Sarju Prasad v. Damyanti

1. This revision is directed against the order dated 14-4-1981 by II Additional Munsif Magistrate, Jhansi, Sri Vishwanath Sharan Tripathi, by which he allowed maintenance application of opposite party No. 1 for recovery of maintenance and arrears of maintenance from 11-4-1979 at the rate of Rs. 50/- per month from revisionist and Rs. 50/- per month from opposite party No. 2. The arrears of maintenance were payable to opposite party No. 1 Damyanti at the aforesaid rate at their convenience onwards.

2. The findings of fact recorded by the learned Munsif were not assailable before me in this revision on behalf of the parties. Revisionist Sarju Prasad and opposite party No. 2 Ramdayal are sons of Hari Prasad deceased who was an employee of Railway department in Jhansi and met his death as he was involved in some accident Saiju Prasad and Ram Dayal were born of Smt. Dhanwati first wife of Har Prasad while Smt. Damayanti is the second wife of Har Prasad who had no issue. She is living in the ancestral house and claimed maintenance on the ground that she had not sufficient means to make her both ends meet Despite service of notice of demand no amount was paid to her by her stepsons. Revisionist denied that Smt. Damyanti was his stepmother and legally wedded wife of Har Prasad but his own brother opposite party No. 2 conceded this fact. Learned Munsif-Magistrate held that the widow was entitled to the maintenance as she had no sufficient means to maintain herself with the present resources at her disposal.

3. Learned counsel for the revisionist attacked the judgment on the ground that it was not open to the learned trial court to award future maintenance. However, this point is concluded by the findings of fact recorded by learned Munsif-Magistrate who held that the present means at the disposal of Smt. Damyanti were insufficient to make her both ends meet in these hard days. So this point is rejected outright as there is nothing illegal in the impugned order which is sustainable by oral and documentary evidence on record.

4. The sole point which was mainly canvassed before me on behalf of the revisionist was that Smt. Damyanti being the stepmother of Sarju Prasad was not entitled to claim maintenance under section 125, Cr. P.C Section 125, sub-clause (1)(d), Cr. P.C which casts such an obligation oil the son reads:—

“125(1)(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 not exceeding five hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct.”

5. So the words “his mother” includes natural mother and not stepmother. The right of the stepmother in the coparcenary property does not justify her claim under section 125, Cr. P.C It was for this reason that no explanation was appended in this Section to show that even a stepmother is included within the connotation of mother.

6. Learned counsel for the opposite party argued that when the stepsons were children they were brought up by Smt. Damayanti Devi during their infancy. It shall operate harshly on the stepmother if they are absolved from statutory duty to maintain even their stepmother who is unable to maintain herself. The object of the legislature as enacted under section 125, Cr. P.C was to prevent vagrancy and destitution.

7. I have carefully considered over this matter and howsoever sentimental the contention of learned advocate for the opposite party No. 1 may appear it has no legs to stand upon. The point is not res integra and came up for consideration before this Court in Deo Narain Tripathi v. Smt. Shakuntala reported in 1980, Prayag Nirnaya Prakashika, page 317 where it was held that a stepmother does not come within the definition of mother under section 125, Cr. P.C

8. Learned counsel for the opposite party No. 1 argued before me that this view is incorrect and the case should be referred to a larger Bench. I do not subscribe to this contention.

9. In Hemangini Dasi v. Kedarnath Kundu Chowdhry reported in (1889) ILR 16 Cal 758 (PC) it was observed:—

“When the Hindu Law provides that a share shall be allotted to a woman on a, partition, she takes it in lieu of, or by way of provision for, the maintenance for which the partitioned estate is already bound. According to Jimutavahana, referred, to by Jaganatha (Colebrooke), commenting on V. 89 of Chap. 2, Book V, it is a settled rule that a widow shall receive from sons, who were born of her, an equal share with them; and she cannot receive a share from the children of another wife. So long as the estate remains joint and undivided, the maintenance of widows is a charge on the whole but where a partition takes place, among sons of different mothers, each widow is entitled to maintenance only out of the share or shares, allotted to the son or sons, of whom she is the mother.”

10. The position was further clarified at page-776 in unambiguous term:—

“The argument addressed to their Lordships for the appellant was that the maintenance is a charge on the estate and like debts must be provided for previous to partition. But the analogy is not complete. The right of a widow to maintenance is founded on relationship and differs from debts. On the death of the husband, his heirs take the whole estate; and if a mother on a partition among her sons takes a share, it is taken in lieu of maintenance. Where there are several groups of sons, the maintenance of their mothers must, so long as the estate remains joint, be a charge upon the whole estate; but when a partition is made, the law appears to be that their maintenance is distributed according to relationship, the sons of each mother being bound to maintain her. The stepsons are not under the same obligation.”

11. So this authority of the Privy Council should be followed as it still rules the day. The point came up for consideration before Andhra Pradesh High Court in Pokuru Rangaiah v. Pokur Chinnaiah reported in AIR 1970 Andh Pra 33 which laid down the following principles regarding the Hindu women's right to maintenance and in particular from stepson:—

“……(1) Where one of the members of an undivided Hindu family dies leaving a widow and other coparceners, the widow shall have a right of maintenance against the surviving coparcener or coparceners for the share of interest of her deceased husband in joint family property which was in his hands. (2) The obligation to maintain a widow depends upon the taking of the deceased husband's share in the family estate and she will have no right to claim maintenance out of the shares that fall to the other members. (3) The right of a Hindu woman or widow to maintenance is founded on relationship. (4) A stepson has no statutory obligation to maintain his stepmother unless any portion or share of his father in the joint family property is allotted, devolved or taken by him, whereas in the case of a son, natural or adopted and a husband, the primary liability to maintain his mother or wife, as the case may be, is a matter of a personal obligation arising out of relationship irrespective of their possession of ancestral or self-acquired property. Case law discussed.”

12. In the instant case there is no evidence on record to show that the revisionist was allotted any share of the property of his father in joint family property also. I respectfully follow these observations.

13. There is no necessity to refer point to a larger Bench in this case. In Dhanraj v. Smt Suraj Bai reported in (1975) 2 SCC 251 : AIR 1975 SC 1103, the question arose as to whether under Hindu Law the stepmother could give her ??? in adoption. It was held that such adoption was invalid by virtue of Section 5(i) read with Section 6(ii) of Hindu Adoptions and Maintenance Act, 1956. Stepmother even though may be guardian of a child at the time of the such adoption but since she has not given birth to the child so she is not competent to give her in adoption.” So in view of the said authorities it must be held that stepmother is not entitled to claim any maintenance from her stepsons under S. 125, sub-clause (1)(d), Cr. P.C In the result revision is allowed. Impugned order is set aside.

14. Revision allowed.