ORAL JUDGMENT

1. Heard Shri. P. B. Patil, learned counsel for the petitioner and Mrs. M.L. Sangit, learned counsel for the respondents.

2. Rule. Rule made returnable forthwith. With consent of parties, the matter is taken up for final hearing.

3. Briefly stated, it is the case of the present petitioner that he is husband of respondent No.1 and father of respondent No.2. The respondents had filed Criminal Misc. Application No. 156 of 1999, under Section 125 of Code of Criminal Procedure. Maintenance amount of Rs. 600/- per month was awarded to respondent No.1 and maintenance amount of Rs.500/- per month was awarded to respondent No.2. Thereafter, Criminal Misc. Application No. 129 of 2005 came to be filed stating that respondent No.2 attained majority on 14th April, 2008 and was earning, and, as such, not entitled to get maintenance, and therefore, order of maintenance awarded to respondent No.2 be cancelled.

4. Respondent No. 1 filed her written statement at Exh.8 and denied that the respondent No. 2 had attained majority, and stated that respondent No.2 was studying in 10th standard at Deolali, Nashik, and if, maintenance is cancelled, he would not be able to complete his education and starve.

5. The learned Judicial Magistrate First Class, Chalisgaon, decided the application by his Judgment and order passed on 1st February, 2008 and observed in paragraph No. 14 that the applicant in his affidavit stated that respondent No. 2 had become major and also filed Birth Certificate at Exh.11, but it does not bear the name of respondent No. 2 – Kiran. However, in cross-examination, respondent No. 1 admitted that the Birth Certificate is of respondent No. 2 and that he completed 20 years. But, according to her, respondent No.2 was studying in 12th standard and was not able to maintain himself and required maintenance for his education and livelihood. The learned trial Court held that there is no change in the circumstances and dismissed the application.

6. Against the said order of dismissal, Revision Application No. 44 of 2008 came to be filed in Sessions Court at Jalgaon. The learned Sessions Judge decided revision application on 29th July, 2009 and held that mother with whom such son is staying would be entitled for maintenance after taking into consideration the amount which would be required to be spent on maintenance of son. The learned Judge relied upon the case of Geetanjali Gajanan Tendulkar V. Gajanan Dinkar Tendulkar (1989 [1] Bombay Cases Reporter 334.

7. Heard counsel for both sides.

8. Section 125 (1) of Code of Criminal Procedure is as follows :

“125. (1) If any person having sufficient means neglects or refuses to maintain –

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.”

9. To a specific query, Mrs. M.L. Sangit, learned counsel for the respondents fairly admitted that it is not the case of respondents that respondent No.2 is a child though attained majority, that by reason of any physical or mental abnormality or injury, he was unable to maintain himself. She stated that he is a normal child studying in 12th standard. She further added that no such case was made out before the trial Court and present case does not fall under clause (c) of Section 125 (1) of Criminal Procedure Code and this case falls under clause (b) of Se