Delhi District Court
Sh. Kalicharan vs Smt. Saroj Kumari on 20 July, 2010
1
IN THE COURT OF RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (North East) 1 : KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R006629200
Criminal Revision No. 08/2010
Assigned to Sessions. 10/03/10
Arguments heard on. 17.07.2010
Date of order. 20.07.2010
IN THE MATTER OF :
Sh. Kalicharan
s/o Sh. Puran Singh
R/o A-50, Vijay Nagar, Ghaziabad, U.P.
...........Revisionist
Versus
1. Smt. Saroj Kumari,
w/o Sh. Kalicharan
2. Miss. Sangita
3. Miss. Garima
4. Master Jatin
All r/o B-3/36, Yamuna Vihar,
Delhi - 110053.
.........Respondents
JUDGMENT:
1. By this Order I shall dispose of the Criminal Revision Petition filed u/s 397 and 399 Criminal Code of Procedure by the revisionist against the order dt. 11.02.2010 (hereinafter referred as impugned 2 order) passed by Ld. MM, Ms. Suchi Laler, Karkardooma Courts, Delhi on interim application u/s 125 Cr.P.C. in favour of respondents whereby revisionist has been directed to pay maintenance Rs.13,000/- per month to respondents from the date of filing of the petition / application filed u/s 125 Cr. PC by the respondents. It is the final disposal of the petition by Ld. MM of trial court filed u/s 125 Cr. PC.
2. Briefly facts of the case are that marriage of revisionist and respondent no.1 was solemnized on 20.06.1983 and out of this wedlock three children were born i.e. respondents No.2 to 4. Subsequently, respondent no.1 was treated badly and tortured at several occasions by revisionist. The revisionist and his family members refused to maintain respondents willfully and neglected them. It has been alleged by the respondents that revisionist is a Govt. Servant and working in R.M.S. as Sorting Assistant and was earning Rs.8,000/- p.m. before the 6th Pay Commission and he is also having ancestral property and agricultural land measuring 35 bighas in Village. From the said land, he is earning about Rs.50,000/- per annum and the revisionist is also the owner of built up property i.e. H. No.A-50, Vijay Nagar, Ghaziabad, U.P.
3. After filing the petition u/s 125 Cr.P.C. an interim maintenance 3 order dated 05.11.2004 whereby Rs.4500/- was granted in favour of respondents, out of which Rs.1500/- was directed to be paid to respondent No.1 and sum of Rs.1000/- each per month was directed to be paid to the respondents No.2 to 4 against the revisionist and at the time of final disposal of petition, court awarded an amount of Rs.13000/-(out of which Rs.4,000/- to the respondent no.1 and Rs.3,000/- each to other respondents) after giving an opportunity to both the parties w.e.f. from the date of filing of petition, meaning thereby that an additional amount of Rs.8500/- was added in interim amount from the date of filing of the petition. Having felt aggrieved with the order of Ld. trial court, revisionist has come before this court against the impugned order dated 11.02.2010 whereby revisionist has been directed to pay an amount of Rs.13,000/- to the respondents as per the details mentioned above.
4. Ld. counsel for revisionist argued and submitted that order of Ld. trial court dated 11.02.2010 i.e. impugned order is based upon presumptions, conjectures, surmises which is against the spirit of evidence as respondent No.1 has admitted in her cross examination that she is 12th passed lady and she is earning a sum of Rs.15,000/- per month by teaching minor children. Ld. counsel for revisionist further argued and submitted that Ld. MM has ignored the facts of the written statement that she is adamant lady 4 and left the company of revisionist without informing him and without sufficient reason. He further submitted that no specific date of incident/cruelty has been brought on record in her entire petition u/s 125 Cr.P.C.
