Punjab-Haryana High Court
Vijay Kumar vs State Of Punjab And Others on 22 March, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
LPA No.2149 of 2011 (O&M) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No.2149 of 2011 (O&M)
Date of decision:22.03.2013
Vijay Kumar ...Appellant
Versus
State of Punjab and others ...Respondents
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Manu K. Bhandari, Advocate,
for the appellant.
Mr. P.S.Bajwa, Addl. A.G., Punjab.
Mr. Ramandeep Partap Singh, Advocate,
for respondent No.5.
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A.K.Sikri, C.J. (Oral)
The destitute wife of the appellant herein, who is taking care of 2 minor school going children as well, made a request to the respondents authorities, where the appellant is employed, to direct the appellant to pay maintenance from the salary drawn by the appellant.
The Director General of Police, Punjab, passed an order directing payment of 50% salary of the appellant directly to his wife and two minor school going children. The appellant challenged this order by filing writ petition which is disposed of by the learned Single Judge, with the following observations:-
"[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 LPA No.2149 of 2011 (O&M) [2] ***** 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 respondent 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) [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 LPA No.2149 of 2011 (O&M) [3] ***** 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 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 LPA No.2149 of 2011 (O&M) [4] ***** 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 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."
The counsel for the appellant had argued before the learned Single Judge, which is the submission before us as well, that there are no Rules authorizing the Director General of Police to pass such an order.
This contention is brushed aside by the learned Single Judge observing that 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.
Having regard to the spirit behind the aforesaid provisions, once such an order is passed by the Director General of Police providing immediate sustenance to the destitute wife and the 2 minor children, the LPA No.2149 of 2011 (O&M) [5] ***** learned Single Judge rightly refused to interfere with the same. The remedy under Article 226 of the Constitution of India is discretionary in nature. There is hardly any ground to exercise that discretion in favour of the appellant and quash such a benevolent order which was passed by the Director General of Police in order to do substantial justice in the matter.
It is also a matter of record that the other member in the family of the appellant is his father who is residing with the appellant and is being maintained by him. As against two persons, namely, the appellant and his father, the maintenance sought by the wife is for herself and two minor children, i.e. for 3 persons. These two minor children are school going children as well and, therefore, wife has to incur expenditure on the education of these children as well. Taking into account the totality of circumstances, direction of making 50% payment of the salary to the appellant's wife and two minor school going children is perfectly justified.
On the basis of aforesaid admitted position appearing on record, this is a matter which hardly needs adjudication to find out the quantum of maintenance which is to be provided to the appellant's wife and two minor school going children.
At this stage, learned counsel for the appellant also submits that the deduction of 50% payment, which is made from the appellant's salary for payment of amount to the appellant's wife and his two minor school going children, is 50% of the gross salary drawn by the appellant and not 50% of the net salary.
In order to find out the impact thereof, we had directed the official respondents to place on record the salary sheet of the appellant.
LPA No.2149 of 2011 (O&M) [6]***** The official respondents has produced the same. As per the pay slip of the appellant for the month of January 2012, the total gross salary of the appellant is `34,375/-. Out of this, certain statutory deductions are made.
The appellant is also contributing a sum of `2,000/- towards GPF which amount will ultimately go to the appellant. However, from the salary, income tax is also being deducted. That amount should be adjusted while calculating 50% of the amount payable to the appellant's wife.
We, thus, direct the official respondents to deduct amount of income tax paid by the appellant from the total salary drawn and the figure which would arrive at after deducting the income tax, 50% thereof shall be paid to the appellant's wife and his two minor school going children.
Subject to this clarification, this appeal is dismissed.
(A.K.Sikri)
Chief Justice
March 22, 2013 (Rakesh Kumar Jain)
vinod* Judge