Bombay High Court

Bombay High Court: Vibha Kankanwadi, J. partly allowed a writ petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class further modifying the maintenance amount to Rs 3000/- per month.

The present petition was filed by a father intending to invoke the Constitutional powers of this Court to challenge the order passed by Additional Sessions Judge whereby the revision petition by son (present respondent) was allowed setting aside the order of grant of maintenance passed by Judicial Magistrate First Class under Section 125 of Criminal Procedure Code, 1973.

Petitioner had three daughters and only one son, wife of the petitioner is still alive, but she stays separately from the petitioner but with the respondent. Petitioner contended that he had no source of income and due to his old age he is unable to do any work therefore said application for maintenance was filed. Magistrate after taking into consideration the evidence on record had come to the conclusion that the petitioner is unable to maintain himself, respondent had refused to maintain his father even after being capable of maintaining father. He had granted maintenance of Rs. 5000/- per month. This order was challenged by the respondent and reversing all the findings of the Magistrate, the Additional Sessions Judge had set aside the order passed by the Magistrate and dismissed the original application. Hence, this writ petition.

A surrejoinder was filed by the respondent stating that petitioner had agricultural land admeasuring 57 R and he has sold the same to one Sunil Chandrabhan Admane on 09-11-2015 for a consideration of Rs.3 lakh. However, according to the him, actual consideration amount was Rs.7,50,000/-, but it has been shown less in the sale deed.

The Court from the submissions gathered that at present the age of the petitioner is around 73 to 75 years and it was on record that there is no land left with the petitioner. The Court further opined that even if for the sake of arguments its accepted that there was a piece of land for the petitioner the question still remains whether that is giving him sufficient income to sustain and whether his physical ability is allowing him to cultivate the land or get it cultivated through anybody so that he can earn.

The son cannot avoid his responsibilities to maintain the father. The Court further remarked that the respondent cannot impose a condition on him in exchange of providing maintenance. The respondent had pointed out that because of the vices of the father, there were differences between the mother and the father and they were not residing together and now he was demanding the money just to fulfill his vices to which the Court commented that it cannot go into disputed facts forever and the Court can only decide whether there is a source of income for the petitioner which could give him sufficient amount to support and then there is responsibilities of son to maintain the father, and therefore, the finding which has been arrived at by the revisional Court only on the technical basis that some amount was received by the petitioner in the past because of the sell and the so called admission of the petitioner that by doing labour work he is getting wages of Rs.20/- per day. The Court believed that the said order could not have been totally discarded and that the revisional Court by applying proper criteria could have reduced that amount to make it sustainable for both the parties.

The approach taken by the revisional Court appears to be too hyper technical and when it comes to petitions under Section 125 , CrPC, the Courts cannot be so hyper technical in their approach.

The Court therefore considering all the situations partly allowed the petition setting aside the judgment and order of Additional Sessions Judge and confirming the findings of Judicial Magistrate First Class modifying the maintenance amount to Rs 3000/- per month.

[Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke, 2022 SCC OnLine Bom 1528, decided on 08-07-2022]

Advocates who appeared in this case :

Mr N. D. Batule, Advocate, for the Petitioner;

Mr D. R. Marked h/f Mr G. P. Darandale, Advocates, for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

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