A mother is entitled to claim maintenance from her son only if she is a widow or her husband, if living, is also incapable of maintaining her.

MADHUMATI MITRA, J.

1. This revisional application has been preferred by Smt. Rekha Chatterjee challenging the judgment and order dated 27.09.2016 passed by learned Additional Chief Judicial Magistrate, Bishnupur in Criminal Misc Case No.26 of 2013 under Section 125 of the Code of Criminal Procedure.

2. The present petitioner had filed an application under Section 125 Cr.P.C. before the learned Magistrate claiming maintenance from the opposite party no.2 who is her son. In her application for maintenance under Section 125 Cr.P.C. it has been claimed that she has no independent source of income. She is totally unable to maintain herself. She has to depend on the income of her husband. Petitioner has further claimed that she spent a huge amount for education and welfare of her son i.e. Opposite Party No.2 and due to that, she is now facing acute financial crisis. In her application for maintenance she has specifically stated that her son is a science teacher of a school and his monthly income is Rs.32,000/- (Rupees Thirty Two Thousand) and his wife also earns Rs.15,000/- (Rupees Fifteen Thousand) per month. She had prayed for Rs.10,000/- (Rupees Ten Thousand) per month from her son i.e., O.P.No.2 as her maintenance before the learned Magistrate.

3. The prayer for maintenance was opposed by the Opposite Party No.2, the son of the petitioner on several grounds. O.P.No.2 in his written objection specifically stated that he was brought up by his grandmother. Though he has admitted that he is a school teacher, but he has stated that he has to maintain his family and his grandmother who brought him up. He has claimed that her mother has her own source of income from her immovable property at different places and her monthly income is about Rs.25,000/- to Rs.30,000/-. He has also stated that his father retired as S.I. of Excise and he is a pension-holder.

4. Considering the evidence on record, the learned Magistrate has observed that the petitioner is not legally entitled to receive maintenance from the O.P.No.2 under Section 125 Cr.P.C. and has refused to grant her maintenance.

5. In the instant case, admittedly the present petitioner is the mother of opposite party No.2. It is an admitted fact that the husband of the petitioner is alive and is a pension-holder. The husband of the petitioner retired as S.I. of Excise.

6. Learned Advocate for the petitioner has contended that the learned Magistrate was not justified in refusing the prayer for maintenance of the petitioner. He has drawn the attention of the Court to the provisions contained in Section 125(1) (d) of Cr.P.C. and submitted that being natural mother of O.P.No.2 the petitioner has every right to get maintenance as she is unable to maintain herself. He has further contended that the income of the husband of the petitioner is not sufficient to bear all the medical expenses of the petitioner. Petitioner has no source of income to maintain herself. In support of his contention, learned Advocate for the petitioner cited the decision in Chaturbhuj Vs. Sita Bai reported in, (2008) 2 SCC 316 and in Sunita Kachwaha and Others Vs. Anil Kachwaha reported in, (2014) 16 SCC 715. He has continued to urge that in the present case the mother was compelled to pray for maintenance before the Court as she was refused maintenance by her own son. He has described the factual situation of the instant case as most unfortunate.

7. In order to obtain an order of maintenance one of the conditions requires to be fulfilled by the petitioner is that the petitioner has been neglected or refused maintenance by the opposite party. At the time of considering the prayer of the petitioner for maintenance Court should not be swayed by emotion. Each case has to be judged on its own merit. Court has to consider all the relevant materials on record and thereafter will come to its conclusion.

8. In the present case the mother has preferred to claim maintenance from her son leaving her husband who is well to do.