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2006 DIGILAW 947 (KAR)

H. S. BASAVARAJ v. B. RASHMI

2006-11-20

D.V.SHYLENDRA KUMAR

body2006
ORDER This revision petition filed under Section 19(4) of the Family Courts Act, 1984, is directed against the order dated 14-8-2006, passed in C. Misc. No. 276 of 2004, whereby the Court below has awarded maintenance at the rate of Rs. 1,500/- per month in favour of the respondent-wife. The aggrieved husband is in revision. 2. It is firstly urged by the learned Counsel for the petitioner that provisions of Section 125 of the Criminal Procedure Code, 1973 provides the maximum limit of Rs. 500/- only per month for awarding maintenance by the learned Magistrate; that there is no State amendment for raising the jurisdiction of the Magistrate to grant an amount above Rs. 500/- towards maintenance and therefore the learned District Judge, acting as the Family Court had no jurisdiction to award maintenance at a sum of Rs. 1,500/- per month. 3. It is also urged that the respondent has without justification left the matrimonial house and therefore she cannot seek for providing maintenance to her, particularly when the petitioner/husband is ready and willing to take her back and maintain her. 4. In this regard, Sri Padmanabha Kedilaya, learned Counsel for the petitioner, submits that the petitioner in fact has filed H petition for restitution of conjugal rights before the Court of Civil Judge (Senior Division), Kunigal in M.C. No.8 of 2004 and the matter is still pending and in the circumstances, the learned Judge, of the Family Court could not have awarded any maintenance in favour of the respondent-wife. It is also submitted that while the wife does not require maintenance at the rate of Rs. 1,500/- per month, as has been awarded by the Court below for the reason, that she herself is working in some private company and is earning a reasonable income to support her; that on the other hand the petitioner/husband is without much income; that though he is a qualified Diploma holder in Automobile Engineering he is an unemployed person; that the agricultural land which he owns is hardly 7 guntas and is required to be shared amongst the other family members; that his means of livelihood is only by way of working as agricultural coolie and in such circumstances, the petitioner will not be in a position to provide by way of maintenance as high an amount as Rs. 1,500/- per month in favour of the respondent-wife. 1,500/- per month in favour of the respondent-wife. It is also submitted that the petitioner having the responsibility to take care of his aged sick mother, saddling the petitioner to pay maintenance in favour of the respondent-wife is not justified; that the petitioner will not be able to bear the burden and the order passed by the Family Court is required to be set aside. 5. Insofar as the first submission that in terms of Section 125 of the Cr. P.C., the maximum ceiling limit of Rs. 500/- which was there though has been omitted in terms of the amendment by Central Act 50 of 2001, the State amendment having not been brought in conformity with this amendment the sealing under the provisions as had been fixed by the State amendment continues to be at Rs. 500/- and therefore the learned Magistrate has no jurisdiction is concerned it is not tenable for the reason that in the first instance the learned Counsel for the petitioner has not brought to my notice any State amendment to Section 125, fixing the upper limit at variance with the Central Act and even assuming that by the State amendment any other amount had been fixed to be the upper limit, the Act being a piece of legislation by Parliament with reference to an entry in the concurrent list, even the subsequent State amendment will have to yield to the later legislation by Parliament and therefore the omission of an upper limit on the quantum of maintenance per month by the Central Act 50 of 2001, prevails and operates until a subsequent State amendment provides for any upper limit. Learned Counsel for the petitioner has not brought to my notice any subsequent State amendment to Section 125 of the Cr. P.C., after the Central Act 50 of 2001, fixing the upper limit of monthly maintenance at any sum less than Rs. 1,500/- to contend that the Magistrate/the Family Court had no jurisdiction to award maintenance at the rate of Rs. 1,500/- per month in favour of the respondent/wife. In fact it is not shown by the learned Counsel for the petitioner that there was any State amendment to the provisions of Section 125 of the Cr. P.C. at any point of time to contend that Section 125 of the Cr. 1,500/- per month in favour of the respondent/wife. In fact it is not shown by the learned Counsel for the petitioner that there was any State amendment to the provisions of Section 125 of the Cr. P.C. at any point of time to contend that Section 125 of the Cr. P.C. as amended by the State Legislature is at variance to the provisions of Section 125 of the Cr. P.C. as enacted by the Parliament. Even otherwise when once the parent act is amended subsequently by the Parliament, it is only the parent act as amended subsequently that prevails and not the State act and therefore until and unless the State act also has been amended at variance with the Central Act, it is the Central Act that prevails and the first contention has to be rejected. 6. Insofar as the next contention such as the respondent herself is having income by working in a private company is concerned, to support this contention the petitioner has not placed any material before the Court and the learned Judge of the Family Court has rightly rejected the same, holding that the meager income or almost no income of the petitioner is not a ground for his inability to pay the maintenance awarded in favour of the respondent-wife is concerned. 7. I find that the petitioner has not even come out with his true income. It is an admitted fact that he is having the avocation of milk vending and that he is also a qualified Diploma holder in Automobile Engineering. Notwithstanding having a sound technical qualification if the petitioner should opt for carrying on the business of milk vending, obviously it must be productive and should have been lucrative enough to retain his interest in milk vending than to utilise his technical skills for earning any income. If that is so, his contention that he is not having sufficient income for himself can never be believed and has been rightly rejected by the Trial Court. 8. I do not find any scope for interference in a matter of this nature, in exercise of revisional jurisdiction and accordingly this revision petition is rejected.