section 125(3) (second proviso), (4) and (5)

impliedly includes all claimants. It would be irrational, artificial

and unjust and consequently impermissible to include all

claimants within the sweep of the expression `wife' in those sub

sections.    This question was considered and answered in favour

of the parent in the decision in Selvan Singh v. Nagamani

[2006(4) KLT 125] in para.9.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC.No. 378 of 2008()



1. CHATHAPOPANTAVIDA BALAN
                      ...  Petitioner

                        Vs

1. CHATHAPPANTAVIDA DEVI
                       ...       Respondent

               

The Hon'ble MR. Justice R.BASANT

 Dated :19/12/2008


                      R.P.F.C. No.378 of 2008
                      -------------------------------------
           Citation ;AIR 2009(NOC)1016 kerala


      Is a child against whom the parent stakes a claim for

maintenance under Section 125 Cr.P.C entitled to contend that

the parent must reside with him/her to justify such claim ? Are

Sections 125(3) (second proviso), 125(4) and 125(5) applicable

impliedly to the claim of a parent? These questions are raised in

this R.P.F.C by the learned counsel for the petitioners.

      2.   Petitioners were respondents in a claim under Section

125 Cr.P.C staked before the Family Court by the respondent

herein, who is the wife of the 1st petitioner and the mother of the

2nd petitioner.   The learned Judge of the Family Court had

directed the 2nd petitioner alone to pay an amount of Rs.750/- per

mensem as maintenance to the claimant/respondent. The claim

against the 1st petitioner was refused. There is no challenge

against that. The 1st petitioner has come to this Court with this

petition only to give company to his son, the 2nd petitioner. I find

no other purpose at all.



      3.   Status of the respondent as the mother of the 2nd

petitioner is admitted.      That she is residing separately is

admitted. That she is residing in a house belonging to the 1st

petitioner, which has been allegedly assigned by him in favour of

the 2nd petitioner is also not disputed. Of course, it is submitted

that there is litigation between the parties on the validity of such

an assignment. The claimant is residing in that house along with

her daughter and son in law.

      4.   The mother claimed that she is unable to maintain

herself.  She claimed maintenance from both the petitioners.

The petitioners resisted the claim for maintenance on the ground

that the claimant is residing separately along with her daughter

and son in law without any justifiable excuse. She is not coming

and living with the petitioners.      She is not permitting the

petitioners to reside along with her in the house. There was a

further contention that another son of the claimant was killed in

a motor accident and that she has staked claim for compensation

before the court.      Admittedly except an initial payment of

Rs.25,000/-, the balance of compensation has not been received

by her. The learned Judge of the Family Court on an anxious

consideration of all the relevant circumstances came to the



conclusion that the 2nd petitioner is liable to pay maintenance @

Rs.750/- per mensem to the claimant.

      5.    The 2nd petitioner claims to be aggrieved by the order.

What is the grievance ? Arguments have been heard in detail for

admission. The learned counsel for the petitioners assails the

impugned order on various grounds.

      6.    First of all it is contended that the claimant is residing

separately without sufficient cause. The contention stems from

a very basic misconception that like the wife the mother is also

bound to stay with the child from whom she claims maintenance

to justify her claim. There is nothing in the provisions of Section

125 Cr.P.C which can even remotely suggest that a child against

whom the claim for maintenance is staked by the parent can

resist the claim successfully on the plea that the parent is

refusing to live with him/her. Such a plea is not recognised by

law at all. Individuality of the hapless parent is recognised by

law and the law does not oblige or compel such claimant/parent

to necessarily reside with the child to entitle him/her to claim

maintenance. The absence of a provision similar to Section 125

(3) (its second proviso), 125(4) and 125(5) Cr.P.C in respect of

the parents is in this context significant. I am certainly of the



opinion that the law permits the parent to claim maintenance

from the child and it is not a defence for the child to contend that

the parent is not residing with him and that he/she will maintain

the parent only if the parent is so willing to reside with him.

