Khajaa Bi vs Bawasab and Others

K.N. Phaneendra, J.

The petitioner, who is none other than the mother of Respondent Nos. 1 to 3, has called in question the order dated 10.11.2014 passed by the family Court, Vijaypur in Crl. Misc. No. 249/2014 dismissing her petition under Section 125 of Cr.P.C. claiming maintenance from the respondents herein.

I have heard the arguments of the learned counsel for the petitioner as well as the respondents and perused the order of the Trial Court.

Learned counsel for the petitioner has made available the evidence of the parties to the proceedings recorded by the Trial Court.

The petitioner who is aged 90 years approached the Trial Court for grant of maintenance from her sons (respondents herein) on the ground that earlier she was living with the respondents since long time and when the petitioner became weak due to old age and when she required medical assistance, Respondent Nos. 1 to 3 have changed their behavior and started ill-treating and harassing the petitioner by using abusive words etc. and they stopped taking care of her. Thus, it has become inevitable for her to go and stay with one of her daughter''s house; that in spite of her repeated demands and requests, the respondents have not made any arrangements for maintenance of the petitioner, therefore, she moved the Court for grant of maintenance.

The respondents have appeared before the Court and contested the proceedings on various grounds. They contended that due to the instigation by their sister in whose house the petitioner is living, the petitioner has filed a petition in order to harass the respondents. They had also contended that at no point of time, they neglected or refused to maintain the petitioner. Even today they are ready and willing to maintain the petitioner, if she is ready and willing to live with the respondents. Further, they also contended that the petitioner had a house worth Rs. 25,00,000/- which is having CTS No. 141 at Ward No. 2 at Vijayapur and she sold the said house property for Rs. 24,00,000/- and she is keeping the said amount with her and therefore, she is having sufficient income by way of interest from the said amount, as such, she is not unable to maintain herself. Therefore, for all these reasons, the respondents have sought for dismissal of the petition.

The Trial Court on the basis of the above said rival contentions of the parties, has framed two important points, -

"i) Whether the petitioner proves that the respondents have refused and neglected to maintain her?

ii) Whether the respondents prove that the petitioner is able to maintain herself and they have not refused and neglected to maintain her?"

Answering these two points in favour respondents, the Trial Court has dismissed the petition. Perusal of the judgment of the Trial Court reveals that the Trial Court has mainly swayed away with the admissions of the petitioner that the respondents were looking after the petitioner with all love and affection and they sent her for Haj Pilgrimage on two occasions and they were cordial with the petitioner even when she has admitted that she cannot live in the house of the respondents and she is presently residing in the house of her daughter and she is also taking care and looking after her with all love and affection.

Taking the above two aspects into consideration, the Trial Court was of the opinion that there is no necessity for the respondents to pay any maintenance to the petitioner, as the petitioner is well-placed in the house of her daughter and her daughter has been taking care of the petitioner.

I have carefully evaluated the evidence adduced by the parties before the Trial Court. The past conduct of the petitioner and the respondents has been mainly considered by the Trial Court. But, the condition as on the date of the petition, ought to have been considered by the Trial Court. Perusal of the evidence before the Court reveals that, the petitioner has reiterated the contents of the complaint and admitted that as on the date of the petition she has been residing in her daughter''s house and that fact itself is not sufficient to absolve the liability of the respondents. Of course, the daughters are also liable to maintain their father and mother, but, the primary liability and responsibility lies on the male children. If the male children are unable to maintain the parents or if the parents have no male issues, then the liability and responsibility of looking after and taking care of their parents shifts on to the female children. Merely because the daughter is maintaining the petitioner, that itself is not sufficient to say that the petitioner cannot claim any maintenance from the respondents.

