THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL PETITION NO.3175 OF 2008 ORDER: This is a petition filed under Section 482 Criminal Procedure Code (for short Cr.P.C.) for quashing the orders passed in Criminal Revision Petition 5 of 2008 by the Sessions Judge, Vizianagaram. 2. The 1st respondent herein is the father of the petitioners and he has field a petition under Section 125 Cr.P.C. claiming maintenance from the present petitioners before the Judicial Magistrate of First Class, Gajapatinagaram in M.C.No.25 of 2005. The said Judicial Magistrate of First Class, Gajapatinagaram by order dated 04.12.2007 allowed the said petition by granting monthly maintenance at the rate of Rs.900/- i.e. Rs.300/- by each of the respondents 1 to 3 from the date of filing of the petition and also awarded Rs.200/- towards costs. 3. Aggrieved by the said Order, the present petitioners have filed the Criminal Revision Petition No.5 of 2008 and the learned Sessions Judge, Vizianagaram has confirmed the orders passed in M.C.No.25 of 2005 by the Judicial Magistrate of First Class, Gajapatinagaram. Against the said Order, the present petition is filed. 4. The main contention of the petitioners’ counsel is that the respondent No.1 is keeping some property jointly along with him and his 1st wife Narayanama and he is getting income out of the said property and now the 1st respondent is living separately on his own with his concubine Pydithalli and her children and he is having sufficient means to maintain himself and as such he is not entitled for maintenance as awarded by the Judicial Magistrate of First Class, Gajapatinagaram. 5. The 1st respondent’s counsel on the other hand pleaded that the properties owned by the 1st respondent were settled in favour of the petitioners and their mother and now he is not getting any income and he is unable to maintain himself, as such the lower Court has rightly granted maintenance to him and the petitioners are only directed to pay Rs.300/- per month each to the 1st respondent, who is their father. 6. The contention of the petitioners is that the 1st respondent is now staying with his 2nd wife Pydithalli, who has got two children and she is working as electrician at Gotlam and getting income of Rs.400/- per day and the 1st respondent is under the custody of the property mentioned in the document dated 18.04.1988 executed in favour of the Narayanamma and himself and he is in joint possession of the said property and he is enjoying the usufructs of the said property. 7. The contention of the 1st respondent, on the other hand, is that he was neglected by his 1st wife and she is not giving any share in the property, which is in their joint possession and all the properties were given in the settlement deed to the petitioners and the 1st petitioner is working as an employee in Aruna Jute Mills at Vizianagaram and earning Rs.6,000/- per month and 2nd petitioner is running auto rickshaw and earning Rs.200/- per day and the 3rd petitioner is working as Mason and earning Rs.150/- per day and the respondent No.1 is a sick person and he has no source of income. 8. The learned Sessions Judge without discussing anything with regard to the earning capacity of the petitioners and 1st respondent simply confirmed the Order passed by the learned Magistrate by saying that on perusal of the entire judgment of the lower Court, it is very clear that the order was passed after considering all aspects and there is no irregularity committed by the lower Court which warrants interference of this Court and accordingly, the petition is dismissed. Therefore, the learned Sessions Judge, Vizianagaram has not taken into consideration all the respective contentions of the both the parties. Admittedly, the 1st respondent is now living with his 2nd wife Pydithalli and the said Pydithalli earlier filed a maintenance case against the 1st respondent before Additional Judicial Magistrate of First Class, Vizianagaram and to avoid his liability and to save the property from attachment, he has executed settlement deed on 18.08.1988 settling all his properties in favour of his 1st wife Narayanamma and the petitioners. Therefore, the conduct of the 1st respondent shows to avoid the attachment of the property in the maintenance case filed by the Pydithalli, he settled the properties in favour of Narayanamma and her children, but he kept some property jointly with the said Narayanamma and now he is living separately from the petitioners and Narayanamma, and living with the said Pydithalli, who is his 2nd wife. Admittedly the said 2nd wife Pydithallil is working as electrician and getting Rs.400/- per day and he is being maintained by 2nd wife Pydithalli. Moreover, the respondent No.1 is in joint possession of the property and he is having share in the said property and he is getting usufructs from the said property, it cannot be said that he has no source of income for his livelihood and it cannot be said that he is unable to maintain himself. If the 1st respondent could not get the usufructs from the said property, which is in joint possession of himself and Narayanamma, he would have taken proper steps for getting share in the usufructs of the said property. Therefore, in the above circumstances, it cannot be said that the 1st respondent is unable to maintain himself. 9. In the result, the petition is allowed, and the orders passed in Criminal Revision Case No.5 of 2008 by Sessions Judge, Vizianagaram and consequently Orders passed by the Judicial Magistrate of First Class, Gajapatinagaram in M.C.No.25 of 2005 are hereby quashed. _______________________ P.DURGA PRASAD, J 18th March, 2011 KSP