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2016 DIGILAW 1710 (HP)

Lata Devi v. Madan Lal

2016-08-17

P.S.RANA

body2016
ORDER : P.S.Rana, J. Present petition is filed under Section 482 of the Code of Criminal Procedure 1973 read with Article 227 of Constitution of India against order dated 10.9.2014 passed by learned Judicial Magistrate Ist Class Court No.5 Shimla in maintenance case No. 13-4 of 2013 title Smt. Lata Devi and another Vs. Madan Lal. Brief facts of the case: 2. Smt. Lata Devi wife of Sh Madan Lal and minor son Suraj aged seven years filed petition under section 125 of the Code of Criminal Procedure 1973 for grant of maintenance allowance. It is pleaded that Smt. Lata Devi is legally wedded wife of Sh Madan Lal and he is presently posted as peon cum chowkidar in government high school Chenog Tehsil and District Shimla. It is further pleaded that marriage of Lata Devi was solemnized on 10.7.2005 and out of wedlock one son namely Master Suraj aged seven years born. It is further pleaded that Sh Madan Lal was appointed as peon cum chowkidar fifteen years back and he is drawing salary of more than Rs. 17000/- (Seventeen thousand) per month. It is further pleaded that for the last one year Sh Madan Lal has left his house and has started living with his sister and brother in law at village Satrol post office Mamleegh Tehsil Kandaghat District Solan HP. It is further pleaded that Sh Madan Lal is not providing any maintenance allowance to Smt Lata Devi and minor son Suraj. It is further pleaded that Sh Madan Lal has neglected Smt. Lata Devi and minor son Suraj. It is further pleaded that Sh Madan Lal has Rs.400000/- (Four lacs) in his general provident fund (GPF) account. It is further pleaded that Smt. Lata Devi and her son Suraj are entitled for maintenance allowance to the tune of Rs. 6000/- (Six thousand) per month. Prayer for acceptance of petition filed under Section 125 Cr.PC sought. 3. Per contra response filed on behalf of Sh Madan Lal pleaded therein that petition is not maintainable and petitioners have not come to court with clean hands and they have suppressed material facts. It is further pleaded that present petition filed just to harass non-petitioner. It is admitted that Madan Lal is government servant and is posted as peon cum chowkidar in government High School Chenog Tehsil and District Shimla. It is further pleaded that present petition filed just to harass non-petitioner. It is admitted that Madan Lal is government servant and is posted as peon cum chowkidar in government High School Chenog Tehsil and District Shimla. It is further pleaded that Madan Lal is handicapped person and has permanent disability to the extent of 60%. It is further pleaded that Madan Lal is also supporting his mother namely Kalawati aged 90 years. It is further pleaded that Madan Lal did not beat Smt. Lata Devi at any point of time because he is disabled person. Prayer for dismissal of maintenance petition sought. 4. Smt. Lata Devi has filed rejoinder and reasserted the allegations mentioned in the petition. Smt. Lata Devi and Suraj also filed application for grant of interim maintenance during pendency of application filed under section 125 Cr.PC. learned Trial Court granted maintenance allowance to Smt. Lata Devi and minor son Suraj to the tune of Rs.1500-/ (One thousand five hundred) per month from the date of filing of petition. 5. Feeling aggrieved against inadequate grant of maintenance allowance present petition is filed by wife and minor son. 6. Court heard learned Advocate appearing on behalf of petitioners and learned Advocate appearing on behalf of nonpetitioner and also perused the record carefully. 7. Following points arise for determination in the present petition. (1) Whether petition filed under Section 482 Cr. PC read with Article 227 of the Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition?. (2) Final Order. Findings upon point No.1 with reasons. 8. Submission of learned Advocate appearing on behalf of petitioners that adequate interim compensation not granted by learned Judicial Magistrate in view of the fact that gross pay of non petitioner is Rs.18564/- (Eighteen thousand five hundred sixty four) as per document annexure P5 placed on record is accepted for reasons hereinafter mentioned. It is well settled law that maintenance allowance under section 125 of the Code of Criminal Procedure 1973 is granted to protect woman and children from vagrancy and destitution. It is well settled law that order passed under section 125 of the Code of Criminal Procedure 1973 is summary proceeding order. See AIR 1999 S.C. 3348 title Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another. It is well settled law that order passed under section 125 of the Code of Criminal Procedure 1973 is summary proceeding order. See AIR 1999 S.C. 3348 title Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and another. It is well settled law that maintenance include (1) Food expenses (2) Clothing expenses (3) Medical expenses (4) Education expenses (5) Residential accommodation expenses. It is prima facie proved on record that non-petitioner is drawing gross salary to the tune of Rs.18564/- (Eighteen thousand five hundred sixty four) as per annual salary statement for the financial year 2013-2014 annexure P5 placed on record. It is well settled law that wife and children are legally entitled to maintenance allowance to the extent of 1/3rd of income. 9. Submission of learned Advocate appearing on behalf of non petitioner that non petitioner is disabled person to the extent of 60% and he has to maintain his mother and he has also to engage attendant and on this ground petition filed by petitioners be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. It is prima facie proved on record that non-petitioner is government employee and he is drawing gross salary to the tune of Rs.18564/- (Eighteen thousand five hundred sixty four) per month as per annual salary statement for the financial year 2013-2014 annexure P5 placed on record. It is also prima facie proved on record that petitioner No.1 is the wife of non-petitioner and she has no source of income to maintain herself. It is prima facie proved on record that co-petitioner No.2 Suraj is minor son of non-petitioner. Keeping in view the status of parties, keeping in view income of non-petitioner and keeping in view price index as of today Court is of the opinion that petitioners are entitled to maintenance allowance to the extent of 1/3rd income of non petitioner. Point No.1 is answered in affirmative. Point No.2 (Final Order). 10. In view of findings on point No.1 petition is allowed and interim maintenance allowance granted by learned trial court is enhanced to Rs.6000/- (Six thousand) per month from the date of filing of petition as prayed till disposal of main petition filed under section 125 code of criminal procedure 1973. Out of enhanced maintenance allowance wife of non-petitioner namely Smt. Lata Devi will be entitled for maintenance allowance to the tune of Rs. Out of enhanced maintenance allowance wife of non-petitioner namely Smt. Lata Devi will be entitled for maintenance allowance to the tune of Rs. 3000/- (Three thousand) per month and co-petitioner No. 2 namely Suraj will be entitled to maintenance allowance to the tune of Rs.3000/- (Three thousand) per month from the date of filing of petition. Order of learned trial Court is modified to this extent only. Annual salary statement for the financial year 2013-2014 of non-petitioner namely Madan Lal w.e.f. 1.3.2013 to 28.2.2014 annexure P5 placed on record will form part and parcel of order. Observation made hereinabove is strictly for the purpose of deciding present petition and shall not effect merits of the case in any manner. File of learned Trial Court along with certify copy of order be sent back forthwith. Parties are directed to appear before learned Trial Court on 31.8.2016. Petition is disposed of. All pending applications if any also disposed of.