PATEL ZINABHAI VIRJIBHAI Vs. SANTOKBEN VIRJIBHAI AND OTHERS

JUDGEMENT

(1.) In these maintenance proceedings unfortunately the dispute is between the mother and son. In Criminal Misc. Appl. No. 133/81 the learned Magistrate has fixed the maintenance amount at the rate of Rs. 900 per month and has directed that the both the sons of opponent No. 1 were liable to pay the said amount. Against the said judgment and order the petitioner had preferred Criminal Revision Application No. 67/82 before the Sessions Judge, Junagadh. The said revision application was partly allowed and the Court passed an order that both the sons of the opponent No. 1 were jointly and severally liable to be pay maintenance amount at the rate of Rs. 150 per month to the mother.

(2.) Thereafter the opponent No. 1 filed an application Ex. 5, on 11-7-83 that she intends to recover maintenance amount only from his son Zina Virji (petitioner). The said application was resisted by the petitioner. He contended that he had paid in all Rs. 2,400 for maintenance and as opponent No. 2 was also liable to pay the maintenance amount, the said amount should be recovered from his brother-opponent No. 2. He submitted that there is collusion between opp. No. 1 and opponent No. 2. The learned Magistrate heard the said application and he arrived at the conclusion that even though the learned Sessions Judge has used the word "joint and severally", it means that both the brothers were liable to pay the maintenance amount. The Opponent No. 1 has not filed an application for recovering maintenance from opponent No. 2 and the application filed against the petitioner was with some ulterior motive. Hence he rejected the application by his judgment and order dated 12th Sept., 1983.

(3.) Against the said judgment and order, opponent No. 1 preferred Criminal Revision Application No. 105/83. The learned additional Sessions Judge held that as the order was passed against both the brothers and as they were held jointly and severally liable to pay the maintenance, therefore, opponent No. 1 was entitled to recover maintenance amount from either of the brothers and, therefore, he allowed the application and directed the learned Magistrate to proceed with the matter in accordance with law. Against this order, the petitioner has preferred this revision Application.