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2005 DIGILAW 136 (CAL)

ANIMA MAJHI v. ARUN MAJHI

2005-02-25

ARUN KUMAR BHATTACHARYA

body2005
A. K. BHATTACHARYA, J. ( 1 ) THE hearing stems form an application filed by the petitioner praying for revision of the order dated 29. 06. 2004 passed by the learned Sub-Divisional Judicial Magistrate, Durgapur in Criminal Misc. Case 127 of 2004 under section 125 Criminal Procedure Code. ( 2 ) THE petitioner's case is that on being driven out by her son -the opposite party who used to torture upon her physically and keeping her confined without offering any food and water, she was compelled to take shelter in her daughter's house. Her earlier Misc. Case 152 of 1997 was disposed of on compromise as the opposite party promised to take care of her but ultimately she was subjected to further torture. The opposite party is an employee of DSP and earning a salary of Rs. 12697. 40 p. m. The petitioner was allowed by the impugned order dated 29. 06. 2004 a paltry sum of Rs. 450/- p. m. from the date of order as against her claim for Rs. 1500/- p. m. as maintenance. ( 3 ) BEING aggrieved by and dissatisfied with the said order, the petitioner has preferred the present revision. ( 4 ) AS none appeared on behalf of the opposite party, the matter was heard ex parte. ( 5 ) ALL that now requires to be considered is whether the learned Court below was justified in passing the said order. ( 6 ) MR. Goutam Misra, learned counsel for the petitioner contended that the monthly allowance of Rs. 450/- so awarded by the learned Court below is too meager to maintain oneself now-a-days considering the rising prices of every material day by day. ( 7 ) THE word "maintenance" is not to be narrowly interpreted. It means the most reasonable requirement for the existence of a person to live separate. It includes the reasonable amount towards medical expenses also. While assessing the amount of maintenance, the Court has to strike a balance between the need of the petitioner towards food, lodging, clothing etc. taking into account the rising prices of essential commodities and earnings, paying capacity and commitments of the opposite party, and such amount should neither be luxurious nor penurious but modestly consistent with the status of the family. taking into account the rising prices of essential commodities and earnings, paying capacity and commitments of the opposite party, and such amount should neither be luxurious nor penurious but modestly consistent with the status of the family. The fact that the mother is residing at the charity and mercy of her daughter at the latter's house will not absolve the son of his solemn legal duty to maintain her. In the present case, it appears from the impugned order that the opposite party has two sons and three daughters, all of whom are major and none of them is employed and that the gross and net salary of the opposite party are Rs. 12,697. 40 and Rs. 4577/- respectively. The break up of deductions of Rs. 8120/- p. m. has not been reflected in the impugned order. Mr. Misra on producing a copy of Pay Slip of the opposite party submitted that out of Rs. 8120. 48 so deducted per month from the salary of the opposite party, Rs. 3200/- is towards payment of co-operative and other loans, Rs. 500/- towards Thrift Fund, Rs. 1292/- towards LIP etc. and if the said deductions are not construed to be a device adopted for the purpose of avoiding the solemn obligation to maintain the mother, it will frustrate the very object of the provision which is to compel a man to perform the moral obligation in respect of his wife, children and parents so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence, which appears to be appreciable. ( 8 ) SINCE the learned Magistrate while fixing the amount did not consider the factors pointed out above thus resulting in failure of justice, the impugned order cannot be sustained and it deserves to be modified. ( 9 ) CONSIDERING the facts and circumstances of the case and taking into account the need of the petitioner and rising prices of every material day by day, on the one hand, and the earning of the opposite party and his commitments on the other, allowing a sum of Rs. 700/- to the petitioner towards maintenance will be adequate and meet the ends of justice. Accordingly, the petitioner Anima Majhi do get maintenance allowance to the tune of Rs. 700/- per month from the opposite party. 700/- to the petitioner towards maintenance will be adequate and meet the ends of justice. Accordingly, the petitioner Anima Majhi do get maintenance allowance to the tune of Rs. 700/- per month from the opposite party. ( 10 ) THE impugned order dated 29. 06. 2004 passed by the learned Sub-Divisional Judicial Magistrate, Durgapur in Criminal Misc. Case No. 127/2004 stands modified accordingly to that extent, the balance portion of the order remaining unaltered. Order accordingly