How important is a mother? No words can describe. No amount of thanks to the lady who brought us on this world is enough. Her care, her attention, her sacrifice to bring up children cannot be gauged by any means.
In spite of this, the elder abuse is very prevalent. Children are raised. They grow. So morally they must care for their parents. Those parents who help them face the life. If you can’t do so much, may be for your own reasons at least don’t harass them. If the children do not understand a straight language, the law has its own methods to teach them.
Unfortunately, an 86 years old lady walked into my office with her heavy heart. The son had inflicted numerous atrocities on the mother. What should be the quickest remedy was a big question after considering the background? The mother had been ousted from her own apartment which she legally owned. The mother approached an Indian Court. For two years she found herself without any progress in her petition. Two years of toiling in the lobbies of court. Two years of hardships, struggle at the age of 86 years. Was this apathy in the administration of justice? That is what we felt.
Repeated requests to expedite the matter were made to the court which took cognizance of the case. Nothing worked. They just found it unnecessary to acknowledge troubles of the 86 year old widow mother. So the mother was advised to approach the higher echelon of judiciary. A complaint ventilating a pain and a plea to expedite her case was lodged. This was heard. Directions were given. The matter expedited. What could not happen in two years finished in two months. This is because complaints were made to the Higher authorities reflecting inertia of lower authorities. The court awarded maintenance of Rs.8000/- from the date of application (with a payment due for 24 months) – this was a good judgment. Another complaint has been filed inter alia alleging trespass, criminal intimidation for life, insult, breach of public peace and security and like offenses against property and person. I hope that the matter will be shortly conducted and completed.
I am posting written argument part of this petition. May be some parents who need to understand the law or need some moral support will believe that you are not without remedy. I have just listed some case laws included in the draft Written Arguments, to ensure that you have a ready to use material, if you need.
Just take care and make no mistakes during oral testimony and cross examination. Are you thinking what can be the mistakes? Well that is subjective and I cannot predict them. But remember to shape up your case before the court so that it has reasons to support your version. Even a right cause goes dismissed, if not well prepared.
I have removed the names from the written submission, to ensure confidentiality. The English language in the written arguments has been moderated to tailor the local requirements.
So carry on, parents ! – be bold. If you struggled all the way to raise your children who proved unworthy, then go ahead and fight out. I know it is too much for your weak shoulders. But God is with you. .. So read on the written arguments, enriched with all the case laws (pertaining to the maintenance law in India). I wish you all the best.
In the Court at India
Criminal Case No. xx/xxxx
In the matter between:
Mother
..Applicant
Versus
Her sons
..Respondents
ADDITIONAL WRITTEN ARGUMENTS
That the applicant most respectfully showeth:
INTRODUCTION:
1. That the applicant is an 86 year old mother – a widow. She has brought out this case of maintenance u/s. 125 – Chapter IX of the Cr.P.C from the date of application. Before dealing with the facts of the case and resorting to appreciation of the evidence lead herein, it is pertinent to quote Honorable Bombay High Court in Re. Mahendra Kumar V/s. Gulab bai 2001-(107)-CRLJ -2111 -BOM where the importance of mother is stated in following words:
“.. the aged parents, a virtuous wife and infant child must be maintained even by committing a hundred misdeeds" Manu does not speak of solitary duty, it is moral duty of a person to maintain aged parents, virtuous wife and infant child. In discharge of this pious duty, Manu went to such an extent that he made hundred misdeeds pardonable.”
APPLICATION FOR MAINTENANCE & INTERIM MAINTENANCE:
2. The importance of maintaining old parents needs no introduction. In this case, an 86 years old mother has filed this application for maintenance against three sons who are duty bound under the eyes of law and in terms of provisions of Section 125 of the Cr. P. C. to maintain her. The application has been filed at Exhibit 1 on dtd. 27/10/2005. Along with this application another application for obtaining interim maintenance has also been filed at Exhibit 3 on 25/10/2005. The second opponent filed his reply on 11/05/2006, i.e. after a period of seven months from the date of application. This reply is placed at Exhibit 9. Similarly the first and the third opponent also filed their reply belatedly. Their replies have been placed at Exhibit 14. In short all the three opponents filed their reply after much latches.
DELAY TACTICS:
3. That the efforts which were necessary for obtaining interim maintenance were made. The opponents however kept delaying the case. The applicant has been time and again saying that the matter is getting delayed. Looking to 86 years of age of the applicant, the applicant had been time and again saying that if her case does not proceed further, she may never get justice. However, the opponents kept delaying with a mala fide intention. This widow of 86 years age had to run around for two long years in the corridors of the court to get justice. Ultimately an application dated 24/04/2007 (Exhibit 21), was filed by the applicant making a fervent plea to expedite the hearing of the case on day to day basis. The matter was sought to be prepone. Accordingly notices dtd. 25/04/2007 were sent to the opponents intimating the next date of listing. The copies of registered and telegraphic notices have inter alia been submitted to this court. Thereafter, with great difficulty, Opponent no. 2 came to contest the matter after a period of two long years. From this conduct, it is needless to state that the opponents have resorted to delaying tactics and lingering of the application.
