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2012 DIGILAW 522 (HP)

Som Kala v. Duni Chand

2012-09-10

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Justice Dharam Chand Chaudhary, Judge. Aggrieved by the order dated 9.5.2011, passed by learned Additional Sessions Judge, Mandi, Camp at Karsog in Criminal Revision No.13 of 2008, the petitioners have approached this Court for quashing the same. 2. In a petition registered as Petition No.104-IV of 2005, under Section 125 Cr.P.C. while Smt. Som Kala, petitioner No.1 was awarded the maintenance at the rate of Rs.500/- per month, vide order dated 16.3.2006, a separate application registered as Petition No.27-IV of 2006, master Nihat and Ms. Sakshi minor petitioners No.2 and 3 in this petition were awarded maintenance allowance @ Rs.300 and Rs.200/- respectively, vide order dated 15.7.2006 by Ld. Addl. Chief Judicial Magistrate, Karsog, against respondent Duni Chand, who is husband of petitioner No.1 and father of minor petitioners No.2 and 3. 3. In view of there being hike in the price index, they preferred a petition under Section 127 Cr.P.C. registered as CMA No.83-IV of 2007 with the prayer to enhance the maintenance @ Rs.500, 300 and 200 respectively already awarded against the respondent. It was their case that the said amount is insufficient to make their both ends meet and also to bear the expenses i.e. admission fee Rs.525/- and monthly fee Rs.110 required for the study of minor petitioners No.2 and 3, who are school going and studying in Sarswati Vidya Mandir Seri Banglow, Karsog. 4. Learned Sub Divisional Judicial Magistrate, Karsog after taking on record the version of the respondent and also the evidence as has come on record by way of own statement of petitioner No.1 and the respondent has enhanced the amount of maintenance from Rs.500 to Rs.1000/- in the case of petitioner No.1 whereas Rs.500/- each in favour of minor petitioners No.2 and 3, from Rs.300 and 200/-respectively awarded earlier, vide order dated 18.3.2008. 5. 5. The respondent, aggrieved by the order of enhancement of the maintenance allowance in favour of the petitioners preferred a petition under Section 397 Cr.P.C. before the Sessions Judge Mandi, which was assigned to Additional Sessions Judge, Mandi, Camp at Karsog, who while accepting the same partly has upheld the enhancement of maintenance allowance from Rs.300 and Rs.200 to Rs.500 each in favour of minor petitioners No.2 and 3, has quashed the order qua enhancement of maintenance allowance from Rs.500 to Rs.1000/- in favour of petitioner No.1, while arriving at a conclusion that the petitioner has concealed the factum of she having been employed as Anganwari Worker and her salary etc. 6. That part of the order passed by learned SDJM, Karsog in Cr.MA No.83-IV of 2007 on 18.3.2008, whereby the enhancement of maintenance allowance from Rs.500 to Rs.1000/- has been quashed, has been assailed in the present petition on the ground inter alia that learned Additional Sessions Judge has failed to appreciate the pleadings and also oral as well as documentary evidence on record suggesting that the income of the father of the respondent from business was Rs.40,000/- per month and the income of the respondent also handsome as he was also working with his father in the Furniture shop. The Additional Sessions Judge allegedly failed to appreciate that the meagre amount of maintenance allowance is not sufficient for their survival particularly when the minor petitioners No.2 is now school going and the expenditure on his admission, uniform charges, boarding charges etc. is Rs. 10,000/- per month. 7. Ms. Tim Saran, learned vice counsel while taking this court through the pleadings and evidence available on record has forcefully contended that the Court below has not appreciated the evidence in its right perspective and erroneously concluded that the petitioner has concealed the facts qua her employment and income etc while reversing the order of enhancement of maintenance allowance in favour of petitioner No.1. Learned counsel has forcefully contended that the petitioner No.1 being working as Anganwari Helper has meagre income by way of honorarium that too being spent by her towards fare of bus as she is residing in a rented accommodation at Karsog and the Anganwari Centre where she is working as helper is situated at Bakhrot. Learned counsel has forcefully contended that the petitioner No.1 being working as Anganwari Helper has meagre income by way of honorarium that too being spent by her towards fare of bus as she is residing in a rented accommodation at Karsog and the Anganwari Centre where she is working as helper is situated at Bakhrot. It is further pointed out that the respondent has contracted second marriage with one Meena Devi and has neglected the petitioners and refused to maintain them. 8. On the other hand, learned counsel representing the respondent has vehemently argued that petitioner No.1 is working as Anganwari Worker and her income is Rs.3500/- per month. The respondent, on the other hand, is stated to be not a man of means nor have any source of income and as such the Court below has rightly declined the prayer of petitioner No.1 for enhancement of maintenance allowance. 