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2004 DIGILAW 108 (HP)

PUNAM VERMA v. RAJPAL VERMA

2004-05-24

K.C.SOOD

body2004
JUDGMENT Kuldip Chand Sood, J.—This petition under Article 227 of the Constitution read with Section 482 of the Code of Criminal Procedure is directed against the orders passed by learned Additional Sessions Judge, Hamirpur on July 22, 2003 in a criminal revision whereby the orders of learned Additional Chief Judicial Magistrate Badsar regarding enhancement of the maintenance allowance to the petitioner were up-held. 2. The facts for the disposal of this petition are : 3. Poonam Verma, the petitioner, is daughter of respondent Raj Pal Verma. Poonam Verma was granted maintenance of rupees 400 per month, under Section 125 of the Code of Criminal Procedure, on February 3, 1998 by the learned Judicial Magistrate 1st Class, Hamirpur. In August, 2002, the petitioner laid a petition, under Section 127 of the Code, for enhancement of the maintenance allowance to rupees 1,500 per month on the grounds that the circumstances under which the maintenance allowance of rupees 400 were granted have materially changed. The petitioner was studying in B.Com. Part-I. The prices of consumable items have increased. The changed circumstances call for enhancement of amount of maintenance to rupees 1,500 per month. The respondent father took a stand before the learned Magistrate that the petitioner has attained the age of 18 years and he had already paid the maintenance allowance at rupees 400 upto 1.12.2005 and that his wife, the mother of the petitioner, is also a Teacher who can also pay for the studies of the petitioner. It was also pleaded that there is no change in the circumstances and therefore, no enhancement of the maintenance allowance was called for. 4. Learned trial Magistrate took note of the fact that the petitioner at the relevant time was student of B.Com. Part-I in D.A.V. College, Kangra living in a private hostel and enhanced the maintenance allowance to rupees 800 per month from rupees 400 per month, which was earlier granted. This enhancement was payable from the date of the petition for enhancement. Dis-satisfied, the petitioner filed a revision petition before the learned Sessions Judge, Hamirpur which was dismissed by the learned Additional Sessions Judge by his impugned orders. This enhancement was payable from the date of the petition for enhancement. Dis-satisfied, the petitioner filed a revision petition before the learned Sessions Judge, Hamirpur which was dismissed by the learned Additional Sessions Judge by his impugned orders. Learned Additional Sessions Judge took a view that as the mother of the petitioner was also drawing salary of rupees 10,000 per month, therefore, she can very well afford to pay the amount required for the maintenance of the petitioner and held that the trial Court took a reasonable view by enhancing the maintenance allowance from rupees 400 to rupees 800 per month. 5. Still aggrieved, daughter Poonam Verma has filed this petition saying that it is not possible to live in a hostel and study in College within Rs. 800 or even 2,000 rupees. She maintains that her tuition fees, hostel charges, pocket expenses and other stationery items costs about rupees 4,000 per month. According to the petitioner, the pocket of her mother is tight as she has spent considerable money and is incurring medical expenditure for the treatment of her father (maternal grand-father of the petitioner) who suffers from throat cancer and is under treatment in Christian Medical College, Ludhiana. It is in this background that the orders of learned Magistrate and Additional Sessions Judge are impugned in this petition praying that the maintenance allowance of the petitioner be enhanced to rupees 4,000 per month. 6. I have heard Mr. Ankush Dass Sood learned Counsel for the petitioner and Mr. Ajay Sharma, learned Counsel for the respondent. 7. Mr. Sharma, vehemently opposes this petition. His main ground of attack is that this petition is not maintainable, as it would amount to second revision of the orders of learned Magistrate, which is not permissible under the law. 8. It is true that power of superintendence and control conferred under Article 227 of the Constitution and the inherent powers of the Court under Section 482 of the Code of Criminal Procedure should not be exercised capriciously particularly to substitute its own judgment on facts in place of that of a subordinate Court. Nevertheless, the High Court in exercise of its jurisdiction under Article 227 can set aside or ignore the findings of fact of a inferior Court if the findings are perverse or arbitrary or has resulted in manifest injustice. Nevertheless, the High Court in exercise of its jurisdiction under Article 227 can set aside or ignore the findings of fact of a inferior Court if the findings are perverse or arbitrary or has resulted in manifest injustice. It is well settled that the High Court, in exercise of its jurisdiction under Section 482 of the Code should not hesitate to interfere to secure the ends of justice. Such power even though unrestricted and undefined indeed should be exercised "ex debito justitiae" to do real and substantial justice for which alone the courts exist. Powers under Section 482 of the Code are very wide and plentitude. 9. In the present case, both the trial Court and court of revision failed to exercise the jurisdiction resulting in grave and manifest injustice. It is admitted position before me and a certificate to this effect was filed that respondent Raj Pal who is employed as Shastri in a Government Middle School is drawing salary of rupees 14,469. He deducts rupees 6,000 as General Provident Fund, rupees 1,500 for G.P.F. advance. He had taken and pays rupees 30 per G.I.S. The salary certificate of the mother of the petitioner Smt. Salita Devi shows that she draws basic salary of rupees 6,200 and therefore, may be drawing about rupees 10,000 in gross per month as respondent himself states. By any count, minimum expenditure of the petitioner to pursue her studies while living in hostel cannot be less than rupees 3,000 per month. A maintenance allowance of rupees 800 as granted by the learned trial Court and upheld by the revisional Court is not even pittance. Even if mother contributes rupees 1,500 per month for the maintenance of the petitioner, it will only be just, proper and fair if father also contributes the same amount, more so, when mother admittedly is drawing much less salary compared to the father. 10. Looking to the facts and circumstances in its entirety, the petition is allowed. The impugned orders of the trial Court and that of learned Additional Sessions Judge, Hamirpur are modified and it is directed that respondent Raj Pal Verma, the father of the petitioner, shall pay monthly maintenance allowance of rupees 1,500 per month, as prayed for by the petitioner from the date of the petition under Section 127 of the Code, i.e., August 21,2000. The arrears of the enhanced maintenance from 21.8.2002 till 31.5.2003 shall be paid to the petitioner by the respondent within eight weeks from today and the maintenance for the month of June, 2004 shall be paid by 10th day of that month and so on. Order accordingly. No costs.