5. Ld. counsel for revisionist further argued that as per Section 125 (4) Cr.P.C. no wife is entitled to receive an allowance from her husband without sufficient reason, she refused to live with her husband and Ld. MM failed to appreciate the law under section 125 (4) Cr.P.C. which is mandatory in nature. Ld. counsel for revisionist further argued and submitted that order dated 11.02.2010 vide which Ld. MM has granted monthly maintenance to respondents amounting to Rs.13,000/- per month is not fair and same is against the principle of natural justice. Ld. counsel for revisionist further argued that order passed by Ld. trial court is against the legal provisions. Further, during the course of arguments, Ld. counsel for the revisionist submitted that interim order was passed by the Ld. trial court to pay Rs.4,500/- per month vide order dated 05.11.2004 to the respondents out of which Rs.1,500/- is to be paid to main respondent and Rs.1000/- each to other three respondents from the date of filing of petition. He further submits that thereafter, at the time of disposal of petition, the Ld. trial court awarded an amount of Rs.13,000/- in favour of respondents which is contrary to law precisely for the reasons that 5 the said amount has been allowed to be given from the date of filing of the petition by Ld. trial court while neither maintenance can be allowed to be paid from the date of filing of petition along with the main order nor it can be enhanced beyond the claimed amount. He further submits that vide interim order dated 05.11.2004 revisionist was directed to pay Rs.1500/- per month to respondent No.1 and Rs.1000/- each to all other three respondents from the date of passing the interim order dated 05.11.2004, however at the time of final disposal of the petition filed u/s 125 Cr.P.C. the same was increased from Rs.4500/- to 13000/ which is against the settled principle of law. In support of his contention, Ld. counsel for revisionist has relied upon the citation i.e. '2010 CRI. L.J. 1385, Ilyashbhai Umarjibhai Patel Vs. Faridaben Ilyashbhai Patel & Anr', wherein the following observation has been made :
" Maintenance-Enhancement of-Grant of more amount than demanded-Prayer for enhancement of amount of maintenance of Rs. 700/- p.m. to Rs. 2000/- p.m. Grant of maintenance of Ts. 3000/- p.m without giving opportunity to husband to satisfy that such would not be reasonable amount - Not proper - Amount reduced to Rs. 2000/- p.m........ Hence the impugned order passed by the learned Sessions Judge in Revision Application No. 263 of 2006 is quashed and set aside only to the extent of awarding the maintenance of Rs. 1000/- more than the amount prayed of Rs. 2000/- per month. Hence, the effect would be that the petitioner would be required to pay the maintenance to respondent No. 1 at Rs. 2000/- per month from the date which the order was passed by the learned Sessions Judge in Criminal Revision Application No. 263 of 2006. As pursuant to the interim order, the petitioner is said to have 6 deposited the amount at the rate of Rs. 1,200/- per month, the petitioner would be required to pay the difference to the respondent No.1 wife within a period of three months in three installments of 33% for the frist two months and the last will be of 34%.
The other argument of Ld. counsel for the revisionist is that respondent No.1 is earning Rs.10000/- per month by giving tuition instructions, is also not tenable precisely for the reasons that revisionist has not brought any record to establish the earning of the respondent. the arguments for revisionist that u/s 125 (b) and ( c ) Cr. P.C. only minor children and those who are unable to maintain themselves are entitled to get maintenance. In this regard he has relied upon the citation i.e. '1993 CRI. L.J. 982, Kum. L. Usharani and others Vs. D.S. Lakshmaiah' wherein it has been observed that :
" Criminal P.C. (2 of 1974), Section 125 (1) (b), ©- Maintenance- Claim for- Children attaining majority- And not having physical or mental abnormality-Cannot claim maintenance. It may be noticed that we are dealing with a case not under S. 448 of Code of Criminal Procedure, 1898, but a case arising under S. 125 of the Code of Criminal Procedure, 1973. The qualifying word minor which was not there in S. 488 (1) of Cr. P.C. 1998, has been introduced in S. 125(1) (b) of Cr. P.C. 1973. Sub-sections (b) and © of S. 125 (1) of 1973 Code, which refer to the right of a child to claim maintenance read as hereunder ........ That is a case where the child by reason of any physical or mental abnormality or injury is unable to maintain itself ...... The amount awarded in favour of the 3rd petitioner is enhanced from Rs. 150/- per month to Rs. 400/- per month for the above said period of two years."
On the strength of this citation, Ld. counsel for revisionist 7 submitted that Ld. trial court has neither conducted any enquiry with regard to mental and physical status of respondent No.2 to 4 nor went into the question of their status of income which are very much crucial to determine the maintenance allowance in their favour.