DOCUMENTARY EVIDENCE REFLECTING “NEGLECT” AS PER SECTION 125 OF THE CR.P.C.:
4. That thereafter, by affidavit dtd. 10/05/2007, the applicant submitted eight annexure which are on record of the Honorable Court. Exhibit 27, Exhibit 28 and Exhibit 29 have been enclosed at Annexure 4, Annexure-7-Colly and Annexure-8-Colly respectively (along with affidavit dtd. 10/05/2007). It is evident from Exhibit 27 that the applicant in this maintenance application has filed a complaint case before this Honorable Court for offenses committed by Second Opponent (along with his wife and son). The complaint case specifically brings out a case of cruelties, torture inflicted by the second opponent on the 86 year old widow lady applicant. That at Exhibit – 28, the applicant has submitted copies of baseless complaints filed by the second opponent against the applicant on dtd. 01/02/2007 & 25/03/2007. The documents at Exhibit 27 and Exhibit 28 very clearly show that the 86 year old mother had to file a complaint case in this Court against the torture of her son – second opponent. The second opponent has also proved his rough behavior to-wards his mother by filing complaints which are a part of Exhibit 28–Colly. Both the complaints have been filed in 2007 in which obviously frivolous allegations have been leveled by opponent no. 2 to harass his 86 – year old mother. Opponent no. 2 has created stories which are obviously false and unbelievable. For example he complaints that his mother is threatening to kill him. How can an 86 year old lady suffering from so many diseases and who can’t even walk properly threaten to kill or employ criminals? To sum up, the material on record of this application shows that the second opponent has come up with false allegations to harass his own mother. His conduct of “neglect” as contemplated u/s. 125 of the code is clearly visible.
STATEMENTS & DEPOSITIONS BY APPLICANT WITNESSES:
5. That on 22/05/2007, the grandson of the applicant – Mr. J has filed his affidavit at Exhibit – 32. In the affidavit he has come out with a case by which his deposition can be summarized as: Mr.J says: (1). The second opponent has harassed the applicant to such an extent that the 86 year old applicant had to leave her own flat which is of her ownership; (2). The applicant is an ill lady suffering from various diseases, kidney problems, etc; (3). The daughter of the applicant – J2 is being maintained by third opponent; (4). The applicant does not have any income and survives at the mercy of outsiders.
6. That at Exhibit 33, Ms.H has filed her affidavit dtd. 22/05/2007. Ms.H is daughter of the applicant & a divorcee. The summary of her deposition is like this: Ms.H says: (1). Applicant is poor; (2). Applicant has to seek mercy for food and medicines; (3). After death of the applicant’s husband, the applicant became money-less; (4). The second opponent has harassed the applicant; (5). Second opponent has humiliated and insulted the applicant and driven the applicant out of her own flat whose owner is applicant.
CERTIFIED TRUE COPY OF DOCTORS’ REPORT FOR: (1). ILLNESS (2). MONTHLY EXPENDITURE REQUIRED BY APPLICANT:
7. That on 25/05/2007, the applicant has filed an affidavit in affirmation of the medical expenses and filed certified true copies of reports of doctors under Exhibit – 38. At Annexure – 1, certified true copy of the physician’s report has been filed. At Annexure – 2 (under Exhibit 38) the certified true copy of the Orthopedic doctor’s report has been filed. At Annexure – 3 Colly (Under Exhibit 38) – (pp 8-48) true copies of various latest medical bills of the applicant have been filed. It is needless to state that at the fag age of 86 years, the applicant needs various medical treatment in view of the fact that she is suffering from kidney problems and osteoporosis. Certified True copy of the latest report of doctor has been produced and placed at Exhibit 40.
To sum up, the reports of the doctors as well as various medical bills submitted as stated above clearly show that the applicant is in need of a maintenance of not less then about Rs. 14000/- (Rs. Fourteen Thousand) per month looking to the high standard of living,
FURTHER DELAY TACTICS BY OPPONENT NO. 2 & COSTS IMPOSED BY HONORABLE COURT TO STOP HIS LATCHES:
8. That the applicant has been time and again saying that the opponents particularly Opponent no. 2 is playing delay tactics. This is once again evident from the application of the applicant dtd. 25/05/2007, filed at Exhibit 37. The application was filed to stop the Opponent no. 2 to delay the case any further. For cross-examining the Applicant Witness Ms.H , the Opponent no. 2 asked for time. It was submitted on 22/05/2007 that papers were required for cross-examining Ms.H. Time of three days was granted. However, once again on 25/05/2007, same excuse was put forth. Therefore, the applicant had to file objections to the adjournment application. The applicant was present in the court with her witness. However, delay tactics were exhibited by Opponent no. 2. Therefore this Honorable Court had to impose a cost of Rs. 100/- on the Opponent no. 2 for delaying the case. It is pertinent to state that no papers were shown during the cross-examination of the Applicant witness although time was taken by Opponent no. 2 under an excuse to produce papers.
