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2018 DIGILAW 1000 (CAL)

Rekha Chatterjee v. State of West Bengal

2018-12-21

MADHUMATI MITRA

body2018
JUDGMENT : MADHUMATI MITRA, J. 1. This revisional application has been preferred by Smt. Rekha Chatterjee challenging the judgment and order dated 27.09.2016 passed by learned Additional Chief Judicial Magistrate, Bishnupur in Criminal Misc Case No.26 of 2013 under Section 125 of the Code of Criminal Procedure. 2. The present petitioner had filed an application under Section 125 Cr.P.C. before the learned Magistrate claiming maintenance from the opposite party no.2 who is her son. In her application for maintenance under Section 125 Cr.P.C. it has been claimed that she has no independent source of income. She is totally unable to maintain herself. She has to depend on the income of her husband. Petitioner has further claimed that she spent a huge amount for education and welfare of her son i.e. Opposite Party No.2 and due to that, she is now facing acute financial crisis. In her application for maintenance she has specifically stated that her son is a science teacher of a school and his monthly income is Rs.32,000/- (Rupees Thirty Two Thousand) and his wife also earns Rs.15,000/- (Rupees Fifteen Thousand) per month. She had prayed for Rs.10,000/- (Rupees Ten Thousand) per month from her son i.e., O.P.No.2 as her maintenance before the learned Magistrate. 3. The prayer for maintenance was opposed by the Opposite Party No.2, the son of the petitioner on several grounds. O.P.No.2 in his written objection specifically stated that he was brought up by his grandmother. Though he has admitted that he is a school teacher, but he has stated that he has to maintain his family and his grandmother who brought him up. He has claimed that her mother has her own source of income from her immovable property at different places and her monthly income is about Rs.25,000/- to Rs.30,000/-. He has also stated that his father retired as S.I. of Excise and he is a pension-holder. 4. Considering the evidence on record, the learned Magistrate has observed that the petitioner is not legally entitled to receive maintenance from the O.P.No.2 under Section 125 Cr.P.C. and has refused to grant her maintenance. 5. In the instant case, admittedly the present petitioner is the mother of opposite party No.2. It is an admitted fact that the husband of the petitioner is alive and is a pension-holder. The husband of the petitioner retired as S.I. of Excise. 6. 5. In the instant case, admittedly the present petitioner is the mother of opposite party No.2. It is an admitted fact that the husband of the petitioner is alive and is a pension-holder. The husband of the petitioner retired as S.I. of Excise. 6. Learned Advocate for the petitioner has contended that the learned Magistrate was not justified in refusing the prayer for maintenance of the petitioner. He has drawn the attention of the Court to the provisions contained in Section 125(1) (d) of Cr.P.C. and submitted that being natural mother of O.P.No.2 the petitioner has every right to get maintenance as she is unable to maintain herself. He has further contended that the income of the husband of the petitioner is not sufficient to bear all the medical expenses of the petitioner. Petitioner has no source of income to maintain herself. In support of his contention, learned Advocate for the petitioner cited the decision in Chaturbhuj Vs. Sita Bai reported in, (2008) 2 SCC 316 and in Sunita Kachwaha and Others Vs. Anil Kachwaha reported in, (2014) 16 SCC 715 . He has continued to urge that in the present case the mother was compelled to pray for maintenance before the Court as she was refused maintenance by her own son. He has described the factual situation of the instant case as most unfortunate. 7. In order to obtain an order of maintenance one of the conditions requires to be fulfilled by the petitioner is that the petitioner has been neglected or refused maintenance by the opposite party. At the time of considering the prayer of the petitioner for maintenance Court should not be swayed by emotion. Each case has to be judged on its own merit. Court has to consider all the relevant materials on record and thereafter will come to its conclusion. 8. In the present case the mother has preferred to claim maintenance from her son leaving her husband who is well to do. A mother is entitled to claim maintenance from her son provided she is a widow or her husband, if living, is also incapable of maintaining her. 9. In the instant case petitioner and her husband were examined and cross-examined in full. From their cross-examination it came out that the petitioner owns immovable property valued at Rs.1.5 to 2 Crores. A mother is entitled to claim maintenance from her son provided she is a widow or her husband, if living, is also incapable of maintaining her. 9. In the instant case petitioner and her husband were examined and cross-examined in full. From their cross-examination it came out that the petitioner owns immovable property valued at Rs.1.5 to 2 Crores. On the other hand in his cross-examination the husband of the petitioner admitted that he retired as S.I. of Excise Department and after retirement he draws pension. 10. From the impugned order it appears that the learned Magistrate analyzed the evidence on record and came to the conclusion that the petitioner was not entitled to get maintenance. 11. The decisions as cited by the learned Advocate for the petitioner have no manner of application in the instant case as factual situations of the cited cases and the case in hand are different. It is true that provisions contained in Section 125 Cr.P.C. gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents as contained in Article 15(3) and 39 of the Constitution of India, when they are unable to maintain themselves. In the instant case the materials on record do not justify to hold that the petitioner mother comes within the term that ‘she is unable to maintain herself’. Moreover when her husband is alive and he has the sufficient means to maintain her, then the question of directing the son of the petitioner to give her maintenance does not arise. Apart from, the petitioner has her own source of income as observed by the learned Magistrate. 12. From the materials on record it appears that the petitioner has own source of income and her husband has the capacity to maintain her from his retirement benefits and pension. In the facts and circumstances of the present case the petitioner is not entitled to get maintenance from her son. I do not find any reason to interfere with the factual findings of the learned Magistrate. The conclusions arrived at by the learned Magistrate are essentially factual and are justified. That being so there is no scope for interference with the impugned order. Revisional application is dismissed. Order dated 27.09.2016 passed by the learned Magistrate in Misc Case No.26 of 2013 under Section 125 of the Cr.P.C. is hereby affirmed. 13. The conclusions arrived at by the learned Magistrate are essentially factual and are justified. That being so there is no scope for interference with the impugned order. Revisional application is dismissed. Order dated 27.09.2016 passed by the learned Magistrate in Misc Case No.26 of 2013 under Section 125 of the Cr.P.C. is hereby affirmed. 13. Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.