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2015 DIGILAW 149 (JK)

Farooq Ahmad Shalla v. Muntaha Farooq

2015-04-03

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J. 1. Brief facts of the case in nutshell are that one Mymoona Begum D/o Late Gh. Mohi-ud-din Rather R/o Rohama Rafiabad and respondent-Muntaha preferred an application under Section 488 Cr. P. C before the Court of Judicial Magistrate 1st Class, Baramulla seeking maintenance from the petitioner herein, which Court, by virtue of order dated 12.12.2009 granted interim maintenance in their favour. Feeling aggrieved of the said interim order, petitioner Farooq Ahmad Shalla filed a revision petition before the Court of Additional Sessions Judge, Baramulla, contending therein that Mymoona Begum (respondent No. 1 in the aforesaid revision petition), who was married with the petitioner, subsequently with the intervention of Auqaf Committee, Yaseen Colony, Arampora, was divorced and in this regard a Divorce Deed was executed on 06.10.2009 and she was paid the entire amount of Mehreen and other belongings by the petitioner herein. Learned Additional Sessions Judge, Baramulla, vide order date 26.04.2010, disposed of the revision petition with the following observations: "It is, therefore, seen that the parties have settled their dispute in amicable manner by having resorted to the compromise outside the Court which has put at rest their differences. In the light of the compromise, the petitioner is bound down to pay an amount of Rs. 6000/-in lump sum for the period of iddat in favour of respondent No. 1 by or before 10.5.2010, the date which is fixed for the appearance of the parties in the trial court. The petitioner is also directed that he would pay an amount of Rs. 800/as maintenance in favour of respondent No. 2, his minor daughter, which would be payable from the date of institution of the application in the trial court for the said purpose. On paying/depositing the amount of Rs. 6000/as the amount of maintenance for the period of iddat, the trial court would dispose of the application which is subjudice before him. The proceedings before the trial court would, therefore, culminate conclusively on payment/deposition of the amount of Rs. 6000/as maintenance for the period of iddat and the petitioner would be bound to pay an amount of Rs. 800/per month as maintenance in favour of the minor daughter, respondent No. 2, without any fail from the date of institution of the application on or before 10th of every month in which it has become due. 6000/as maintenance for the period of iddat and the petitioner would be bound to pay an amount of Rs. 800/per month as maintenance in favour of the minor daughter, respondent No. 2, without any fail from the date of institution of the application on or before 10th of every month in which it has become due. The arrears on account of maintenance for the respondent No. 2 shall be liquidated by the petitioner within the period of three months from the date of this order...." Subsequently, respondent herein through her mother moved an application seeking enhancement of monthly maintenance 'allowance granted vide order dated 12.12.2009 on the ground that the applicant(respondent herein) is a minor and a school going child, her mother has no source of income to bear her expenses. After considering the evidence led by both the parties, the trial court vide order dated 09.04.2014, allowed the application and enhanced the monthly maintenance allowance to Rs. 1600/(rupees sixteen hundred) per month and also directed that the order of enhancement shall operate with effect from 1st January, 2013. Aggrieved of the aforesaid order, petitioner herein filed a criminal revision before the Court of 1st Additional Sessions Judge, Baramulla, which Court vide order dated 27.06.2014 dismissed the revision. 2. Aggrieved of orders dated 09.04.2014 and 27.06.2014, petitioner herein questions the same through the medium of present petition on the ground that both the Courts below have not appreciated the evidence as well as provisions of law and also erred in allowing the application filed under Section 489 Cr. P. C while enhancing the maintenance in favour of respondent herein with effect from the date of application. Learned counsel also argued that as per the provisions of law, the enhancement, if any, should have been made from the date of order. He further argued that the witnesses produced and the material placed before the trial Court made it clear that the monthly income of the petitioner is Rs. 4000 to 5000/only; the trial Court, therefore, erred in enhancing the maintenance. The petitioner as such cannot bear the enhanced amount of maintenance in view of his meager income. He, therefore, pleaded that the impugned orders are liable to be set aside. 4000 to 5000/only; the trial Court, therefore, erred in enhancing the maintenance. The petitioner as such cannot bear the enhanced amount of maintenance in view of his meager income. He, therefore, pleaded that the impugned orders are liable to be set aside. In support of his contentions, learned counsel also relied on a judgment of this Court rendered in case, captioned as, "Bansi Lal v. Pushpa Devi" reported in 1981 KLJ 458 : JKJ Soft JKJ/1595 wherein it has been observed that an order for alteration of allowance can be made only from the date of order under Section 489 Cr. P. C and not from the date of application seeking alteration. 3. On the other hand, learned counsel appearing for respondent stated at the Bar that he would not prefer to file any written objections, rather is ready to argue the matter. He, accordingly, argued that the trial Court in fact has not enhanced the maintenance from the date of filing of application; rather it has taken a lenient view by granting maintenance with effect from 1st January, 2013, although the application under Section 489 Cr. P. C was instituted on 16.05.2011. He, thus, pleaded that the trial Court has rightly allowed the application, and the order passed in this regard has rightly been upheld by the revisional Court. 