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1992 DIGILAW 160 (RAJ)

Alka Dabi : Kavinder Dabi : Himanshu Dabi v. Prem Prakash Dabi : Prem Prakash Dabi : Prem Prakash Dabi

1992-02-10

B.R.ARORA, M.C.JAIN

body1992
JUDGMENT 1. These three appeals arise out of the judgment dated July 9, 1990. passed by the Judge, Family Court, Jodhpur. 2. Smt. Shanti Dabi W/o Prem Prakash Dabi and the mother and natural guardian of Miss Alka Dabi, Kavindra Dabi and Himanshu Dabi, on May 26, 1989, filed three applications under Section 125 Cr. PC. in the Court of the Judge, Family Court, Jodhpur, for the grant of the maintenance to her minor sons and daughter. The case, as set-up in the applications, is that Smt. Shanti Devi Dabi was married to Prem Prakash Dabi on April 21, 1969, and out of this wed-lock, Ravindra was born on July 28, 1973, Miss Alka was born on Sept. 6, 1974 and Himanshu was born on May 30,1979. It was averred in these applications that the non-petitioner Prem Prakash Dabi treated their mother Smt. Shanti Dabi with gruelity and filed an application for judicial separation on flimsy grounds in the court of the learned District Judge, Jodhpur. He has, also, kept one mistress-Bunder by name and his treatment towards the applicants as well as towards their mother was not proper and he used to give beatings to them. The applicants are students and-in order to maintain themselves as well as for persuing their education, they have no source of income while the non-petitioner Prem Prakash Dabi is working in Public Health and Engineering Department and is drawing the salary to the tune of Rs. 2500/- and, also, owns and possesses two houses in Nersingh Dhara and one plot situated in Basni area, Jodhpur. The aforesaid house situated in Narsing Dhara contains some shops as well as the residental accommodation. He is, also, getting Rs. 600/- per month as the rent form these shops and the. residential accommodation. It was, also, mentioned that the non-petitioner Prem Prakash is, also, running a business in the threads in the name and style of "Perfect Threads" and has obtained the agency of these threads and is earning about Rs. 2000/- per month from this business. According to the applicants, the income of the non-petitioner Prem Prakash Dabi is about Rs. 3100/- per month and, therefore, maintenance may be awarded to each of the applicants to the tune of Rs. 300/- per month each. 2000/- per month from this business. According to the applicants, the income of the non-petitioner Prem Prakash Dabi is about Rs. 3100/- per month and, therefore, maintenance may be awarded to each of the applicants to the tune of Rs. 300/- per month each. These three applications were registered as Criminal Miscellaneous Case No. 140/19 (Alka v. Prem Prakash , 141/89 (Kavindra v. Prem Prakash) and 143/89 (Himanshu v. Prem Prakash) . The non-petitioner Prem Prakash, on the other hand, contested these applications. It was averred in the reply, that it is wrong to say that he cruelly treated their mother Smt. Shanti Dabi. It was, also, denied that he is keeping any mistress by name Sunder. On the contrary, it was pleaded that he used to give due love and affection to all the applicants and ready and willing to keep them with him. It is only on account of Smt. Shanti Dabi that they are not living with him. He is ready to keep Smt. Shanti Dabi and all the applicants with him. It was, also, denied that he used to take liquor. Desertion on the part of the non-applicant was, also, denied and it was pleaded that wrong averments have been made by the applicants in their applications at the instance of their mother Smt. Shanti Dabi. The income of Rs. 3100/- per month to the non-applicant was, also, denied and it was stated that his income is only to the tune of Rs. 2000/- per month and he and his mother both are not keeping fit and sufficient amount is being spent on their treatment. It was, therefore, prayed that the applications, filed by the applicants under Section 125 Cr. P.C. may be dismissed. 3. The applicants, in support of their case, examined Smt. Shanti Devi-their mother as AW1 while the non-applicant Prem Prakash, in support of his case, examined himself as NAW 1 and his mother Smt. Mohini as NAW 2. The learned Judge of the Family Court, Jodhpur, after trial, allowed the applications filed by these three applicants by his order dated July 9, 1990, and granted maintenance to the applicants Miss Alka to the tune of Rs. 175/- to the applicant Kavindra to the tune Rs. 175/- and the applicant Himanshu to the tune of Rs.125/- per month. The learned Judge of the Family Court, Jodhpur, after trial, allowed the applications filed by these three applicants by his order dated July 9, 1990, and granted maintenance to the applicants Miss Alka to the tune of Rs. 175/- to the applicant Kavindra to the tune Rs. 175/- and the applicant Himanshu to the tune of Rs.125/- per month. It is against this order that the applicants have filed these three appeals for enhancement of the amount of the maintenance, awarded to the appellants by the learned Judge of the Family Court, Jodhpur, is much on the lower side. Non-applicant Prem Prakash did not challenge the grant of maintenance to the applicant-appellants and rest contended with the judgement passed by the Judge, Family Court, Jodhpur, and did not prefer any appeal(s) against this order. 4. We have heard the learned Counsel for the appellants and the learned Counsel for the non-petitioner/respondent Prem Prakash, and perused the order passed by the Court below as well as the record of the case. 5. The learned lower Court, after due appreciation of the evidence on record, came to the conclusion that Prem Prakash, after necessary deductions, is getting Rs. 2200/- per month as salary and Rs. 100/- per month as the rent from the shop. So far as the income of the respondent from the thread agency is concerned, that was not taken into consideration by the Court below as there is no sufficient evidence on record to prove this income. After taking into account the income of the respondent/non-petitioner Prem Prakash as Rs. 2200/- per month, the learned Judge of the Family Court awarded the maintenance, as stated above. It is not in dispute that the non-applicant has, also, to maintain his mother. So far as the amount on the treatment of the non-applicant and his mother is concerned, as the non-applicant is a Government servant as such this amount is reimbursable and, therefore, no provision can be made for the medical expenses while granting maintenance to the applicants. But he is getting Rs. 2200/- per month as his salary and has to maintain himself and his mother only, while, on the other hand, there are three applicants, who have to peruse their studies and have to be awarded maintenance in accordance with the status of the non-applicant. They are growing children and require proper diet etc. also. But he is getting Rs. 2200/- per month as his salary and has to maintain himself and his mother only, while, on the other hand, there are three applicants, who have to peruse their studies and have to be awarded maintenance in accordance with the status of the non-applicant. They are growing children and require proper diet etc. also. Looking to the present state of affairs and the higher inflation and the prices of the essential commodities hiking to a large extent, we are of the opinion that the learned lower Court has awarded the maintenance to these appellants on a lower side, which should be enhanced. 6. We, therefore, enhance the maintenance of Miss Alka and Himanshu to the tune of Rs. 350/- per month. We, however, do not deem it proper to pass any order regarding the enhancement of the maintenance allowance to Kavindra as he became major on July 28, 1991, and, therefore, he is not entitled to any maintenance after July 28, 1991 due to attaining the age of majority. It is only upto the age of the minority that the dependants are entitled for the maintenance. 7. Consequently we allow the appeal filed by Miss Alka and Himanshu. The maintenance allowance awarded to Miss Alka is increased form Rs. 175/- per month to Rs. 350/- per month and the maintenance allowance awarded to Himanshu is increased from Rs. 125/- per month to Rs. 350/- per month till the age of their attaining the majority or till the marriage of Miss Alka. But so far as the appellant Kavindra is concerned, as he has become major and his appeal has become infructuous, we, therefore do not pass any order for the enhancement of the amount of maintenance to him.Appeal allowed. *******