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2019 DIGILAW 908 (HP)

Sanjeev Kumar v. Satya Devi

2019-07-09

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioner under Section 482 Cr.P.C. read with Article 227 of the Constitution of India against the judgment dated 20.09.2018, passed by learned Sessions Judge, Hamirpur, H.P., whereby the revision filed by the petitioner was dismissed and order dated 28.04.2015, passed by the learned Chief Judicial Magistrate, Hamirpur, H.P., in proceedings under Section 125(1)(d) Cr.P.C., i.e., application for grant of maintenance to respondent No. 1 at the rate of Rs. 4,000/- per month from the date of petition in the learned Trial Court, was affirmed. 2. The facts giving rise to the present petition can be encapsulated as under: Respondent No. 1 herein, Smt. Satya Devi, was the petitioner before the learned Trial Court (hereinafter referred to as "the petitioner"). The petitioner maintained an application under Section 125(1)(d) Cr.P.C. before the learned Trial Court seeking grant of maintenance allowance from her two sons, i.e., Shri Sanjeev Kumar, petitioner herein (hereinafter referred to as respondent No. 1) and Shri Punit Kumar (hereinafter referred to as respondent No. 2). As per the petitioner, after the death of her husband, she inherited property and she brought up her children, married and settled them. She averred that respondent No. 1 fraudulently executed a sale deed in his favour and respondent No. 2 also purchased land comprised in khasras No. 1285 and 1309 and he did not pay even a single penny to the petitioner. The petitioner had been deprived of her property and now she is unable to maintain herself. The petitioner made a prayer before the learned Trial Court for grant of Rs. 10,000/- and Rs. 5,000/- per month from respondents No. 1 and 2, respectively, as interim maintenance allowance. Respondent No. 1 (petitioner herein) contested the claim of the petitioner and contended that his income is far less, as alleged by the petitioner. He has further averred that he purchased the land from the petitioner and paid full consideration amount. He has contended that in order to harass him respondent No. 2 has managed the petitioner to file the petition against him. He has further averred that the petitioner sold her property for Rs.22,67,000/-. As per respondent No. 1, petitioner is 50% partner in the business of respondent No. 2 and the income of respondent No. 2 is Rs. 5,00,000/- per month. He has further averred that the petitioner sold her property for Rs.22,67,000/-. As per respondent No. 1, petitioner is 50% partner in the business of respondent No. 2 and the income of respondent No. 2 is Rs. 5,00,000/- per month. Respondent No. 2 also filed reply and contended that his income is less. However, he averred that a reasonable maintenance amount be awarded to the petitioner. The learned Trial Court, vide its order dated 28.04.2015, allowed the application and granted maintenance allowance @ Rs. 2000/- per month from each of the respondents. Respondent No. 1 feeling aggrieved and dissatisfied, filed a revision petition against the order granting monthly maintenance allowance to the petitioner before the learned Revision Court, but the learned Revision Court, vide its order dated, 20.09.2018, dismissed the revision, hence the present petition is maintained by respondent No. 1 (petitioner herein). 3. I have heard the learned Senior Counsel/counsel for the parties and gone through the available records. 4. The learned Senior Counsel for the petitioner has argued that the impugned orders passed by the learned Courts below are without appreciating the facts and law and the maintenance amount is on very higher side. He has argued that the learned Trial Court, while granting maintenance, took the income of the petitioner on higher side. He has argued that the maintenance granted by the learned Trial Court and upheld by the learned Revision Court is on very higher side and the same is liable to be reduced. On the other hand, learned counsel for respondent No. 1 (petitioner before the learned Trial Court) has argued that in view of the income of the petitioner, the amount of maintenance is just and reasoned. He has argued that the petition has no merits and the same deserves dismissal and may be accordingly dismissed. 5. In rebuttal, the learned Counsel for the petitioner has argued that keeping in view the income of the petitioner and the fact that the maintenance allowance as awarded by the learned Trial Court is on a very higher side, the petition be allowed and the impugned order passed by the learned Revision Court be quashed and set aside and some reasonable monthly maintenance allowance be granted. 6. The relationship between the parties is not in dispute. 