Criminal Writ Petition [wp] No.570 of 2011

23rd January, 2012

Petitioner Counsel: Mr. R. M. PATWARDHAN
Respondent Counsel: Mr. N. B. KALAMKAR

Cases Cited:
Kirtikant D. Vadodaria Vs. State of Gujarat & another, (1996) 4 SCC 479 [Para 5]

JUDGMENT

JUDGMENT :- Rule. Rule is made returnable forthwith. Heard finally by consent.

2. This is a petition by step-son of the respondent.

3. Respondent step-mother had filed a petition under Section 125 of Criminal Procedure Code for maintenance.

4. The said petition has been allowed by awarding maintenance of Rs.1500-00 per month.

5. In this Writ Petition, the grounds of challenge, which have been formulated, are as follows:-

[a] Relying on the Judgment of Hon'ble Apex Court in case of Kirtikant D. Vadodaria Vs. State of Gujarat & another [(1996) 4 SCC 479, claim for maintenance cannot be made under Section 125, Criminal Procedure Code against step-son.

[b] The order being ex parte, deserves to be set aside.

Liability of step-son to pay maintenance

6. In so far as second ground as to claim of maintenance by a woman against a step-son is concerned, learned Adv., was asked the following question :-

Has the step-son-petitioner succeeded to father's property?

7. Learned Adv. for the petitioner did not answer the question. The answer was rather silence which speaks, i.e., a negative reply was not given.

8. Learned Adv., however, in the wake of disputing the fact or legality of marriage between the applicant and petitioner's husband, had argued that the applicant-woman had also filed proceedings:-

[a] For maintenance under the Guardianship & Maintenance Act.

[b] Suit for partition and separate possession of property left by deceased father of the writ petitioner.

9. Learned Adv., for petitioner then urged that suit for partition was dismissed though respondent succeeded in proceedings for maintenance and now petitioner has preferred appeal against said order.

10. Thus, one thing is clear that the petitioner has succeeded to father's property where step-mother too had a right.

11. The ground that the step-mother cannot claim maintenance under Section 125 of Criminal Procedure Code cannot be seen to be a rigid rule to be observed uniformly and without exceptions. A son, who has not succeeded to father's property, may refuse to answer the claim for maintenance by step-mother. The case would be different when he has succeeded to father's property.

12. Proper service is a mixed question of fact and law. The defect in service which renders alleged service "improper"being a question based on fact has to be pleaded and proved by the petitioner.

First point as to service :

13. Para 5 of the order passed under Section 125, Criminal Procedure Code, reads as follows:-

"5. The respondent though served duly, failed to appear before the Court. Therefore, the matter proceeded ex parte against him."

[Quoted from page no. 36 of the writ petition paper-book].

14. In the body of petition, averment and ground relating to setting aside ex parte order is that the petitioner was not properly served, as is seen in para 8. Relevant averment thereof reads as follows:-

"8. It is submitted that the service of notice in the said petition was not properly effected in the matter and petitioner had no knowledge regarding the filing of the petition. ..."

[Quoted from page no. 4 of the writ petition paper-book]

15. Court had questioned learned Adv., for the petitioner as to whether the petitioner has undertaken access to record in the Family Court and whether he confirms as to whether he was not served. The answer is as follows:-

The petitioner has no occasion to have access to the record, and he does not know the fact of matter. He claims that he was not served.

16. Present writ petition, which is sworn, does not contain a statement that petitioner was not served. The petitioner has shrewdly pleaded that he came to know about the order of maintenance only after he was arrested in furtherance of execution of order of maintenance due to failure to pay the arrears.

17. By no stretch, it can be held that there was no due service, or that a summons/notice was not served before issuance of Warrant of Arrest.

18. In the background that the address on record of the application before Family Court and that incorporated in the present petition are one and the same, petitioner shouldered unshakeable duty to disclose and prove the factual grounds on which he urges that the service is "bad"or "not proper".

19. Petitioner has, thus, miserably failed to establish that he was either not served with the notice of proceedings under Section 125 of Criminal Procedure Code, or the service though done was not legal due to any fact of violation of law governing the service.

20. The description in the present case does not answer the description of ex parte, inasmuch as the petitioner was duly served. Service is a matter of fact. Factual aspect is not denied by the petitioner. He exerts to play gimmicks and mince the words saying that the service is not 'proper. The factual aspect thereof has to be proved which the petitioner has failed to do.

21. The aspect of service, in fact, goes to the root of the case. This petition is not pursued before this Court with clean hands and in the fair way. One cannot approach the writ Court by suppression of facts, and yet claim to be treated fairly.

22. Talk of fairness does not suit in the mouth of a litigant who does not want to be candid and honest before this Court. The petitioner cannot claim equity while himself being keen on suppression of facts.

23. Therefore, the petition is devoid of merit, and does not deserve indulgence and is dismissed. Rule is discharged.

Petition dismissed.