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2014 DIGILAW 1388 (MP)

Rayees Khan v. Jahida Bi

2014-10-29

SUBHASH KAKADE

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JUDGMENT : Subhash Kakade, J.:- This revision under Section 397/401 of the Code of Criminal Procedure, 1973, hereinafter in short as "Code", read with Section 19(4) of the Family Courts Act, 1984 has been filed against the order dated 2-1-2014, passed in MJC No. 568/2012, by which learned Principal Judge, Family Court, Bhopal awarded interim maintenance to the tune of Rs. 3,500/- per month to the respondent No. 1, Rs. 3,000/- each to respondent Nos. 3 and 4 and Rs. 2,500/- to respondent No. 5. After perusal of the impugned order and other documents available on record, following facts are not disputed by the parties; hence detailed pleadings are not required to be discussed:-- 2. That, the respondent No. 1 is legally wedded wife of the applicant. 3. That, the respondent Nos. 2 to 5 are children of this couple. 4. That the applicant is posted as Security Officer in the Municipal Corporation, Bhopal. 5. That as per his salary slip for the month of October, 2012 as against total emolument Rs. 40,318/-, he get salary of Rs. 29,983/- as cash in hand. 6. On the above facts and circumstances, learned Family Court allowed interim maintenance allowance to the respondent Nos. 1 and 3 to 5 as mentioned above. 7. Shri Ashish Tiwari, learned Counsel for the applicant submits that the respondent No. 1 is divorced wife of the applicant and he has performed second marriage with the consent of the respondent No. 1, resultantly, changed nomination in the record of employer, i.e., Nagar Nigam, Bhopal. The applicant is also having two children from his second wife. The respondents are residing at the house allotted to the applicant by the employer, therefore the rent of the said house is deducted from his salary directly. On the other hand, the applicant is residing in a rented house paying rent of Rs. 4,000/- per month. Learned Counsel for the applicant has strenuously contended that the respondent No. 1 and other respondents are capable of maintaining themselves, respondent Nos. 4 and 5 and the respondent No. 3/daughter is major, hence, not entitled for any maintenance. It is also pointed out that the applicant has incurred huge expenses on his own treatment as he was affected by the Bhopal Gas Tragedy and was suspended also. Hence, prays for dismissal of the order passed by the learned Family Court. 4 and 5 and the respondent No. 3/daughter is major, hence, not entitled for any maintenance. It is also pointed out that the applicant has incurred huge expenses on his own treatment as he was affected by the Bhopal Gas Tragedy and was suspended also. Hence, prays for dismissal of the order passed by the learned Family Court. Learned Counsel for the applicant finally argued that learned Family Court awarded interim maintenance amount from the date of filing of application, which is against the settled principle of law, hence, erroneous, requires modification. 8. Shri S.D. Khan, learned Counsel for the respondent, vehemently opposed the arguments advanced by the learned Counsel for the applicant and further submitted that looking to the salary receiving by the applicant interim maintenance award passed by the learned Family Court warrants no interference, hence, this revision deserves to be dismissed. 9. Heard learned Counsel for the parties at length, perused the material made available by the parties and also perused the impugned order. After reflecting over the matter, I am implicitly satisfied that on merits, the impugned order, warrants no interference. 10. Section 125 of the Code is a measure of social justice and is specially enacted to protect women and children and as noted by the Apex Court in Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal and others, reported in AIR 1978 SC 1807 , falls within constitutional sweep of Article15(3) reinforced by Article 39 of the Constitution of India, 1950. 11. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted by the Apex Court in the case of Savitaben Somabhai Bhatiya vs. State of Gujarat and others, reported in (2005) 2 SCC 503. 12. In Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316 , the Apex Court observed as follows:-- 13. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. 14. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. 14. In the light of above discussed legal position, the object of the maintenance proceedings is clear that it is a measure of social justice to give effect to natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. 15. It is also held by the Apex Court that interim maintenance pendente lite can be granted. [Please see: Savitri vs. Govind, reported in AIR 1986 SC 984 : (1985) 4 SCC 337 : 1985 SCC (Cr.) 556 : (1985) 2 Crimes 872]. 