1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Writ Petition No. 360/2009 1. Dayaram Nagorao Bawane, aged 60 years, pensioner, r/o Ranpise Nagar, Tq.Dist. Akola. 2. Vasanta Nagorao Bawane, aged 61 years, teacher, r/o Durga Chowk, Tq. Dist. Akola. .. PETITIONERS .. Versus .. 1. State of Maharashtra, thr. Government Pleader, High Court, Nagpur. 2. Sau. Jaywantabai Nagorao Bawane, aged 75 years, household, at post Ugwa, Tq. Dist. Akola. .. RESPONDENTS ----------------------------------------------------------------------------------------- Mr. A. S. Chandurkar, Advocate for petitioners. Mr. D. B. Yengal, A.P.P. for respondent no1. None for respondent no.2. ----------------------------------------------------------------------------------------- CORAM : R. Y. GANOO, J. DATED : 26 th August, 2009 P. C. 1. Heard learned Advocate for the petitioners and learned A.P.P. for State. 2. Respondent no. 2 mother of the petitioners filed application under Section 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate First Class, Court No. 3. Said application was decided by learned Judicial Magistrate Fist Class 2 and he directed both the petitioners to pay Rs. 1500/- per month to respondent no. 2 by order dated 30.01.2008. The petitioners felt aggrieved by the said order and that is how they have filed Criminal Revision Application No. 720/2008 in the Sessions Court, Akola. Respondent no.2-Mother also filed Criminal Revision Revision No. 142/2008 challenging order passed by learned Judicial Magistrate First Class in the Sessions Court at Akola. Both these revisions were heard by learned Principal Sessions Judge, Akola and decided vide judgment and order dated 24.09.2008. The petitioners have challenged the order passed by learned Judicial Magistrate First Class as well as learned Principal Sessions Judge, Akola. 3. I have heard learned Advocate for both the sides. Respondent no.2 is mother and she has three sons. Respondent no. 2 has chosen to reside with her third son Tulsiram at Ugwa. Respondent no.2’s husband is staying at the place other than Ugwa. Learned Advocate for the petitioners had to concede that residential accommodation and day-to-day food requirements of respondent no.2 are taken care of by the third son Tulsiram. 4. I have heard learned Advocate Mr. Chandurkar for 3 the petitioners. He contended that respondent no. 2 ought to have filed application for maintenance against all the three sons but respondent no.2 has chosen the present petitioners only to demand maintenance and, therefore, the application ought to have been rejected. I am not inclined to accept this argument because the question before this Court is whether respondent no.2 could launch recovery of maintenance from the petitioners and the answer is in the affirmative based on conclusion and decision given by the Courts below. If respondent no. 2 is staying with the third son Tulsiram, it clearly goes to show that Tulsiram is complying with his obligation as son towards respondent no.2 and, therefore, the said Tulsiram is helping respondent no. 2 and that is why respondent no. 2 has chosen not to file application against the said Tulsiram. In substance, the said argument cannot be accepted. 5. It was also argued that respondent no.2 has chosen to stay away from her husband who had responsibility about looking after respondent no.2. It was argued that staying of respondent no.2 away from her husband is also a conduct which should be considered against her. This aspect of the matter was not considered by courts below. I am not inclined to accept this statement. Right of respondent no.2-mother to receive 4 maintenance from sons is on one footing whereas right of wife to receive maintenance is on the different footing and cannot be mixed together. The Courts below were required to ascertain whether the petitioners have failed to discharge their duties of looking after the mother and related points. In my view, the said arguments cannot be accepted. 6. On the question of quantum of maintenance, the petitioners jointly have been ordered to pay a sum of Rs. 1500/- per month. The record shows that each of the petitioners is earning, though both of them have retired. The income figures stated in the evidence are such that they can easily afford to pay sum of Rs. 1500/- per month if taken together to respondent no. 2. It is in these circumstances, I do not wish to interfere in the impugned order as no material irregularity or patent injustice is shown. 7. In my view, the order passed by learned Judicial Magistrate First Class speaks of ordering both the petitioners to pay a sum of Rs. 1500/- per month. The learned Additional Sessions Judge has dismissed the revision, in a way confirming the order. In my view, it would be better to pass an order directing each of the petitioners a sum of Rs. 750/- per month 5 so that individual responsibility of the petitioner can be fixed so that if a particular petitioner fails to comply with his obligation an application for recovery can be filed. In view of this, I pass the following order. Order dated 30.01.2008 passed by learned Judicial Magistrate First Class, Court No. 3, Akola is modified to the extent that instead of both the petitioners paying jointly a sum of Rs. 1500/- per month to respondent no.2, each of the petitioners shall pay to respondent no.2 a sum of Rs. 750/- per month as per order dated 30.01.2008. The writ petition is disposed of in the above terms. JUDGE kahale