P.S. Brahme, J.
1. Heard the learned Counsel for the parties. Applicant Mehboobkhan Babarkhan has filed the present application questioning validity and legality of the order passed by the learned Sessions Judge, Akola in Criminal Revision Application No. 12 of 1997 whereunder the applicant was directed to pay maintenance @ Rs. 200/- to each non-applicant i.e., non-applicant Nos. 1 and 2. It is not disputed that initially non-applicant Nos. 1 and 2 had filed an application for maintenance Under Section 125 of the Code of Criminal Procedure against the present applicant and the learned Magistrate passed the order directing the applicant to pay maintenance. Against that order, Criminal Revision Application No. 200 of 1991 was filed by the non-applicant wherein the Sessions Judge had directed the applicant to pay maintenance @ Rs. 300/- p.m. to each of his parents. Thereafter, the present applicant filed Misc. Criminal Application No. 991 of 1995, Under Section 127 of the Code of Criminal Procedure for cancellation or modification of the said order on the ground that his father himself was earning and also that his three brothers, namely Sabirkhan (present N.A. No. 2), Sadik Khan (present N.A. No. 4, and Sayeed Khan (present N.A. No. 6) were also financially well placed and his parents were living with these three brothers of the applicant and, therefore, the applicant alone could not be saddled with the liability to pay maintenance to the parents. N.A. Nos. 1 and 2 had also filed Misc. Criminal Application No. 319 of 1996 before the Magistrate Under Section 127 of Cr.P.C. for enhancement of maintenance amount wherein they claimed minimum amount of Rs. 500/- p.m. towards maintenance. The learned Magistrate decided both the applications by common order dated 1.11.1996 rejecting both the applications.
2. The applicant, being aggrieved by the said order, preferred Criminal Revision Application No. 12 of 1997 against the parents and, his three brothers and the parents also preferred Criminal Revision Application No. 34 of 1997 claiming enhancement of maintenance amount virtually challenging the order passed by the Magistrate rejecting their claim for enhancement of maintenance amount. The learned Sessions Judge, by his common order passed on 12th August, 1998, rejected the revision application filed by N.A. Nos. 1 and 2 and the revision application preferred by the applicant has been partly allowed and the amount of maintenance awarded by the trial Court was reduced to Rs. 200/- p.m. to each of the parents. This order passed by the learned Sessions Judge is under challenge.
3. The learned Counsel for the applicant vehemently submitted that the learned Sessions Judge as well as the trial Court committed an error fastening the liability to pay maintenance to the parents on the applicant alone when applicant's three brothers are equally able and liable to maintain the parents. The learned -Counsel referring to Section 87 of the Islamic Law submitted that the liability of all the sons, who are bound to maintain the parents, is equal. If the parents are poor and are unable to maintain themselves, all the sons are liable to pay maintenance and their liability to pay maintenance to the parents is equal. The learned Counsel pointed out that the Sessions Judge has observed that the parents can also claim maintenance from their remaining three sons in view of Section 87 of the Islamic Law and it was on that ground that the claim of non-applicants for enhancement of maintenance allowance has been rejected. But, at the same time, as submitted by the learned Counsel, the Sessions Judge has not fastened any liability on the other sons in respect of payment of maintenance to the parents. He, therefore, urged that the learned Sessions Judge has committed an error and illegality in passing the order for maintenance.
4. Mr. Bhuibhar, the learned Counsel for respondent No. 6 supported the order passed by the Sessions Judge. He submitted that all the brothers cannot be made equally liable to pay maintenance as it is the choice of the parents to claim maintenance from either of the sons. He submitted that the liability to pay maintenance Under Section 125 of the Code of Criminal Procedure is not outweighed much less derogated in view of the provisions of Section 87 of the Islamic Law.
