IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 Crl.MC.No. 3465 of 2008() ---------------------- CRRP.93/2005 of II ADDL. SESSIONS COURT, PALAKKAD MC.20/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPPALAM .................. PETITIONER / REVISION PETITIONER / PETITIONER : ------------------------------------------------------------------------------ N.T.THRESYAMMA, AGED 67 YEARS, W/O.K.J.THOMAS, KONOTH, 'ANNIE VILLA', MUNDAMUKA AMSOM, SHORNUR DESOM, OTTAPALAM TALUK. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT / RESPONDENT / COUNTER PETITIONER / STATE : ---------------------------------------------------------------------------------------------- 1. T.ELSI, AGED 38 YEARS, D/O.KONOTH K.J.THOMAS, MUNDAMUKA AMSOM, SHORNUR DESOM, OTTAPALAM TALUK. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI. B. JAYASANKAR R2 BY PUBLIC PROSECUTOR SRI. V.T.K. MOHANAN SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON 22/06/2011 PASSED THE FOLLOWING: Mn N.K. BALAKRISHNAN, J. = = = = = = = = = = = = = = = = Crl.M.C. NO. 3465 OF 2008 = = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2011. O R D E R The petitioner claims maintenance from one of her daughters u/s 125 Cr.P.C. It was contended by the petitioner that she is aged and is suffering from so many ailments and is unable to maintain herself and that the respondent who is her daughter, employed as a teacher, is not paying anything to her towards maintenance. The petitioner has two other daughters by name Marry and Annie. Marry is also employed as a teacher. Annie, according to the petitioner is handicapped. The claim was resisted by the first respondent herein(herein after referred to as the respondent) contending that the petition for maintenance is filed at the instigation of Crl.M.C. NO. 3465 OF 2008 -:2:- respondent's sister Marry, who is at loggerheads with the respondent. Respondent also resisted the petition contending that the petitioner is not unable to maintain herself as contended by her but on the other hand she is living in an affluent condition, staying in a recently constructed palatial two storied building. Further it was contended that the petitioner was having so many fixed deposits and is getting huge amount as interest and is also having other source of income. Respondent is a divorcee. She has to pay Rs.1,750/- per month towards loan instalment as she had availed a house building advance. Respondent is also suffering from so many diseases and has to spend huge amount for her treatment as well. 2. Besides the petitioner, two other witnesses were examined and Exts.P1 to P4 were marked before the trial court. Including the Crl.M.C. NO. 3465 OF 2008 -:3:- respondent three witnesses were examined on the side of the respondent and Exts.D1 to D14 and X1 to X1(a) and X2 were marked. 3. The learned Magistrate after a detailed discussion of the evidence adduced by the parties found that the plea raised by the petitioner that she is unable to maintain herself is untrue and that the petition was filed only to harass the respondent. Hence the petition was dismissed. Learned sessions Judge reappreciated the evidence in the revision filed by the petitioner u/s 397 Cr.P.C. and held that the petitioner is having sufficient means to maintain herself. It was found that Annie (petitioner's another daughter) is also employed as a teacher working in a school situated just opposite to the house of the petitioner and thus confirmed the order passed by the learned Magistrate. Crl.M.C. NO. 3465 OF 2008 -:4:- 4. Learned counsel for the petitioner would submit that admittedly the respondent is employed as a teacher. The petitioner is an aged woman. Being a daughter respondent has a duty to maintain her mother who is unable to maintain herself. Admittedly, the petitioner's husband died long back. The learned counsel for the petitioner would submit that the Courts below were not justified in denying maintenance to a poor widow who is aged about 68 years especially when the respondent is employed as a teacher. 5. It could be seen that the case advanced by the petitioner was that she was having so many ailments and so she had to incur much expenses for her treatment for which the medical bills were produced. Court below found that huge amount was not expended for treatment. Learned counsel for the respondent would submit Crl.M.C. NO. 3465 OF 2008 -:5:- that such a plea was projected by the petitioner only to draw sympathy of the Court as Courts would be inclined to show sympathy to a mother if the employed daughter does not pay anything as maintenance but the learned counsel for the respondent would submit that here is a 'rare mother' who has filed this petition only to harass her daughter who is a divorcee, as instigated by respondent's another sister Marry, who has got serious grouse against the respondent. In support of his submission he has also relied upon Ext.D12, the FIR registered by the police against the respondent based on the complaint given by her sister Marry. Hence according to the respondent on a marshalling of the evidence it can be found that this petition was actually filed to harass the respondent, actually instigated by her sister, Marry. Crl.M.C. NO. 3465 OF 2008 -:6:- 6. Now coming to the question as to whether the petitioner is able to maintain herself it has to be found whether the Courts below have ignored the