The petitioner has categorically stated that though earlier she was residing with the respondents, due to hurling of some abusive words and also aggravated by the attitude of the respondents she left their house and prepared to stay in the house of her daughter. It is very difficult to disbelieve the version of the petitioner because, she is aged 90 years. At the same time, she has also appreciated the respondents for having looked after her for some time with all love and affection and also stated that as on the date of the petition, they neglected and refused to maintain her. There is no reason to sway away from the materials produced before the Court to disbelieve the version of such an old lady (petitioner). In the course of cross-examination, the respondents have suggested to her that she had a house at Ward No. 2 and she sold the same for Rs. 24.00 lakhs and she has not given any share in the said property to the respondents. But, the petitioner had in fact admitted that she sold the house for Rs. 80,000/- and she utilized the said amount for her Huj Pilgrimage. Even a suggestion has been made to the petitioner in the cross-examination that all the respondents have demanded a share in her property and she has not given any share in the property or any share in the consideration amount taken by her. Perhaps the respondents might have thought that the petitioner is not giving any share in the property or in the consideration amount to them, but she is favouring her daughter. Therefore, this might have led the petitioner to leave the house of the respondents and stay in the house of her daughter. This clearly goes to show that the admission on the part of the respondents that they have demanded for a share in the property of the petitioner itself shows that some differences were arose between the Respondents - 1 to 3 and the petitioner and for that reason the petitioner is refusing to go and stay with the respondent Nos. 1 to 3.

Looking to the above circumstances, I do not find any strong reasons to refute the contention of the petitioner. The refusal and negligence could not be by specific reasons, but the Court has to gather the same from all the surrounds of the case.

By looking to the above circumstances, I am of the opinion that the petitioner has established that the respondents have refused and neglected to maintain the petitioner and thereby they are liable to pay some amount towards her maintenance. So far as the other aspects are concerned with regard to petitioner''s capability to maintain herself is concerned, it is also an admitted fact that the petitioner has taken shelter in the house of one of her daughter, hence it is clearly established that the petitioner is dependent upon any one of her children and she is unable to live alone. It is also an admitted fact that the only one house in her name was already sold for Rs. 80,000/- and that amount has been spent for her Huj Pilgrimage. Even on perusal of the sale deed if it is accepted that she has received consideration of Rs. 1,23,000/-, as suggested in the course of cross-examination, she has given explanation that the said amount is not with her and she spent the same for her Huj Pilgrimage. There is no material to show that the said property was sold for Rs. 24,00,000/- and that amount is with her and the said amount is reaping some interest and out of that income she can maintain herself. The respondents have not placed any material before the Court in order to establish their suggestion, as such, the said suggestion has become baseless. On the other hand, respondent No. 3, who led evidence before the Court as RW. 1 has categorically admitted about his income and he purchased a car and also having some property in his name. Respondent Nos. 1 and 2 have not led any evidence and they have also not disclosed their income so that the Court can mitigate the circumstances and come to a definite conclusion as to how much maintenance amount can be awarded to the petitioner from their side.

When there is no material available to the Court to come to a definite conclusion with regard to the income of the respondents then the Court has to see what should be the minimum requirement of a person to meet the two ends of a month. Therefore, I am of the opinion that if an amount of Rs. 3,000/- payable by Respondent Nos. 1 to 3 at Rs. 1,000/- each in favour of the petitioner is awarded, it would meet the ends of justice. Therefore, I am of the opinion that dismissal of the petition by the Trial Court is erroneous and the Trial Court has not properly appreciated the pros and cons of the petitioner''s life and without considering the old age and helplessness of the petitioner, the Trial Court has rejected the petition, which is not proper and correct, and which requires to be set aside.

In the result, I proceed to pass the following order:--

ORDER

The revision petition is allowed. Consequently the judgment passed by the Family Court, Vijaypur in Crl. Misc. No. 249/2014 on 10.11.2014 is hereby set aside. Consequently, the petition filed by the petitioner before the Trial Court under Section 125 of Cr.P.C. is hereby allowed. Respondent Nos. 1 to 3 are jointly and severally liable to pay a sum of Rs. 3,000/- p.m. to the petitioner till her death from the date of the petition before the Trial Court. The Respondent Nos. 1 to 3 are also directed to pay a sum of Rs. 10,000/- to the petitioner towards litigation expenses.