APPLICATION TO CLOSE RIGHTS OF FIRST & THIRD OPPONENTS:
9. That on 02/06/2007, an application on affidavit (at Exhibit 42) was filed by the Applicant for closing the rights of the first and the third respondent was filed. The first and third respondent were absenting from the proceedings in spite of serving them notices on 25/04/2007 & 29/05/2007 by the applicant by registered ad post and by telegram. Looking to the fact the right of the first and third respondent to enter into defense were applied to be closed. Relevant papers i.e. True copy of Telegraphic notices sent to the three Opponents were submitted by Affidavit of applicant dtd. 02/06/2007 at Exhibit 44.
FURTHER APPLICATION TO EXPEDITE THE CASE:
10. That thereafter once again application dtd. 18/06/2007 was filed to expedite the proceedings. The necessity to file this application had risen because of circumstances that appeared onwards 02/06/2007. On 02/06/2007, on behalf of the second opponent time was asked by saying that Second Opponent has gone out of town. The case was therefore adjourned to 15/06/2007. However, the second opponent was found in lobby of the court campus on 02nd itself when it was informed that he has gone out of town. Thereafter before 15/06/2007, the second opponent was attending a civil case (although in this court it was submitted that he has gone out of town). On 15/06/2007 once again the matter was adjourned to 26/06/2007 without any application to summon opponent witnesses. To stop the latches of second opponent once again an application on affidavit dtd. 18/06/2007 was filed so that the matter does not get postponed on 26/06/2007 for unwanted reasons.
CONTENTS OF ORAL EVIDENCE & ITS APPRECIATION:
Oral Evidence of Applicant and witnesses on her behalf:
APPLICANT’S ORAL TESTIMONY:
11. The 86 year old applicant – Mother was examined on 10/05/2007. In her examination-in-chief the applicant came out with a clear statement which can be summarized as following: 86 year old Mother says in oral testimony that:
1. Applicant has four sons (one died) & two daughters;
2. Applicant’s daughter J2 is mentally ill;
3. She (applicant) is 86 years old;
4. She (applicant) is illiterate – she can only sign;
5. Applicant has various diseases such as : (i). Operated thies; (ii). Kidney Problems; (iii). Catheter tube in Kidney; (iv). displacement of vertebra; (v).
Fractures in both hands caused by Opponent no. Applicant takes lot of medicines. Medical papers in this regard have been produced by the applicant;
6. Opponent no. 2 caused fracture in both the hands of Applicant by pushing her;
7. Applicant has no income;
8. The Opponent no. 2 has forcibly got into the flat belonging to applicant since four years and she has to stay with her grandson Mr.J (son of third respondent);
9. The Applicant has identified documents which show that she has lodged a complaint against her son (Opponent no. 2) with the police department and with this court.
10. That the applicant states that Opponent no. 2 pays income tax. He has a passport. He is independent & self-sufficient.
11. On her cross-examination, the applicant has specifically denied of having income, bank balance or other sufficient means to maintain her. To the contrary she has stated in the cross-examination that she is living a dependent life on mercy of others. She further states that she has nothing more then one or two thousand rupees in her account.
APPRECIATION OF THE EVIDENCE OF APPLICANT:
12. The applicant’s oral evidence along with the documentary evidence she has placed before the court clearly indicates her old, helpless age, having no income. She has produced various medical papers that show her diseases which she has explained. The applicant has also placed doctor’s report showing that she requires physiotherapy, kidney treatment and other medical treatment. Thus the applicant has been able to show that she is in need of medical treatment. Looking to the high cost of living, ill health and other factors in consideration of her last life, she has fully justified the maintenance of about Rs. 15000/- to 16000/-.
13. That the applicant has also produced documents on the record of the court which indicate that she was tortured and harassed by her son i.e. the second opponent. The applicant also produces documentary evidence to show that she has filed police complaint and complaint with the court for criminal intimidation, criminal trespass etc. before this court. The applicant has also produced documents to show that her son (Opponent no. 2) has also filed police complaints against her. Perusal of complaints shows that they have been filed in 2007. The applicant also shows that the Opponent no. 2 has filed a civil suit no. 381/2007 (shows that the civil suit was filed off late in 2007). These rounds of serious complaints by an 86 year old mother and after-thought concocted false complaints by Opponent no.2 against his own mother clearly shows that the son has neglected to maintain her.