9. On analyzing the record of this Court and also the submissions made on both sides, it would not be improper to conclude that learned Additional Sessions Judge has not gone through the evidence as has come on record by way of own statement of petitioner No.1 because it has come in her cross-examination that she is working as Anganwari Helper and getting Rs.3500/- per month. The rent of the room, she hired for residential purposes, is Rs.600/- per month and on account of travelling expenses to perform journey from Karsog to Bakhrot to attend her duties she is spending handsome amount. In view of the testimony of the petitioner in her cross examination, learned Additional Sessions Judge was not justified in concluding that she had concealed her income being earned by her from employment or the money being spent by her towards room rent or bus fare. There is also no force in the contentions raised by learned counsel representing the respondent that she is Anganwari Worker and earned Rs.3500/- per month for the reason that she is working as Anganwari Helper and not Anganwari Worker. The respondent has not produced any evidence suggesting that her salary is Rs.3500/- per month. The facts thus remain that petitioner No.1 is working as Anganwari Helper and earning Rs.1300/- per month. Besides she is getting a sum of Rs.500/- as maintenance from the respondent. The respondent has not produced any evidence suggesting that her salary is Rs.3500/- per month. The facts thus remain that petitioner No.1 is working as Anganwari Helper and earning Rs.1300/- per month. Besides she is getting a sum of Rs.500/- as maintenance from the respondent. Out of this amount she is paying room rent at the rate of Rs.600 per month, bearing travel charges on account of performing journey from Karsog to Bakhrot and back to attend her duties. Remaining amount is not at all sufficient to maintain herself, particularly during these days of exorbitant prices. She has justifiable reasons to live separately from the respondent as he has contracted the second marriage. Not only this, one daughter is also born to him out of this wedlock. In such a situation, the stand of the respondent that he wants the petitioners to live in his company is far fetched and hardly carry any force. I am thus of the considered opinion that petitioner No.1 has justifiable reasons to live away from the company of the respondent. 10. The evidence further reveals that the father of the respondent is running a furniture shop in the name and style of M/s Janta Furniture Industries, and also running a depot of timber. The respondent, admittedly, is working in the said shop with his father as Carpenter. The respondent who is hail and hearty and is carpenter, this Court can take judicial notice of his income not less than Rs.400-500 per day. It cannot thus be believed to be true by any stretch of imagination that he has no source of income and he is not a man of means. 11. In this view of the matter, the enhancement of maintenance allowance in favour of petitioner No.1 from Rs.500 to Rs.1000/- by learned Additional Chief Judicial Magistrate cannot be said to be so excessive that the respondent is not in a position to pay the same to her. The Additional Sessions Judge, is thus not justified in setting aside that part of the impugned order which pertains to the enhancement of maintenance allowance in favour of petitioner No.1. The findings so recorded being the result of misreading of the evidence available on record are not legally sustainable. 12. The Additional Sessions Judge, is thus not justified in setting aside that part of the impugned order which pertains to the enhancement of maintenance allowance in favour of petitioner No.1. The findings so recorded being the result of misreading of the evidence available on record are not legally sustainable. 12. In view of the forgoing reasons, the impugned order to the extent of quashing the enhancement of the maintenance allowance in favour of petitioner No.1 from Rs.500/- to Rs.1000/- is hereby quashed and set aside and that passed by learned Additional Chief Judicial Magistrate Karsog is upheld. 13. The revision petition succeeds and the same is accordingly allowed. Pending application(s), if any, shall also stand disposed of.