Gujarat High Court
Vanitaben Naranbhai And Ors. vs Naranbhai Raghavbhai Makwana And Anr. on 19 January, 1991
Equivalent citations: II(1991)DMC485, (1991)2GLR101
JUDGMENT J.N. Bhatt, J.
1. Petitioners herein are the original applicants, who claimed maintenance by invoking the aids of the provisions of Section 125 of the Criminal Procedure Code, 1973 ('Code' for short, hereinafter) from respondent No. 1 herein/original opponent, by filing a Misc. Criminal Application No. 30 of 1987. Petitioner No. 1 is the wife and petitioners No. 2 and 3 are the minor children of the opponent. The wife claimed Rs. 400/- for her maintenance and also claimed Rs. 300/- by way of maintenance for each child per month from the opponent.
2. She Inter alia contended that her husband is a man of means and doing wholesale business of kerosene. She further contended that her husband is also owning one taxi-rickshaw and also some building. According to her contention, her husband was earning Rs. 10,000/- to Rs. 12,000/- per month. She was unable to maintain herself and her two children. She was staying separate. Therefore she claimed maintenance from the opponent for herself and for her two children by filing application in the Court of the learned Judicial Magistrate, First Class, at Jamnagar.
3. Opponent/husband appeared and resisted the claim for maintenance. Allegations made in the application for maintenance were denied. It was denied that he was earning Rs. 10,000/- to Rs. 12,000/- a month. The opponent/husband contended that he is a small hawker selling kerosene. He denied to have possessed or owned any immovable property or vehicle.
4. On assessment of evidence, the learned Magistrate was pleased to award Rs. 100/- to the wife and Rs. 50/- to each minor child by way of maintenance from the date of the application.
5. Being aggrieved by the said order of maintenance, both the parties preferred revision applications. Original applicants/wife and minor children filed Criminal Revision Application No. 76 of 1987 and the original opponent/ husband filed Criminal Revision Application No. 96 of 1987 before the Sessions Judge, at Jamnagar. The learned Additional Sessions Judge, at Jamnagar, was pleased to dismiss both the revision applications without cost on 21.10.1989,
6. Being dissatisfied, the original applicants have, now, come up before this Court challenging the legality and validity of the quantum of maintenance order passed by the learned Magistrate, by filing this petition.
7. Learned Counsel Mr. Budhbhatti for the respondent/original opponent contended that in view of the limited scope in the present petition, the petition is required to be rejected. It is true that the jurisdictional sweep of this Court in this petition is very much circumscribed. Unless and until illegality, misreading or perversity is, successfully, pointed out, this Court would be at loath to interfere with the impugned order of maintenance.
8. The learned Counsel for the petitioner herein, vehemently, contended that the fixation of quantum of maintenance by the learned Magistrate is not only perverse but is illegal. He further contended that this is most appropriate case to interfere with and enhance the quantum of maintenance.
9. Having examined the facts and circumstances of the present case, this Court is satisfied that the finding with regard to the quantum of maintenance arrived at by the learned Magistrate and subsequently confirmed by the learned Additional Sessions Judge, at Jamnagar is, totally perverse and requires to be interfered with.
10. The marriage between the husband and wife took place 14 years before filing of the petition for maintenance. There is no dispute about the fact that the wife is living separate at her brother's place. The original applicants/wife and minor children have no separate source of income of her their own. The wife is unable to maintain herself. She is staying separate from her husband with two minor children. She is shouldering the responsibility of maintaining the minors and the minors are school going children. Minor son, "Sachin" was aged about 12 years and minor daughter "Mamta" was aged about 9 years at the time of filing of application for maintenance. They are studying in school. Minor son was studying in 6th Standard and minor daughter was studying in 4th Standard at the relevant time. The applicant/ wife is aged 27 and the opponent/husband is aged about 35 years. These facts are not in controversy.
11. The controversy revolves round about the income of the husband. The husband has contended that he is not earning more than Rs. 180/- per month whereas the wife has contended that her husband is earning Rs. 10,000/- to Rs. 12,000/- a month.
