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2009 DIGILAW 2224 (PNJ)

Dharmender v. State of Haryana

2009-12-22

AUGUSTINE GEORGE MASIH

body2009
ORDER Augustine George Masih, J. (Oral) - The present petition under Section 482 Criminal Procedure Code has been preferred by the petitioner, challenging the order dated 19.03.2008 (Annexure-P-1), passed the learned Additional Chief Judicial Magistrate, Sonepat, and the order dated 08.12.2009 (Annexure-P-2), passed by the learned Sessions Judge, Sonepat. 2. An application under Section 125 Criminal Procedure Code was preferred by respondent No. 2/wife and respondent No. 3/minor son of the petitioner for grant of maintenance. It is an admitted position that Smt. Santosh/respondent No. 2 was married with the petitioner Dharmender on January 22, 1999. Out of the wedlock, a male child was born, who is respondent No. 3, namely, Rohit, who is now ten years old. The mother and son, i.e. respondents No. 2 and 3 are living separately at the matrimonial home of respondent No. 2. The father of respondent No. 2 is employed as a peon with Food Supplies Department and her brother is a dairyman. The birth of the male child took place at the parental home of respondent No. 2 and all the expenses were borne by her father. Nothing has been brought on record by the petitioner to suggest that respondent No. 2 has any source of income. Since respondents No. 2 and 3 have no source of income and the petitioner was the person on whom they were dependent, who was not ready to take her as is apparent from the fact that there being strained relations between the petitioner and respondent No. 2 since the very beginning of the marriage and instead of filing a petition under Section 9 of the Hindu Marriage Act for restitution of Conjugal Rites, he straight away preferred a petition under Section 13 of the Hindu Marriage Act. This shows that the petitioner wanted to get rid of respondent No. 2. A decree of divorce was passed in favour of the petitioner, but on an appeal preferred by respondent No. 2/wife in the High Court, the operation of the impugned judgment and decree passed under Section 13 of the Hindu Marriage Act stands stayed. 3. Counsel for the petitioner contends that the learned trial Court had, vide order dated 19.03.2008 (Annexure-P-2) granted maintenance in favour of respondents 2 and 3 at the rate of Rs. 3. Counsel for the petitioner contends that the learned trial Court had, vide order dated 19.03.2008 (Annexure-P-2) granted maintenance in favour of respondents 2 and 3 at the rate of Rs. 2,000/- per month to each of two respondents from the date of filing of the petition On a revision petition preferred by the petitioner, the said amount of maintenance had been reduced to a sum of Rs. 1,500/- each per month as maintenance allowance from the date of filing of the petition. He challenges these two orders on the ground that the learned Courts below have failed to properly assess the income of the petitioner and without assessment of the income, no maintenance allowance could be granted to respondents No. 2 and 3. He contends that there is no property in the name of the petitioner and the property at the hands of his father could not be taken into consideration by the Courts below for granting maintenance to respondents No. 2 and 3. He on this basis prays that the present petition be allowed and the orders passed by the Courts below be set aside. 4. I have heard counsel for the petitioner and have gone through the records of the case. 5. It is true that for grant of maintenance to respondent No. 2/wife and minor son, income of father has to be taken into consideration. In the present case, it has come on record that the petitioner is the sole surviving son of his father, who owns agricultural lands at village Sukhrali in District Gurgaon and village Aurangpur in District Jhajjar. That apart the petitioner has a couple of residential houses, located in Gurgaon City, which have been rented out. The petitioner is residing with his father in a joint family. In the said family, a widow and two children of his brother are also residing. All expenses of the widow of the brother of the petitioner and two minor children is borne out from the joint family income. There is enough evidence on record, which points towards the petitioner being possessed of sufficient means to take up the responsibility of maintenance of his wife and minor son. He is a man of means and is capable of taking employment as is apparent from the evidence that he had, as a matter of fact, worked in a Company at Gurgaon. He is a man of means and is capable of taking employment as is apparent from the evidence that he had, as a matter of fact, worked in a Company at Gurgaon. Apart from the agricultural income, there is rental income as well. The orders passed by the Courts below are based on proper appreciation of pleadings and submissions of the parties. In these days of inflation, where the costs of living and the prices of essential commodities are soaring, the amount of Rs. 1,500/- per month to each of respondents No. 2 and 3, is fully justified. Merely because the lands are not in the name of the petitioner, does not mean that the income gained from the said properties is not being shared by the petitioner when it has come on record that he is working with his father, residing with him and sharing kitchen and is the only surviving son of his father. 