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2009 DIGILAW 225 (HP)

RAMESH KUMAR v. ROSHANI DEVI

2009-03-27

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J (Oral):-The present petition has been filed under Section 482 of the Code of Criminal Procedure by the son of respondent No.1 against the order of dismissal of his criminal revision by the learned Sessions Judge, vide order dated 8.11.2007, on the ground of limitation. 2. The record of the courts below was called for. I have heard and examined the records in detail. 3. In short, the facts giving rise to the present petition are that respondent Roshani Devi aged about 66 years, is the mother of Ashok Kumar and Prem Kumar respondents and also the petitioner herein. Her husband had died long back. The petitioner is a registered Government contractor, whereas, her another son Ashok Kumar is an Ayurvedic Doctor and his wife is a Government Teacher in Senior Secondary School, Nadaun and third son Prem Kumar is running a shop in the middle Bazar at Nadaun. All are well off. The mother of the petitioner apart from being an old lady is suffering from diabetic and cataract in both the eyes and she is unable to maintain herself. She requires medicine and maintenance in her old age. She alleged refusal and neglect by her all the sons in her petition moved under Section 125 of the Code of Criminal Procedure, for granting maintenance from her sons along with the petitioner @ of Rs.4,000/- per month. 4. The notice of this petition for maintenance was sent to the petitioner including other respondents, but none of them including the petitioner put in appearance, as such, proceeded ex parte. 5. The respondent No.1 led ex parte evidence and the learned trial court granted the maintenance @ of Rs.1500/- per month from each of the respondents including the petitioner. This order was assailed only by the petitioner before the learned Sessions Judge, in revision petition on 29.6.2007 after about 11 months and moved an application under Section 5 of the Limitation Act, for condoning the delay in filing the revision petition, on the grounds that he was not served in the main petition filed by his mother and he came to know about the impugned order passed by the learned trial court only in the last week of June, 2007 when he was served with the notice in execution petition. 6. 6. The learned Sessions Judge took note of the fact that this petitioner had refused to accept the notice served upon him through registered AD post for 3.11.2004 and the ground taken by him was found false and the application for condoning the delay in filing the revision petition was dismissed on 8.11.2007, as having barred by limitation as per detailed order passed on that application. Simultaneously, the revision petition preferred on the same ground was also dismissed vide impugned order as having become as time-barred. 7. Shri Ajay Sharma, learned counsel for the petitioner has vehemently argued that the other brothers of the petitioners are well off, who could afford to provide the maintenance to the mother and further that the ancestral shop is in possession of Prem Kumar with whom the respondent No.1 Roshani Devi was residing, whereas, the petitioner who was not served in the main petition for seeking maintenance was wrongly saddled with the maintenance amount @ Rs.1500/-per month whereas he is a petty contractor and earn less than Rs.3,000/- per month and besides himself he has his large family to maintain. 8. I have considered his arguments in the light of the facts narrated above. It is an unfortunate litigation between the son and the mother where the mother is compelled to knock at the doors of the court for seeking maintenance from her sons and making them realize that it is their pious obligation to maintain her. Whereas, petitioner-son instead of grabbing the opportunity to come forward and serve her in solace in old age, so that her soul showers him lots of blessings, he decided to take support on untenable and incorrect facts to wriggle out from discharging his obligation. 9. The learned counsel for the petitioner submitted that one of the brothers of the petitioner is in possession of the ancestral shop, in case his mother or the said brother gives him shop, he would maintain her. In my opinion, the petitioner has no right to bargain for the urgent need to maintain his mother. 10. In fact the claim of parents under Sections 125 of the Code of Criminal Procedure is not dependent upon their having discharged their obligations during the childhood or even later. In my opinion, the petitioner has no right to bargain for the urgent need to maintain his mother. 10. In fact the claim of parents under Sections 125 of the Code of Criminal Procedure is not dependent upon their having discharged their obligations during the childhood or even later. The court has to see only that if either of the parents is unable to maintain themselves the son(s) or daughter(s) is/are bound to maintain them by all means, as they require proper care and maintenance. The children cannot relegate themselves from their statutory obligation. 11. In this case, the allegation of respondent No.1 Roshani Devi is that none of her sons were providing maintenance to her in her old age. All are well of and earning hands. Their mother requires maintenance to keep her body and soul together in her extreme old age. The petitioner and her other sons must realize that to bring them up, even at times, she might have remained without food and when any of them fell ill might not have slept through out the night and also provided each of them necessary medical-aid and education and made them capable to earn their dignified living with their families. She might have not thought at that time that even she will have to approach the court to get her right redressed, in her old age, that too when her vision has blurred and she suffered from many diseases which generally affect the old age. 12. This apart, otherwise also the contention of the petitioner that he was not served in the petition before the learned trial court is absolutely wrong. The registered notice sent to him was returned with the endorsement of ‘refusal’. Further the cause for condoning the delay before the revisional court was also quite unconvincing. Even the petitioner against the order dated 8.11.07 of the revisional Court, the present petition has been filed on 3.7.2008 i.e. after about 8 months, and the delay has also not been explained. 13. Thus, in the totality of circumstances, I do not find any abuse of process and exercise of lack of jurisdiction by the courts below, as such, the petition is dismissed. Cr.M.P.NOs.401 & 402/2008. 14. In view of the disposal of the main petition, both these applications do not survive, hence dismissed.