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Madhya Pradesh High Court · body

2009 DIGILAW 1071 (MP)

Piyushkant Sharma v. Pragati Sharma

2009-08-31

INDRANI DATTA

body2009
ORDER At the outset, learned counsel for applicant seeks withdrawal on.A.No.13703/09. 1. Application is dismissed as withdrawn. With the consent of counsel for applicant, matter is finally heard. 2. Applicant has filed this revision under Section 397/501 CrPC to set aside the order dated 29.07.09 passed by the Additional Principal Judge, Family Court, Gwalior in case No.249/09 by which applicant is directed to pay Rs.5,000/- as interim maintenance to respondent No.1 and Rs. l,500/- to respondent No.2. 3. Short facts of the case are: respondents No.1 and 2 filed one application under Section 125 CrPC before Family Court, Gwalior and in that case, order for interim maintenance has been passed on 29.7.09 directing applicant to pay interim maintenance to respondents as stated above. Copy of the order is Annexure-P/l. Copy of interim application is Annexure-P12. Copy of application filed by respondent No.1 under Section 125 CrPC is AnnexureP/3. It is contended that impugned order is illegal as under Section 125 CrPC maximum maintenance can be awarded upto sum of Rs.3,000/-. Therefore, impugned order is liable to be set aside. 4. For deciding the matter in hand, it would be appropriate to examine relevant provisions of law. Sub-sections (1) and (2) of section 125 of the Code, as they were originally enacted in 1973, read thus: "125. Order of maintenance of wives, children and parents; - (1) if any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain. Sub-sections (1) and (2) of section 125 of the Code, as they were originally enacted in 1973, read thus: "125. Order of maintenance of wives, children and parents; - (1) if any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain. herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation - For the purpose of this Chapter;- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1975) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Such allowance shall be payable from the date of the order, or if so ordered, from the date of the application for maintenance." (emphasis supplied). Bare reading of sub-section (1) of section 125 leaves no room for doubt that if any person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself or his legitimate (or illegitimate) child' (children) unable to maintain itself (themselves), or his father, or mother, unable to maintain himself or herself, a Court, upon proof of negligence or refusal, order such person to pay maintenance to his wife or child (children) or parents, as the case may be. It is also clear that maximum amount which could be referred to be paid was Rs.500/- p.m. which was clear from the expression "not exceeding Rs.500/- in the whole. Thereafter, as per State Amendments (Madhya Pradesh) in Section 125 sub-section (1) for the words "five hundred rupees" words "three thousand rupees" were substituted. Madhya Pradesh Act 10 of 1998, section 3 (w.e.f.29-5-1998) This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words "not exceeding five hundred rupees in the whole" have been omitted. 5. It is apparent that the ceiling which was fixed under the original enactment of 1973 of Rs.500/- p.m. has been removed and now it is open to a Court under the amended law to fix such amount as it 'thinks fit'. In the case of Shail Kumari Devi and another vs. Krishan Bhagwan Pathak, 2009(1) M.P.L.J. (Cri.) 11 it is held by the Hon 'ble Supreme Court that in absence of any express bar or prohibition the Court by necessary implication could make interim order of maintenance subject to final outcome of the application. It is further held that before amendment of 2001 ceiling of maintenance amount was Rs.500/- only and after an amendment it is open to a Court under amended law to fix such amount as it thinks fit. 6. Considering the above enunciation of law it transpires that looking to the social and economic status of parties and facts and circumstances of the case concerned, the Court has affixed a reasonable amount of interim maintenance. Hence order passed by the Family Court is impeccable and does not warrant any interference by this Court. 7. Accordingly, the revision is dismissed without notice to the respondents.