Balwan Singh Vs. Smt. Brahmo - Court Judgment

Excerpt:
family - maintenance - section 125 of code of criminal procedure code, 1973(cr pc) and hindu adoptions and maintenance act, 1956 - respondent was step mother of petitioner - respondent filed application under section 125 of cr pc for maintenance - trial court passed interim maintenance - petitioner filed appeal - appeal dismissed - hence, present petition - held, it is settled law that childless step-mother can claim maintenance from her step-sons provided she is widow of her husband - it was admitted that only daughter of respondent was married and was living in her matrimonial home - therefore liability of petitioner under act cannot be disputed - courts were justified in granting maintenance to respondent - hence, appeal dismissed - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 1,000/- per month as maintenance and the revision filed by the petitioner against the said order also failed. the dominant purpose behind the benevolent provisions contained in section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. 2 has got 5 natural born sons who are all major and at least 3 of them are well to do and capable of maintaining their mother. 2 preferred to claim the maintenance only from the step-son, the appellant herein leaving out all her natural born sons (from whom she could claim maintenance as their mother) and husband who are well to do.vinod k. sharma, j.1. this petition under section 482 of the code of criminal procedure has been filed to challenge the order dated 11.2.2005 passed by the learned sessions judge, rohtak confirming that of additional chief judicial magistrate, rohtak dated 8.3.2004.2. the respondent brahmo, step mother of the petitioner filed an application under section 125 of the code of criminal procedure claiming a sum of rs. 1,500/- per month as maintenance from the petitioner.3. the case set up by the respondent-step mother was that she was married to mange ram father of the petitioner, who died on 17.6.1996 and out of the said wedlock, one daughter namely meena devi was bom. meena devi is married and is living at her matrimonial home. the agricultural land belonging to mange ram has been inherited by the petitioner on the basis of a will, which was alleged to be forged and a civil suit qua the same is pending.4. it was further the case of the respondent that petitioner is drawing salary of rs. 7,000/- per month whereas the step mother has no source of income.5. on an application moved for grant of ad-interim maintenance by the step mother, the learned judicial magistrate was pleased to grant a sum of rs. 1,000/- per month as maintenance and the revision filed by the petitioner against the said order also failed.6. the contention of the learned counsel for the petitioner is that under the provisions of section 125 of the code of criminal procedure no maintenance could be fixed for payment to the respondent being step mother and in support of this contention the learned counsel for the petitioner has relied upon the judgment of the hon'ble supreme court in the case of kirtikant d. vadodaria v. state of gujarat 1996(3) r.c.r. (crl.) 147 (s.c.), wherein the hon'ble supreme court has been pleased to lay down as under:14. in view of the above discussion it follows that the expression mother, in clause (d) of section 125(1) of the code, means and is referable only to the real or natural mother, who has actually given birth to the child and if that be so, the view taken by the gujarat high court in havaben beline's case (supra) that the word 'mother' occurring in clause (d) of section 125(1) includes a woman who has the status of a 'step-mother' by reason of her lawful marriage with the father of the person sought to be made liable for maintenance under section 125 cannot be accepted. this assumption of the meaning of the expression 'mother' by legal fiction would mean some thing which is not so intended by the legislature. for the same reasons the view taken by the orissa high court in patel bewa's case (supra), cannot also be accepted as it adopts the reasoning of the gujarat high court in preference to bombay high court which took the view that the word 'mother' used in section 125(1)(d) of the code, will have to be given its natural meaning and so construed it will mean only the natural mother and will not include the stepmother, who is common parlance is a distinct and separate entity and cannot be equated with one's own mother. the high court of allahabad in case of ganga sharan varshney (supra) was mainly concerned with the question of jurisdiction with reference to the place where maintenance petition could be filed and there is not elaborate discussion on the question whether a step-mother would include in the expression 'mother' in section 125(1)(d) of the code or not. in our considered opinion the view expressed by the high courts of bombay, madhya pradesh and andhra pradesh, with regard to the meaning of the expression 'mother' in section 125(1)(d) of the code is the correct view and the contrary view of the gujarat high court, orissa high court and the allahabad high court (supra) is not the correct view.15. the point in controversy before us however is whether a 'step-mother' can claim maintenance from the step-son or not, having regard to the aims and objects of section 125 of the code. while dealing with the ambit and scope of the provisions contained in section 125 of the code, it has to be borne in mind that the dominat and primary object is to give social justice to the women, children and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. the provisions of section 125 provide a speedy remedy to those women, child and destitute parents who are in distress. the provisions in section 