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1992 DIGILAW 10 (MAD)

Irudayamary v. Amirtharaj

1992-01-06

PADMINI JESUDURAI

body1992
Judgment : The short question involved in this revision is whether an earning married daughter can be directed under Sec. 125, Crl.P.C, to pay maintenance to her father, having no means? 2. The respondent/faiher filed M.C.No.120 of 1981 under Sec. 125, Crl.PC. in the court of the Second Metropolitan Magistrate, Egmore, Madras, seeking maintenance from his daughter, the petitioner herein, on the following averments. The respondent is a widower suffering from asthma. He has four daughters, including the petitioner herein. He had educated the petitioner and after undertaking Nurses’ Training Course, the petitioner was employed as a Staff Nurse in the Mother-Child Welfare Hospital at Egmore, drawing a salary of Rs.1,000 per month. After her marriage, the petitioner neglected and refused to maintain him and he no means to maintain himself He, therefore, sought maintenance of Rs.200 per month from the petitioner. 3. The petitioner resisted the claim contending that she had free education and it was her elder sister who had spent for her and the respondent derives income by way of interest in certain deposits of his provident fund amount and was, therefore, not entitled for maintenance. She also alleged that the other three daughters of the respondent, were presently maintaining him. 4. During the enquiry, the respondent was examined as P.W.1 and the petitioner was examined as R.W.1. The notice sent by the respondent to the petitioner was marked as Ex.R-1 and the reply notice as Ex.R-2. The learned Magistrate found that the respondent had no means to maintain himself, though the other three daughters were contributing a little towards his maintenance and the same was insufficient and the petitioner, being well employed, had means and had neglected and failed to maintain her father. Considering the fact that the other three daughters were paying something towards the maintenance of the respondent, he directed the petitioner to pay Rs.75 per month to the respondent for his maintenance. Aggrieved with the order, this revision has been filed. 5.Thiru A.Raghunathan, learned counsel for the petitioner urged two contentions in support of his prayer. It was initially submitted that a married daughter could not be said to have filed and neglected to maintain her parent and such an idea was in-conceivable. Aggrieved with the order, this revision has been filed. 5.Thiru A.Raghunathan, learned counsel for the petitioner urged two contentions in support of his prayer. It was initially submitted that a married daughter could not be said to have filed and neglected to maintain her parent and such an idea was in-conceivable. According to the learned counsel, the petitioner was married and had her own family to look after and as such, no liability could be cast on a married daughter to maintain her parents. 6. The above contention has to be straightaway rejected in view of the direct decision of the Supreme Court in Dr.Vijaya Manohar Arbat v. Kashirao Rajaram Sawai and another, A.I.R. 1987 S.C. 1100. When he same question came up for consideration before the Supreme Court, drawing strength from the use of the pronounce “his” in clause (d) of Sec.125, the Court rejected it by referring to Sec.2(y), Crl.P.C. and Sec.8 of the I.P.C. and Sec. 16(1) of the General Clauses Act and held as follows: “Therefore, the pronoun”his“as used in Clause (d) of Sec.125(i), Crl.P.C. includes bpth male and female. In other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. Before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her-own independently of the means of income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.” 7. Thus it is seen that when a doubt was raised whether the liability to maintain the parents could be cast on a married daughter, the court dispelled the doubt and laid down that the liability created under Sec. 125(1)(d) is equally on the some as well as the daughters to maintain their father or mother, who is unable to maintain himself or herself. The first contention of the learned counsel for the petitioner is, therefore, legally unsustainable. .8. It was then contended that the respondent has four daughters and the petitioner has been singled out for claiming maintenance and as such, the order granting maintenance has to be set aside. The first contention of the learned counsel for the petitioner is, therefore, legally unsustainable. .8. It was then contended that the respondent has four daughters and the petitioner has been singled out for claiming maintenance and as such, the order granting maintenance has to be set aside. The Joint Committee on the Crl.P.C. Will, 1973, in its Report, has observed as follows: .“If there are two or more children, the parents may seek their remedy against anyone or more of them.” 9. In Ahathinamaligai alias Muniswami v. Ar-umugham, 1987 L.W. (Cri.) 278, when a father sought maintenance from one of his sons, I have held that such a claim could be madeand it was not necessary that the claim must be made against all the children. The respondent, therefore, is entitled to seek an order of maintenance from the petitioner alone. .10. Even on facts it is seen that the respondent has hot made an arbitrary selection for claiming maintenance. Among his other daughters, one is a staff nurse in the Govarnment-Stanley Medical College Hospital, Madras, another is a Physio Thereap.hist in the General Hospital, Madras, while the youngest is employed in the Finger Print Bureau in the I.G’s Office at Madras. All of them are married and have families of their own. The respondent has stated that after his wife’s death, he was afflicted with asthma and for his maintenance, the other three daughters are paying him money, whenever he asks them; but that when he approached the petitioner, the petitioner drove him away asking him not to come anywhere near her house. Thus there is reason enough for the respondent to file this application against the petitioner alone. It is not’denied that the petitioner is one of the daughters of the respondent, and that she is employed as a staff nurse in a Government Hospital and has sufficient means independent of the means of her husband. The learned Magistrate has found that the respondent has no means to maintain himself. In such a situation, taking into account the fact that the other three married daughters are contributing to the maintenance of the respondent, the learned Magistrate has fixed a very paltry sum of Rs.75 per month, as the share of the petitioner towards the maintenance of her father. I see no error or illegality in the order of the learned’ Magistrate. 11. This revision is accordingly dismissed.