Allahabad High Court
Shyam Sunder Sharma S/O Bhola Ram Sharma vs Smt. Saroj Sharma Wife Of Shyam Sunder ... on 13 August, 2007
Equivalent citations: AIR 2008 (NOC) 509 (ALL.) = 2007 (6) ALJ 485, 2008 CRI. L. J. (NOC) 144 (ALL.) = 2007 (6) ALJ 485, 2007 (6) ALJ 485, 2008 (2) AJHAR (NOC) 354 (ALL.) = 2007 (6) ALJ 485, 2008 (2) AKAR (NOC) 319 (ALL.) = 2007 (6) ALJ 485
Author: Saroj Bala
Bench: Saroj Bala
JUDGMENT Saroj Bala, J.
1. These criminal revisions having arisen out of the orders dated 10.6.1996 and 2.4.1998 passed by the Principal Judge, Family Court Kanpur Nagar under Sections 125 and 127 of the Code of Criminal, procedure (hereinafter referred to as the Code) are being disposed of by a common Judgment and order.
2. The facts giving rise to these revisions are that an application under Section 125 of the Code was moved by the opposite parties for seeking maintenance of Rs. 1500/- per month. It was alleged that the revisionist, was getting salary of Rs. 3,000/- and had income from agricultural land and groves The opposite parties were turned out by the revisionist from his house on 17.10.1994 and since thereafter she along with children was residing with her parents. Four children two daughters and two sons were born to the opposite party No. 1 out of the wedlock of revisionist. The daughters remained in her custody whereas sons stayed with their father the revisionist. It was alleged that the revisionist remarried in the year 1985.
3. The application was contested by the revisionist by filing written statement. He admitted that opposite party No. 1 is his legally wedded spouse. He admitted the paternity of opposite parties No. 2 and 3. He asserted having contracted second marriage with the consent of opposite party No. 1. He denied that he was earning Rs. 3000/- as salary. He contended that he had to support a large family consisting of second wife, two sons and three daughters in his meager income.
4. After recording the statements of both the parties the Principal Judge, Family Court Kanpur Nagar awarded maintenance of Rs. 300/- per month to' opposite party No. 1 and Rs. 150/- per month to each of the opposite parties No. 2 and 3 by order dated 10.6.1996.
5. An application was moved by the opposite parties under Section 127 of the Code for enhancement of maintenance allowance claiming Rs. 200/- per month was as medical expenses for opposite party No. 1, Rs. 300-400 per month as kitchen expenses and Rs. 450/- per month for books, notebooks and tuition tee etc. The opposite party No. 1 claimed enhancement of maintenance allowance awarded to two daughters from Rs. 150/- to Rs. 400/-per month.
6. The application for enhancement was resisted by the revisionist on the ground that revision against the order dated 10.6.1996 having been preferred, the court below had no jurisdiction to enhance the maintenance allowance. It was alleged that the monthly salary of the revisionist was Rs. 2500/- per month. He denied having income from any other source except salary.
7. Taking into consideration the quantum of salary of Rs. 3768/-, per month the maintenance allowance awarded by the order dated 10.6.1996 was enhanced from Rs. 600/- to Rs. 1200/- per month.
8. The order dated 10.6.1996 has been challenged on the grounds that monthly maintenance could not have been granted exceeding Rs. 500/- as after deductions the carry home salary is Rs. 2000/- per month only. The court below erred in assessing the salary of revisionist as Rs. 3000/- per month.
9. The order dated 2.4.1998 has been assailed on the ground that this Court having reduced the amount of Rs. 600/- to Rs. 400/- per month; the court below committed illegality and exceeded its jurisdiction in enhancing the maintenance amount of Rs. 600/- to Rs. 1200/- per month. The court below while enhancing the maintenance amount has overlooked the aspect that the income of revisionist has not increased after the passing of order under Section 125 of the Code.
10. Heard Shri P.N. Khare, learned Counsel for the revisionist, Shri S.K. Srivastava, learned Counsel for the opposite parties and have perused the record.
11. The learned Counsel for the revisionist argued that revisionist is maintaining five children and second wife and order increasing the quantum of maintenance is harsh and unjust. The marriage of opposite party No. 2 Km. Kamini having been solemnized on 10.2.2005 she is not entitled to get maintenance.
12. The learned Counsel for both the parties submitted that the maintenance order be modified and set aside so far it relates to opposite No. 2, married daughter of the revisionist and the amount deposited; in compliance of the order of this Court be adjusted.
13. Section 125 of the Code provides for maintenance to the wife, minor children and parents who are unable to maintain themselves. Maintenance can be awarded to the wife when the husband having sufficient means neglects or fetuses to maintain her and she is unable to maintain herself. The apex court ion Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. has held that the provision is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.
125. 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 no, 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 or such minor female child, if married,- is not possessed of sufficient means.
Explanation - For the purposes of this chapter-
(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or it so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may, sentence such person, for the whole pr any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the, date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with. him such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation - if a husband has contracted marriage it with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the magistrate shall cancel the order.
14. Proviso to Sub-section (3) of Section 125 Cr.P.C. embodies that where a Husband offers to maintain his wife on the condition of her living with him and she refuses to live with him a Magistrate may consider any ground of refusal stated by her and make an order notwithstanding such offer, if the Magistrate is satisfied that there is a just ground for so doing. The explanation to the proviso provides that if the husband has contracted marriage with any other woman or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him.
15. The revisionist has contracted a second marriage. He is a government servant and earning salary of more than Rs. 3000/- per month. The opposite party No. 1 is his legally wedded ailing wife. She has no means for maintaining herself and her daughters opposite parties No. 2 and 3. He is a man having sufficient means to provide maintenance but he neglected and refused to provide maintenance to the opposite parties without sufficient cause. In view of these facts the court below committed no illegality in awarding maintenance to the opposite parties. The opposite parties No. 2 and 3 having grown up in age the amount of maintenance was raised. The opposite party No. 2 having been married on 16.2.2005, she is not entitled to get maintenance. Having regard to devaluation of money due to inflation the opposite parties No. 1 and 3 are entitled to get maintenance at the enhanced rate.
16. The criminal revision No. 1207 of 1996 is dismissed. Partly allowing revision No. 100 of 1998, the order dated 20.4.1998 is modified to the extent that maintenance awarded to opposite party No. 2 is set a side. The award of maintenance to opposite parties No. 1 and 3 is confirmed. The amount deposited by the revisionist in compliance of the order of this Court shall be adjusted.
17. Certify the judgment to the court below within two weeks.