The other argument of the ld. counsel for the revisionist that claim of maintenance to the major children can only be given in case if they are unable to maintain themselves or they have no sufficient mean to maintain themselves. Ld. counsel again argued that maintenance as provided under S.125 should be made available only to those who are unable to maintain themselves, or have no sufficient means to maintain themselves and Grant of maintenance to major unmarried daughter without making any inquiry and without arriving at finding that she was unable to maintain herself, is not proper. In this regard he has relied upon the citation i.e. '2007 CRI. L.J. 2241, Rama Chandra Sahu Vs. Tapaswini Sahu and another' wherein it has been observed that :
" Criminal P.C. (2 of 1974), S. 125-Maintenance - Major unmarried daughter -Entitlement-Maintenance as provided under S.125 should be made available only to those who are unable to maintain themselves, or have no sufficient means to maintain themselves- Grant of maintenance to major unmarried daughter without making any inquiry and without arriving at finding that she was unable to maintain herself-Not proper -Matter remitted back for de novo disposal ....... The expression 8 "u nable to maintain" used by the Legislature cannot be said to be superfluous or that it has no importance. In view of various social measures and social changes. Legislature in its wisdom has probably thought it necessary that maintenance of wife and daughter, legitimate or illegitimate, as provided under S. 125. Cr. P.C. should be made available only to those who are unable to maintain themselves, or have not sufficient means to maintain themselves. In the case at hand, the revisional Court has not examined this aspect and has not arrived at the conclusion that Bhanumati, daughter of Rama Chandra, was unable to maintain herself. In the absence of such conclusion, the order of the revisional Court cannot be sustained."
On the strength of this citation, Ld. counsel for revisionist again submitted that Ld. trial court while granting maintenance in favour of respondent No.2 to 4 did not go into the question of their mental and physical condition and status of income which are very much crucial to determine the maintenance allowance in their favour.
The another argument of the revisionist is that grant of maintenance from the date of filing of petition has caused prejudice to the right of the revisionist precisely for the reasons that case was got adjourned by the respondents. In this regard, he has relied upon the citation i.e. '1993 CRI. L.J. 1128, Bhupinder Singh Walia Vs. Varinder Kaur' wherein it has been observed that :
" Granting of maintenance from date of application not justified-Maintenance granted from the date of order. The next question which arises is as to whether the learned Additional Sessions Judge was justified in granting enhanced maintenance from the date of application 9 instead of awarding it from the date of order. A Division Bench of this Court in Gurpartap Singh v. Smt. Satwant Kaur, (1991) 1 Ree Cri R 40: (1990 Cri LJNOC 152) held that it was not obligatory for the Court to give special reasons for granting maintenance under S. 125 of the Code, from the date of the application which is purely within its discretion............. It was not obligatory for the learned trial Magistrate to give special reasons for granting maintenance under S. 125 of the Code, from the date of the application as the same was purely within its discretion. The learned trial Court having exercised its discretion, the revisional Court ought to have been slow in interfering with exercise of the said discretion, until and unless such discretion could be said to have been exercised arbitrarily and not judicially, or, in case such discretion had been exercised against well recognised principles of natural justice. For that end it may also be considered necessary for the revisional Court to give cogent reasons for exercising its revisional jurisdiction for modification of the order passed by the learned trial Magistrate. As already referred above, in the instant case, the wife had taken considerable time in producing her evidence whereas the husband has comparatively taken much less time in producing his evidence. The delay in disposal of the case for grant of maintenance cannot, in the facts and circumstances of the present case, be attributed to the husband alone. In these circumstances, the learned Additional Sessions Judge was not justified in interfering with the jurisdiction exercised by the learned trial. Court in granting maintenance from the date of the order and not from the date of filing of the application under S. 125 of the Code. The impugned order passed by the learned Additional Sessions Judge is modified to the extent that the wife would be entitled to maintenance under S. 125 of the Code at the rate of Rs. 400/- per month from the date of the order passed by the learned trial Magistrate under S. 125 of the Code and not from the date of the application."
On these grounds he submits that his petition be allowed with considerable orders.
