The main legal point established in the judgment is the maintainability of the application filed under S.125 of the Code and the locus standi of the person neglected or any other person to move the court for an order of maintenance.

1. The first respondent herein is the mother of the petitioner herein. In the court of the Judicial Magistrate of the First Class, Pattambi, the first respondent described as represented by her next friend, daughter Kamalakshi, filed an application, MC No. 14 of 1984, under S.125 of the Code of Criminal Procedure, 1973, for short 'the Code', against the petitioner claiming maintenance. The son appeared before the learned Magistrate and objected to the claim on various grounds. Overruling all these grounds, maintenance at the rate of Rs. 100/- per month was ordered from the date of the application. The son moved the Sessions Court in revision. But the revision petition was dismissed. These orders are now challenged under S.482 of the Code.

2. When this petition came up before the learned single judge, it was contended that since the application under S.125 of the Code was filed by the mother as represented by the next friend daughter, it was not maintainable in law inasmuch as there can be no application through a next friend. Learned single judge who heard the matter took the view that having regard to the importance of the question involved it should be heard by a Division Bench. That is how the matter has come up before us.

3. The short question for consideration is whether the application filed in this case under S.125 of the Code is not maintainable in law and if not whether we should interfere in this matter.

4. The application filed under S.125 of the Code describes the petitioner as Kali, i.e., the first respondent herein, represented by the next friend daughter, Kamalakshi. It was argued before the learned Magistrate that such a petition was not maintainable. Learned Magistrate took the view that S.125 is intended to subserve a social purpose and is a beneficial provision, that the statute does not prescribe any particular form for filing an application and what is required is only proof and since proof has been offered there is no legal defect in the proceeding. The learned Sessions Judge agreed with this view.

5. Sub-section (1) of S.125 of the Code of Criminal Procedure reads thus:

"125. Order for maintenance of wives, children and parents

(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 (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 not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:"

Sub-section (2) of S.125 reads thus:

"Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance."

S. 126 prescribes the forum and procedure. S.127 enables alteration in allowance in proof of change in circumstances. S.128 lays down manner of enforcement of order of maintenance.

6. Sub-s. (1) of S.125 enables the competent Magistrate to pass an order of maintenance or allowance on proof of neglect or refusal. This cannot and does not mean that an order can be passed without an application or on an oral request. Sub-s. (2) of S.125 which contemplates a direction to pay allowance from 'date of application' clearly indicates that there has to be an application invoking the jurisdiction of the court. There must be an application in writing before the Magistrate before the latter can call upon the opposite party to show cause and proceed to take evidence and pass order.

7. The q