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2001 DIGILAW 505 (CAL)

JOYRAM PASWAN v. SUMITRA DEVI

2001-08-14

AMIT TALUKDAR

body2001
A. TALUKDAR, J. ( 1 ) AN order No. 7 dated 20. 1. 2000 passed by the learned Additional Sessions Judge, 3rd Court, Howrah in Criminal Motion No. 147 of 1999 has been challenged on behalf of the petitioner in this application. ( 2 ) THE brief facts relating to filing of the Revisional Application dates back to 29. 6. 99, when the learned Judicial Magistrate, 3rd Court, Howrah in connection with Misc. Case No. 208 of 1998 on the basis of a Petition filed under section 125 of the Code of Criminal Procedure by the Opposite Party No. 1 awarded a sum of Rs. 1,000/- per month towards her main-tenance to be paid by the petitioner w. e. f. the date of filing of the same. ( 3 ) THE said order of maintenance awarded against the petitioner here-in-above was challenged before the learned Sessions Judge on behalf of the Petitioner. The said Application was registered as Criminal Motion No. 147 of 1999. ( 4 ) THE learned Sessions Judge admitted the said Motion by an order dated 21. 7. 99 and granted stay of the order dated 29. 6. 99 passed by the learned Magistrate in Misc. Case No. 208 of 1998 till the next date of hearing. ( 5 ) BY an order dated 20. 1. 2000 extended the said interim order of stay till the disposal of the Motion that the petitioner shall pay by way of an interim maintenance a sum of Rs. 500/- per month from that date. ( 6 ) IN this Application, the learned lawyer appearing for the petitioner has prayed for setting aside the said order passed by the learned Additional Sessions Judge, Howrah in Criminal Motion No. 147 of 1999 on the premises that the Motion has been kept long pending by the learned Judge without disposing it of finally and further that the conditional interim order of payment of Rs. 500/- per month was also according to the learned lawyer appearing for the petitioner not proper as the status of the Opposite Party has not yet been determined. 500/- per month was also according to the learned lawyer appearing for the petitioner not proper as the status of the Opposite Party has not yet been determined. ( 7 ) ALTHOUGH, not taken in the grounds of the Revisional Application the learned lawyer appearing for the petitioner has further submitted that the learned trial Court ought not to have passed an award of maintenance in favour of the Opposite Party as she was admittedly the step-mother and was not entitled to any order under section 125 of the Code of Criminal Procedure. The learned Additional Sessions Judge should have appreciated the same and dispose of the prayer by setting aside the same. ( 8 ) HE has further submitted that as the claim of the opposite party No. 1 does not have any basis the Revisional Application in the Court below which has been kept pending for a long period and the petitioner has now been saddled with an interim award, should be set aside. ( 9 ) THE learned lawyer appearing for the opposite party took a point that since the petitioner has filed the Revisional Application before the learned Additional Sessions Judge against the order of the learned Magistrate and the same has not yet been disposed of. This Court should now only pass an order for expeditious direction for disposal of the said Application by the learned Additional Sessions Judge and should not adjudicate on the point of merit. ( 10 ) HAVING heard the submissions of the learned lawyers appearing for the parties and on considering the materials on record I am of the view that a very preliminary point subsists before this Court. If the said point is to be dealt with the entire matter would be covered. Accordingly the Criminal Motion No. 147 of 1999 stands withdrawn before this Court and would deem to be disposed of by virtue of this Judgment. ( 11 ) THE main issue involved in this Revisional Application is in connection with an order directing some interim payment to the Opposite Party No. 1 and also for long pendency of the Revisional Application directed against the learned Magistrate's order granting maintenance to her. ( 11 ) THE main issue involved in this Revisional Application is in connection with an order directing some interim payment to the Opposite Party No. 1 and also for long pendency of the Revisional Application directed against the learned Magistrate's order granting maintenance to her. ( 12 ) SINCE the Revisional Application before the learned Additional Sessions Judge which is pending, has been taken out on the ground that