Chetan Bai vs Ramesh Kumar Pathariya

C.V. Sirpurkar, J.—1. This miscellaneous criminal case under section 482 of the Code of Criminal Procedure is directed against the order dated 03-08-2005 passed by the Court of I Additional Sessions Judge, Hoshangabad, in Criminal Revision No. 118/2004; whereby the order dated 26-03-2004 passed by the Judicial Magistrate First Class, Itarsi in MJC No. 52/2002 under section 127 of the Code of Criminal Procedure, enhancing the rate of maintenance allowance awarded to petitioner wife under section 125 thereof, from Rs. 600/- per month to Rs. 900/- per month.

The facts necessary for disposal of this miscellaneous criminal case may briefly be stated thus: The Court of Judicial Magistrate First Class, Itarsi, by order dated 29-07-1999 passed in MJC No. 80/1998 awarded maintenance under section 125 of the Code of Criminal Procedure to petitioner Chetan Bai at the rate of Rs. 600/- per month. By order dated 26-03-2004 passed under section 127 of the Code of Criminal Procedure by Judicial Magistrate First Class, Itarsi in MJC No. 52/2002, the amount of maintenance was enhanced from Rs. 600/- per month to Rs. 900/- per month. The petitioner wife Chetan Bai challenged that order before I Additional Sessions Judge, Hoshangabad, in Criminal Revision No. 118/2004. By impugned order dated 03-08-2005, learned Additional Sessions Judge declined to enhance the amount any further.

The impugned order has been challenged in this miscellaneous criminal case under section 482 of the Code of Criminal Procedure mainly on the ground that respondent husband is a driver of goods trains in Indian Railways and earns approximately rupees one lac per month. Therefore, the amount of maintenance at the rate of Rs. 900/- per month is hopelessly inadequate.

It has to be noted at the outset that learned Magistrate disposed of the application under Section 127 of the Code of Criminal Procedure on 26.3.2004 and learned Additional Sessions Judge decided the Criminal Revision on 3.8.2005. This Miscellaneous Criminal Case was instituted on 2.12.2008 i.e. more than three years after the disposal of criminal revision. Thus, almost 11 years have elapsed since passing of the original order on application under Section 127 of the Cr.P.C.. In this situation, this Court has to consider as to what would have been the appropriate amount to grant to the petitioner by way of maintenance in the year 2004. Hence, this Court cannot take into account the subsequent increase in the monthly emoluments of the respondent since the disposal of the application under Section 127 of the Code of Criminal Procedure. If the petitioner wishes that amount of maintenance allowance should be fixed on the basis of current emoluments of the respondent, she will have to file a fresh application under Section 127 of the Cr.P.C..

Having thus made the scope of consideration for enhancing the maintenance allowance clear, it may be seen that there was evidence on record to conclude that the basic pay of the respondent in the year 2004 was Rs. 5600/per month. So this was the minimum amount he would take home every month. In May, 2000 and June, 2002, he took home as much as Rs. 15539/- and Rs. 15386/- respectively. The additional allowance was tied up to the actual mileage logged by him in a particular month. However, learned trial Court as well as revisionary Court have failed to take into account this additional allowance, which though not fixed, accrued fairly regularly to the respondent. Thus, average of this additional income should also have been factored in to arrive at the monthly earnings of the respondent, which learned Courts below failed to do.

Moreover, in paragraph No. 7 of the impugned judgment, the revisionary Court has observed that if the monthly salary of the petitioner is presumed to be Rs. 6000/- per month, it would be not in the interest of justice to award maintenance rd @ more than 1/3 of the salary of the respondent. Thus, even on the basis of the basic salary, the petitioner ought to have been awarded Rs. 2,000/- per month by way of maintenance. There was no justification for fixing the amount at a lowly Rs. 900/- per month. If the average of amount accruing to the respondent by way of mileage logged, the amount of maintenance would be still higher. It has come on record that the respondent is required to maintain his mother as well. He has no other responsibilities. As far back as in the year 1975, a three Judge bench of the Supreme Court had held in the case of Bhagwan Dutt v. Kamla Devi, , AIR 1975 SC 83 that the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family.

Applying aforesaid principle to the set of fact and circumstances available on record of the case, in the opinion of this Court, the petitioner was entitled to Rs. 2500/- per month even in the year 2004. The Courts below grossly erred in fixing the amount at a penurious Rs. 900/- per month on unsustainable ground that she failed to prove as to how Rs. 900/- per month was inadequate for her maintenance.

The next question that arises for consideration is from which date the amount of maintenance should be enhanced. The Supreme Court in recent case of Jaiminiben Hirenbhai Vyas and another v. Hirenbhai Rameshchandra Vyas and another , 2015(2) SCC 385 has held that whether the maintenance is granted from the date of the order or the date of application, reasons have to be recorded. Sections 125 and 354 (6) of the Code of Criminal Procedure have to be read together for this purpose.

In the case at hand, due to lapse of inordinately long period after passing of the original order of enhancement under Section 127 of the Cr.P.C., the question with regard to the date from which the enhanced maintenance allowance is required to be paid, assumes significance.

Learned counsel for the respondent/husband has concentrated his arguments mainly upon the date from which the amount of maintenance should be enhanced. He submits that the original order maintenance was passed in the year 1999 @ Rs. 600/- per month. It was enhanced under Section 127 of the Cr.P.C. from Rs. 600/- per month to Rs. 900/- per month by learned Magistrate in the year 2003. Leaned Additional Sessions Judge affirmed that amount in the year 2005. The petitioner filed this miscellaneous criminal case under Section 482 of the Code of Criminal Procedure, after a delay more than 3 years i.e. in December, 2008. The case is being adjourned from the year 2008 to the year 2016 mainly on the ground of failure of the petitioner to prosecute it properly. Barring the last date, learned counsel for the respondent/husband never prayed for adjournment. In aforesaid set of circumstances, it has been argued that the enhanced amount should be made payable from the date of order passed in this Miscellaneous Criminal Case.

A perusal of the record reveals that it is true that no delay in entire process has been caused by the respondent Husband. Almost all delay is attributable to the petitioner but the fact remains that the petitioner has been surviving on penurious amount of maintenance awarded to her by the Courts below, for which she cannot be held to be responsible. In any case, the respondent has been utilizing the amount, which rightfully belonged to the petitioner since at least the year, 2005; therefore, the maintenance allowance at enhanced rate ought to be made payable since the date of order of the revisionary Court. Respondent being a permanent government employee can very well afford to pay arrears to the petitioner.

On the basis of foregoing discussion, this Court is of the view that interference by the High Court in exercising of inherent powers reserved to it by Section 482 of the Cr.P.C. is warranted to secure the ends of justice.

Consequently, this petition under Section 482 of the Cr.P.C. is allowed. The rate of maintenance allowance payable to the petitioner wife by the respondent husband is enhanced from Rs. 900/- allowed under Section 127 of the Cr.P.C. by the Courts below to Rs. 2,500/- per month.

The maintenance allowance at the enhanced rate shall be payable to the petitioner wife from the date of the order of revisionary Court i.e. 03.08.2005.

The petitioner shall provide number of her saving bank account in a nationalized bank to the respondent husband within two weeks from the date of this order. Thereafter, the respondent husband shall deposit each month allowance in that account before the 15th day of succeeding month, without fail.

The entire amount of arrears from 03.08.2005 till the date of this order shall be deposited in aforesaid account by the respondent husband within a period of two months from the date of this order.

This miscellaneous criminal case stands disposed of accordingly.