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Himachal Pradesh High Court · body

2010 DIGILAW 1203 (HP)

Gurdas Ram v. Krishna

2010-11-09

SURINDER SINGH

body2010
JUDGMENT : Surinder Singh, J. The present revision petition has been directed by the husband-petitioner against the judgment dated 28.6.2008 passed in case No. 3-FTC/10 of 2008 whereby the trial court judgment was modified by enhancing the amount of maintenance to the respondent-wife and her disabled child. 2. Heard and gone through the record. 3. Relationship of the parties to the lis is not disputed. Smt. Deepa Thakur respondent No. 3 got married during the pendency of the petition under Section 125 of the Code of Criminal Procedure, before the learned trial Court as such no maintenance amount was awarded to her, whereas the learned trial Court awarded an amount of `1500/- per month to each of respondents No. 1 and 2. Nikhil another son of the petitioner is residing with petitioner-husband and is stated to be presently studying in the 10th standard. Minor respondent No. 2 is alleged to be paralytic 100% handicapped residing with his mother to whom she is looking after. 4. Petitioner-husband is Junior Engineer in the Himachal Pradesh State Electricity Board (HPSEB). Both the parties are residing in the same house, but in separate accommodation. 5. Respondents No.1 and 2 sought enhancement by filing revision petition in the Court of Sessions. After examining the record and considering the fact that respondent No. 2 is physically disabled and besides his maintenance wife also required the medical expenses for his treatment, the amount was enhanced and modified to `3000/- per month to the wife and ` 4000/- per month for the handicapped minor son. 6. Petitioner-husband felt dissatisfied by the impugned judgment as such filed the instant petition on the ground that his take home salary was only ` 10,000/- per month and the court below also ignored the fact that respondents No. 1 and 2 were residing in his house, the rental value of which is about `2500/-to `3000/- per month. The learned Additional Sessions Judge (FTC) wrongly appreciated the evidence on record. It is also contended that petitioner had also spent `6 lacs for the treatment of respondent No. 2 in CMC Ludhiana by taking a loan from his GPF account. Even he had to pay the loan amount which was incurred upon the construction of the house wherein the respondents have been residing. 7. It is also contended that petitioner had also spent `6 lacs for the treatment of respondent No. 2 in CMC Ludhiana by taking a loan from his GPF account. Even he had to pay the loan amount which was incurred upon the construction of the house wherein the respondents have been residing. 7. The salary certificate of the petitioner was not furnished by him either during the trial of the case or in the revision petition filed before the Court of Sessions by the respondents. But now the salary certificate in respect of the petitioner was stated to have been obtained by the respondents herein under R.T.I. Act and is placed on record. When confronted with this, learned counsel for the petitioner had no answer. The said certificate shows the basic pay of the petitioner to the tune of `26,070/-and the total emoluments comes to `34703/- per month inclusive of house rent and other allowances admissible under the Rules. The contribution to the GPF account is ` 10,000/- per month and ` 2800/- is being deducted towards society- loan besides benevolent fund and GIS ` 30/- each and Bank loan to the tune of ` 2300/-. Thus the net pay payable to him is `19,543/-. Out of this amount, the petitioner can easily afford to pay an amount of ` 7000/-as modified by the learned Additional Sessions Judge, particularly keeping in view 100% disability of the minor respondent son and also the need and status of the wife to place her in a same position as she was earlier while living with her husband, which is neither an incentive to live separately from her husband nor an unnecessary burden upon the petitioner. Rather it is his obligation to maintain respondents. 8. In fact, Section 125 of the Code of Criminal Procedure prescribes a summary procedure. The findings are not final and the parties can agitate their rights in a Civil Court. It is a measure of social justice falling with in the constitutional sweep of Articles 15 (3) and 39, enacted to protect the weaker sections like women and children, a secular safeguard irrespective of the personal laws of the parties. The findings are not final and the parties can agitate their rights in a Civil Court. It is a measure of social justice falling with in the constitutional sweep of Articles 15 (3) and 39, enacted to protect the weaker sections like women and children, a secular safeguard irrespective of the personal laws of the parties. The object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children (now parents also), so that they are not left beggared and destituted on the scrap-heap of society, thereby driven to a life of vagrancy, immorality and crime for their subsistence. The jurisdiction of the Magistrate is preventive and not remedial and certainly not punitive. Having a social purpose, it must receive a compassionate expanse of the sense that the words permit. In this generous jurisdiction, a broader perception and appreciation of facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof. 9. Looking to the facts from every angle and also the fact that the record also reveals that the petitioner-husband had filed a divorce petition against the respondent-wife on the ground of unchastity, which was dismissed, the order of maintenance and quantum as modified by the learned Additional Sessions Judge is not excessive in view of the salary of the petitioner. 10. The learned counsel for the petitioner has failed to point out any illegality or impropriety in the judgment of the learned Additional Sessions Judge. As such no interference is called for. Accordingly the petition is dismissed. 11. Interim order passed on 22.8.2008 in Cr.M.P. No. 529 of 2008 stands vacated. Petitioner-husband shall pay an amount of monthly maintenance to respondents No.1 and 2 as modified and ordered by the learned Additional Sessions Judge. Disposed of.