14. That it is also necessary to state that during the testimony of the Opponent no. 2, he has clearly pointed out after his mother left her own flat, he has never gone to bring her home. The Opponent no. 2 has admitted that he has made police complaints against his mother on 31/01/2007; 01/02/2007 & 16/03/2007. Opponent no. 2 also admits that his mother has filed a police complaint against him. These statements both by the applicant and the opponent no. 2 show that he ill treated his mother to such an extent that she was forced to leave her own flat. The criminal complaint on record of this court depicts the facts at length. It is needless to state that the Opponent no. 2 forced the old lady to leave her own flat by resorting to criminal intimidation for death, threats, torture and negligence. The opponent no. 2 by his conduct made it impossible for the applicant to live in her own flat. This speaks volumes of the “neglect” part envisaged in the Cr.P.C. Section 125.
15. It is pertinent to quote Mahendrakumar S/o Ramrao, Gaikwad, Petitioner V. Gulabbai And Others, Respondents, 2001 (107)-Cr.L.J 2111 Bom wherein the courts have held that the refusal or neglect may be express or implied. The court in the Mahendrakumar’s case (supra) held:
“..20. The neglect or refusal may be express or implied and in the circumstances of a particular case, it becomes a matter of inference to be drawn by the Court from the conduct of the non-claimant. In order to buttress this view, one can lay hand on Mt. Dhan Kaur v. Niranjan Singh, 1960 Cri LJ 1494 : (AIR 1960 Punj 595). It has been held that neglect or refusal may be express or implied and, in the circumstances of a particular case, it may be inferred by the Court from conduct of party from whom maintenance is claimed…”
In this case, the Bombay High Court also referred to the Allahabad High Court’s views expressed in Re. Mithlesh Kumari v. Bindhawasani (1990 Cr.L.J. 830) where the Allahabad High Court stated that the neglect may be express or implied. It was stated that the neglect should be inferred from words or conduct.
In the present case, the second opponent has done everything to harass his aged mother. It is needless to state the conduct of second opponent speaks volumes and shows that he has grossly neglected to maintain his 86 year old mother by inflicting torture, harassment and atrocities on her.
APPRECIATION OF THE EVIDENCE OF COMPLAINANT WITNESS MS.H:
16. That on behalf of the applicant two witnesses had been examined. The first witness was the daughter of applicant. Second witness was the grandson of the applicant. The daughter of the applicant Smt. Ms.H is sister of Opponent no. 2. She made her deposition on 22/05/2007. In her deposition – oral testimony Smt. Ms.H has come out with following case. Ms.H says in her testimony:
a. The applicant is an 86 year old lady. She is sick. She (applicant) has problems of urine, kidney, Blood Pressure etc.
b. The applicant has to stay with her grandson (Shri Mr.J) – son of the third opponent i.e. Shri Ashok bhai.
c. Applicant has no source of income;
d. The Opponent no. 2 had threatened to kill the applicant;
e. The deponent / Ms.H says that she stays in the flat at X Society in one part. She says that the applicant does not stay in her flat since 10 months. When the applicant comes, the Opponent no. 2 does not open the doors.
f. The deponent says that the Opponent no. 2 has broken the lock of the room where the applicant had put her luggage and mis-appropriated the applicant’s luggage by replacing applicant’s luggage with his own.
g. The Opponent no. 2 and his son threatened the applicant that if applicant will put any luggage in lock and key they will break her limbs and kill her.
h. That the flat at X Society belongs to the applicant and is of her sole ownership and the Opponent no. 2 is staying there forcibly.
i. The necessity to sell the flat has arisen because the applicant does not have money to maintain herself.
j. Deponent stays without light and water in the part of flat occupied by her.
The above deposition of Ms.H clearly indicates that Opponent no. 2 has been ill-treating & harassing his mother-applicant and given threats to kill her. Opponent no. 2 threw off luggage of his mother from the flat belonging to the ownership of his mother (applicant). Opponent no. 2 does not pay a single penny to his mother. He does not care for his mother. Opponent no. 2 has pushed his mother out of the flat belonging to her.
