Natha Yeshwanta Waghmare vs Anil Natha Waghmare
2017 Latest Caselaw 7912 Bom

                                                                         crwp165.08
                                       -1-


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                    CRIMINAL WRIT PETITION NO. 165 OF 2008



 Natha s/o Yeshwanta Waghmare
 Age. 65 years, Occu. Nil,
 R/o. Siranjani, Tq. Himayatnagar,
 Dist. Nanded.                                             ...Petitioner

             Versus

 Anil s/o Natha Waghmare,
 Age. 27 years, Occu. Service,
 R/o. Krishna Dhupe, Ulhasnagar,
 Tarodanaka, Tq. & Dist. Nanded.                           ...Respondent

                                  .....
 Mr. B.N. Gadegaonkar, advocate for the petitioner.
                                   .....

                                             CORAM : V. K. JADHAV, J.

DATED : 9th OCTOBER, 2017

ORAL JUDGMENT:-

1. Being aggrieved by the judgment and order dated 1.9.2004

passed by the J.M.F.C. Himayatnagar in Misc. Criminal application

No. 16 of 2003 and the judgment and order dated 26.10.2007 passed

by the Sessions Judge, Nanded in criminal revision petition No. 150

of 2004, confirming thereby the order passed by the Magistrate, the

original applicant has preferred this writ petition.

2. Brief facts giving rise to the present writ petition are as follows:-

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a) The present petitioner has initiated the maintenance

proceeding against the respondent, who is son of the petitioner

begotten from his first wife, Shantabai. The first wife of the petitioner

viz. Shantabai is having two sons i.e. present respondent and one

Sunil. It is the case of the petitioner-original applicant that the

children born from his second wife are taking education. The

petitioner-original applicant is suffering from some ailments due to

old age and is not having any independent source of income, as

such, he is unable to maintain himself. The respondent-original non

applicant has completed his M.Tech degree and secured the

services in a Corporate company on monthly salary of Rs.15,000/-

and by doing the overtime, he is getting Rs.22,000/- p.m. The

petitioner-original applicant has claimed amount of Rs.3000/- p.m. as

maintenance and also for medical expenses.

b) The respondent non applicant has resisted the application on

the ground that since 20 years the present petitioner-original

applicant has deserted and ill-treated the respondent non applicant,

his mother and his brother. The petitioner-original applicant has

preformed second marriage with one Vidyabai. From the second

wife, the petitioner is having four children. The first is of 22 years

and second is of 18 years. The petitioner-original applicant is doing

the business of selling chilly and vegetables and earning Rs.3000/-

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p.m. He is also cultivating the lands of others on batai basis. It has

been also contended that the mother of non applicant i.e. first wife of

petitioner-original applicant alongwith younger brother of the non

applicant filed application bearing No. 54 of 1996 for grant of

maintenance from the petitioner-original applicant and inspite of the

maintenance order, the petitioner-original applicant never paid

maintenance amount. It has been also contended that the

respondent non applicant is not having any source of income. He is

unemployed. Both the courts below, by the impugned judgment and

orders, dismissed the application of the petitioner-original applicant

seeking maintenance. Hence, this writ petition.

3. Learned counsel for the petitioner submits that the learned

Sessions Judge in para 11 of the judgment has erroneously

observed that the petitioner-original applicant has admitted that he is

doing the business of selling chilly in the weekly Bazar. Learned

counsel submits that the petitioner original applicant has not given

such admission and as such the impugned judgment and order

passed by the learned Sessions Judge suffers from perversity.

Learned counsel submits that the respondent non applicant has

raised specific defence that he was not properly maintained by the

petitioner-original applicant. The petitioner-original applicant has not

discharged his parental obligation during the childhood of the

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respondent non applicant. The petitioner-original applicant has not

even taken care of mother of respondent non applicant who

happened to be the first wife of petitioner and as such, she

constrained to initiate maintenance proceeding alongwith her

younger son against petitioner-original applicant. Learned counsel

submits that the petitioner-original applicant cannot be punished for

his past negligence or failure to maintain respondent-original non

applicant. Learned counsel submits that any parent, who is unable to

maintain himself or herself and who has a child having sufficient

means, can resort to the provision of section 125 of Cr.P.C. for

securing the maintenance. The liability of a son to pay maintenance

under the above provision is distinct from and independent of the

liability of the other children in the family to maintain the parents.

Learned counsel for the petitioner in order to substantiate his

submissions, placed reliance on the judgment of this Court in the

case of Mahendrakumar Ramrao Gaikwad vs. Gulabbai w/o

Ramrao Gaikwad, reported in 2000 (Suppl.) Bom. C.R. 8.

4. None present for the respondent original-non applicant.

5. The petitioner-original applicant has initiated the maintenance

proceeding against the son born from his first wife. It is pertinent to

note that the petitioner is seeking maintenance from the son of his

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first wife on the ground that he was required to sell the land for

maintaining the children born from his second wife and also on the

ground that he has sold out his land for the purpose of paying

maintenance to his first wife Shantabai (mother of the respondent

non applicant). It is true that it is the obligation of the son to maintain

an aged, infirm parent, who is unable to maintain himself or herself

and it does not depend upon fulfillment of the parental obligation to

maintain and bring up the children during the childhood of the

children. The son cannot get rid of paying maintenance on the

ground that during his childhood the applicant has not fulfilled his

parental obligation and as such he is not liable for maintaining the

applicant. However, in the case in hand, the petitioner original

applicant is claiming that he is unable to maintain himself because he

sold the land to pay the maintenance to his first wife and also he is

not able to maintain himself, as four children born from his second

wife are taking education. Though the respondent non applicant has

raised specific plea that out of four children, two children are major.

However, in para 6 of cross examination, the petitioner has given

certain admissions. The applicant has admitted that he has kept the

sale proceed of the land in the bank.

6. It further appears from the order of maintenance passed in

favour of first wife that very meager amount has been awarded as

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maintenance. Learned counsel for the petitioner original applicant

has also, on instructions, accepted that the said maintenance

proceeding came to be settled amicably long back and that is also a

part of record. The applicant has further admitted in his cross

examination that he used to receive Rs.5000/- per month by selling

vegetables and chilly. The witness No.2 of the applicant has also

admitted in his cross examination that the applicant used to sell chilly

at Umarkhed, Dhanki, Himayatnagar markets. It appears from the

judgment and order passed by the courts below that the application

seeking maintenance came to be rejected mainly on the ground that

the applicant is able to maintain himself. I do not find any fault in the

judgment and order passed by the courts below.

7. It also appears from the evidence of the applicant and non

applicant that the applicant is able to maintain himself. Even though

the applicant has claimed that non applicant is getting income by way

of salary, however, no documentary evidence is placed on record to

substantiate the same. It is the case of the non applicant that he is

unemployed and he has to maintain his wife and children. His

mother Shantabai has also supported his case. It also appears from

the evidence of witness No.2 Shantabai that the maintenance

proceeding initiated against the present petitioner came to be settled

amicably after paying lump-sum amount of maintenance to the tune

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of Rs.10,000/- and she relinquished her future rights of maintenance.

It appears from the evidence that the petitioner applicant is able to

maintain himself. There is no satisfactory evidence on record that

the respondent non applicant though having sufficient means, failed

to pay maintenance to the petitioner-original applicant. Hence, the

following order:-

ORDER

I. Criminal writ petition is dismissed. Rule discharged.

II. In the circumstances, there shall be no order as to costs.

( V. K. JADHAV, J.)

rlj/