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2006 DIGILAW 1995 (DEL)

MASTER KASHISH @ GOLU v. ASHOK KUMAR SHARMA

2006-11-01

J.P.SINGH

body2006
JUDGMENT J.P. Singh, J.-Admitted and heard for disposal. This civil revision petition has been filed by the wife for herself and on behalf of minor son and minor daughter against the order dated 1.12.2004 passed by Additional District Judge, Delhi. Vide order dated 1.12.2004 the learned Additional District Judge has allowed an application under Section 24 of the Hindu Marriage Act moved by the wife in a pending divorce petition, at the instance of husband. The learned Additional District Judge has granted maintenance for the wife Smt. Kanta Rani and minor daughter @ Rs. 1,000/- per month each from the date of the filing of the petition in addition to the interim maintenance which she is getting @ Rs. 400/- per month in an application under Section 125. Cr.P.C. This, civil revision petition has been filed for enhancing the maintenance and to grant Rs. 2.000/- per month for each minor and Rs. 4,000/- per month for the wife and also to provide residential accommodation to the petitioners. With the consent of the parties the matter has been heard for disposal. 2. I have heard Ms. Sunita Rani Sharma, learned Counsel for the petitioner and Mr. B.R. Saini, learned Counsel for the respondents and have gone through the impugned order as well as copies of the documents placed on the file. 3. Briefly the facts are that the petitioner Smt. Kanta Rani was married to respondent Sh. Ashok Kumar according to Hindu rites on 27.2.1990. Petitioner No.1 Master Kashish @ Golu was born on 4.2.1991 and petitioner No.2 Baby Rakshita was born on 9.2.1996. The relations between the husband and wife got strained and it is alleged that she was turned out of the matrimonial home, after which she tiled a complaint with the Crime Against Women Cell and a case under Sections 498A/406/34, IPC was registered against the husband and other family members. The said case is pending before the Metropolitan Magistrate at Tis Hazari Courts, Delhi. The petitioner-wife also filed an application under Section 125, Cr.P.C. before the Magistrate. Interim order was passed in 1998 awarding a sum of Rs. 400/- per month to the petitioner-wife. At that time the maximum maintenance to be awarded under Section 125, Cr.P.C. was Rs. 500/-. She, therefore, tiled a petition under Sections 20 and 18 of the Hindu Adoption and Maintenance Act for grant of maintenance and residence. Interim order was passed in 1998 awarding a sum of Rs. 400/- per month to the petitioner-wife. At that time the maximum maintenance to be awarded under Section 125, Cr.P.C. was Rs. 500/-. She, therefore, tiled a petition under Sections 20 and 18 of the Hindu Adoption and Maintenance Act for grant of maintenance and residence. The learned Additional District Judge has awarded an interim maintenance @ 1000/- per month each to the wife and the daughter. Since petitioner No.2 was residing with the respondent no maintenance was awarded for the said male child. 4. Learned Counsel for the petitioner has argued that the interim maintenance awarded was very meagre because the husband was earning Rs. 20,000/- per month as LIC Agent. He had shown his annual income in the Income Tax return as Rs. 2.40,330/- per annum. It is argued that the husband has made contradictory statements regarding his income before the Additional District Judge in the petition for maintenance and before the Accident Claims Tribunal, where he had filed an application for compensation due to an accident. There he had disclosed his income to be Rs. 40.000/- per month. 5. The learned Counsel for the petitioner has further argued that the husband has tiled a suit under Section 25 of the Guardians and Wards Act for custody of the boy and during pendency of the said petition had forcibly removed the boy and got his name struck off from Tyagi Public School and got him admitted in Tagore Public School. His this conduct was not taken into consideration by the learned Additional District Judge. It is further argued that against forcible removal of Master Kashish the petitioner-wife has filed a civil writ petition in the High Court wherein it was ordered that till disposal of the case before the Guardian Court the custody of Master Kashish shall remain with the mother but still the custody has not been restored to the mother, therefore she requires custody and maintenance for the male child also. It is submitted that the respondent has no other liabilities. 6. On the other hand, learned Counsel for the respondent has submitted that the petitioner-wife has left the husband and has involved him in criminal litigation. It is submitted that the respondent has no other liabilities. 6. On the other hand, learned Counsel for the respondent has submitted that the petitioner-wife has left the husband and has involved him in criminal litigation. She herself was in a position to earn and that the respondent-husband had suffered an accident in which his three fingers and left foot were fractured, two teeth were broken and he also received head injuries on which he has to spend a lot of money and is not keeping good health because of the accident and the permanent disability. Learned Counsel for the respondent has further submitted that there is no jurisdictional error in the impugned order and the order cannot be faulted under Section 115 of the Code of Criminal Procedure. It is denied that the minor son was forcibly removed from the school. It is submitted that the custody of the minor son was given by the Guardian Court to the respondent. However, the High Court had directed that till disposal of the guardianship matter the custody of the minor son will remain with the mother. Further that the respondent has to maintain his old parents and is well looking after the son. 7. Learned Counsel for the respondent has submitted that at the time of getting bail the respondent had paid Rs. 75,000/- to the petitioner and that she is earning Rs. 8,000/- per month by imparting tuitions. 8. Perusal of the impugned order shows that the learned Additional District Judge has referred to the contentions of the parties and has opined that even due to accident the respondent-husband was attending to his work. Further the respondent has mentioned his income as Rs. 20,000/- before the Accident Claims Tribunal but stated in this Court that he was earning Rs. 10,000/- per month. The learned Additional District Judge has also noted that the respondent received substantial amount as compensation due to his accident and recorded that the wife was residing with the minor girl with her mother and the husband was not providing any amount to his wife for having a separate residence. 9. The above facts and circumstances show that the respondent-husband has a good income and admittedly at least Rs. 20,000/- per month, if not more. His wife is admittedly bringing up the daughter. 9. The above facts and circumstances show that the respondent-husband has a good income and admittedly at least Rs. 20,000/- per month, if not more. His wife is admittedly bringing up the daughter. Till date the husband has not been able to show any independent income of the wife. Needless to say that for bringing up a school girl child a sum of Rs. 1,000/- or Rs. 1.400/- per month appears to be much on the lower side even at interim stage keeping in view the income and status of the parties. It is the duty of the petitioner-husband to see that his daughter gets good education and maintains good health. A girl child needs special care and protection. Normally the High Court does not intervene under Section 115 of CPC but the facts and circumstances vary from case to case and in this case I am of the opinion that the learned Additional District Judge has fixed interim maintenance on lower side and the maintenance is rather illusory. This, in my view, amounts to material irregularity in the exercise of jurisdiction so as to invite interference under Section 115 of the Code of Civil Procedure. 10. Considering all the facts and circumstances I enhance the interim maintenance from Rs. 1,000/- to Rs. 2,500/- per month for the girl child from the date of filing of the petition in addition to the interim maintenance already being granted under Section 125, Cr.P.C. The respondent will clear the arrears of maintenance in two equal monthly instalments but shall continue to pay the current enhanced amount every month. The first instalment of arrears be paid within two weeks from the date of this order and the second instalment within four weeks thereafter. The Trial Court is directed to finally decide the matter within six months. 11. Nothing said herein will tantamount to expression of opinion on the matters pending between the parties. Ordered accordingly.