Rajasthan High Court - Jaipur
Suman Arya And Ors vs Devendra Arya on 18 August, 2011
SB Criminal Revision Petition No.114/2011 Suman Arya & others Vs. Devendra Arya Date of order 18.8.2011 HON'BLE DR. MEENA V. GOMBER, J. Mr. R.P. Vijay, for petitioners
Ms. Pooja Choudhary, for non petitioner The petitioners, who are the children and wife of non petitioner, have preferred this Criminal Revision Petition under Section 397 read with 401 of the Code of Criminal Procedure (hereafter to be referred to as 'the Code') against the order dated 16.11.2010 passed by Judge, Family Court, Kota in Criminal Case No.95/2007, whereby the trial court while allowing their application filed under Section 125 of the Code, has awarded a very meager amount.
The facts giving rise to the petition, in brief are that the petitioner and her two kids filed an application under Section 125 of the Code on 19.12.2006 for grant of maintenance, before the learned Judge, Family Court, Kota with the facts that petitioner no.1 got married to non petitioner and the petitioner nos.2 and 3 were born out of their wedlock. The petitioner wife's allegation was that non petitioner was always cruel to her and when she suffered brain tumour, he instead of giving treatment to her, left her in the house of her father, who himself was a retired person and who, out of his retirement benefits, constructed a house in Janakpuri, Kota for his daughter and two children.
The petitioner wife also filed a divorce petition and a case for
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demand of dowry, as it had become impossible for her to live with him. The petitioner's (wife's) contention was that the non petitioner is a graduate Engineer, earning Rs.20 to 25 thousand a month by working as Production Manager cum Nodal Officer in M/s. Rama Phosphate Factory Ltd., and petitioner nos.2 and 3 were getting education in Central Academy School. The non petitioner, despite having sufficient means, neglected to maintain the petitioners and that they had no other source of income, therefore, prayed for grant of maintenance of Rs.2500/- to each of the petitioners.
The non petitioner contested this application before the trial court. He admitted the marriage and birth of children out of their wedlock, but alleged that petitioner no.1 was getting Rs.15 to 20 thousand per month by tuition and that she has deprived him from matrimonial relationship, without any reasonable cause and that non petitioner was working as Supervisor under a private contractor in Mathura and getting a salary of Rs.3000/- per month.
The petitioner wife examined herself and a witness as AW.2. In the same manner, non petitioner also examined himself and a witness.
The learned Family Court, Kota, allowed the application vide order dated 16.11.2010 and awarded maintenance of Rs.1000/- to petitioner no.1 and Rs.500/- each to the two children from the date of filing of the application. It is this order, which has been impugned by the petitioners, stating that the non petitioner is a Chemical Engineer
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by profession and has been working at a decent salary and that his contention that he is only a Supervisor with a contractor, is not believable and that the learned trial court has misread the evidence of non applicant himself.
It was also contended that the non petitioner is, admittedly, an Engineer and as per his own admission, he was working in M/s. Rama Phosphate Factory Ltd., Udaipur as a Production Manager cum Nodal Officer. His saying that now he has become a Supervisor on a monthly salary of Rs.3000/- is totally unbelievable. Even otherwise, in today's day when a casual labourer gets Rs.150 or 250/- a day by doing labour work, the non petitioner, being an Engineer, cannot be heard to be saying that he is working as a Supervisor and earning only Rs.3000/- a month.
I have gone through the record. I find that petitioner no.1 and non petitioner got married in 1991 and according to the non petitioner himself, before the trial court, during his on-oath statement, they lived together for 16 to 17 years, meaning thereby, till 2007 2008 the parties were living together.
It is also clear from record that the non petitioner is 1962 born, hence is 49 years of age. In his statements he has admitted that his wife had been operated for brain tumour in 2008 and at that time he was working as Production Manager cum Nodal Officer in M/s. Rama Phosphate Factory Ltd., Udaipur. The documents available on record further confirm the fact that the non petitioner is an Engineer by
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profession, and as per the income-tax return showing him to be an employee of M/s Rama Phosphate Factory. For the year 2002-03, his annual salary has been shown as Rs.2,12,200/. The non petitioner is not denying this income-tax return, filed by him. His only contention is that in 2002 he was earning this much, but now he is not earning so much.
Other document on record is his bio data, which is signed by the non petitioner himself. It shows that he was born on 3.5.1962 and has done a Chemical Engineering degree of four years and has worked in M/s. Rama Phosphate Ltd., Udaipur as Production Manager from January 1998 and before that he worked as Production Superintendent, Shift In-charge, Assistant Production Engineer etc. in various other establishments named M/s. Ramganga Fertilizers Ltd., Moradabad, M/s. Trimurti Fertilizers Ltd., Kanpur, M/s. Radico Khaitan Ltd., Rampur, M/s. Sriniwas Fertilizers Ltd., Jhansi, M/s. Rama Phosphate Ltd., Indore, and thereafter M/s. Rama Phosphate Ltd., Udaipur. This shows that from 1998 to 2008 he was working in M/s. Rama Phosphate Ltd., Udaipur, as is clear from his income-tax return. This document also shows his monthly salary to be Rs.17,000/-.
On the other hand, there is nothing on record to show that the petitioner no.1 has been working as a Teacher or is taking some tuitions. It is also admitted by the non petitioner in his statements made on 24.10.2009, that the petitioner was operated for brain
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tumour. She cannot be expected to be earning that much to maintain herself and her grownup son and daughter. Non petitioner, accordingly, is 49 years' old man and having two grown up children and a wife, who is suffering from brain tumour, as is clear from the documents with regard to medical treatment.
The learned trial court in my opinion has granted a sum of Rs.1000/- to the wife and Rs.500/- each to the young son and daughter.
In view of the fact that the non petitioner is a Chemical Engineer and has worked on various positions, as mentioned herein above, cannot be said to be working on a monthly salary of Rs.3000/- with a contractor in Mathura. In today's time, even a daily wage labourer is getting Rs.150 to 250/- a day, depending on skilled or unskilled labourer. So the non petitioner, who is a 49 years old man and a qualified Chemical Engineer, who admitted held senior positions, cannot be said to be earning less than a daily wage labourer.
In these circumstances, the learned trial court has not appreciated the evidence which has come on record. In my opinion, in today's day, Rs.500/-each for a girl of 18 years and a boy of 16 years, cannot be said to be sufficient. Therefore, I am of the view that learned trial court has not appreciated the evidence on record in proper manner. Non petitioner has tried to allege that his wife is earning and doing tuition but nothing has come on record in this
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regard. The documents with regard to non petitioner himself, being his bio data and his income-tax assessment of 2002-03, clearly show that at that time he was earning more than Rs.17,000/-.
In these circumstances, I consider it proper to set aside the order impugned and instead enhance the maintenance amount for petitioner no.1 from Rs.1000/- to Rs.1500/- and for petitioner nos.2 and 3 from Rs.500/- each to Rs.1000/- each, from the date of filing of the application.
The revision petition, as also the stay application stand disposed accordingly.
(Dr. Meena V. Gomber) J.
db [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS