SWAPAN KR SINGHA Vs. SOVA RANI SINGHA

JUDGEMENT

(1.) This revisional application under Section 401 read with Section 482 of the Criminal Procedure Code has been filed by Sri Swapan Kr. Singha (hereinafter referred to as the petitioner) and has been directed against the order dated 3rd July. 2001 passed by the learned Sessions Judge. Nadia in Criminal Motion No. 48 of 2001 affirming the order of maintenance passed by the learned Chief Judicial Magistrate. Nadia in Misc. Case No. 829 (IV) 1997 enhancing the amount of maintenance being paid by the petitioner from Rs. 1000/- to Rs. 3000/- per month (Rs. 1500/- to each daughter).

(2.) The relevant facts may be summarised as follows. Admittedly the mother of Sonali and Shrabani, the two daughters of the petitioner was the married wife of the petitioner. She having died leaving behind those minor two daughters, the petitioner remarried for the purpose of ensuring the upbringing of the said daughters. But the mother-in-law of the petitioner, Sova Rani Singha. the present O.P. took those two girls to her house and did not allow them to return to the petitioner's house in spite of the petitioner's repeated attempts at bringing back his children. Thereafter, the said Sova Rani Singha filed a petition under Section 125 Criminal Procedure Code claiming maintenance for the children, her two grand-daughters. In that petition being Misc. Case No. 38 (IV) 1997. the learned Chief Judicial Magistrate passed an order on the basis of a petition of compromise between the parties directing the petitioner to pay Rs. 1000/- every month to the said Sm. Singha towards maintenance of his two daughters. This order was made on 3rd June, 1997. But on 24th November i.e., only five months after that very order was passed the O.P. filed a petition again under Section 127 Criminal Procedure Code praying for an order enhancing the said amount of maintenance on the ground that this amount was highly inadequate considering the increased cost of living and the price index. That petition was disposed of by the learned Magistrate after hearing both parties and considering the evidences on record. The learned Magistrate allowed that petition enhancing the amount of maintenance from Rs. 1000/- to Rs. 3000/- by the impugned order. Being aggrieved by that order the petitioner filed a revisional application before the Court of Sessions challenging that order of the learned C.J.M. as erroneous and unjustified. But the learned Sessions Judge after hearing both sides and considering the materials on record dismissed that Criminal Motion and affirmed the order of the learned Magistrate in question. Being aggrieved thereby again he has preferred the present revisional application.

(3.) The contention of the petitioner is that in the evidence of Sova Rani Singha there has been a clear statement made by her to the effect that both her grand-daughters are major, but the Courts below fell into error by not taking into consideration the fact that in view of such admission the said daughters of the petitioner have forfeited their entitlement under the law to get any maintenance from the petitioner-father. According to Mr. Dastoor, a major son or daughter can claim maintenance under the provisions of Section 125, Criminal Procedure Code only when he or she is physically handicapped or mentally challenged, but no such case is made out here. Secondly, Sova Rani Singha who filed the petition under Section 125 Criminal Procedure Code on behalf of the said two daughters as their guardian can no more have any locus standi to represent her grand-daughters who have according to her own admission attained majority. The third contention of Mr Dastoor, the learned Counsel, of the present petitioner is that the Courts below did not take into account the circumstances that such a prayer for enhancement was being made only within five months from the date on which the order of awarding of maintenance as per the aggrieved rate was passed, Mr. Dastoor contends that there could not be any justification for enhancement of the maintenance within such a short time from the date of the first order. According to him. unless some drastically changed circumstance takes place such a big leap in the claim for maintenance is unthinkable but the petitioner Sova Rani Singha failed to adduce any evidence to show any such change in her circumstance and as a result such a claim for increased rate of maintenance falls to the ground. Mr. Dastoor compares the provisions in this regard as they occur in the present Criminal Procedure Code with those of Section 488 of the old Code whereunder the word "child" only unaccompanied by the word 'minor' occurred and he argues there the legislature did not intend to limit the age of the child and irrespective of its age a son or daughter who was a student or unemployed could claim maintenance from the father and in respect of this argument he refers to the decision reported in AIR 1970 SC 446. According to him, the incorporation of the word 'minor' is thus extremely significant and after a child crosses the age of minority and attains the age of majority, he or she cannot be entitled to any maintenance from the father and the only exception to this would be available, if it can be shown that he or she suffers from any physical or mental infirmity and is unable to maintain herself or himself.