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Madhya Pradesh High Court · body

2016 DIGILAW 546 (MP)

Afsana Bano v. Ausaf Ahemad

2016-07-12

VED PRAKASH SHARMA

body2016
ORDER 1. With the consent of learned counsel for the parties matter is heard finally. 2. This revision petition under sections 397/401 of the Code of Criminal Procedure, 1973 (for short, hereinafter referred to as CrPC,) is directed against the order dated 13.6.2014 passed by learned Additional Principal Judge, Family Court, Gwalior in MJC No.127/2012 whereby maintenance at the rate of Rs.1,200/- per month and Rs.800/- per month has been granted under section 125 CrPC, respectively, in favour of the petitioner and her daughter. 3. It is submitted by learned counsel for the petitioner that the learned Principal Judge has not properly evaluated the evidence adduced by the petitioner and, therefore, the impugned order suffers from illegality and impropriety. Learned counsel in this regard has placed on reliance on the pronouncement in the case of Asif Saied v. S.M.Unnissan Rana and others, reported in 2012(1) MPLJ 134 . The grievance of the petitioner is that maintenance amount granted by the learned Principal Judge is on the lower side and in view of inflation and the contemporary needs for sustainance, the same is totally inadequate, therefore, prayer has been made for enhancement of the maintenance amount. 4. Per contra, the learned counsel for the respondent has submitted that the quantum of maintenance has been fixed by the learned Principal Judge after considering evidence adduced by both the parties. It is further submitted that the respondent is suffering from serious illness and is unable to earn his livelihood, though at the time of pendency of the proceedings under section 125 CrPC, before the Principal Judge, he was employed as a teacher in a private school. It is submitted that the learned Principal Judge has computed the income of the respondent as Rs.6,000/- per month without any basis, therefore, it cannot be said that the maintenance amount determined by the Court is on the lower side. It is further submitted that if petitioner feels that the amount of maintenance is required to be enhanced, resort can be made to the provisions of section 127 CrPC. 5. Heard the learned counsel for the parties and perused the record. 6. The learned Principal Judge on due consideration of the evidence adduced by both the parties has come to the conclusion that the income of the petitioner is around Rs.6,000/- per month. 5. Heard the learned counsel for the parties and perused the record. 6. The learned Principal Judge on due consideration of the evidence adduced by both the parties has come to the conclusion that the income of the petitioner is around Rs.6,000/- per month. After reaching this conclusion, next question would be what should be the reasonable amount for maintenance payable to the petitioner and her daughter ? 7. In Shamima Farooqui v. Shahid Khan [(2015)5 Supreme Court Cases, 705], the apex Court has considered at length the object behind grant of maintenance to the wife and the children under section 125 of CrPC and that what should be criteria to decide the quantum of maintenance. It has further been considered, as to whether, plea raised by the husband that he does not have means to pay can be an excuse to refuse remedy available under section 125 of CrPC. The relevant part of the report runs as under : “It can never be forgotten that the inherent and fundamental principle behind section 125 of CrPC is for amelioration of the financial status of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principal of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the martial home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of section 125 of CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. As long as the wife is held entitled to grant of maintenance within the parameters of section 125 of CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to received maintenance under section 125 of CrPC, unless disqualified, is an absolute right.” 8. In the backdrop of the aforesaid legal position, I am of the view that the amount of Rs.800/- per month granted for maintenance of daughter is definitely on the lower side. Likewise, an amount of Rs.1,200/- per month for the petitioner/wife also cannot be said to be reasonably sufficient in the wake of existing inflationary trend because not only shelter has to be arranged but also the needs relating to food, clothing etc., are also to be taken care of. Therefore, looking to the income of the petitioner, the amount for maintenance fixed by the learned Principal Judge with regard to the petitioner and her daughter clearly is on the lower side. 9. Accordingly, it will be just and proper to enhance the amount of maintenance. Out of the total monthly earning assessed by the learned Principal Judge, the petitioner can spend 50% of his earning for himself and rest 50% can be made available for the wife and daughter. Thus, the maintenance amount payable to the daughter is raised from Rs.800/- to Rs.1,200/- per month and the amount payable to the petitioner/wife is raised from Rs.1,200/- to Rs.1,800/- per month. 10. This petition stands disposed of accordingly. Vishal Tripathi for petitioner; F. A. Shah for respondent.