6. The relationship between the parties is not in dispute. The inter se relationship between the parties might have weighed in the minds of the learned Courts below in granting the monthly maintenance amount to the petitioner. At this stage, this Court cannot sneak the fact that the learned Trial Courts below had only granted interim maintenance allowance to the petitioner and final maintenance amount is yet to be decided. After perusing the orders of the learned Trial Court, it is discernable that the learned Trial Court granted interim maintenance allowance to the petitioner after scrutinizing the pleadings of the parties and evidence to the support of pleadings is yet to be recorded. Agreeably, status of the parties, reasonable wants of the claimant, income and property of the claimant, liabilities of the claimant etc. are some of factors which a Court must look into while granting monthly maintenance, be it interim maintenance allowance, but all these factors cannot be clearly seen by a Court without examining the witnesses. For granting interim maintenance amount the Courts cannot be oblivious to fact that the claimant has to spend on his/her upkeep or dependants, purchase of essential items etc. The aim of granting maintenance is to prevent vagrancy to the claimant. However, in the case in hand, after weighing the rival contentions of the parties, which emerge from the petition filed by the petitioner in the Court of lowest rung and its replies and the contentions have been also noted by the learned Trial Court, at this stage this Court finds that the contentions of the parties are evenly balanced. 7. In the case in hand, the mother (petitioner) is claiming maintenance from her two sons and one son, i.e., respondent No. 2 has conceded that reasonable maintenance allowance be granted to the petitioner, but respondent No. 1 challenged the orders of the learned Courts below whereby petitioner was granted monthly maintenance allowance Rs. 2,000/-. No doubt, after going through the records, it is clear that the learned Trial Court granted interim maintenance allowance to the petitioner only after scrutinizing the averments of the parties. The status of the parties, reasonable wants of the claimant, income and property of the claimant, liabilities of the claimant etc. are some of factors, which can be judiciously adjudged only after scrutinizing the averments and also the evidence. The status of the parties, reasonable wants of the claimant, income and property of the claimant, liabilities of the claimant etc. are some of factors, which can be judiciously adjudged only after scrutinizing the averments and also the evidence. At this stage, after analyzing the contentions of the parties the interim maintenance allowance, as granted by the learned Trial Court, seems to be on higher side. True it is that the maintenance amount should be reasonable, neither excessive nor exorbitant. 8. Indeed, the petitioner, prima facie seems to be entitled for monthly maintenance allowance, however, the rate of monthly maintenance allowance cannot be fixed on an abstract and hypothetical grounds. The petitioner alleged that the monthly income of respondent No. 1 is Rs. 1,00,000/- and respondent No. 2 earns Rs. 30,000/- per month. Respondent No. 1 denied his income, as alleged by the petitioner and besides this, he contended that the petitioner is 50% business partner with respondent No. 2 and monthly income of respondent No. 2 is Rs. 5,00,000/-. Thus, in the petition before the court of lowest rung the petitioner and respondents alleged contrary to each other. The parties are yet to prove what they have alleged by leading evidence and the learned Trial Court only on the basis of contentions made in the petition granted monthly interim maintenance of Rs. 2,000/- from each of the respondent. 9. In the above backdrop, the petition is allowed and the impugned orders of the learned Trial Court are quashed and set aside and monthly interim maintenance amount is reduced from Rs. 2,000/- to Rs. 1500/- per month from each of the respondents, as the learned Trial Court granted monthly interim maintenance allowance to the petitioner only on abstract and hypothetical grounds, i.e., the averments made by the petitioner and the maintenance amount can always be enhanced at any stage, if the learned Trial Court deems it apt and proper. Therefore, the respondents are directed to pay monthly interim maintenance from of Rs. 1500/- to the petitioner and outstanding amount of arrear be liquidated within two weeks from the date of passing of the judgment. However, it is expected from the learned Trial Court to dispose of the matter expeditiously keeping in view the peculiar facts and circumstances of the case. 10. With the above observations the petition, as also pending applications, if any, stands disposed of. However, it is expected from the learned Trial Court to dispose of the matter expeditiously keeping in view the peculiar facts and circumstances of the case. 10. With the above observations the petition, as also pending applications, if any, stands disposed of. Parties to appear before the Court below on 29.07.2019.