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2020 DIGILAW 37 (HP)

Vijay Pathak v. Raina Pathak

2020-01-03

ANOOP CHITKARA

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JUDGMENT Anoop Chitkara, J. - The petitioner, who is a Government servant, has come up before this Court seeking to set-aside the order dated August 8, 2019 passed by the Sessions Judge, Shimla in Cr. Revision No. 18-S/10 of 2018. 2. Raina Pathak, daughter of the petitioner, in the year 2013, more particularly on July 4, 2013, filed a petition under Section 127 of the Code of Criminal Procedure, before the court of Chief Judicial Magistrate, Shimla. The relief she sought for enhancement of maintenance allowance from Rs.2500/- to Rs.6000/- per month. The history of the case traces to a petition filed by minor daughter Kumari Raina Pathak under Section 125 Cr.P.C. against her father Vijay Pathak, petitioner herein. The said petition bearing No. 40-4 of 1997 had led to an award of monthly maintenance of Rs.500/- per month. After that in the year 2004 she filed a petition under Section 127 seeking re-fixation of the amount of maintenance. Vide order dated April 24, 2008 the Chief Judicial Magistrate enhanced the monthly maintenance amount to Rs.2500/- per month. 3. Vide petition under Section 127 Cr.P.C filed on July 4, 2013 Raina Pathak sought enhancement of maintenance from Rs.2000/- per month to Rs.6000/- per month. She stated in her application that because now she is a college student and as such her expenditure has increased and also the money has lost its value. She further stated that her mother is getting a meager salary. In reply to the petition the father took flimsy excuses and stated that he is suffering from retina disease from the year 2005. He further stated that he had paid all the maintenance allowance without default. 4. Vide order dated May 28, 2015 passed in Petition No. 400-4 of 2013 titled as Raina Pathak vs. Vijay Pathak, learned Chief Judicial Magistrate, Shimla, dismissed the petition on the ground that the petitioner Kumari Raina Pathak had attained the age of majority i.e. she has crossed 21 years of age. 5. The daughter challenged such order by filing a revision petition before Sessions Court, Shimla. Vide judgement dated July 18, 2017 passed in Criminal Revision No. 13-S/10 of 2015 the Sessions Judge, Shimla allowed the revision and remanded the matter to the trial Court to decide the quantum of maintenance. While holding so, the Sessions Judge opined that the daughter is not eligible to claim maintenance. 6. Vide judgement dated July 18, 2017 passed in Criminal Revision No. 13-S/10 of 2015 the Sessions Judge, Shimla allowed the revision and remanded the matter to the trial Court to decide the quantum of maintenance. While holding so, the Sessions Judge opined that the daughter is not eligible to claim maintenance. 6. After that vide order dated October 29, 2018 passed in petition No. 400-4 of 2013 learned Chief Judicial Magistrate, Shimla altered the previous order dated April 24, 2008 and granted monthly maintenance of Rs.5000/- per month to Ms. Raina Pathak from the date of order i.e. October 29, 2018. 7. Both father and daughter challenged this order by filing Criminal Revision petitions before Sessions Judge, Shimla. The petition filed by daughter was registered as Cr. Revision No. 18-S/10 of 2018 and the petition filed by the father was registered as Cr.Revision No. 2-S/10 of 2019. Vide judgement dated August 8, 2019 learned Sessions Judge, Shimla, allowed the revision petition filed by the daughter and dismissed the revision petition filed by the father. Resultantly, the learned Sessions Judge modified the order and enhanced the maintenance allowance from the date of filing of the petition i.e. July 4, 2013. Challenging the judgement whereby the maintenance was increased from retrospective effect i.e. from the date of filing of the petition the father has come up before this Court by filing the present petition under Section 482 Cr.P.c. 8. I have heard Shri Jagat Pal, Advocate, for the petitioner and Sh. P.S.Chandel, Advocate, for the respondent. 9. The grounds taken by father in the petition are that the mother of Kumari Raina Pathak in HRTC and drawing monthly salary of Rs.55,000/- He further claimed that he has four more daughters out of whom two are pursuing nursing courses and annual fee alone amounting to Rs.2 lakh each. He further stated that he had paid one time alimony to the mother of the respondent by raising the loan and now big chunk of his income goes for repayment of that loan amount. 10. In response respondent stated that she has taken admission in Shoolini University at Solan and she needs to deposit fee to pursue that Course. She further stated that in case her father does not pay her money then she would be unable to complete her studies. 10. In response respondent stated that she has taken admission in Shoolini University at Solan and she needs to deposit fee to pursue that Course. She further stated that in case her father does not pay her money then she would be unable to complete her studies. The daughter even went emotional by saying that she alone is not responsible for giving her birth and she should claim money from her father. 11. Be that as it may, keeping in view the facts and circumstances of the case, this Court takes a holistic view of the matter and modifies the judgement dated August 8, 2019 passed in Cr. Revision No. 18-S/10 of 2018 in case titled as Kumari Raina Pathak vs. Vijay Pathak and orders that Vijay Pathak shall pay monthly maintenance at the rate of Rs.5000/- per month from August 8, 2019. As far as arrears are concerned, he is already bound to pay Rs.2500/- per month, which was ordered previously. However, keeping in view the fact that he has to take care of four more daughters and to repay the loan amount it would be in the interest of justice that the arrear of amount is slightly reduced and shall pay a sum of Rs.3750/- per month to his daughter Kumari Raina Pathak w.e.f. July, 2013 till July 2019. With these modifications the petition is disposed of so also the pending application(s).