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MAHENDRAKUMAR GAIKWAD V. GULABBAI RAMRAO GAIKWAD

Mahendra Kumar Gaikwad v. Gulabbhai 2001 Cr LJ 2111 (Bom)

ISSUE:

  • Whether a mother can claim maintenance from her son even if her husband is alive but unable to maintain?

RULE:

  • Parents can claim maintenance from their children if they are in no position to take care of themselves, and even if one parent is earning yet not sufficient enough to maintain both of them then they claim maintenance from children.

FACTS:

  • Respondents No.1 and No.2 are the mother and father of the petitioner. The daughter of the respondents is already married. Another son of the respondents is married and has got a job. The youngest son of the respondents was taking education when the petition for grant of maintenance under Section 125, Cr.P.C. was filed by the respondents.
  • Respondent No.1is an old lady and respondent No.2 is father is a diabetic and has no other source of income besides the pension of respondent No.2.They are required to spend on the education of their youngest son.
  • The respondents filed an application of maintenance on the grounds that the petitioner is a government employee with an inflated paycheck and his wife also earns with an attractive paycheck has refused and neglected to maintain his aged parents who are unable to maintain themselves.
  • The respondents, therefore, claim a monthly allowance for their maintenance from their eldest son under Section 125(1) (d) of Cr. P.C Code.
  • The petitioners contested that respondent No. 2, being the husband of respondent No. 1, is primarily responsible to maintain respondent No. 1. Therefore, respondent No. 1 is not entitled to get maintenance from the present petitioner. Respondent No. 2 has sufficient means to maintain himself and his wife and, therefore, respondent Nos. 1 and 2 cannot bring any action in the Court of law for grant of maintenance.
  • The petitioner has further contended that the respondents have two more sons and one of them is earning a substantial income.
  • After hearing both the sides and taking into consideration the evidence brought on record, the Judge, Family Court, partly allowed the application filed by the respondents for maintenance and consequently, the present petitioner has been directed to pay a monthly allowance of Rs. 200/- to the respondent mother by way of her maintenance from the date of order.
  • Petitioner filed a criminal revision application.
  • The petitioner argued that respondent No. 2 is the husband of respondent No. 1 and, this being the position; it is his primary responsibility to maintain his wife i.e. respondent No. 1.
  • And has advanced a proposition that, so long as the husband is alive, it is his primary responsibility to maintain his wife and, therefore, the present petitioner cannot be compelled to pay maintenance to the respondent No. 1, though she happens to be his mother.
  • The respondents contended that The petitioner is since beginning complaining that he is not under moral or legal obligation to maintain his mother on the ground that respondent No. 2, who happens to be her husband, is alive.
  • He is not at all ready to spare anything for his mother. He is laboring under the misconception that so long as his father is alive, it is his duty to maintain respondent No. 1, who happens to be his wife. From this conduct of the petitioner, one can draw a legitimate inference of refusal.

HELD:

  • Learned Judge, Family Court, has awarded a very reasonable amount of maintenance to the mother. Admittedly, the petitioner is getting a net income of Rs. 3.000/- per month. He also gets income by way of the rent of the house. So far as his family is concerned, there is financial assistance to him by his wife.
  • The Judge, Family Court, has also taken into consideration that respondent No. 1 is getting financial assistance from her another earning son intermittently.
  • Under the circumstance, it cannot be said that the quantum of maintenance fixed by the Judge, Family Court, is harsh and beyond the paying capacity of the petitioner.
  • The court said that the impugned order of maintenance passed by the Judge, Family Court, in favor of the mother, does not at all suffer from any illegality.
  • The criminal revision application filed by the petitioner stands dismissed.
  • The petitioner has to pay Rs. 1000/- to respondent No. 1 by way of the costs of this criminal revision application.