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1990 DIGILAW 312 (MP)

Ku. Saba v. Syed Mohd. Fazil

1990-08-27

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JUDGMENT G.C. Gupta, J. 1. This will also govern the disposal of Misc. Cr. Case No. 2270 of 1989 (Syed Mohd. Fazil v. Ku. Saba) filed by the non-applicant in this case. 2. The applicant, in this case, feels aggrieved by the order dated 18-5-1989 passed by Shri N.K. Jain, Sessions Judge, Bhopal in Criminal Revision No. 26 of 1989 arising out of the order dated 19-11-1988 passed by the Judicial Magistrate, Class-I, Bhopal in Misc. Criminal Case No. 10 of 1977 and has approached this Court for necessary modification therein, by filing this application under Section 482 Cr.P.C. 3. Applicant is admittedly the daughter of non-applicant born to him from Smt. Nasreen Siddique, his wife. It appears that the applicant and her mother had filed an application under Section 125 Cr.P.C. claiming maintenance from the applicant on the allegation that though he was liable to maintain them, he was neglecting and refusing to do so. It was alleged that the mother of the applicant had gone to her father's house, few days before the birth of the applicant and had not returned to the non-applicant. The non-applicant was admittedly sending a sum of Rs. 50/- per month for maintenance of the applicant. The non-applicant resisted the claim of the applicant had submitted that since the applicant's mother had been staying away from him, without any lawful excuse, he was not liable to maintain her. The learned trial Magistrate, on appreciation of evidence adduced by the parties, hold that the mother of the applicant had left the non-applicant without sufficient cause and was living away from him without any justification. The mother of the applicant was, therefore, not held entitled to any maintenance. 4. The learned Magistrate, however, granted maintenance at the rate of Rs. 300/- per month to the applicant with effect from the date of the application. It appears that the non-applicant challenged the aforesaid award by filing revision before the learned Sessions Judge. The learned Sessions Judge was of the view that having regard to the age of the child, the income of the non-applicant and their conditions in life, the amount of Rs. 300/- per month allowed for maintenance appeared to be excessive. The learned Judge, therefore, reduced the amount from Rs. 300/- to Rs. 200/- per month in the ends of justice. It is this reduction, which is impugned in the present application. Misc. 300/- per month allowed for maintenance appeared to be excessive. The learned Judge, therefore, reduced the amount from Rs. 300/- to Rs. 200/- per month in the ends of justice. It is this reduction, which is impugned in the present application. Misc. Criminal Case No. 2270 of 1989 has been filed by the non-applicant seeking annulment of the order on the ground that he was not liable to pay maintenance as the applicant's mother had unjustifiably deserted him. 5. The question for consideration of this Court in Misc. Criminal Case No. 2270 of 1989 is whether the non-applicant had refused or neglected to maintain the applicant. The submission of the learned counsel for the non-applicant is that the very fact that he was sending a sum of Rs. 50/- per month for maintenance would itself justify the conclusion that he was neither refusing nor neglecting to maintain the applicant. This Court is not able to accept the submission. It should not require any evidence to hold that a sum of Rs. 50/- per month is wholly insufficient to maintain a child. The fact that the non-applicant has refused to pay more than Rs. 50/- per month would, therefore, by itself be sufficient to hold him guilty of neglect of maintaining the applicant. Maintenance, in the context of Section 125 Cr.P.C., ' means an amount, which should be sufficient to meet body and soul together. Insistence of the non-applicant to pay only Rs. 50/- per month, means that he was refusing and otherwise neglecting to provide for maintenance, as required under this law. In this view of the matter, the order of the learned Magistrate granting maintenance in favour of the applicant would be fully justified. 6. Next and important question is whether the amount of Rs. 300/-per month, as granted by the learned Magistrate was so excessive as to justify exercise of powers under Section 397 read with Section 401 Cr.P.C. ? It was held in State of Bihar v. Ram Naresh Pandey and Ors. AIR 1957 SC 389 that Section 397 Cr.P.C. empowers the Courts specified therein to call for the records of inferior criminal courts and examine them for the purpose of satisfying themselves as to whether a sentence, finding or order passed therein is legal, correct or proper or whether the proceedings of such inferior Courts are regular. AIR 1957 SC 389 that Section 397 Cr.P.C. empowers the Courts specified therein to call for the records of inferior criminal courts and examine them for the purpose of satisfying themselves as to whether a sentence, finding or order passed therein is legal, correct or proper or whether the proceedings of such inferior Courts are regular. Under the circumstances, it may be examined if the grant of Rs. 300/- per month as maintenance was proper. Order fixing proper amount of maintenance is an order passed in exercise of discretion by the trial Magistrate. It necessarily involves some amount of guess-work. As long as the power has been properly exercised by the Magistrate, it will not be within the jurisdiction of the revisional Court to take a contrary view thereof, only because it feels otherwise. The question that this Court would ask in such a case is whether an amount of Rs. 300/-per month for maintenance of a child living in the city of Bhopal was excessive, so as to be characterised as illegal exercise of discretion ? Taking into consideration the present level of prices of essential commodities and other amehities as also facilities, this Court would think that Rs. 300/- per month cannot by any stretch of imagination be characterised as excessive. What has to be appreciated is that an amount of maintenance granted under Section 125 Cr.P.C. is expected to provide for a standard of life, wherein the beneficiary is able to keep his body and soul together. This takes within itself not only the expenses for food and clothings, but also expenses involved in meeting other necessities of life. 7. The Court is not expected to adopt a rigid dogmatic or technical stand in such a matter and keep in mind that the provision has a. social purpose. In this view of the matter, there was no justification whatsoever for holding that the amount of Rs. 300/- per month was excessive. Apparently, therefore, the power under Section 397 Cr.P.C. has not been properly exercised. It is, therefore, a fit case for interference by this Court, in exercise of its extra-ordinary jurisdiction. In this view of the matter, this Court is unable to accept the order of the learned Sessions Judge. It is accordingly set aside. As a necessary consequence, the order granting Rs. It is, therefore, a fit case for interference by this Court, in exercise of its extra-ordinary jurisdiction. In this view of the matter, this Court is unable to accept the order of the learned Sessions Judge. It is accordingly set aside. As a necessary consequence, the order granting Rs. 300/- per month as maintenance in favour of the applicant by the learned Judicial Magistrate would stand restored, entitling the applicant to claim the same, in accordance therewith. 8. Application succeeds and is allowed, as aforesaid, while Misc. Criminal Case No. 2270 of 1989 is dismissed.