evidence adduced by the parties. There is no case that there was total non consideration of the evidence. There is evidence to show that the husband of the petitioner was employed in 'SIMCO' Company and that some amount was in deposit with that Company when her husband retired from service. It is also in evidence that those amounts were subsequently transferred to the name of the petitioner. There was also about Rs.90,000/- in deposit in the Post Office Savings Account. The evidence regarding various amounts lying in deposits in the name of the petitioner was adduced before the Court below. It can be seen that immediately after the filing of the maintenance case before the Magistrate, those Crl.M.C. NO. 3465 OF 2008 -:7:- amounts were either withdrawn or transferred to the account of Smt.Annie, the youngest daughter of the petitioner who is staying in the very same house along with the petitioner. This according to the respondent was done with mischievous design, presumably to beguile the Court and to make it appear that the petitioner is a woman of no means and was actually put to destitution. It is also contended by the respondent that there is evidence in abundance to show that a new two storied concrete building was constructed by the petitioner which according to the respondent is actually a palatial one. There is also evidence to show that it is a well furnished house having amenities like T.V., Fridge, Washing Machine, telephone etc. 7. The learned counsel for the respondent would submit that respondent has constructed a Crl.M.C. NO. 3465 OF 2008 -:8:- small house availing loan. Towards monthly instalment she has to remit Rs.1,750/- per month. To prove that she is suffering from serious ailments documents have been produced which after through scrutiny was accepted by the Court below. Marry, the other daughter of the petitioner is also employed as a teacher. Respondent contends that there is no case for the petitioner that she was getting maintenance from Marry, the other daughter who is also working as a school teacher. Annie, the youngest daughter is also a teacher working in a nearby school. She is staying with the petitioner in the very same house. Learned counsel for the respondent would submit that evidence would clearly show that the petitioner is living in an affluent condition and that this petition is filed u/s 125 of the Code only as instigated by the respondent's sister. Learned Crl.M.C. NO. 3465 OF 2008 -:9:- counsel would also draw the attention of the Court that since it is only a petition filed u/s 482 Cr.P.C. this Court should be loathe to interfere with the orders passed by the Courts below and since the evidence given by the parties was reappraised by the learned Sessions Judge and since there is no illegality, impropriety or incorrectness in the orders passed by the Courts this court may not invoke the power u/s 482 Cr.P.C. 8. Learned counsel for the petitioner would submit that unlike other cases, since it is a case where an aged widow claims maintenance from her daughter, her present plight also may be taken into consideration by the Court. It is submitted that even if it is assumed that the amounts which originally stood in the name of the petitioner in fixed deposits, continued to remain in her name only, still the amount of Crl.M.C. NO. 3465 OF 2008 -:10:- interest which she may be entitled to get would be only around Rs.2,000/- especially because there was sharp decline in the rate of interest. It is also pointed out that for the treatment expenses also she had to incur more amount than what was required years ago. It is further contended that there was huge increase in the salary given to the teachers. The learned counsel further submits that even if it is accepted that the petitioner was able to get nearly Rs.2,000/- as monthly interest that is not sufficient to meet the expenses for her treatment considering the hike in prices of medicines. The fact that there was steep hike in prices of commodities and the further fact that living index has also gone up to a great extent cannot be lost sight of by the Court. According to me it would be possible for the petitioner to get at least Rs.2,000/- as monthly interest from Crl.M.C. NO. 3465 OF 2008 -:11:- the deposits she had. A further sum of Rs.1,500/- may be required for her maintenance including treatment expenses. The learned counsel for the petitioner submits that since these are stark realities it would be too unkind on the part of the respondent to insist for further evidence, only to deny maintenance to the mother. When the mother gets older the treatment expenses would also increase. 9. The petitioner has got three daughters; all are employed as teachers and so if the liability is apportioned among the three daughters the respondent who is one of the daughters can be directed to pay a sum of Rs.500/- per month to her mother/petitioner as monthly maintenance. Though usually maintenance is directed to be paid from the date of petition itself, taking note of all circumstances I direct that this maintenance amount is to be Crl.M.C. NO. 3465 OF 2008 -:12:- paid only with effect from 1-6-2011. 10. In the result this Crl.M.C. is allowed directing the respondent to pay to the petitioner maintenance at the rate of Rs.500/- per month with effect from 1.6.2011. Sd/- N.K. BALAKRISHNAN, JUDGE.. ul/- [ true copy ] P.S. to Judge.