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2017 DIGILAW 1299 (RAJ)

Narender Gaur S/o Durga Prasad v. State of Rajasthan

2017-05-22

P.K.LOHRA

body2017
ORDER : P.K. Lohra, J. Petitioner has preferred this revision petition under Section 19(4) of the Family Courts Act, 1984 read with Section 397/401 Cr.P.C. against impugned order dated 20th of February 2017, passed by learned Judge, Family Court, Hanumangarh (for short, 'learned Family Court'). By the impugned order, learned Family Court has partly allowed the application of respondents No.2 & 3 under Section 125 Cr.P.C for grant of maintenance and quantified the amount to the tune of Rs.4,500/- per month to respondent No.2 and Rs.2,500/- per month to respondent No.3 from the date of filing of the application, i.e., 28.04.2014. 2. Facts, in brief, are that respondent No.2 wife filed an application claiming maintenance for herself and son from petitioner under Section 125 Cr.P.C., before learned Family Court stating therein that marriage between petitioner and respondent No.2 was solemnized on 26.01.2004 at Bishnoi Dharmshala, Bikaner and Vishambar Dayal was the mediator in the marriage. It is averred that after marriage both husband and wife lived at Bikaner but the in-laws were not happy by Stridhan and used to beat and harass her despite the fact that her parents had given dowry beyond their capacity. On the occasion of birth of son Ishan also lot of things were given still the in-laws were not happy and harassed and tortured her even more. Husband Narendra even tried to kill son Ishan by chocking throat and on 20.04.2014 she was badly beaten and given knife blows on which FIR No.70/2014 was got registered at Mahila Thana, Bikaner for Sections 498A, 323, 34 IPC. The application further recites that husband and in-laws also made her to drink Bhabhoot (ash) to disturb her mental balance. It is further averred that lastly the inlaws thrown her out of matrimonial house telling her that without more dowry she has no place in the house and since then she is living at Hanumangarh with her parents. In entirety, the applicant-wife in the application has brought to the fore the cruel behaviour of husband and in-laws subjecting her to physical and mental cruelty. It is averred in the application that applicant has no source of income to maintain herself and son Ishan. In entirety, the applicant-wife in the application has brought to the fore the cruel behaviour of husband and in-laws subjecting her to physical and mental cruelty. It is averred in the application that applicant has no source of income to maintain herself and son Ishan. It is stated that husband is having immovable properties at Khajuwala, Kolayat and Bikaner and also earning handsome amount of about Rupees one lakh from his profession but he is not maintaining wife and son and thereby denying discharge of his legal obligation. With these averments, the applicants prayed for maintenance of Rs.5,000/- for each one of them totalling to Rs.10,000/- per month. 3. The present petitioner-husband filed reply to the application and denied the averments contained therein except solemnization of marriage with respondent No.2 Kalpana and birth of respondent No.3 Ishan. It is averred that applicant-wife is a quarrelsome, jealous, aggressive and stubborn lady and always created a clamorous atmosphere in the family and had not properly discharged her marital obligations and once even gave a blow of knife to kill him which struck on his left hand and pushed him due to which he fell down and sustained injury on his left shoulder. A report of that incident was lodged at Police Station Sadar bearing FIR No.156/14 and the police after investigation filed charge-sheet for offence under Sections 341, 323, 109/34 IPC. As regards the report filed against him, it is averred in the reply it was done so by the applicant to save herself from her criminal deeds. It is further averred that applicant-wife is post-graduate who has also completed professional course and is presently earning Rs.15,000- 20,000 per month from tuition which is sufficient for maintaining the applicants and in addition to that she earns Rs.5,000 to 10,000 per month by tailoring work. With these averments the non-applicant husband prayed for rejection of the application. 4. On the basis of pleadings of parties, learned Family Court framed issues. In support of application, respondent No.2 herself appeared in witness box as AW1 and one Shrikant Sharma as AW2 was examined. In defence, petitioner examined himself as NAW1. 5. With these averments the non-applicant husband prayed for rejection of the application. 4. On the basis of pleadings of parties, learned Family Court framed issues. In support of application, respondent No.2 herself appeared in witness box as AW1 and one Shrikant Sharma as AW2 was examined. In defence, petitioner examined himself as NAW1. 5. Learned Family Court, after hearing the parties and examining the matter, vide order dated 20th of March 2017 has found respondent No.2 wife Kalpana Sharma entitled for maintenance of Rs.4,500/- per month and respondent No.3 son Ishan Gour Rs.2,500/- per month from the date of filing of the application under Section 125 Cr.P.C. 6. Learned counsel for the petitioner herein, vehemently, argued that the quantum of maintenance awarded by the learned Family Court is based on conjectures and surmises and therefore, it is an appropriate case to interfere with the impugned order of granting maintenance. 7. Learned Public Prosecutor opposed the petition and submitted that no illegality or perversity in passing the impugned order by Family Court is committed as such no interference with the impugned order of maintenance is warranted. He also urged that in view of the limited scope in the present petition, the petition is required to be rejected. 8. I have heard learned counsel for the petitioner and perused the impugned order. 9. The object of the maintenance proceedings instituted under the provisions of Chapter IX of the Cr.P.C. 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. Section 125, Cr.P.C. is a measure of social justice and is specially enacted to protect women, children and parents which falls within constitutional sweep of Article 15(3) and is reinforced by Article 39 of the Constitution of India, 1950. 10. Although the expression "maintenance" occurring in Section 125, Cr.P.C. has not been statutorily defined, it includes, undoubtedly, the expenses for food, clothing, residence, medical, educational and other such incidental expenses, relating to the normal pursuits of life. The Court is also required to bear in mind the inflation prevalent in the market. 