Punjab-Haryana High Court
Vijay Kumar vs State Of Punjab And Others on 23 August, 2011
Author: Surya Kant
Bench: Surya Kant
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civl Writ Petition No.11655 of 2010
Date of Decision : August 23, 2011.
Vijay Kumar .....Petitioner
versus
State of Punjab and others .....Respondents
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
Present : Mr.Manu K.Bhandari, Advocate, for the petitioner.
Mr.P.C.Goel, Additional Advocate General, Punjab.
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1. Whether Reporters of Local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Surya Kant, J. (Oral)
The petitioner is an Assistant Sub Inspector in the Punjab Police. He is aggrieved by the order dated 4.6.2010 of the Director General of Police, Punjab, passed as a measure of social security directing payment of 50% of his salary directly to the petitioner's wife and two school going minor children aged about 11 years and 6 years who have been thrown out by the petitioner, leaving them at the mercy of God.
2] The petitioner's wife appears to have complained that he has illegally re-married and is living with another woman, neglecting his legally wedded wife and their two minor children. The factum of the petitioner's wife living separately alongwith their two minor children is CWP No.11655 of 2010 [2] admitted by the petitioner himself in the petition under Section 13 of the Hindu Marriage Act, 1955 filed by him for dissolution of their marriage on the grounds of desertion and cruelty (Annexure P-1). There is not even a whisper in the writ petition that the petitioner's wife has any independent source of survival as she is admittedly a house wife and both the minor children are school going.
[3] The social security concept envisaged by the Legislature through Sections 24 of the Hindu Marriage Act, 1955 or 125 of the Code of Criminal Procedure, are not only for the sustenance of a victim-spouse but also to boost the morale of such victim with enough strength to fight the unequal legal battle waged by the dominating spouse. These provisions are like 'life-saving drug(s)' for providing urgent and timely assistance and the legislative intentment behind these provisions cannot be derailed by giving them effect as a 'posthumous' award on the victim.
[4] It would be useful at this stage to reproduce a part of the complaint made by resondent No.5 (wife) against the petitioner which reads as follows:-
"....I again appeared before the SSP Bhullar Sahab on 26th and I told sir that he had asked PPS Varinder Pal Singh, who had further deputed the SHO Kharar to take action but the position has remained same. In the month of May, I again appeared before SSP Sahab. Sir, I and my children have not been given justice and we are penniless. I am taking ration from my neighbours in order to survive. Sir, I am an diabetic and on every day, two injections are given to me...."
(emphasis applied) CWP No.11655 of 2010 [3] [5] The petitioner has made selective disclosures and has not averred as to whether or not there exists an order of a Court of competent jurisdiction granting interim or final maintenance to his wife and children or did he ever pay even a penny to them? It appears that when the petitioner brought his wife and children virtually to the brink of starvation to compel her to come to terms like grant of divorce and the subordinate courts as well did not come to her rescue that the hapless wife and children knocked at the doors of the State Authorities. The real question to be determined in these proceedings is: was it not the duty of a welfare State and its authorities to resort to the remedial means to help the victims.
[6] Having regard to all the attending facts and circumstances, I am of the considered view that wherever an alleged victimizer ex-facie holds a dominating position and the justice delivery system fails to provide timely assistance, the State authorities are equally obligated in deference to their commitment contained in Chapter IV-A of the Constitution to provide adhoc or interim measures of sustenance to the victim(s) subject to the approval of such action by the Court of Competent jurisdiction. [7] The survival of the petitioner's wife and minor children, therefore, could not have been put to stake on the hyper technical plea that they must get an 'order of maintenance' from the Court of law. The petitioner's wife and their minor children are entitled to be maintained well even if allegations of 'cruelty' or 'desertion' are proved and a decree of divorce is passed in petitioner's favour. The school going minor children need not await a judicial verdict in this regard. The impugned order dated CWP No.11655 of 2010 [4] 4.6.2010 being an interim measure to provide social security to the petitioner's wife and their minor children, thus, calls for no interference and that too in exercise of discriminatory jurisdiction under Article 226 of the Constitution.
[8] There is no compulsion for a writ Court to set aside every illegal action unless it is found to be palpably violative of the Constitutional provisions. A writ Court can, in the light of the peculiar facts and circumstances of a case, can appropriately mould the relief. The impugned order though lacks procedural modalities yet has the back up of substantive law. It is also rescued by the expanded meaning given to Article 21 of the Constitution. It holds the pitch on equitable considerations as well. Why then a writ Court guided by equitable considerations set aside the same? The writ petition is accordingly dismissed.
[9] Invoking the extra-ordinary jurisdiction, the Additional District Judge, SAS Nagar Mohali, before whom the divorce petition is pending, is directed to suo-moto and/or on an application by the petitioner's wife to determine the interim alimony which shall not be less than the aid given to her under the impugned order. The learned Court, in that event, is further directed to adjust the amount deducted in terms of the order dated 4.6.2010 passed by the Director General of Police, Punjab towards interim maintenance determined under Section 24 of the Hindu Marriage Act, till the decision of the divorce petition. This, however, shall not preclude the learned Additional District Judge to enhance the interim maintenance if the CWP No.11655 of 2010 [5] petitioner's wife and their minor children are entitled to so. Similarly, after the decision of the divorce petition, the order dated 4.6.2010 passed by the Director General of Police, Punjab, shall be treated as a part of the order passed by the Judicial Magistrate under Section 125 of the Code of Criminal Procedure or of the District judge under Section 25 of the Hindu Marriage Act, 1955.
[10] Disposed of accordingly. [11] Dasti. August 23, 2011 (SURYA KANT) Mohinder JUDGE