12. The learned Magistrate has observed in his Judgment that since the specific income of the opponent/husband could not be ascertained from the evidence, it was ordered to award Rs. 100/- to the wife and Rs. 50/- to each child per month. This observation of the learned Magistrate, with due respect to him, is perverse. Onus to show that the husband has sufficient means is on the wife. No dispute about that. But the onus to show that no sufficient means are there is on the part of the husband. Besides, what is the exact earning of the husband is within the special knowledge of the husband. The wife cannot be compelled to prove the income of her husband precisely and beyond reasonable doubt. At the best, what she could say in the circumstances of the case has been said. Whether her evidence is acceptable or reliable or not is to be considered. But one thing is certain in the present case and that is that the opponent husband in the present case is a young man and able-bodied person. He is doing business of selling kerosene as a hawker. The husband has admitted in his evidence that he was selling 3000 litres of kerosene per month at the relevant time. He was holding, as the owner, one Hero Majestic Moped bearing No. GUP 7705. He had also one auto-rickshaw No. GTP 980 in 1986.
13. The learned Magistrate has adopted, not only a conservative approach but a very perverse view while fixing the quantum of maintenance in the light of the facts of the present case. Unfortunately, the learned Additional Sessions Judge has also failed to appreciate that it is not the income of the husband only is to be considered but the capacity to earn is also required to be borne in mind alongwith the basic necessities of life of wife and children while fixing the quantum of maintenance. While examining the observations of the learned Additional Sessions Judge in the impugned judgment and order, it leaves no any manner of doubt that he has misread the evidence on record and has, totally failed to appreciate the most relevant and material aspect while determining the quantum of maintenance, which could, undoubtedly, warrant the interference of this Court in this petition.
14. Learned Additional Sessions Judge has also observed that the opponent/husband cannot be believed that he has no other source or income other than the income out of kerosene selling work. He has also held that the opponent/husband must be earning something more by running auto-rickshaw. It is also observed by him that it cannot be believed that the opponent/husband is an ordinary miscellaneous kerosene hawker. He has also observed that it is possible that the opponent/husband must have some other source of income out of some business wherein he might have invested money after disposal of the auto-rickshaw. The opponent/husband is staying with his mother and brother, who are also earning. The learned Additional Sessions Judge has observed that all the three aforesaid persons staying jointly have been earning. Despite, of all these observations and finding, the learned Additional Sessions Judge, unfortunately, found that there is no sufficient ground to enhance the quantum of maintenance fixed by the learned Magistrate. The aforesaid observations are used for rejecting the revision application filed by the opponent/husband. However, the aforesaid observations could have been considered for enhanging the quantum of maintenance while dealing with the revision application filed by the wife. Needless to repeat that the two revision applications arose out of the order of the learned Magistrate came to be disposed of by the learned Additional Sessions Judge by a common judgment and order. The learned Additional Sessions Judge has committed a serious error which is apparent on the face of the record. It may be that the learned Additional Sessions Judge might have lost sight of the said observations made by him while reaching to the final conclusion. Be as it may. The conclusion with regard to the fixity of quantum of maintenance is, totally, perverse and deserves to be interferred with by this Court in this petition.
15. Although the expression "maintenance" occurring in Section 125 of the Code has not been statutorily defined, it includes, undoubtedly, the expenses for food, clothing, residence, medical, educational and other such incidental expenses, relating to the normal pursuits of life. The Court is also required to bear in mind the inflation prevalent in the market. To overlook the sharp fall in value of rupee while deciding such a point, would, obviously, will entail injustice to the persons entitled to the maintenance under Section 125 of the Code. It is not only the earning or the income of the person bound to provide maintenance is to be considered alone, his capacity to earn and his potentiality for earning should also be given due weightage. These important aspects are, unfortunately, not considered by the Courts below. There are several factors which would influence the mind of the Court while fixing the quantum of maintenance under Section 125 of the Code, such as :
(1) The earnings of the person bound to provide maintenance or his capacity to earn.
(2) The status of the parties.
(3) The basic requirement of the person entitled to maintenance.
(4) The liabilities on the part of the person to provide maintenance.
(5) Independent source of earnings of the person entitled to maintenance and its quantum.