10. Although the expression "maintenance" occurring in Section 125, Cr.P.C. has not been statutorily defined, it includes, undoubtedly, the expenses for food, clothing, residence, medical, educational and other such incidental expenses, relating to the normal pursuits of life. The Court is also required to bear in mind the inflation prevalent in the market. To overlook the sharp fall in value of rupee while deciding such a point, would, obviously, will entail injustice to the persons entitled to the maintenance under Section 125, Cr.P.C. It is not only the earning or the income of the person bound to provide maintenance is to be considered alone, his capacity to earn and his potentiality for earning should also be given due weightage. It is true that the amount of maintenance should not be luxurious so as to prompt the wife to remain away from the husband nor it should be penurious so as to deprive the wife or children the basic necessities of life. The Court is obliged to address itself to all these important aspects while determining the quantum of maintenance. In the background of the parties and the objects for which provisions of Section 125 of the Code are incorporated. It may be noted that the provisions of Section 125 of the Code are benevolent provisions designed to prevent vagrancy and destitution. Needless to repeat that minor son was studying and needs food, clothing, medical and other expenses of life which are basic necessities of life. Similarly, a rejected and dejected wife, who is at the mercy of her parents staying at parental residence, cannot get her two ends meet is entitled to reasonable expenses for residence, for her food, clothing and other such expenses of day-to-day life so as to prevent vagrancy and Section 125 of the Code is, in reality, intended for ensuring reasonably supply of food, clothing and shelter to such deserted wife and children. That is the reason why the Parliament in Its wisdom incorporated these provisions in Section 125 of the Code so as to provide speedy and summary remedy against vagrancy and starvation for a deserted wife, child or indigent parents. These are the important questions to which the Court while dealing with an application for maintenance should invariably look into. 11. That is the reason why the Parliament in Its wisdom incorporated these provisions in Section 125 of the Code so as to provide speedy and summary remedy against vagrancy and starvation for a deserted wife, child or indigent parents. These are the important questions to which the Court while dealing with an application for maintenance should invariably look into. 11. The expression "means" in Section 125 of the Code does not signify only the visible income, such as, real property or regular source of income or a definite employment. A person who is able bodied and who does not suffer from any physical or mental incapacity can be considered as a person who has the capacity to earn sufficient income because his physical and mental capacity provide him the capacity to earn. Therefore, even if a person who has no definite source of income or a regular source of income, he cannot escape his liability to pay maintenance. It cannot be contended, even for a moment, that the person who is not earning or who is not sufficiently earning, cannot be fasten with the liability for providing maintenance to his wife or children. He is liable to pay reasonable maintenance to the wife and children so as to see that they get their two ends meet. 12. A person, who has the capacity to earn, is liable under Section 125 of the Code, even if he is an insolvent, unemployed, a professional beggar, highly Indebted, a Sadhu or a Monk. It is for the husband to show that he has no sufficient means or he has no capacity to earn. Therefore, the rightful claim for maintenance cannot be refused on the ground that the person who is liable for payment of maintenance is not earning. What is required to be considered is the capacity to earn. The quantum of maintenance is required to be fixed in the light of all the relevant facts and circumstances. 13. The marriage between the husband and wife took place on 26.01.2004 i.e. 10 years before filing of the petition for maintenance. There is no dispute about the fact that the wife is living separate at her parental place with minor son Ishan. The original applicant/wife and minor son have no separate source of income. The wife is unable to maintain herself and son and are living separate. There is no dispute about the fact that the wife is living separate at her parental place with minor son Ishan. The original applicant/wife and minor son have no separate source of income. The wife is unable to maintain herself and son and are living separate. She is shouldering the responsibility of maintaining herself and son Ishan, who was aged about 9 years at the time of filing of application and was pursuing his studies. There remains no quarrel that petitioner being husband of second respondent and father of third respondent is legally and socially bound to maintain them. It is his pious obligation to maintain the private respondents but he has become totally ignorant towards them. In the facts and circumstances of the case, learned Family Court, upon consideration of the matter in entirety, has found the private respondents entitled for maintenance and quantified the same moderately by the order impugned. 14. The learned Family Court has rightly exercised its discretion judiciously by following the mandate of law in granting reasonable amount of maintenance to the private respondents from the date of application and the said order cannot be faulted. Furthermore, apparently there is no reason to infer that it is a case wherein learned Family Court, while passing the impugned order, has committed any manifest error of law warranting interference in exercise of revisional jurisdiction of this Court. In my opinion, the quantum of maintenance, determined by learned Family Court, cannot be categorized as excessive or exorbitant in the present era of inflation. Learned Family Court has, in fact, moderately assessed the quantum of maintenance. 15. In this view of the matter, in my opinion, learned Family Court has not committed any error in passing the impugned order and I am satisfied that the impugned order is neither perverse nor the same is contrary to law requiring interference in exercise of revisional jurisdiction of this Court. Resultantly, the petition fails and same is hereby dismissed.