The liability to maintain the claimant under S.125 of the Code of Criminal Procedure is dependent on the means of the person concerned, and the section does not require all the children to be made parties to the petition.

1. In this case, an old and indigent mother had to face the unfortunate ordeal of an opposition from an apparently affluent son, when she moved for maintenance under S.125 of the Code of Criminal Procedure.

2. The petitioner is the first counter-petitioner in M. C. 39 of 1976 on the file of Judicial Magistrate, Ist Class, Kottarakkara. The 1st respondent is the mother of the petitioner. The second respondent is his brother. Besides the above persons, the 1st respondent has another son and a daughter. Going by the allegations in M. C. 39 of 1976, the present petitioner is getting a daily income of Rs.100/-out of his textile shop. He has also got immovable properties yielding an annual income of Rs. 5,000/-. The 2nd respondent has invested Rs. 2000/-on a small trade. Another son of the first respondent not on record is a T. B. patient and as such not in a position to earn a livelihood of his own. The daughter is depending for her maintenance on her husband. The first respondent, who is an old woman aged seventy five is stated to be neglected by her children and is unable to maintain herself. She claimed maintenance at the rate of Rs.175/-from the petitioner and Rs. 25/- against the 2nd respondent. The Judicial Magistrate First Class, on an appraisal of the evidence adduced by the 1st respondent and the petitioner, allowed maintenance at the rate of Rs. 60/-. The petitioner was directed to pay at the rate of Rs. 50/-per month and the 2nd respondent at the rate of Rs.10/- per month. The 2nd respondent did not contest the petition and he is exparte here also.

3. The main contention put forward on behalf of the petitioner is that there is no justification in directing him to pay at the rate of Rs.50/- whereas the 2nd respondent is directed to pay only at the rate of Rs. 10/-and no liability has been imposed on the two children who are not made parties to the proceedings. According to the petitioner, it was incumbent on the first respondent to have claimed maintenance against all her children, as the liability to maintain the parents vests equally on all of them. He contended that the petition under S.125 Cr. P.C. was not maintainable in law in the absence of the remaining children on record and it has to be set aside on that sole ground.

4. S.488 of the Code of Criminal Procedure, 1898 (old Code) provided maintenance only to neglected wives and children. S.125(d) of the Code of Criminal Procedure, 1973 (new Code) made a deviation and extended the benefit to the father and mother. 1n the light of the above provision, if any person having sufficient means neglects or refuses to maintain 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 to such 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.

5. S.125 Cr. P.C. fixes a ceiling on the quantum of maintenance to be sanctioned and the limit is fixed at Rs 500/-. The section does not stipulate that all the children of the claimant should be made parties to the petition or that the claim should be made against all of them. It also does not say that the amount required for the maintenance of the claimant should be divided equally among the children and the person on record should be asked to pay only so much amount as would fall to his share. On the other hand, stress is made on the sufficiency of means of the person against whom the claim is made. In other words, the liability to maintain the claimant is dependent on the means of the person concerned. It may be that when the claim is made jointly against two or more persons, it is open to the Court to fix the liability of each of such persons in proportion to his means. But it is not incumbent on the Court to decide the liability of any