APPRECIATION OF THE EVIDENCE OF COMPLAINANT WITNESS MR.J:
17. That another witness who has also been examined on behalf of the applicant is Shri Mr.J Mr.A . Mr.J is the son of the third respondent. In spite of this, he has given his statement on oath in his oral testimony. Mr.J says (in his Oral testimony):
a. He is staying in Rajkot since 1994 in his Grandma’s flat;
b. Even he had to leave the flat due to torture of his uncle, Opponent no. 2;
c. Mr.J says that the flat at X Society belongs to her and it is of her ownership;
d. He says that the applicant does not stay in the flat at X society due to torture and harassment inflicted by the Opponent no. 2, his wife - Heenaben and son Bhramha;
e. Applicant’s daughter who is mentally ill is being maintained by him and his father Mr.A (third opponent);
f. The applicant stays with deponent;
g. The Opponent no. 2 does never comes to inquire about applicant.
h. The deponent and some relatives bear the medicine expenses of the applicant to the extent they can bear;
i. Opponent no. 2 does not give any financial assistance to the applicant;
j. The hardships of applicant – grandma increased after the grandfather of deponent died;
k. The second opponent has bad habits such as eating tobacco, smoking cigarette and drinking alcoholic drinks;
l. PW-2 (Ms.H ) – stays in the flat at X Society where she has no facility of electricity and water. These facilities have been stopped by Opponent no. 2.
The above testimony indicates very-very clearly that the Opponent no. 2 has totally neglected and failed to maintain his mother. Opponent no. 2 does not give any financial assistance to his mother and he is the one who has driven out his mother from the flat whose owner is the mother. It goes without saying that instead of caring, the opponent no. 2 has inflicted harassment and hardships on the applicant.
EVIDENCE OF THE OPPONENT NO. 2
18. That the opponent no. 2 stepped into his defense by giving out his testimony before the court. In his testimony, Opponent no. 2 has admitted following:
a. Applicant has left the X Society Flat. She stays at Y Apartment;
b. Applicant told him to leave the flat at X Society;
c. He filed police complaint against his mother and sister;
d. Opponent no. 2 admits that he has filed a civil suit against his mother as late as in April 2007;
e. His mother (applicant) had given him education, brought him up and in this way the applicant mother discharged her duties;
f. The Opponent no. 2 admitted that he has no evidence to show that his mother was doing any business;
g. The Opponent no. 2 further admitted that he does not have any evidence to show that his mother has any Fixed Deposits, Bank Accounts, Debentures;
h. Opponent no. 2 has admitted in cross examination that the flat where he is staying belongs to his mother;
i. Opponent no.2 has also admitted that the applicant mother has not gifted neither rented the flat to him;
j. The Opponent no. 2 also admits that on 31/01/2007, 01/02/2007 & 16/03/2007 he has filed police complaint against his mother. He admits that in his complaint he has leveled allegation against his 86 year mother that she will get him killed;
k. The Opponent no. 2 also admits that has taken education upto inter arts. He admits that he is conversant with as many as four languages viz. English, Hindi, Gujarati & Oriya.
l. Opponent no. 2 admits that he was working with his father and he was doing the business of mines;
m. He further admits that procedure of selling the land quarry / mine was done by him (although the owner was Mr.A – third respondent);
n. He (Opponent no. 2) has done automobiles business;
o. His wife according to him was a partner in a family business;
p. He was running shop from 1986-91.
q. Opponent no. 2 admits that he has no idea as to how his own real sister is staying in the room without water and electricity;
r. Opponent no. 2 admits that in 1994 he has registered a firm called System Tech India. He further admits that the firm was doing the business of Defense Tools Supply. The firm had carried out a turn-over of about two and half lac rupees. He says that he does not keep any account of his firm. He has transferred the firm in the name of some one else in year 2000;
s. The Opponent admits that both his sons are employed. One is employed with a mutual fund.
19. That it is pertinent to point out that the second opponent has made the above admittance. The above admittance clearly shows that the second opponent is a man of experience, he is intelligent, knows four languages and he has been doing the business of mines, automobiles, defense tool supply etc. He admits that he has been doing a turn over of two and half lac rupees, but to conceal material facts, he says that he has kept no accounts thereof. He also says that he has never kept any bank account (although he was doing so many business!) Not only that, the second opponent has also admitted that his mother has criminal filed complaints against him and he has filed as many as three complaints off late in year 2007 against his mother making allegation that his 86 year old mother will kill him.
20. That here it is also pertinent to point out that the Opponent no. 2 has also admitted that he stays in the flat belonging to the applicant and that the applicant had asked him to leave the flat. He further admits that he has never bothered to see how his mother is staying in X Appartments.
21. On one hand the second opponent contends that he has no income whatsoever. He does not have bank account. But in very same testimony he also says that he had registered a firm, he has transferred the firm. He says that he was doing supply of defense tools. How can defense supplies take place without bank account?
22. That in the entire testimony of the opponent no. 2, he has been saying that he does not earn anything. On being cross-examined he admitted that he had experience in as many as three business i.e. Automobiles, Mining and Defense Supplies, he holds passport, he has registered a firm which has done a turnover to the tune of 2.5 lacs. The testimony of the Opponent no. 2 clearly shows that he has tried his best to conceal his sources of income which could have been known only to him and not to his 86 year old mother who is illiterate.