6. Chapter IX of the Code of Criminal Procedure contains Sections 125 to 128 Criminal Procedure Code It deals with maintenance of wives, children and parents and provides for a mode of preventing vagrancy or at least to prevent its consequence. These provisions are intended to fulfil the social purpose as it compels a person to perform his moral obligation, which he owes to the Society, with respect to his wife, children and parents. It does not provide for the wife, children and parents to maintain standard of living, which is luxorious nor penurious, but a modest standard consistent with the status of the family. It provides for a quick, speedy, and simple relief to the needy, so that the person, who despite having sufficient means, neglects or refuses to maintain his wife, minor children or the parents, is compelled to maintain them and in the process would save them from being driven to a life of vagrancy, immorality or crime for their survival. Chapter IX is a beneficial piece of social legislation, which has been enacted for the benefit of unprivileged, who are neglected and fore-saken with no source of income of their own to support themselves. The provisions of Section 125 Criminal Procedure Code being social in nature, deserve to be given a liberal interpretation, so that basic benefit is given to the person entitled to and the relief is received by the needy. 7. The provisions of Section 125 Criminal Procedure Code being social in nature, deserve to be given a liberal interpretation, so that basic benefit is given to the person entitled to and the relief is received by the needy. 7. It has come on record that the wife of the petitioner, i.e., respondent No. 2 has no source of income and is fully dependent upon her father and her brother for even day-to-day needs, what to say of educational and other expenses, which are to be incurred on the minor son/respondent No. 3. The factum of respondent No. 2 being legally wedded wife and respondent No. 3 son of the petitioner, is not in dispute. The moral responsibility and obligation on the petitioner is paramount. The petitioner is well off and has means to support both his wife and son. The maintenance amount granted to the wife and minor son, when they have no independent source of income, is in accordance with and in consonance with the spirit of beneficial Legislation, which provides for grant of maintenance for survival and to lead a dignified life. The wife and minor child cannot be left at the mercy of others, where they have to beg and borrow for their livelihood to survive. The technicalities cannot be used as a tool to deprive the benefit of liberal interpretation and the Legislation, for which the Legislature has incorporated the provisions. The interpretation, which supports and enhances the intention of the Legislature deserves to be given effect to. Keeping in view the spirit of the Legislation, the orders as passed by the Courts below, which have been impugned herein, do not call for any interference by this Court. 8. Powers under Section 482 Criminal Procedure Code deserve to be exercised sparingly, especially when Second Revision Petition is barred under the Code of Criminal Procedure. Section 397 (3) Criminal Procedure Code specifically lays down that if an application under this Section is either made to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. Section 397 (3) Criminal Procedure Code specifically lays down that if an application under this Section is either made to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. The present petition is in the form of Second Revision Petition, which has been specifically barred and in the garb of petition under Section 482 Criminal Procedure Code, powers of Second Revisional Court by the High Court cannot be exercised., Once a revision petition against order of the Magistrate has been dismissed by the Sessions Judge, Second Revision Petition before the High Court under Section 482 Criminal Procedure Code would not be maintainable. However, powers under Section 482 Criminal Procedure Code can be exercised by the High Court in exercise of its inherent jurisdiction only when there is an abuse of process of Court or the interest of justice otherwise so requires. The present case is not of the nature where this Court should use its discretionary inherent powers. 9. Finding no merit in the present petition, the same stands dismissed. Petition dismissed.