125 are intended to achieve this special purpose. the dominant purpose behind the benevolent provisions contained in section 125 are intended to achieve this special purpose. the dominant purpose behind the benevolent provisions contained in section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation. having regard to this social object the provisions of section 125 of the code have to be given a liberal construction to fulfill and achieve this intention of the legislature. consequently, to achieve this objective, in our opinion, a childless step-mother may claim maintenance from the step-son provided she is a widow of her husband, if living is also incapable of supporting and maintaining her. the obligation of the son to maintain his father, who is unable to maintain himself, is unquestionable. when she claims maintenance from her natural born children, she does so in her status as their 'mother'. such an interpretation would be in accord with the explanation attached to section 20 of the hindu adoptions and maintenance act, 1956 because to exclude altogether the personal law applicable to the parties from consideration in matters of maintenance under section 125 of the code may not be wholly justified. however, no intention of legislature can be read in section 125 of the code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her step-son to claim maintenance. since, in this case we are not concerned with, we express no opinion, on the question of liability, if any, of the step-son to maintain the step-mother, out of the inherited family estate by the step-son and leave that question to be decided in an appropriate case. our discussion is confined to the obligation under section 125 cr.p.c. only.16. in the present case, as discussed above, the 'step-mother' respondent no. 2 has got 5 natural born sons who are all major and at least 3 of them are well to do and capable of maintaining their mother. this apart, as already noticed, the husband of respondent no. 2 is also possessed of sufficient means and property besides the monthly income that he derives from the business of snuff enabling him to maintain and support his second wife, yet the stepmother respondent no. 2 preferred to claim the maintenance only from the step-son, the appellant herein leaving out all her natural born sons (from whom she could claim maintenance as their mother) and husband who are well to do. prima facie it appears that respondent no. 2 proceeded against her stepson with a view to punish and cause harassment to the appellant, which is wholly unjustified. in the facts and circumstances of this case, we are of the view that respondent no. 2 is not entitled to claim any maintenance from the step-son, appellant herein. in the result the appeal succeeds and is hereby allowed. the impugned orders of the high court and the courts below are set aside and the petition of respondent no.2 for maintenance is dismissed, but without any orders as to costs. we, however, wish to clarify that in the interest of justice and to balance the equities, the amount already received by respondent no.2 from the appellant shall not be refundable to her to the appellant.7. the contention of the learned counsel for the petitioner, therefore, is that in view of the specific finding by the hon'ble supreme court that a step-mother is not entitled to maintenance from her step-son, the impugned order passed by the learned court below cannot be sustained.8. the learned counsel appearing on behalf of the respondent disputed this step and contends that the hon'ble supreme court has nowhere laid down that there is a complete bar to maintain an application under section 125 by a step-mother.the contention of the learned counsel for the respondent is that under the given circumstances when the step-mother is childless or if her natural born son is unable to maintain her then she always can claim maintenance from her step-son. in the present case the agricultural land belonging to her deceased husband stands inherited by the petitioner and, therefore, there is a legal obligation on the petitioner to maintain her as the only daughter is married and, therefore, incapable to maintain widowed step-mother. in support of this contention he has relied upon the judgment of the hon'ble karnataka high court in the case of ulleppa and ors. v. gangabai 2003(3) r.c.r. (crl.) 405, wherein by relying upon the judgment of the hon'ble supreme court in the case of kirtikand d. vadodaria v. state of gujarat (supra) the hon'ble karnataka high court has been pleased to lay down as under:10. in the light of the above referred judgments, as i mentioned earlier, a step-mother in terms of the judgment of the supreme court can maintain a petition in the light of the larger object of section 125 but she has to prove her helplessness in the matter. the supreme court in (1996)4 s.c.c. 479 has noticed that liberal construction has to be given to achieve the intention of the legislature and ruled that a childless step-mother can claim maintenance from her step-sons provided she is widow of her husband, and if living, is also incapable of supporting and maintaining her.9. on consideration of the matter, i find force in the contention raised by the learned counsel for the respondent. it is admitted case of the parties that the only daughter of the respondent is married and is living in her matrimonial home. the liability of the petitioner under the hindu adoptions and maintenance act, 1956 cannot be disputed in view of the inheritance of estate of his father.10. thus, keeping in view the object of section 125 of the act it has to be held by the learned courts below were justified in granting maintenance to respondent step mother. no ground for interference is made.dismissed