23. That for defending himself the opponent no. 2 states that the applicant has filed the application for maintenance for driving him (Opponent no.2) out of the flat whose owner is the mother. By this admittance, he clearly indicates that he is forcibly staying in the flat belonging to his mother, against her wishes. He also says that his mother lives with her grandson (third respondent’s son). By this admittance, gives an inference that something so intense happened that made the applicant-mother leave the flat who is the owner.
UNDERSTAND THE ADMITTANCE OF DEFENSE WITNESSES:
24. That with a hope to support his version, the Opponent no. 2 called one Mr. H purportedly deposing as a President of the X Society. Mr. H admitted following:
a. That this defense witness has highlighted the importance of mother. Role of mother. He says that mother should be well treated. She should not be harassed. A lady of 86 years needs food, clothing, shelter and it is necessary that proper care of such an old person of 86 years should be taken.
b. The Opponent no. 2 is staying in the flat at No. 00 of X Society. He admits that the flat is in the name of applicant (mother).
c. This defense witness says that he is aware about the fact that applicant has filed a police complaint against the Opponent no. 2;
d. The defense witness further stated that he has never seen the bank statement of applicant. He knows nothing about the financial position of the applicant.
e. The defense witness also admitted that he has never done a single penny financial transaction with Opponent no. 2. He is not aware whether Opponent no. 2 has any money or not;
f. The defense witness for Opponent no. 2 admits that he has a business at Bangalore. For about 6 months he stays at Bangalore. During these months he does not know what business Opponent no. 2 is doing.
25. That looking to the above admissions of the defense witness, it is apparent that he has come with a clear version professing his total ignorance about the financial ability of Opponent no. 2. This witness has stated very clearly that the flat belongs to the applicant and she is the owner of the flat. The deponent happens to be the President of the Society and therefore knows that the flat is of the ownership of applicant. He also states that the Opponent no. 2 is staying in the flat of the applicant. The witness says that he knows nothing about the financial position of the applicant. He further tells that he has only heard about the police complaint from Bangalore and he was never present personally.
26. That the above testimony supports the version of the applicant. Mr. H states that Opponent no. 2 is not working. But in cross examination he also states that he does not know what Opponent no. 2 is doing when deponent is out of town for six months. He also states that deponent does not know about the financial aspects of the Opponent no. 2. In rest of his testimony, he says that all that he is deposing is what he has heard from others.
27. That another defense testimony is by Mrs. M. (DW-3). She has taken following version in her testimony:
a. This defense witness during testimony also gives the importance of a mother. She says that a lady of 86 years is very old, weak and naturally infirm. It is necessary to take care of such a lady. She also says that an old person needs food, clothing, shelter, medicines and such amenities should be provided to her.
b. The DW-3 has stated that she is doing service.
c. DW-3 says that she knows Opponent no. 2 since five years. She admits that she does not know whether Opponent no. 2 is working or not.
d. The defense witness says that she is lending small amount of money to Opponent no. 2. The word used is “Dhiraan”. This means to lend on interest. After this she claims that she not take interest and neither keeps any accounts of money lend. However, she states that all the money she lends is always returned.
e. She says that the 86 year old applicant threatened to kill her. But she also says that no corresponding complaint was ever made by her to police;
f. The witness says that she is not aware about what complaint has been filed by the applicant in the court.
28. That it is very clear that the statements made by this defense witness are totally contradicting themselves. Following are the contradictions which seriously impeach the credibility of this witness:
a. DW-3 says that the applicant threw off the luggage of second opponent and there was a big noise, many people gathered. However, very next statement she says that she was not present when this happened & people who were present informed her.
b. DW-3 says that 86 year old applicant threatened to kill her and break her limbs. This was a patently false statement. How can a lady who barely walks with great difficulty (suffering from Osteoporosis & kidney problems) threaten to kill the deponent? When asked whether she complained to police, she said she did not complain. Deponent is an educated service class professional woman. If she is threatened to kill, it is strange why she did not complain? On the other hand, in the same testimony she says that she has no personal problems with the applicant. These statements are totally conflicting.
c. That DW-3 states that she is lending money “Dhiraan” is the word used. This means to lend on interest. On other hand she says she does not take interest. When questioned about accounts, she says that she does not keep any accounts. But when asked whether all the money is returned, she says “YES”. These statements are also totally contradicting one other. It is unnatural to say that person lending money by way of “WLZF6” will not take interest. Even presumed that the money is lent interest free, without keeping accounts how anybody can reach a clear answer that everything lent is returned.
This sort of story can have only two meaning. Either the story is false. Or that the lending is done on such a large scale base that the accounts are concealed purposely. This can be said looking to the statement of DW – 3 that she is doing financial transactions with the Opponent no. 2 since five years along with her husband.