5. After giving our thoughtful considerations to the submissions of the learned Counsels for the parties, I am of view that the claim of the applicant in assailing the order passed by the Sessions Judge merits no consideration at all. The provision contained in Section 87 of the Islamic Law casting liability on all the sons to pay maintenance to the parents cannot be disputed. Even as regards equal liability of each son to pay maintenance to the parents, it is clear from plain reading of section itself. It is also clear from Sub-section (4) of Section 87 that the liability of all the sons and daughters, who are bound to maintain the parents, is equal. In the case before hand, the factual position, undisputed as it is, is that all the sons of N.A. Nos. 1 and 2 are able to pay maintenance to the parents. But, at the same time, the factual position is that except the present applicant, other three sons are living with the parents. Admittedly, the parents have not initiated any proceedings for maintenance against other three sons. Though the liability of the sons to pay maintenance to the parents is equal, as envisaged Under Section 87 of the Islamic Law, it is not imperative on the part of the parents to claim maintenance from all the sons. The learned Counsel for Non-applicant No. 6 has rightly submitted that the parents' right to claim maintenance Under Section 125 of Cr.P.C. is in no way controlled by the provisions Under Section 87 of the Islamic Law. In other words, it is exclusive prerogative of the parents to seek maintenance from either of the sons. In the case before hand, as other three sons are very much living with the parents, the parents chose to initiate the proceedings against the present applicant for maintenance. The trial Court has awarded maintenance. The Sessions Judge, while considering the order passed by the trial Court, though rejected the claim of parents for enhancement of maintenance, reduced the amount of maintenance to Rs. 200/- p.m. for each of the parents. The Sessions Judge has observed that taking into consideration the income of these four brothers and number of their dependants and equal liability of four brothers to provide maintenance to their parents, I find that Mehboob Khan can be directed to pay maintenance @ Rs. 200/- p.m. to each of the parents. That is how, the learned Sessions Judge thought it fit to reduce the amount of maintenance from Rs. 300/- p.m. to Rs. 200/- p.m. The learned Sessions Judge also observed that the parents can also claim maintenance from their remaining three sons in view of Section 87 of the Islamic Law.
6. The learned Counsel for the applicant, giving emphasis on the observation of the trial Court, has submitted that as long as the parents do not initiate proceedings for maintenance against their other three sons, it would be against the provisions of law to hold the applicant alone to pay maintenance. I do not think that such an interpretation of the observations of the learned Sessions Judge would be correct. The observations of the learned Sessions Judge that the parents can also claim maintenance from their remaining three sons goes to show that the Court was conscious of the legal position as to equal liability of other sons to pay maintenance. It is in this context that the learned Sessions Judge thought it fit to reduce the amount of maintenance from Rs. 300/- p.m. to Rs. 200/- p.m. This itself goes to show that the amount of maintenance of Rs. 200/- p.m. for the parents awarded by the learned Sessions Judge was restricted to the liability of the present applicant. By no stretch of imagination it can be said that the requirement of present N.A. Nos. 1 and 2 for maintenance was held to be as restricted to the amount of Rs. 200/- p.m. for each of the parents. If that is so, the observation made by the learned Sessions Judge giving liberty to the parents to take any action for claiming maintenance against other three sons thus spell out that the liability to pay maintenance of Rs. 200/- p.m. for each of the parents was the liability of the present applicant only. Therefore, there is no substance in the claim of the applicant that his three brothers should have been directed to share the liability to pay maintenance to the parents.
7. The learned Counsel for Non-applicant No. 6 has placed reliance on the decision of our High Court in Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad and Anr. 2000(2) Mh.L.J. 378. Somewhat similar position as to liability of other sons and the husband for payment of maintenance to the wife arose in this case before the High Court arising out of the proceedings for maintenance Under Section 125 of the Code of Criminal Procedure. The wife claimed maintenance from one of the sons only excluding her husband and other sons. The trial Court granted maintenance on the footing that the right to claim maintenance would flow on two grounds; first refusal to maintain, and second ability to maintain. A contention was raised by the petitioner, one of the sons on whom the liability was fixed for maintenance, that his other brother and also his father who also owe liability to maintain original applicant cannot be excluded and that the claim for maintenance as against the petitioner should be rejected on that ground. This Court has rejected the contention and observed that the right of maintenance given Under Section 125 of the Code of Criminal Procedure to four categories of persons is their independent statutory right created in their favour to avoid starvation. The statutory rights conferred on wife, children and parents Under Section 125 of Cr.P.C. are not mutually exclusive but are co-extensive. In any claim by mother for maintenance from her son as a mother Under Section 125(1)(d) of the Code of Criminal Procedure, 1973, the son cannot be permitted to challenge the complexion of the claim of mother simply on the ground that she is legally wedded wife of the husband who was living. She has got statutory right to claim maintenance from her son provided she is unable to maintain herself. This observation reinforces, rather justifies the view which I have taken in this matter. Therefore, there is no error or illegality committed by the learned Sessions Judge, as also, the trial Court Judge in holding the present applicant liable to pay maintenance to his parents. The application, therefore, merits no consideration. The same is dismissed.