the Opposite Party No. 1, being the step-mother, is not entitled to any order of maintenance is the basic issue. This Court seeks to decide the same. The word-Mother in clause (d) of sub-section (1) of section 125, Cr. PC cannot mean the step-mother also. The concept of Mother would include only the natural Mother and not a step-mother. This view gathers subsistence from the decision in the case of Debendra v. Karunamoyee reported in 1977 CHN 887 of this Court where in it has been held that a Mother would not include a step-mother and necessarily, it follows that such a step-mother would not be entitled to any order of maintenance. ( 13 ) HOWEVER, in view of the decision of the Supreme Court reported in 1996 SCC (Cri) 762 in the case of Kirtikant D. Vadodaria v. State of Gujarat and another wherein the Supreme Court had also endorsed the said view and held that even by an analogy from the General Clauses Act, 1897, as it has held: Father would include an adoptive Father; and adoptive mother may also be included in the expression of a Mother, but not a step-mother. however, the Supreme Court in the said decision held that as section 125, Cr. PC intended to achieve a social purpose of liberal construction to fulfil the intention of the legislature should be given and consequently, to achieve the said object a childless step-mother may claim maintenance from her step-son; provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. PC intended to achieve a social purpose of liberal construction to fulfil the intention of the legislature should be given and consequently, to achieve the said object a childless step-mother may claim maintenance from her step-son; provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. ( 14 ) IN the instant case, it is found that it is no doubt true the Opposite Party No. 1 is a widow and the learned Magistrate has found-"poor status of a lady with three issues can be gathered well, as she has no income of her own and all the dues to her and the children have not yet been released after a proper settlement at the office of the deceased husband. " ( 15 ) IT appears that the Opposite Party No. 1 is a widow and is also having three children as transpires from the evidence of the learned trial Court the Certified Copy of such Judgment forms part of the record of Criminal Motion No. 147 of 1999. ( 16 ) HOWEVER, it also appears that she has been made the nominee of the deceased who was Railway Employee and it further appears from the Judgment of the learned trial Court that-"his father (the father of the Petitioner) had mentioned the name of this Sumitra Devi, (Opposite Party No. 1 here-in-above) as his wife in the nomination form submitted by him to the Railway Department. "and further from the said Judgment it also appears-"she (Opposite Party No. 1) has also filed a copy (Certified) of the succession case Order (No. 15/90 passed by the learned District Judge, Samastipore, Bihar dismissing the succession petition of the O. P. against this petitioner and others, among whom, one Dayarain Devi was also mentioned. " ( 17 ) IN such view of the matter it cannot be said that the Opposite Party No. 1 is in such a helpless condition that she cannot maintain herself being the nominee of all the dues of a Railway Employee and also who had succeeded to her husband's estate. ( 18 ) THAT being so, as the step-mother otherwise cannot be entitled to an order of maintenance in view of the discussions held here-in-above and the ratio of the decisions of Debendra (supra) and Kirtikant D. Vadodaria (supra ). ( 18 ) THAT being so, as the step-mother otherwise cannot be entitled to an order of maintenance in view of the discussions held here-in-above and the ratio of the decisions of Debendra (supra) and Kirtikant D. Vadodaria (supra ). ( 19 ) THIS Court is of the view that the learned trial Court's Judgment, awarding a maintenance in favour of the Opposite Party No. 1 which is the subject matter of challenge before the learned Additional Sessions Judge, 3rd Court, Howrah in Criminal Motion No. 147 of 1999 as it stands withdrawn before this Court allows the Application and quashes the order of maintenance passed in favour of the Opposite Party No. 1. The learned Additional Sessions Judge, 3rd Court, Howrah will now only pass the consequential order. The Revisional Application is accordingly allowed. Let a copy of this order be sent down to the learned Additional Sessions Judge, 3rd Court, Howrah along with the records most expeditiously. No order as to costs. Application allowed.