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Andhra High Court · body

2014 DIGILAW 1360 (AP)

Shaik Masthan Sab v. Mallika Begum

2014-11-10

T.SUNIL CHOWDARY

body2014
ORDER T. Sunil Chowdary, J. 1. This criminal petition is filed under Section 482 of Cr.P.C. to quash the proceedings in MC No. 2 of 2009 on the file of the Judicial Magistrate of First Class, Nizamabad. Learned Counsel for the petitioner submitted that MC No. 2 of 2009 is not maintainable under law. He further submitted that there is no obligation on the part of the father-in-law to provide maintenance to the daughter-in-law. 2. The learned Public Prosecutor submitted that the claim of the petitioners in M.C. falls outside the purview of Section 125 of Cr.P.C. Respondent No. 1 having received notice remained ex parte. 3. The facts leading to filing of the present petition are briefly as follows: "The respondents 1 and 2 herein are petitioners 1 and 2 and the petitioner herein is respondent in MC No. 2 of 2009. The marriage of the first respondent was performed with the son of the petitioner on 19.12.2004 as per Muslim rights and custom. Unfortunately, the husband of the first respondent died on 6.11.2006. As per the allegations made in MC No. 2 of 2009 the respondents herein are not having any source of income to maintain themselves." 4. Now the point for consideration is whether the respondents 1 and 2, who are petitioners 1 and 2 in MC No. 2 of 2009, are entitled to claim maintenance from the petitioner. 5. Point:--It is not in dispute that the petitioner herein is the father-in-law of the first respondent and the paternal grandfather of the second respondent. The respondents 1 and 2 filed a petition claiming maintenance from the petitioner under Section 125of Cr.P.C. For better appreciation of rival contentions it is apt to refer Section 125(1) of Cr.P.C. which reads as follows: "125. The respondents 1 and 2 filed a petition claiming maintenance from the petitioner under Section 125of Cr.P.C. For better appreciation of rival contentions it is apt to refer Section 125(1) of Cr.P.C. which reads as follows: "125. Order for maintenance of wives, children and parents.--(1) If any person having sufficient means neglects or refuses to maintain-- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.--For the purposes of this Chapter,-- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried." A perusal of Section 125 of Cr.P.C. at a glance clearly indicates that legitimate and illegitimate children are entitled to claim maintenance from their father; the wife as well as the divorced wife is entitled to claim maintenance from her husband and age-old parents', who are unable to maintain themselves can also file a petition under Section 125 of Crl.P.C. claiming maintenance. There is social and moral obligation on the part of the husband, father and son to provide maintenance to the wife, legitimate and illegitimate children and age-old parents respectively. There is no obligation on the part of the father-in-law to provide maintenance to the daughter-in-law. Equally, there is no obligation on the part of the paternal grandfather to provide maintenance to the grandchildren. The relief sought by the respondents 1 and 2 in M.C. falls outside the purview of Section 125of Cr.P.C. 6. To substantiate the arguments learned Counsel for the petitioner has drawn my attention to a decision reported in Ved Parkash v. Leena Kahar and another, 1996 Crl. LJ 2703, wherein it is held in Paragraph Nos. 6 and 7 as follows: "6. The provisions of the above section are independent of personal law or any custom governing the parties and the latter cannot be imported into it. The right of maintenance in this section is distinct statutory right which the Legislature has recognised irrespective of the nationality or creed of the party. The entire scheme of the section is self contained. The scope of this section is limited in respect of the persons who are entitled to claim maintenance and the persons who are liable to pay such maintenance thereunder. It is by no means, however the only, or indeed the most satisfactory remedy open to the original claimants. They may file a regular suit for maintenance in which case there is no limit to the award of the maintenance and the scope of the persons who are entitled to claim maintenance and those who are liable to pay is widened. 7. They may file a regular suit for maintenance in which case there is no limit to the award of the maintenance and the scope of the persons who are entitled to claim maintenance and those who are liable to pay is widened. 7. From a bare reading of Section 125 of the Code reproduced above, it is evident that only wife, legitimate or illegitimate children and the parents are entitled to claim maintenance. No provision has been made therein whereby a widowed daughter-in-law or grandchildren can claim maintenance. Further, the husband of the wife, father of the children and son or daughter of the parents can be directed to pay maintenance under certain circumstances mentioned therein. But there is no provision in the entire scheme of this section whereby parents-in-law can be directed to pay maintenance to their widowed daughter-in-law or the grandchildren." 7. The facts of the case on hand are almost similar to the facts of the case cited supra. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the considered view that the respondents 1 and 2 herein are not entitled to claim maintenance from the petitioner herein by invoking the provisions of Section 125 of Cr.P.C. therefore, continuation of legal proceedings against the petitioner herein certainly would amount to abuse of process of Court. The averments made in M.C. bereft all the basic ingredients of Section 125 of Cr.P.C. 8. Having regard to the facts and circumstances of the case and also the principles enunciated by the Hon'ble Supreme Court in R.P. Kapoor v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajanlal, AIR 1992 SC 604 , I am of the view that it is a fit case to quash the proceedings. In the result, the criminal petition is allowed quashing the proceedings in MC No. 2 of 2009 on the file of the Judicial Magistrate of First Class, Nizamabad. Consequently, miscellaneous petitions, if any, pending in this criminal petition shall stand closed.