In any case, nothing is proved regarding the earning capacity of the Opponent no. 2 merely by saying that she is lending Rs. 500/- to Opponent no. 2 which he is returning. Merely if DW- 3 says that Opponent no. 2 is poor, he does not become poor & nothing gets proved in the eyes of law.
The version of this witness can be strongly impeached and rendered untrustworthy because she has said obvious lies which nobody will believe like saying that the old lady threatened to kill her and at the same time saying that she has no problems with the old lady. Secondly her statement that she & her husband have financial transactions since 5 years with Opponent no. 2 show that she is an interested witness.
NET CONCLUSION:
29. That looking to the testimony of the complainant and her witnesses as well as the testimony of the Opponent no. 2 and his witnesses, it is clear that the opponent has not been able to bring out any case. On the contrary, his own witness has deposed that the flat belongs to the applicant. His witnesses have given testimony which are totally incredible and conflict with their own statements they made.
POINTS OF LAW:
30. The law of Section 125 is a social legislation. It is meant to give fast, effective and economical remedy to the destitute wife, children and parents.
31. Looking to the above position of law, the questions that need to be addressed are:
a. Whether there is a “neglect” or refusal on the part of the respondent (sons in this case)?
b. How much maintenance is to be awarded?
c. From what date the maintenance should be awarded?
32. The above questions need to be answered in the present context. The first question is obvious that looking to the testimony of the parties and the documentary evidence, there is hardly any need to elaborate that the old lady of 86 years has not only been neglected but as far as Opponent no. 2 is concerned he has spared no stones to harass his old mother. The refusal to maintain or neglect can be implied as stated in Mahendra Kumar’s case (supra).
33. That as far as the quantum of the maintenance is concerned, it is pertinent to point out that the applicant is an old lady of 86 years. She has very less expectancy of life. One thing is certain that she will not live very long. Looking to this fact and also looking to the numerous ailments she has, it is essential that the old lady should be given a maintenance of not less then Rs. 15000/- per month looking to the quantum of her expenditure on medicines, standard of living and such factors. Her expectancy of live may perhaps prolong few years, if she has sufficient medicines for the balance short time that she has to live in this world.
34. That it is pertinent to point out that the Opponent no. 2 has kicked out the applicant from the flat belonging to applicant. The applicant has to live on mercy of others. For the purpose of escaping from the liability to maintain his mother, the opponent no. 2 has come out with blatant statements. He says that he has no income whatsoever. He does not earn a penny. He has no bank account. However, various other statements he has made in his own testimony clearly suggest that he is telling a lie to conceal his income. For example saying that I never had any bank account. On the other hand at the same time saying that he was making supplies to defense. It is needless to state that he is concealing material facts.
35. That under the above circumstances, the question is what should be done? Since the respondent is simply avoiding any answer or taking a tight concealing view that he has nothing to give, what should be done? That here it will be necessary to take the judicial views.
36. That in Re. Ali Hossain, Petitioner V. Baby Farida Khatoon, Respondent 1998-(104)-CRLJ -2762 -CAL
“It is true that the ld. Magistrate did not attempt to record any specific finding as to how much the husband earns but this omission cannot be faulted particularly when the best person to enlighten the Magistrate on this point withheld the relevant data and it was not within the knowledge of the wife as to how much the husband does actually earn in case his real occupation is that of a regular rickshaw-puller and a casual labourer as claimed by him. The ld. Magistrate was certainly justified, in the facts and circumstances of this case, to take it for granted that the husband had the sufficient means to maintain his wife and children.”
That it is pertinent to point out that in the above case, an ordinary rikshaw-puller was asked to pay a maintenance of Rs. 700/- per month that too 10 years back – somewhere in 1997. It is needless to state that the Opponent no. 2 has particularly come up with a case in his testimony which clearly point out that he is very experienced man doing may businesses. But the financial data have been concealed with a mala fide intention by the Opponent no. 2. The financial data is within the exclusive knowledge of the Opponent no. 2 and 86 year old lady has no means to know about these matters.
