The mother is liable to pay maintenance to her minor sons under Section 125(1)(b) Cr.P.C. if she has sufficient means and neglects or refuses to do so.

V.K. Agarwal, J.

1. This petition under Section 482 of Cr.P.C., has been filed as the petitioner-mother feels aggrieved by the order dated 10-2-98 in Cr. Revision No. 181/96, by 1st A.S.J. Raigarh, affirming the order dated 3-7-96 of Judicial Magistrate First Class, Saranggarh in Misc. Cr. Case No. 56/95, granting maintenance in favour of the minor sons of the petitioner under Section 125 of Cr.P.C.

2. The facts leading to the present petition are that the non-applicants-minor sons of the petitioner filed an application under Section 125 Cr.P.C., through their grand-father as their guardian, claiming amount of maintenance against their mother- the present petitioner. The father of the non-applicants had died while in service as Helper in the M.P.E.B.. His wife- the present petitioner is admittedly receiving family pension after the death of her husband. The trial Court allowed the petition of minor sons-the non-applicants and granted maintenance of Rs. 200/- to each of them. The order was confirmed in revision by the 1st Addl. Sessions Judge.

3. The learned counsel for the petitioner has urged that under Section 125 of Cr.P.C. only the father can be directed to pay maintenance to the minor sons, and that under the said provision the mother was not under an obligation to pay maintenance to her minor sons. In this connection reliance has been placed on a decision of Madras High Court in T.P.S.H. Selva Saroja v. T.P.S.H. Sasinathana (1989 Cri.L.J. 2032). It was, therefore, submitted that the order of the Magistrate granting maintenance and the order in revision directing the petitioner-mother to pay maintenance to her minor sons, is illegal. It has also been urged that though the petitioner is willing to keep her sons with her, but they are refusing to live with her, and therefore, she is not liable to pay any amount towards their maintenance.

4. It may be noticed that Section 125(1) of Cr.P.C. reads as below :--

"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 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 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:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means."

5. It would appear from Clause (b) of Section 125 (1) of Cr.P.C., that a person can be directed to pay monthly allowance of his minor child, if:--

(a) such person is having sufficient means; and

(b) neglects or refuses to maintain his minor child.

The liability as above for payment of monthly allowance towards maintenance arises irrespective of the considerations as to whether such minor child is legitimate or illegitimate or whether he is married or unmarried.

6. It is not in dispute that the non-applicants are the sons of the petitioner and are minors. Therefore, the question for consideration is whether the mother is liable to pay maintenance under Section 125(1)(b) of Cr.P.C. ?

7. It is true that in Clause (b) of Section 125 of Cr.P.C., the word used are 'his' legitimate or illegitimate minor child, and on that basis, it has been tried to be urged b