4. Heard learned counsel for the parties and considered the pleadings in the petition. 5. Admittedly, when the petition under Section 488 Cr. P. C was filed before the learned trial Court, respondent-Muntaha was only of the age of two years. She is now a grown up and school going child, which fact is not disputed by the petitioner. It is unimaginable that in these days in view of inflation of prices of essential commodities how a school going child could meet her necessary expenses with a meager amount of Rs. 800/. Needless to mention here that the very object of the provisions of Section 488 Cr.P.C. is to avoid vagrancy of the applicant. It is the natural and fundamental duty of every person to maintain his wife and children so long as they are not able to maintain themselves. The provisions of Section 489 Cr.P.C. provide for alteration or cancellation of the maintenance allowance on proof of change of circumstances, if the Court thinks fit. It is the natural and fundamental duty of every person to maintain his wife and children so long as they are not able to maintain themselves. The provisions of Section 489 Cr.P.C. provide for alteration or cancellation of the maintenance allowance on proof of change of circumstances, if the Court thinks fit. The word "circumstance" has been interpreted by the Hon'ble Supreme Court in the judgment rendered in the case captioned "Bhagwan Dutt v. Kamla Devi" reported in AIR 1975 SC 83 , wherein, it was held that "The "circumstances" contemplated by S. 489(1) must include financial circumstances and in that view, the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife". 6. The Hon'ble Apex Court in its recent judgment rendered in the case titled "Bhuwan Mohan Singh v. Meena & ors" (Criminal Appeal No. 1331 of 2014), while discussing various previous judgments, has observed as under: "We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in sub-section (1) of Section 125 of the Code in absence of express provision to that effect. In the present case, as we find, there was enormous delay in disposal of the proceedings under Section 125 of the Code and the most of the time the husband had taken adjournment and sometimes the court dealt with the matter showing total laxity. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court. However, we direct, as prayed by the learned counsel for the respondent, that he may be allowed to pay the arrears along with the maintenance awarded at present in a phased manner. Learned counsel for the appellant did not object to such an arrangement being made. In view of the aforesaid, we direct that while paying the maintenance as fixed by the learned Family Court Judge per month by 5th of each succeeding month, the arrears shall be paid in a proportionate manner within a period of three years from today." 7. In view of the law laid down in the aforesaid judgment, the plea raised by the petitioner that the trial Court cannot grant maintenance under Section 489 Cr.P.C. from the date of application is not available to him, that too when the trial Court while taking a lenient view has granted maintenance with effect from 1st January, 2013, although the application under Section 489 Cr.P.C was filed on 16.05.2011. 8. The second argument put forth by the learned counsel for petitioner that the amount enhanced by the trial Court is more than the monthly income of the petitioner is not tenable in view of the judgment passed by this Court in Ch. Hassan Ganai v. Mst. Raja Bibi, 1972 KLJ 415: JKJ Soft JKJ/10888. What has been observed therein is that "the word 'means' in section 488 Cr.P.C. does not only signify means like income, revenue, or estate or the definite employment but also includes the capacity to earn money. Accordingly, if a man is healthy and able bodied, he must be taken to have means to support his wife and children....." 9. Even otherwise, the application for enhancement of maintenance was filed before the trial Court on 16.05.2011 and as per his own admission before the trial Court, the monthly income of petitioner was Rs. 4000/- to Rs. 5000/- per month; meaning thereby the petitioner was earning Rs. 4000/- to Rs. 5000/- per month during the year 2011. Even otherwise, the application for enhancement of maintenance was filed before the trial Court on 16.05.2011 and as per his own admission before the trial Court, the monthly income of petitioner was Rs. 4000/- to Rs. 5000/- per month; meaning thereby the petitioner was earning Rs. 4000/- to Rs. 5000/- per month during the year 2011. Now it is 2015, almost five years are going to lapse since May, 2011. With the passage of time the monthly income of petitioner must have been increased to a great extent, while the respondent herein being a school going child has only been allowed Rs. 1600 per month to meet her necessary expenses, that too with effect from 01.01.2013. Therefore, how could it lie in the mouth of petitioner to pretend that the amount enhanced by the trial Court is more than his monthly income and he cannot bear the same; more so when there is nothing contrary on the file? So this contention of petitioner cannot be allowed to prevail. 10. It is no more res integra that power under Section 561-A Cr.P.C. can be exercised by the Courts rarely and in exceptional circumstances, when there is a chance of abuse of process of the Court or there is a chance of miscarriage of justice. No such exceptional case has been made out by the petitioner in the instant case, which would warrant setting aside of the orders, impugned herein. 11. The law laid down by the Hon'ble Apex Court in Bhuwan Mohan Singh v. Meena & ors (supra) squarely applies to the case in hand. Thus, considering the change of financial circumstances of respondent herein, I do not find any good ground to differ with the view taken by the Courts below. 12. Viewed thus, the petition being devoid of merit is dismissed along with connected Cr. M. P., and the orders dated 09.04.2014 and 27.06.2014 passed by the Courts below, impugned herein, are, accordingly, upheld. Copy of the order be sent to the trial Court for information.