Case Note & Summary
The petitioner, Shivaji Baburao Bhabad, filed a Criminal Writ Petition before the Bombay High Court, Aurangabad Bench, challenging the order of the Judicial Magistrate First Class, Chalisgaon, dated 1st February 2008, which dismissed his application to cancel maintenance for his son, respondent No. 2 Kiran. The petitioner is the husband of respondent No. 1 and father of respondent No. 2. Previously, in Criminal Misc. Application No. 156 of 1999 under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), maintenance of Rs. 600 per month was awarded to respondent No. 1 (wife) and Rs. 500 per month to respondent No. 2 (son). Subsequently, the petitioner filed Criminal Misc. Application No. 129 of 2005 seeking cancellation of maintenance for respondent No. 2 on the ground that he had attained majority on 14th April 2008 and was earning, thus not entitled to maintenance. Respondent No. 1 filed a written statement denying that respondent No. 2 had attained majority and claimed he was studying in 10th standard at Deolali, Nashik, and would starve if maintenance was cancelled. The Magistrate dismissed the application, observing that the birth certificate (Exh.11) did not bear the name of respondent No. 2, but in cross-examination, respondent No. 1 admitted the birth certificate was of respondent No. 2 and that he had completed 20 years. However, the Magistrate held that since respondent No. 2 was studying, he was entitled to maintenance. The High Court, after hearing both sides, noted that respondent No. 1 admitted in cross-examination that respondent No. 2 had completed 20 years and was earning. The court held that once a child attains majority and is able to maintain himself, he is not entitled to maintenance under Section 125 CrPC, even if he is studying. The court allowed the petition, set aside the Magistrate's order, and cancelled the maintenance awarded to respondent No. 2.
Headnote
A) Criminal Procedure Code - Maintenance - Major Child - Section 125 CrPC - The petitioner husband sought cancellation of maintenance awarded to his major son who had attained majority and was earning. The Magistrate had dismissed the application on the ground that the son was studying. The High Court held that once a child attains majority and is able to maintain himself, he is not entitled to maintenance under Section 125 CrPC, even if he is studying. The court allowed the petition and cancelled the maintenance for the son. (Paras 1-6)
Issue of Consideration
Whether a major son who has attained majority and is earning is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the petition, set aside the order of the Judicial Magistrate First Class, Chalisgaon, dated 1st February 2008, and cancelled the maintenance awarded to respondent No. 2.
Law Points
- Maintenance under Section 125 CrPC is not payable to a major child who is able to maintain himself
- even if the child is studying
- unless the child is unable to maintain himself due to physical or mental disability.
