Rajasthan High Court - Jaipur
Vimlendra Pal Singh vs State Of Rajasthan And Ors on 11 July, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Revision No. 314 / 2014
Vimlendra Pal Singh S/o Shri Satrughan Singh Bhadoriya B/c
Rajput, R/o Flat No. 34/1265, Sector-7 CGS Colony, Entop Hill,
Mumbai-37
(Presently Employed At Navy Directorate, Jahajrani Bhawan,
Herachand Moolchand Marg, Mumbai)
Petitioner-Non-Applicant
Versus
1. State of Rajasthan Through PP
Performa-Respondent
2. Smt. Archana Rathore W/o Shri Vimlendra Pal Singh Bhadoriya D/o Banshi Singh Rathore B/c Rajput, R/o Dahiwali Gali, Bharatpur, Police Station Kotwali, Bharatpur
3. Kunwar Aditya Through Natural Guardian Mother Smt. Archana Rathore S/o Shri Vimlendra Pal Singh, Bhadoriya By Caste, Aged About 11 Years, R/o Dahiwali Gali, Bharatpur, Police Station Kotwali, Bharatpur Respondents-Applicants _____________________________________________________ For Petitioner(s) : Mr. Suresh Sahni with Mr. Kapil Gupta & Mr. R.M. Sharma For Respondent(s) : Mr. Biri Singh Sr. Adv. with Mr. Mukesh Saini Mr. N.S. Shekhawat, P.P. for State _____________________________________________________ HON'BLE MR. JUSTICE PANKAJ BHANDARI Order 11/07/2017
1. With consent of the parties the matter is taken up for final (2 of 6) [CRLR-314/2014] disposal.
2. Petitioner has preferred this revision-petition aggrieved by order dated 06.12.2013 passed by Family Court, Bharatpur, whereby, the Court below has awarded Rs. 10,000/- per month as maintenance to respondent No. 2 and Rs. 7,000/- per month as maintenance to respondent No. 3 from the date of filing of the application under Section 125 Cr.P.C.
3. Briefly stated the facts of the case are that the petitioner was married to respondent No. 2 in the year 1995. They have been living separately since 2007. A petition under Section 125 Cr.P.C. was filed by the wife and minor son on 05.11.2008 claiming maintenance to the tune of Rs. 15,000/- per month for wife and Rs. 10,000/- per month for minor son. It was pleaded in the application that petitioner husband is earning Rs. 4,00,000/- per month. He is an official translator and in addition to his official duties he is doing acting in serials and advertisement and is also doing private translation.
4. The Court below after recording the evidence of parties has allowed the application and awarded Rs. 10,000/- per month to non-petitioner No. 2 and Rs. 7,000/- per month to non-petitioner No. 3 till he attains majority. Aggrieved by which petitioner husband has preferred this revision-petition.
5. It is contended by counsel for the petitioner that as per the Salary Slip of the petitioner in the year 2008, petitioner was earning Rs. 23,500/- per month. The award of maintenance from (3 of 6) [CRLR-314/2014] year 2008 @ Rs. 17,000/- per month is thus excessive. It is also contended that non-petitioner No. 2 wife is a qualified lady. Her educational qualifications includes M.A, B.Ed, Ph.D and she is capable of earning her own livelihood, therefore, she is not entitled to maintenance under Section 125 Cr.P.C.
6. It is also contended that the award of maintenance from the date of application is bad in law and the amount should have been awarded from the date of order, in support of the said argument counsel for the petitioner has placed reliance on "Jaiminiben Hirenbhai Vyas & Anr. vs. Hirenbhai Rameshchandra Vyas & Anr. Criminal Appeal No. 2435/2014 decided by Supreme Court of India on 19.11.2014.
7. It is also contended that the carry home salary has to be considered for deciding the quantum of maintenance. Reliance in this respect has been placed on "Bhushan Kumar Meen vs. Mansi Meen @ Harpreet Kaur, 2010, 15 SCC Page 372".
8. Counsel for the respondent No. 2 and 3 have opposed the revision-petition. Their contention is that non-petitioner No. 2 is not employed. She was residing with her old ailing father who has expired. She has no independent source of income. She has to look-after herself and her son who has become major who is still dependent on her as he has no source of income. It is also contended that documents pertaining to the petitioner working as an artist and doing translation job on payment of money was also produced before the Court below and the impugned order does not (4 of 6) [CRLR-314/2014] suffer from any irregularity or illegality.
9. It is also contended that in the impugned order the Court below has expressly mentioned that the maintenance is to be paid from the date of application and since the Court has considered every aspect of the matter, the impugned order deserves to be upheld.
10. I have considered the contentions of both the parties.
11. It is pertinent to note that non-petitioner No. 2 in her application under Section 125 Cr.P.C. specifically pleaded that petitioner husband is employed at Navy Directorate and in addition to his job he is working as an actor in serials and is also undertaking the job of private translator and is also into the business of advertisement and that his income is to the tune of Rs.4,00,000/- per month. In reply to this paragraph, petitioner mentioned that due to the cases filed by the wife, he is not able to do the working of private translation, advertisement and thus his income has been reduced. He did not make any averment regarding his actual income.
12. From the documents produced by the wife and put to the petitioner in cross-examination, petitioner has denied the documents but from a bare perusal of these documents, it is apparent that the petitioner is doing private translation, in addition to his job at Navy Directorate. Petitioner himself has not denied the allegations of doing private job in the reply, filed under Section 125 Cr.P.C. In view of the above, the contention of (5 of 6) [CRLR-314/2014] considering the carry home salary looses significance and the amount awarded is not exorbitant so as to exercise the revisional at jurisdiction.
13. As far as contention of counsel for the petitioner that the amount should have been awarded from the date of order and not from the date of filing of the application. Suffice to say that in Jaiminiben Hirenbhai Vyas (supra) the Apex Court relying upon "Shail Kumari Devi vs. Krishan Bhagwan Pathak" 2008 (9) SCC Page 632 held that it is incorrect to hold that as a normal rule the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It was observed that if the maintenance is awarded from the date of application, an express order is necessary.
14. In the present case in hand, there is an express order that maintenance should be paid from the date of application. The Court has come to the conclusion that the petitioner has sufficient source and is under obligation to maintain his wife and minor son under Section 125 Cr.P.C.
15. Sub-Section 2 of Section 125 Cr.P.C. inter alia provides that the allowance for the maintenance or interim order for the maintenance is payable from the date of the order, or, if so ordered, from the date of the application for maintenance. The Court is thus empowered to pass an order of maintenance from the date of the order or from the date of the application for maintenance.
(6 of 6) [CRLR-314/2014]
16. It is pertinent to note that an application for monthly allowance is required to be disposed of within 60 days from the date of service of notice. In the present case in hand the application remained pending for four years for no fault of the non-petitioner. Depriving the wife who had no source of income and who remained dependent on her father for maintenance from the date of application would thus not be in true spirit of law.
17. As far as contention of counsel for the petitioner that non- petitioner No. 2 wife is a qualified M.A, B.Ed, Ph.D and should earn her own livelihood. Suffice to say that on the date of the application for maintenance and on the date when the impugned order was passed non-petitioner No. 2 was not employed. It is not the case of the petitioner that petitioner has turned down any job offer.
18. In view of the same, I am not inclined to interfere with the impugned order. The revision-petition is accordingly dismissed.
19. No grounds are made out for taking the additional documents at record, hence the application filed in this respect is rejected. Record of the Court below be returned forthwith.
(PANKAJ BHANDARI), J.
Amit/1