1. Rule. Returnable forthwith.

2. Heard Finally with consent of parties.

3. This is a revision against the order passed by the Judge, Family Court.

4. The non-applicant in the petition before the family court has preferred this revision application. The respondent herein is the mother of the present applicant Rafiuddin. She was divorced by her husband in the year 1973-74. She submits that she has no source of income and nobody is ready to maintain her and she is living all alone. She claims maintenance from the present applicant.

5. The present applicant resisted the application before the Family Court. He contended that the respondent had sufficient means of maintenance, in as much as she holds large immoveable property. Her husband had given her one time maintenance and since she holds a large property, she is not entitled to claim maintenance. He also submitted that he has very meagre source of income. He has to educate and marry his three daughters. He has to maintain two establishments and he cannot, therefore, pay maintenance.

6. The learned judge of the Family Court found that the respondent has no source of income while the present applicant has sufficient means to pay the maintenance. He ordered the present applicant to pay maintenance of Rs.1500/-. Being aggrieved by that order, this revision has been preferred.

7. I have heard the learned counsel for the applicant and the respondent.

8. Shri A.C.Dharmadhikari, learned counsel for the applicant, challenged the order of the Family Court on three counts. Firstly; he challenged the order on the ground of lack of territorial jurisdiction, Secondly; on the ground that since the husband is alive and there is also an order to pay maintenance against him of Rs.75/- per month, she could not claim maintenance from son, and, thirdly; the quantum of maintenance being excessive.

9. Shri Dharmadhikari contended that the petition ought to have been filed where son lives and not at the place the present respondent lives. He invited my attention to the provisions of Section 126 of Cr.P.Code. Section 126 of Cr.P.Code does contemplate that the proceedings instituted by father or mother could be instituted against son at a place where the son resides. The Supreme Court in A.I.R. 2004 SC 2123 (Vijay Kumar Prasad ..vs.. State of Bihar and others) has so held and observed as follows -

.An application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives. The expression 'is' in S.126(1)(a) cannot be given the same meaning as the word 'reside' or the expression ' the last resided'. It connotes in the context the presence or the existence of the persons in the district where the proceedings are taken. It is wider in its concept than the word 'resides' and what matters is his physical presence at the particular point of time. Thus where the son was practising in the Patna High Court at the time of presentation of petition at Siwan by his father claiming maintenance, he could not have been physically present at Siwan, whatever extended meaning may be given to the expression 'is'. In view of this, the Court at Siwan would have no jurisdiction to deal with the petition..

10. The ratio of the above decision cannot be applied to the case at hand. In the reported case, the son against whom an application was made by father had filed an application for transfer of case to Patna on the ground that he has an apprehension that he may not get justice at Siwan and secondly Siwan court did not have jurisdiction because he himself lives at Patna. The High Court did not find favour with the son. However, the Supreme Court accepted the plea that Siwan court could not assume jurisdiction as son was residing at Patna. The Supreme Court transferred the case to Patna. It is, therefore, clear that son had challenged the jurisdiction of Siwan court