1. Amir Singh Jain, respondent herein, has four sons. Three of them reside in Delhi; the fourth one is at Bombay. He used to reside with one of his sons, Attar Sain Jain till October 1978. It appears from the record that he was carrying on partnership business with his grant son, son of Attar Sain Jain and his daughter-in law, wife of Attar Sain Jain, in the name and style of Mahabir Atta Bhandar. There were some differences between the partners. A suit was filed by Amir Singh Jain for dissolution of partnership and for rendition of accounts. This suit was filed while Amir Singh Jain was residing with his said son. The said suit has been referred to an Arbitrator.
2. After filing of the suit Amir Singh Jain has started staying with his eldest son, namely, Anup Singh Jain who has a three-room Government flat in R. K. Puram.
3. On the allegation that Amir Singh Jain was unable to maintain himself he filed a petition under Section 125 of the Cr.P.C. (herein called 'the Code') for maintenance against his other son Attar Sain Jain. In those proceedings he appeared as his own witness as PW 4. Three other witnesses, Satish Chander (PW 1), Ram Parshad Sharma (PW 2) and Sampat Ram (PW 3), did not support the case of either of the parties and as such no useful purpose will be served by noticing their evidence. However, the testimony of Amir Singh Jain brings forth the following facts :-
(1) that on no account was he prepared to live with his son Attar Sain Jain because of the pending litigation,
(2) that he was welcome to stay in the house of his other three sons,
(3) that he was living with his eldest son. Anup Singh,
(4) that his son living at Bombay off and on sends him Rs. 50/- which sum the petitioner (respondent herein) deposits in his account with the Central Bank of India at its Paharganj Branch, and
(5) that he wanted maintenance allowance from Attar Sain Jain and from no other son.
4. The learned Magistrate after noticing in detail the evidence led by the parties dismissed the petition mainly on the ground that the petitioner had failed to prove that he was unable to maintain himself.
5. On a revision petition filed by Amir Singh Jain the learned Additional Sessions Judge has come to a contrary view. He has accepted the petition under Section 125 of the Code. He has held that Amir Singh Jain requires Rs. 400/- per month for maintaining himself. He has apportioned this amount amongst the four sons and has directed Attar Sain Jain, petitioner herein, to pay Rs. 100/- per month as his share towards the maintenance of his father.
6. With the assistance of the learned counsel for the parties I have gone through the records.
7. By an amendment in the Code parents who are unable to maintain themselves can now seek maintenance from their son who although has sufficient means yet neglects or refuses to maintain them. Father or the mother of the said person have now been put at par with the wife and the minor children of that person who are unable to maintain themselves.
8. It is well settled that the object of these summary proceedings given in the Code for maintenance is to prevent vagrancy and that object is achieved by directing provisions of lodging, food and clothing to the wife, the children who are minor or the parents as the case may be. However, there are two conditions. The first is that the person who has neglected to look after any one of the categories of the persons concerned, as noticed above, must have means to do so and secondly, the wife, minor children or the parents must be unable to maintain themselves.
9. In the present case the petitioner (respondent herein) has been unable to prove either of the two conditions, noted above. His testimony which I have noticed above, clearly shows that he (Amir Singh Jain) is not prepared to live with the son who is petitioner before me. The words used by him are, 'I will not go with the respondent at any cost and even if he takes me to his home from the Court itself today'. It was not the case of the petitioner seeking maintenance that his son has turned him out of his house or has neglected or refused to maintain him. His case was that because of the pendency of the civil litigation he was not prepared to live with his son and instead he was wanting to have maintenance allowance. In my view, the second condition, namely, that the petitioner in an application under Section 125 of the Code must prove that he is unable to maintain himself is also not made out in the present case.
10. As noticed above, the petitioner before the trial Court admitted that he was living with another son who was looking after him. He further admitted that he was welcome in the houses of Prem Chand and Kailash Chand, the other two sons. The fact that whatever little money he gets as allowance from his son who is at Bombay is being saved by him shows that he is not really hard up. All that he is seeking is monthly maintenance allowance which in the facts and circumstances of the present case cannot be allowed.
11. In view of my discussion above, I accept this revision petition and set aside the judgment dated 26th August, 1980, passed by Mr. D. C. Aggarwal, Additional Sessions Judge. I restore the judgment of the learned Magistrate passed on 27th May, 1980.
12. Mr. Dhanbir Singh, learned counsel for the petitioner, has brought to my notice that after the Judgment of the Additional Sessions Judge, a sum of Rs. 4,700/- in all was deposited in this Court. A sum of Rs. 3,500/- has already been withdrawn by the respondent. The balance of Rs. 1,200/- is still with the Registry. Mr. Dhanbir Singh submits that the amount which has already been withdrawn by the father of the petitioner may be retained by him Rs. 1,200/- which have yet not been withdrawn may be refunded to the petitioner. I order accordingly.
13. Petition allowed.