16. It is well-settled that the wife and children are entitled to maintain standard of living, which is neither luxurious nor penurious and also be lived in decent life yet, as per with the dignity of husband/father. 17. In the case of Shail Kumari Devi and another vs. Krishan Bhagwan Pathak, 2009 (1) MPLJ (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. 18. While deciding an application under Section 125 of the Code, the Court is required to record reasons for granting maintenance to wife, children or parents. Such maintenance can be awarded from the date of order, or if so ordered, from the date of filing of application for the maintenance, as the case may be. For awarding maintenance, from the date of application, express order is necessary, but, no special reasons, however, are required to be recorded by the Court. 19. In present case, the applicant divorced the respondent No. 1 and also turned out his children, neglected to maintain them and married with another woman, these are sufficient grounds that interim maintenance shall be ordered from the date of application. 20. 19. In present case, the applicant divorced the respondent No. 1 and also turned out his children, neglected to maintain them and married with another woman, these are sufficient grounds that interim maintenance shall be ordered from the date of application. 20. The Court is not required to give special reasons while awarding maintenance from the date of petition in respect of children, i.e., for minor respondent Nos. 4 and 5. 21. It is pertinent to mention here that this maintenance petition was filed by the respondents before the learned Family Court, Bhopal on dated 12-12-2012 and the applicant filed reply on dated 20-11-2013 as this date is mentioned on the reply after receiving the copy of the same. It goes to show that the applicant filed the reply after lapse of more than 10 months. Delaying tactics adopted by the husband is sufficient ground for awarding maintenance from the date of application. 22. In such premises, learned Family Court ordered to pay the interim maintenance after filing reply by the applicant from the date of filing of the petition, i.e., 21-12-2012 is justified. 23. Looking to the entire circumstances of the case, status of the parties and salary certificate of the applicant at the most the prayer of the applicant can be considered that the applicant will pay the accumulated amount of maintenance for preceding 12 months of year 2013 in four equal installments, i.e., first three months January, February, and March, 2013 on or before 1-12-2014; second installment April, May and June, 2013 on or before 1-2-2015; third installment July, August and September, 2013 on or before 1-4-2015 and fourth installment October, November and December, 2013 on or before 1-6-2015. And for this payment, the conditions enumerated in the impugned order shall apply in toto. 24. Maintenance allowance is not allowed for respondent No. 2-Ku. Amrin Jahan because at the time of filing application for maintenance she was major as 20 years old. Respondent No. 3-Ku. Afreen Jahan's age is mentioned 16 years in main application. But, it is contended by learned Counsel for the applicant that she is also major as she has attained the age of 18 years. 25. Amrin Jahan because at the time of filing application for maintenance she was major as 20 years old. Respondent No. 3-Ku. Afreen Jahan's age is mentioned 16 years in main application. But, it is contended by learned Counsel for the applicant that she is also major as she has attained the age of 18 years. 25. For deciding the matter of respondent No. 3-Afreen Jahan, it would be appropriate to reproduce relevant exception to the Section 125 of the Code, which reads as under:-- "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." 26. It is directed that learned Family Court after giving fair opportunity to both the parties regarding age of respondent No. 2-Ku. Afreen Jahan shall decide the matter on its merits. However, it is made clear that learned Family Court will not be governed by this order in any manner with regard to age of respondent No. 3. 27. It is pertinent to mention here that civilian of Bhopal City, who are affected from Gas Tragedy are getting appropriate medical treatment facility and appropriate compensation amount also, therefore, on the ground that the applicant is affected by Bhopal Gas Tragedy and expending huge expenses on his own treatment is not justified. 28. For the purpose of Section 125 of the Code, suspension of husband or father cannot be a ground to disallow the maintenance amount to the wife or children because, during the suspension period, he definitely gets suspension allowance equal to 75% of last paid salary amount. 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. Accordingly, this revision is hereby dismissed.