Such a plea is not available to a child facing the claim for

maintenance of the parent. Under Section 125 Cr.P.C a father,

mother, wife and children are entitled to claim maintenance. But

it is significant that the legislature has advisedly chosen to make

Section 125(3) (ie. its second proviso), (4) and (5) applicable only

to wives and no others.        The classification is deliberate and

justified absolutely considering the very special and different

nature of the relationship between the spouses.                 The

fundamental matrimonial obligation of the spouse to cohabit is

recognised and respected in Chapter IX of the Code.             The

conclusion is inevitable from the scheme of Section 125 Cr.P.C

that the parent, wife or child is entitled to be maintained

wherever they are. The obligation of a person having sufficient

means to maintain his parent, child or wife does not ordinarily

depend on the place of residence of such parent, child or wife.

But in so far as the wife (alone) is concerned, the law stipulates

in Section 125 (3) (its second proviso), (4) and (5) that if a



husband offers to maintain his wife on condition that she lives

with him and she refuses to accept such offer, he will be liable to

pay separate maintenance only if she has sufficient reason/just

ground to justify such separate residence.         Going by the

language of Section 125 Cr.P.C or its broad scheme, it is not

possible to assume that all claimants are bound to accept such

an offer to maintain on condition of cohabitation or that they are

bound to show sufficient reason or just ground to justify the

refusal to so cohabit.    It is not possible to assume that the

expression `wife' in Section 125(3) (second proviso), (4) and (5)

impliedly includes all claimants. It would be irrational, artificial

and unjust and consequently impermissible to include all

claimants within the sweep of the expression `wife' in those sub

sections.    This question was considered and answered in favour

of the parent in the decision in Selvan Singh v. Nagamani

[2006(4) KLT 125] in para.9.

      7.    The learned counsel for the petitioners then contends

that the claimant is not a woman unable to maintain herself. It is

first of all urged that she is residing with the daughter and that

the daughter and son in law are looking after her. The daughter

admittedly is only a house wife and is not a person having



sufficient means of her own. She herself is totally dependent on

her husband. The mere fact that a parent driven to the wall, who

is not maintained by either her husband or son, has taken shelter

in the residence of her daughter and is depending on the charity

of her husband is no reason to conclude that such parent is not

unable to maintain herself. It may be true that the daughter and

the son in law out of charity is saving such parent from hunger,

but that is no reason to conclude that such parent is not unable

to maintain himself/herself.

      8.   It is next contended that another son of the claimant

had expired in a motor accident and a claim for compensation is

staked before the Motor Accident Claims Tribunal. Admittedly

till now no substantial payment has been received by the

claimant. If and when she receives such compensation and if

such compensation is sufficient for her to maintain herself, the

petitioner shall certainly be entitled to claim alteration of

maintenance under Section 127 Cr.P.C on the ground that she

has ceased to be a woman unable to maintain herself. At the

moment and with the available inputs, there is nothing to show

that the claimant/mother has received adequate amounts by way

of compensation which is sufficient for her to maintain herself.


     9.    The   only    other   question  is   the    quantum    of

maintenance payable. The 1st petitioner/husband of the claimant

was found to be not having sufficient means. The 2nd petitioner

is an autorickshaw driver and the quantum of maintenance

awarded is only Rs.750/- per mensem. Even reckoning the fact

that the shelter/roof is being provided by the 2nd petitioner/son

for the claimant/his mother, I am satisfied that the quantum of

maintenance awarded does not warrant interference.

     10. The upshot of the above discussion is that the

impugned order directing payment of maintenance under

Section 125 Cr.P.C does not warrant interference by invoking

the revisional jurisdiction of superintendence and correction.

     11. This R.P.F.C is, in these circumstances, dismissed. I

may hasten to observe that the dismissal of this revision petition

will not in any way fetter the rights of the 2nd petitioner to claim

alteration of maintenance under Section 127 Cr.P.C if there be

change of circumstances later.



                                            (R.BASANT, JUDGE)

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