C.R. Manjunath vs Smt. Pushpa and Another

Ram Mohan Reddy, J.—This is a husband''s petition calling in question the order dated 29-06-2007 in Crl. Misc. No. 101/2006 on the file of the Judge, Family Court, Davangere directing payment of Rs.800/- per month to his wife and Rs.700/- per month to his minor son, towards maintenance from 15-04-2006, in addition to Rs.500/- as litigation expenses.

The destitute wife and minor son filed Crl.Misc. 101/2006 u/s 125 of the Cr.P.C. for grant of maintenance at the rate of Rs.8,000/- per month alleging that the petitioner - husband had refused to maintain them though the petitioner had a monthly income of Rs.20,000/. That petition was opposed by the respondent in so far as it relates to the quantum of income, while admitting the relationship. The Trial Court, in the premise of the pleadings of the parties and on appreciation of the evidence of PW-1 the wife, vis-a-vis the evidence of RW-1 the petitioner and the documents Exhibits P-1 to P-7(a) and Exhibits R-1 to R-2, recorded a finding that the petitioner''s income was Rs. 100/- per day, by his own say, employed as a Driver, and directed payment of Rs.800/- to the wife and Rs.700/- to the son per month as maintenance from 15-04-2006, by the order impugned.

It is useful to refer to the observations of the Supreme Court in the case of Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, . Their lordships held that, the order passed in an application u/s 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. The provision u/s 125 is not to be utilized for defeating the rights conferred by the Legislature to the destitute women, children or parents who are victims of social environment.

In yet another decision in the case of Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others, , their lordships held that Section 125 Cr.P.C. is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. The provisions gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents as long as they are unable to maintain themselves. The sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of derelicts.

Having regard to the pregnant observations of the Apex Court in the aforesaid two judgments, it is beyond doubt that a duty is cast on the petitioner to maintain his destitute wife and child who are no longer residing with the petitioner. The direction of Rs.800/- per month to the wife and Rs.700/- to the minor son, in my opinion is grossly insufficient to keep body and soul together, more so in view of the financial and economical situation as on date. If the petitioner admittedly earns Rs. 100/- per day, eking out a livelihood as a Driver, it is needless to state that the aforesaid direction is certainly on the lower side.

A Division Bench of this Court in the case of Smt. Shashi Sharma alias Seema Vs. Praveen Sharma and Another, , having regard to Chapter 5 of the Family Courts Act, 1984, held thus:

Under Section 19 appeal is maintainable against every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. A perusal of the relevant provisions of the Act, unambiguously leads to the conclusion that no provision has been made for filing of an appeal or revision against an interlocutory order passed by the Family Court. In the absence of a provision to the contrary, no party acquires a right to approach the higher Court by way of appeal or revision.

At Paragraph 8 of the said judgment, their lordships held thus:

The remedy under Article 226 of the Constitution cannot be permitted to be availed of for the purposes of frustrating the welfare legislation or allowed to be an appeal in disguise. The Article is not intended to circumvent the statutory procedure.

In the light of the aforesaid observation, this writ petition cannot be converted into an appeal. Keeping in mind the present economic scenario, where even a coolie earns Rs.50/- a day, I find no merit in the contention of the learned Counsel for the petitioner that the monthly maintenance to the wife and child is either excessive or unjust. The contention that the wife, without any justification has left the matrimonial home, disentitles the wife and child to maintenance, in the facts and circumstances of this case, more appropriately the police complaint EX.P.3 leading to the registration of a criminal case against the petitioner for offence u/s 498-A of the IPC, cannot be countenanced and must stand rejected. The further contention that the wife and child are not entitled to maintenance as the petitioner is obliged to maintain his parents, must also stand necessarily rejected. I say so because the learned Counsel for the petitioner is unable to point out to any material on record, much less such a plea having been advanced before the court below. Petition is without merit and is accordingly rejected.