(6) Inflationary trends prevalent in the market and the value of rupee. The aforesaid points are required to be considered seriously while fixing the quantum of maintenance. It is true that the amount of maintenance should not be luxurious so as to prompt the wife to remain away from the husband nor it should be penurious so as to deprive the wife or children the basic necessities of life. The Court is obliged to address itself to all these important aspects while determining the quantum of maintenance. In the background of the parties and the objects for which provisions of Section 125 of the Code are incorporated. It may be noted that the provisions of Section 125 of the Code are benevolent provisions designed to prevent vagrancy and destitution. It is found from the evidence on record that the educational expenses for the minors per month came to almost to Rs. 40/- for each at the relevant time. Needless to repeat that minor son was studying in 6th Standard and minor daughter was studying in 4th Standard at the relevant time. Receipts for the educational expenses were also produced. Apart from the expenses pertaining to term fees, tuition fees, the expenses for uniform, books, for better private tuition, for transport charges for residence to school and back, etc., are also to be considered. The amount of Rs. 50/- to each child, practically, would be wiped out by the education expenses. What about the food, clothing, medical and other expenses of life which are basic necessities of life? Similarly, a rejected and dejected wife, who is at the mercy of her brother staying at his residence, cannot get her two ends meet within a paltry amount of Rs. 100/-. In fact she Is entitled to reasonable expenses for residence, for her food, clothing and other such expenses of day-to-day life so as to prevent vagrancy and Section 125 of the Code is, in reality, intended for ensuring reasonably supply of food, clothing and shelter to such deserted wife and children. That is the reason why the Parliament in Its wisdom incorporated these provisions in Section 125 of the Code so as to provide speedy and summary remedy against vagrance and starvation for a deserted wife, child or indigent parents. These are the important questions to which the Court while dealing with an application for maintenance should invariably be looked into. Unfortunately, in the present case, the Courts below have failed to properly examine and appreciate the aforesaid points.
16. The expression "means" in Section 125 of the Code does not signify only the visible income, such as, real property or regular source of income or a definite employment. A person who is able-bodied and who does not suffer from any physical or mental incapacity can be considered as a person who has the capacity to earn sufficient income because his physical and mental capacity provide him the capacity to earn. Therefore, even if a person who has no definite source of income or a regular source of income, he cannot escape his liability to pay maintenance. It cannot be contended, even for a moment, that the person who is not earning or who is not sufficiently earning, cannot be fasten with the liability for providing maintenance to his wife or children. He is liable to pay reasonable maintenance to the wife and children so as to see that they get their two ends meet.
17. A person, who has the capacity to earn, is liable under Section 125 of the Code, even if he is an insolvent, unemployed, a professional beggar, highly Indebted, a Sadhu or a Monk. It is for the husband to show that he has incurred capacity or he has no sufficient means and he has no capacity to earn. It will be relevant to mention at this stage that in a Division Bench decision of the Bombay High Court in the case of Muni Kantivijayaji v. Emperor, reported in AIR 1932 Bombay 285, it was held that a ground by merely becoming a Sadhu (Jain Sadhu) is not an excuse for not maintaining his wife. It was further held in the said case that it is for the husband to show that he is not an able-bodied minor that he has incurred incapacity to earn. Therefore, the rightful claim for maintenance cannot be refused on the ground that the person who is liable for payment of maintenance is not earning. What is required to be considered is the capacity to earn. The quantum of maintenance is required to be fixed in the light of the aforesaid all relevant facts and circumstances.
18. Unfortunately, the Courts below adopted, totally, an erroneous approach and took perverse views while fixing the quantum of maintenance. What was the income of the opponent was a matter of special knowledge of the opponent/husband. It cannot be said in the present case that he could not have shown his earnings at the relevant point of time. He failed to show his real income. He cannot be paid premium or he cannot be allowed to benefit by concealing his real income. In fact, the Courts below have failed to draw adverse inference against the opponent/husband. Apart from that, a permit-Bible inference about the earnings of the husband considering his capacity to earn has also not been placed in focus which has also resulted into miscarriage of justice, which is required to be obliterated. In fact, there is no hesitation in holding that the finding of the Courts below with regard to the quantum of maintenance is not only erroneous but is tainted with perversity which would warrant the interference of this Court.
19. Having regard to the facts and circumstances of the present case the applicant/wife would be entitled to at least a sum of Rs. 200/- per mouth from the date of the application and each minor child would be entitled to Rs. 100/- per month from the date of the application.
20. In the result, the impugned judgment and order is required to be modified accordingly and the petition is required to be allowed to that extent.
21. At the request of the learned Counsel for the respondent-husband/ original opponent, be is granted time of four months to pay the additional amount of maintenance. In other words, the difference of amount between the original order and the order of this Court shall be paid on or before the expiry of four months from today.
22. In the result, this petition is partly allowed. Looking to the facts and circumstances of the case, respondent No. 1/original opponent/husband is directed to pay Rs. 500/- by way of cost of this petition. Rule is made absolute to the aforesaid extent accordingly.