106. Contrary to the submission of Ld. counsel for revisionist, Ld. counsel for respondents submitted that there is no bar to pass a maintenance order beyond Rs.11000/- as claimed by the respondent in the present petition. He further submits that interim maintenance was allowed by the trial court on the grounds that facts were to be taken by the court in accordance with law. He further submits that revisionist is a govt. servant and he is earning Rs.24000/- per month. He again submits that revisionist has also other source of income i.e. rental income and agricultural income.
Again Ld. counsel for respondents submitted that the present revision filed by the revisionist is not maintainable as the revisionist has not come before this Hon'ble Court with clean hands and tried to mislead this Hon'ble Court. Ld. counsel for respondents again submitted that revision of the revisionist is liable to be dismissed as the same is based on false and fabricated facts and untrue story developed by the revisionist. Ld. counsel for respondent further argued that revisionist is a Govt. employee and willfully trying to harass the respondents by non making the payments of 11 the amount of maintenance order passed by the Ld. trial court. Ld. counsel for respondent further argued that present revision petition of the revisionist is liable to be dismissed and maintenance amount as ordered by Ld. trial court is required to be increased.
7. Having heard the arguments of Ld. counsel for revisionist as well as Ld. counsel for respondents. I have gone through the case file very carefully. In this case, it is clear from the record that an amount of Rs.8500/- has been enhanced at the time of final order dated 11.02.2010. On careful perusal of the case file, it reveals that respondents No.2 has become major during the course of trial as per the evidence made by the respondent no.1 in her evidence given by way of affidavit. As per her submission the date of birth of respondent no.2 is 05.08.1986, meaning thereby that respondent no.2 (Ms. Sangita) has become major on 04.08.2004.
The Ld. trial court has not conducted any inquiry that as to whether respondent No.2 has been married or not or that she has any other source of income or not. However, Ld. trial court has 12 passed the impugned order dt. 11.02.2010 in view of the judgment " Kamaldeep Kaur and Anr. Vs. Balvinder Singh, 2005 (III)RCR (Criminal) 258" (supra) which refers only to deserted wife or destitute wife.
8. The expression " unable to maintain" used by the Legislature cannot be said to be superfluous or that it has no importance. In view of various social measures and social changes. Legislature in its wisdom has probably thought it is necessary that maintenance of wife and daughter, legitimate or illegitimate, as provided under S. 125 Cr. P.C. should be made available only to those who are unable to maintain themselves, or have not sufficient means to maintain themselves. In the case in hand, the ld. Trial Court has not examined this aspect and has not arrived at the conclusion that respondents no.2 is unable to maintain herself.
9. In light of the aforesaid discussion I am of the view that so long as the amount of maintenance with respect to respondent no.1, 3 and 13 4 is concerned, the same does not contain any infirmity/ impropriety/illegality as Court is competent enough to grant the maintenance beyond the amount prayed by them on the strength of the citation as discussed in the impugned order i.e. " Kamaldeep Kaur and Anr. Vs. Balvinder Singh, 2005 (III)RCR (Criminal) 258"
(supra). Thus, the impugned order / judgment dated 11.02.2010 is upheld with respect to respondent No.1 (Saroj Kumar), Respondent No.3 ( Ms. Garima) and Respondent no.4 (Mr. Jatin).
10.So long as the maintenance with respect to Respondent no.2 is concerned, in this regard I am of the view that in case of a major child the duty is cast upon the court concerned to inquire about his/ her status of Income, mental and physical condition. No inquiry on this aspect has been made by the ld. trial court. So, I find force in the contention of ld. counsel for the revisionist on the strength of citation i.e. '2007 CRI. L.J. 2241, Rama Chandra Sahu Vs. Tapaswini Sahu and another' (supra) filed by him that inquiry 14 could have been made in this regard. In view of this, the grant of maintenance beyond the age of 18 years in favour of respondent no.2 (Ms. Sangita) contains irregularity. Thus, impugned order/ judgment dated 11.02.2010 for granting maintenance of Rs.3000/-
per month from the date of filing of petition till 04.08.04 is upheld as Respondent no.2 completed 18 years of age on 04.08.2004 and beyond the date 04.08.2004 the maintenance order qua respondent No.2 is set aside. Accordingly, revision petition stands disposed of. Trial Court record be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 20.07.2010 ( RAJ KAPOOR) ADDL. SESSIONS JUDGE/ NE- I KARKARDOOMA COURTS: DELHI