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2015 DIGILAW 1449 (JHR)

Basudeo Modi v. State of Jharkhand

2015-11-23

RAVI NATH VERMA

body2015
ORDER : 1. Challenge in this revision application is to the order dated 03.04.2014 passed by the learned Principal Judge, Family Court, Koderma in Maintenance Case No. 13 of 2010 on an application of the mother of the petitioner arrayed as opposite party No. 2 in the instant petition purported to be under Section 125 of the Code of Criminal Procedure (in short “the Code”) whereby and whereunder the said petition has been allowed and direction has been given to the present petitioner to pay a monthly maintenance of Rs. 2,500/- to the opposite party No. 2. 2. Filtering out the unnecessary details, the facts leading to filing of this revision application, are that the opposite No. 2 Mosomat Gaurwa aged about 80 years is the mother of the petitioner Basudeo Modi and after the death of her husband, she was dependent on her elder son-the petitioner but later on the petitioner refused to maintain her. She has no money now to support herself or to purchase medicine etc. At present, she is living with her younger son Sanjay Modi, who is a physically handicapped and unable to give her full support. It is also alleged that this petitioner has purchased a hotel at Jhumri Teliya after paying a huge amount and has also a shop at Asansol (West Bengal) and has also earning from agricultural produce at native place and probably his daily earning is Rs. 3,000/-. Hence, the opposite party No. 2 puts a claim of Rs. 5,000/- per month as maintenance amount. 3. After notice, the present petitioner appeared and filed his show-cause in court below denying most of the allegations. It was pleaded that even during the lifetime of his father, he was taking care of his mother and after death of his father, he performed marriages of his four sisters besides his own daughters. He has denied that he ever acquired any property at Asansol and Jhumri Telaiya from the income of his father rather his mother sold 1/3rd share of the family land in favour of one Gopi Dhobi without taking his prior consent and handed over the entire sale proceeds to her younger son Sanjay Modi. He has also denied that Sanjay Modi is physically challenged man rather he is a married man having three issues and competent to live like a normal sound man. He has also denied that Sanjay Modi is physically challenged man rather he is a married man having three issues and competent to live like a normal sound man. The petitioner has made allegation against opposite party No. 2 that she had ousted him from paternal house and she has been living with her younger son in the said house and turned down his request to live with him. Lastly it has been pleaded that the petitioner himself is a chronic patient of several ailments warranting extensive medical care and treatment and as she is herself capable, her prayer for maintenance cannot be allowed. 4. The learned Principal Judge, Family Court after scrutinizing and appreciating the evidences adduced on behalf of the parties and hearing the counsels directed this petitioner by order impugned to pay the monthly maintenance allowance of Rs. 2,500/- and also directed another son Sanjay Modi, who was not a party in the court below, to share 1,500/- per month but further held that since Sanjay Modi is looking after his mother, he cannot be compelled to part with Rs. 1,500/- per month in favour of his mother. Hence, this revision by the petitioner. 5. Learned counsel appearing for the petitioner while assailing the order impugned as perverse and bad in law seriously contended that the court below failed to consider the evidences in right perspective and wrongly shifted the burden on the shoulder of this petitioner though the opposite party No. 2 the mother is quite competent to maintain herself as she has been coming in possession of the entire family land. It was also submitted that the opposite party No. 2 had sold and gifted part of the family land to her younger son and that the petitioner himself is of 60 years of age and suffering from several ailments and has to perform several duties towards his family. Hence, the order based on erroneous facts deserves to be set aside and the petition for maintenance filed under Section 125 of the Code is not maintainable. 6. Hence, the order based on erroneous facts deserves to be set aside and the petition for maintenance filed under Section 125 of the Code is not maintainable. 6. Refuting the above arguments, learned counsel appearing for the opposite party No. 2 submitted that she had never sold 1/3rd share of land and the pleading of the petitioner that petitioner had solemnized the marriage of four sisters is false rather after selling the family land, she had divided the usufruct to both the sons and also gave lands to both the sons in the year 1975. It was also submitted that the court below though has rightly granted the maintenance but a very meager amount has been awarded. Learned counsel further submitted that this Court sitting in revision has a very limited jurisdiction and cannot interfere in the findings recorded by the court below and even cannot re-appreciate the evidence. 7. After giving a thoughtful consideration of the rival submissions, the foremost question that crops up for consideration is whether the court below has rightly granted the maintenance to the opposite party No. 2 and whether the petitioner is capable of paying the said maintenance amount? 8. I have examined the evidences brought on record wherein the opposite party No. 2 has clearly testified that she has been living with her younger son, who is physically challenged person and not capable of maintaining her. It is true that the opposite party No. 2 had disposed of some of the land but the same will not absolve the petitioner, who is elder son of the opposite party No. 2, from his responsibility to maintain his old ailing mother. The Hon’ble Supreme Court in the case of Savitaben Somabhai vs. State of Gujarat and Others, 2005 (2) East Cr. C. 281 (SC) held as follows:- “The provision is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15 (3) reinforced by Article 39 of the Constitution of India. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.” 9. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.” 9. In the cases Santosh vs. Naresh Pal, (1998) 8 SCC 447 and Parwati Ran Sahu vs. Vishnu Sahu, (2002) 10 SCC 510, the ratio decidendi, which emerges out of the two above decisions on the power of the revisional court is that it is not open to the High Court in revision to re-examine the evidence for the purposes of arriving at a different conclusion and should not interfere and disturb the finding. 10. I have gone through the entire case record of the court below and especially the documentary as well as oral evidences and found that the witnesses examined on behalf present opposite party No. -2 including the own brother-in-law (PW-2) of the petitioner have fully supported the fact that petitioner is competent but had not taken care of his mother. This fact has also been confirmed that the opposite party No. 2 is residing with her younger son Sanjay Modi. I feel that the court below has discussed the evidences meticulously in different paragraphs of the order impugned and has come to the finding that the opposite party No. 2 Mosomat Gaurwa is not completely neglected but this fact cannot absolve this petitioner and younger son Sanjay Modi to take due care of their mother in her old age. The court below has further held that the petitioner is economically on better footing in comparison to Sanjay Modi and since the opposite party No. 2 feels neglected in such family affairs, she deserves the maintenance under Section 125 of the Code. The amount granted as maintenance is also not very excessive rather seeing the inflationary trend of the market, it appears to be a reasonable amount. 11. Thus in view of the above discussions, in my opinion, the court below has rightly directed the petitioner to give maintenance to his mother. There is no error or illegality or irregularity in the order impugned. 12. This revision application, being devoid of any merit, is, hereby, dismissed.