37. That again in Re. Durga Singh Lodhi, Petitioner V. Prembai And Others, Respondents 1990-(096)-CRLJ -2065 –MP the court held:
“.. an able bodied young man must be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child…”
“..The presumption should be that such an able bodied and healthy person has capacity to earn. The presumption should be that such an able bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise, he is not capable of earning anything…”
38. That in Re. Raibari Behera, Petitioner V. Mangraj Behera, Opposite Party, 1983-(089)-CRLJ -0125 –ORI, the courts interpreting the context of sufficient means stated:
“.. The word "means" does not signify only means like estate or definite employment, but also includes capacity to earn money. If a man is healthy and able-bodied, he must be taken to have means to support his wife and children and he cannot take the plea of not having sufficient means. A person has sufficient means if he has capacity to earn. Notwithstanding the fact that a husband is an insolvent or a professional beggar or a minor or a monk, he must support his wife so long he is able-bodied and can eke out his livelihood (See the case of Basanta Kumari Mohanty v. Sarat Kumar Mohanty (1982 Cri LJ 485) (supra)). The word "means" does not imply only visible means. It includes a capacity to earn. A person who is fit to earn his livelihood cannot be relieved of his liability under the section even if he is young and unemployed, as has been laid down by this Court in Smt. B. Veragam v. Manoranjan Samanta Kumar, ILR (1963) Cut 415 : (1963) 29 Cut LT 584. Judicial decisions are unanimous that the expression "means" occurring in Section 488 of the Code (old) (corresponding to Section 125 of the present Code) does not signify only visible means, such as real property or definite employment and that if a man is healthy and able-bodied, he must be held to possess the means to support his wife and children and he cannot be relieved of his obligation on the ground that he is unemployed. The opposite party, having sufficient means, has neglected and refused to maintain the petitioner…”
That here it is pertinent to point out that the Opponent no. 2 has forcibly trespassed the flat, kicked out his mother after torturing her. The flat is in a posh locality and costs somewhere between 16-18 lacs. The Opponent no. 2 should be imposed with the maintenance taking this factor into consideration.
39. That now the last question is the date from which the maintenance should be awarded. It is pertinent to state that the maintenance should be awarded from the date of application i.e. 25/10/2005. This view should be taken considering following:
a. That the Opponents have caused all the delay in the matter as narrated hereinabove;
b. That the aged old 86 year old mother has not been paid a single penny of interim maintenance, hence now the maintenance should be paid from the date of application;
c. That the applicant is in need of funds for her health treatment. She should not be penalized for the delay caused in the matter due to latches by the Opponent no. 2 especially in view of the fact that no interim maintenance has been paid although asked for.
40. The following judicial views should be taken into consideration for the purpose of ordering maintenance from the date of application.
a. In Re. Kanhu Charan Jena, Petitioner V. Smt. Nirmala Jena, Respondent 2001-(107)-CRLJ -0879 –ORI, the court held:
“Ordinarily, if maintenance is granted, direction is usually given for payment of maintenance from the date of the application. Where, however, some interim maintenance is paid, subsequently the Court may direct that maintenance as decided in the final order may be paid from the date of the final order.”
b. In Re. Makhdum Ali, Petitioner V. Mst. Nargis Bano And Another, Respondents 1983-(089)-CRLJ -0111 -DEL
“If the husband has behaved badly the Magistrate should award maintenance not from the date of the order but from the date of the application. In my opinion there ought to be compelling reasons before the wife is deprived of maintenance from the date of the application. No such reasons have been given by any of the two courts…”
c. The Honorable Apex court in Re. Smt. Savitri, Petitioner V. Govind Singh Rawat, Respondent 1986-(092)-CRLJ -0041 –SC showed the importance of interim maintenance in light of the legislative intention of the provisions of the maintenance.
d. In Re. Ganesan, Petitioner V. Madheswari And Others, Respondents 1999-(105)-CRLJ -0914 –MAD, the court held:
“... When the Court ultimately decides that she is entitled to be maintained after conducting enquiry, then the said decision must necessarily be based upon the material showing that the wife is unable to maintain for herself from the date of the application. Once such a conclusion is arrived at, then, in my view, normally the learned Magistrate has to pass order directing the maintenance from the date of application. Of course, even for such an order the reasons are to be given, in order to show that the discretion has been properly exercised…”
e. In Nachhattar Singh, Petitioner. V. Harjinder Kaur And Another, Respondents, 1995-(101)-CRLJ -2726 -P&H it was held:
"A destitute wife or child needing succur is entitled to get it from the date she or it approaches the Court unless there are circumstances which do not justify such a course. No such circumstances has been pointed out here. The wife has been found to be entitled to maintenance on the neglect or refusal of the husband. She complained of that fact when she made the application. Thus she is entitled to maintenance from the date of the application."
f. In Re. Gnanaselvi And Others, Petitioners V. Illavarasan, Respondent 1999-(105)-CRLJ -1008 –MAD, it has been held:
“.. Ordinarily the order of maintainence should be granted from the date of application and only in exceptional circumstances to be stated, should the same be granted from the date of order..”
Taking into the above points into consideration, it is humbly prayed to award maintenance in terms of the prayers of the applicant’s application from the date of application.
FOR THIS ACT OF KINDNESS AND JUSTICE, THE APPLICANT AS IN DUTY BOUND SHALL FOR EVER PRAY.
RAJKOT
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/07/2007 MOTHER
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