Madhya Pradesh High Court
Bhojraj Singh Tomar vs Smt. Sheetal on 23 August, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6231/2017
(Dharmendra Singh & Ors. Vs. The State of M.P.)
Gwalior, Dated 23/8/18
Shri Vikas Tikhe, learned counsel for the petitioner.
Shri R.K. Soni, learned counsel for the respondent.
The power of superintendence of this court under Article 227 of the Constitution is invoked to assail the interlocutory order passed on 22/8/17 by Principal Judge, Family Court Morena in a petition pending u/S. 6 of Hindu Minority and Guardianship Act, 1956 and section 25 of Guardians and Wards Act, 1890, granting interim maintenance quantified at Rs. 2000/- to the minor daughter aged about 15 years and Rs. 1500/- each to the two sons aged about ten years, with further stipulation that the said grant of maintenance shall be appropriated with the extent of any order passed in regard to maintenance by any other court or any other provision under the law.
Learned counsel for the petitioner primarily submits that in a petition filed u/S. 125 CrPC by the wife/sole respondent herein before Family Court at Agra in case No. 576/14, final order was passed on 17/8/17 granting maintenance to the wife to the tune of Rs. 2000/- per month and Rs. 1000/- to each of the three children (total Rs. 5000/-).
Learned counsel for the petitioner further submits that the impugned order has been passed without taking into account the financial capacity of the petitioner. It is submitted that the petitioner/husband is an agriculturist who earns not more than Rs. 7000-8000/- per month and thus shall be left with nothing if he is compelled to pay both the amounts granted by the Family Court Agra and Family Court Morena.
2THE HIGH COURT OF MADHYA PRADESH W.P. No. 6231/2017 (Dharmendra Singh & Ors. Vs. The State of M.P.) The impugned order has been passed subject to the stipulation that amount of interim maintenance granted to the children would be adjusted against any order of maintenance passed earlier by any court of law and therefore, it is obvious that so far as maintenance to the children is concerned the award made vide impugned order is Rs. 5000/- as against only Rs. 3000/- awarded to the children by the Family Court Agra u/S. 125 CrPC. Consequently, the petitioner has to now pay an additional sum of Rs. 2000/- for his children besides paying Rs. 2000/- for his wife in terms of the order of Family Court, Agra.
The contention of learned counsel for the petitioner that economic resources of the petitioner/husband has not been considered, does not appear to be correct as the impugned order clearly reveals the contentions of both sides were gone into where wife alleged that the husband earns income of Rs. 20,000/- p.m. apart from possessing 15 Bigha agricultural land. The reply of the husband has also been taken into account where he has denied the contention of wife and stated that he has only one and a half Bigha agricultural land and thus finds it extremely difficult to even make his own ends meet and therefore, is not in a position to pay maintenance.
This court would not like to comment upon the merits of the claim and counter claim of the rival parties in view of the nature of the impugned order being interim and not final.
As regards economic capacity suffice it to say that even if the petitioner/husband is treated to be not having any income, the principle adopted by the courts ordinarily is of taking notional 3 THE HIGH COURT OF MADHYA PRADESH W.P. No. 6231/2017 (Dharmendra Singh & Ors. Vs. The State of M.P.) income. The division Bench of this court in the case of Smt. Rita Bais Vs. Vishwapratap Singh Bais in F.A. No. 196/17 on 30/8/17 taking que from the principles behind fixation of minimum wages under the Minimum Wages Act, arrived at a reasonable figure at Rs. 100/- per day sufficient to sustain a child. The relevant portion of the said judgment is reproduced below:-
"4. Thus the only question which now begs for an answer is about the quantum of pendente lite maintenance awarded.
4.1. It is not denied that the respondent-husband is an able bodied man who is legally responsible to maintain his wife who has no source of livelihood.
4.2. This Court is of the considered view that from the current standard of living and rising price index the amount of compensation of Rs.4000/- per month is deficient to sustain a woman as well as her infant child.
4.3. To prima facie ascertain the minimum essentials required to allow an individual to survive and live a life of dignity, this court deems it appropriate to seek guidance from the Notification No. S.O.2413(E) dated 28th July, 2017 of the Ministry of Labour and Employment issued under the Minimum Wages Act, 1948 prescribing minimum rates of wages for unskilled Labourer as Rs.350/- per day.
4.4. This Court is of the considered view that taking a modest figure of Rs.200/- per day for the appellantwife and Rs.100/- per day for her infant child would suffice to enable them to sustain a life of dignity allowing them to meet the requirement of necessity and a little bit of comfort.
5. Consequently, an amount of Rs.6,000/- per month for wife and Rs.3,000/- per month for the child would be reasonable pendente lite maintenance."
Going by the above said reasonable criteria adopted by this 4 THE HIGH COURT OF MADHYA PRADESH W.P. No. 6231/2017 (Dharmendra Singh & Ors. Vs. The State of M.P.) court, it does not appear that the amount of maintenance awarded by the impugned order is in any manner unreasonable or excessive.
It is not the case of the petitioner/husband that he is suffering from mental or physical incapacity. An able bodied person who marries and procreates children is expected to maintain his family members who are dependent upon him, notwithstanding absence of source of livelihood.
Consequently, no case for interference is made out in the absence of any transgression of jurisdictional limit by the court below. The present petition stands dismissed.
(Sheel Nagu) Judge ojha Digitally signed by YOGENDRA OJHA Date: 2018.08.29 11:46:24 -07'00'