Madras High Court
Syed Khader vs Syed Abdul Rahim on 15 June, 2022
Crl.R.C.No.249 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.249 of 2021
Syed Khader ... Petitioner
Versus
Syed Abdul Rahim ... Respondent
Prayer: Criminal Revision Case filed under Section 397 and 401 Cr.P.C.,
to set aside the order, dated 03.02.2021 passed by the learned V Additional
Principal Judge, Family Court, Chennai in M.C.No.353 of 2018 filed under
Section 125 of Cr.P.C.
For Petitioner : Mr.L.Gavaskar
For Respondent : Mr.Jerry V.V. Sundar
ORDER
This Revision is filed against the son, aggrieved by the order of the
learned Judge, ordering a sum of Rs.10,000/- as maintenance to the
respondent namely, Syed Abdul Rahim, his father.
2. The grievance of the petitioner is that firstly, the respondent is
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Crl.R.C.No.249 of 2021
earning and is able to maintain himself. Secondly, his further contention is
that the petitioner is already maintaining the mother. Apart from the
petitioner, there are three other sons. Therefore, without claiming any
maintenance from the other persons, the respondent has picked and chosen
him only on account of the property dispute, in which, already the Court
has held that the respondent did not have any right and the petitioner's
mother alone has got a right. It is his further contention that he is only in
the business of repairing sofas and especially, in view of the pandemic, he
is getting less of such work and hence earning Rs.10,000/- per month and
the contention that he is getting rental income is factually incorrect. The
learned Counsel would rely upon the judgment in Vasant Vs. Govindrao
Upasrao Naik and Ors.,1 in support of his contention that when there are
more than one children, picking and choosing one child alone is to be
interfered with.
3. Per contra, the learned Counsel for the respondent would submit
that even as per the evidence on record, at this old age, the respondent is
trying his best to do Watchman work and is earning a sum of Rs.7,200/-,
even as per the evidence before the Trial Court, which is not enough to
1 MANU/MH/0167/2016
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Crl.R.C.No.249 of 2021
maintain himself. The other three children are not doing very well and
they are Auto Driver and Tailors and are finding it difficult to lead their
livelihood by themselves and therefore, since the petitioner is in
possession of properties, the petition for maintenance is filed against this
petitioner. The learned Counsel would rely upon the judgment of the
Bombay High Court in Mahendra Kumar Vs. Gulabbai and Ors.,2, in
support of his contention that when there are more than one children,
picking and choosing any child is within the right of the respondent.
4. I have considered the rival submissions made on either side and
perused the material records of the case. Firstly, regarding the capacity to
maintain himself, admittedly, as per the evidence on record, the respondent
is earning sum of Rs.7,200/-. He is aged 88 years as on today and was
aged 84 years as on the date of the petition. Considering the present day
circumstances, one can easily conclude that any person to live at this age
for minimum shelter, food, expenses and medical expenses, a sum of
Rs.15,000/- to Rs.20,000/- is essential. Therefore, he is earning only a
sum of Rs.7,200/- which is not enough to sustain himself. Therefore, I
reject the arguments of the learned Counsel for the petitioner that the
2 2000 SCC OnLine Bom 125
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Crl.R.C.No.249 of 2021
respondent is able to sustain himself and that he is not entitled for
maintenance.
5. Now, coming to the second argument that there are other children
and the counter arguments that the respondent is entitled to choose the
petitioner for seeking maintenance, a perusal of the cross-examination
shows that no categorical answer is given by the respondent and he has
evaded the cross-examination by saying that he does not know what job is
being performed by his other sons. Therefore, considering the facts and
circumstances of this case, even though the respondent has a right to ask
maintenance from one child alone, the facts that the petitioner is already
maintaining his mother i.e., the wife of the respondent and that there are
three other children, have to be taken into account and accordingly, I feel
that it is just and fair that a sum of Rs.3,000/- per month is ordered as
maintenance from the date of petition, instead of mulcting the entire
liability of Rs.10,000/- from the petitioner alone.
6. Accordingly, the Criminal Revision Case is ordered on the
following terms:-
(i) the order, dated 03.02.2021 in M.C.No.353 of 2018 passed by the
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Crl.R.C.No.249 of 2021
learned V Additional Principal Judge, Family Court, Chennai is modified
as to the quantum of maintenance alone and instead of Rs.10,000/- per
month, from the date of petition a sum of Rs.3,000/- is ordered to be
payable by the petitioner;
(ii) the respondent would be at liberty to file fresh application for
maintenance against the other children also;
(iii) the petitioner shall pay the monthly maintenance of Rs.3,000/-
on or before the fifth day of every English Calender month and pay the
arrears from the date of petition till date within a period of eight weeks
from today.
(iv) Consequently, Crl.M.P.No.5389 of 2021 is closed.
15.06.2022
Index : yes/no
Speaking/Non-speaking order
grs
To
The V Additional Principal Judge,
Family Court, Chennai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.249 of 2021
D.BHARATHA CHAKRAVARTHY, J.
grs
Crl.R.C.No.249 of 2021
15.06.2022
https://www.mhc.tn.gov.in/judis
