MEHBOOBKHAN BABARKHAN Vs. BABARKHAN AHEMADKHAN

JUDGEMENT

(1.) EARD the learned Counsel for the parties. Applicant mehboob Khan Babar Khan has filed the present application questioning validity and legality of the order passed by the learned Sessions Judge, Akola in Criminal Revision Application No. 12 of 1997 whereunder the applicant was directed to pay maintenance @ Rs. 200/- to each non-applicant i. e. nonapplicant Nos. 1 and 2. It is not disputed that, initially, non-applicant Nos. 1 and 2 had filed an application for maintenance under section 125 of the Code of Criminal Procedure against the present applicant and the learned Magistrate passed the order directing the applicant to pay maintenance. Against that order, Criminal Revision Application No. 200 of 1991 was filed by the non-applicant wherein the Sessions Judge had directed the applicant to pay maintenance @ Rs. 300/- p. m. to each of his parents. Thereafter, the present applicant filed Misc. Criminal Application No. 991 bf 1995, under section 127 of the Code of Criminal Procedure for cancellation or modification of the said order on the ground that his father himself was earning and also that his three brothers namely Sabirkhan (present N. A. No. 3), Sadik Khan (present n. A. No. 4) and Sayeed Khan (present N. A. No. 6) were also financially well placed and his parents were living with these three brothers of the applicant and therefore, the applicant alone could not be saddled with the liability to pay maintenance to the parents. N. A. Nos. 1 and 2 had also filed Misc. Criminal Application No. 319 of 1996 before the Magistrate under section 127 of cri. P. C. for enhancement of maintenance amount wherein they claimed minimum amount of Rs. 500/- p. m. towards maintenance. The learned Magistrate decided both the applications by common order dated 1-11-1996 rejecting both the applications.

(2.) THE applicant, being aggrieved by the said order, preferred Criminal revision Application No. 12 of 1997 against the parents and his three brothers and the parents also preferred Criminal Revision Application No. 34 of 1997 claiming enhancement of maintenance amount virtually challenging the order passed by the Magistrate rejecting their claim for enhancement of maintenance amount. The learned Sessions Judge, by his common order passed on 12/08/1998, rejected the revision application filed by N. A. Nos. 1 and 2 and the revision application preferred by the applicant has been partly allowed and the amount of maintenance awarded by the trial Court was reduced to Rs. 200/- p. m. to each of the parents. This order passed by the learned Sessions Judge is under challenge.

(3.) THE learned Counsel for the applicant vehemently submitted that the learned Sessions Judge as well as the trial Court committed an error in fastening the liability to pay maintenance to the parents on the applicant alone when applicant's three brothers are equally able and liable to maintain the parents. The learned Counsel referring to section 87 of the Islamic Law submitted that the liability of all the sons, who are bound to maintain the parents, is equal. If the parents are poor and are unable to maintain themselves, all the sons are liable to pay maintenance and their liability to pay maintenance to the parents is equal. The learned Counsel pointed out that the Sessions Judge has observed that the parents can also claim maintenance from their remaining three sons in view of section 87 of the Islamic Law and it was on that ground that the claim of non-applicants for enhancement of mainte-nance allowance has been rejected. But, at the same time, as submitted by the learned Counsel, the Sessions Judge has not fastened any liability on the other sons in respect of payment of maintenance to the parents. He, therefore, urged that the learned Sessions Judge has committed an error and illegality in passing the order for maintenance.