Dwarika Nath vs Santosh Kumari And Ors

Petitioner invokes the inherent jurisdiction of this Court under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) for quashment of the execution proceedings initiated against him, pending in the Court of Spl. Mobile Magistrate (Passenger Tax Shops and Establishment Act) Jammu. Petitioner also seeks quashment of order dated 25.07.2013 as well as order dated 20.03.2015.

Factual matrix of the case are that the respondent no.1, who is divorced wife of the petitioner, and respondent nos.2 & 3, who are children from the matrimonial relation of petitioner with respondent no. 1, had filed a petition under Section 488 Cr.P.C. for maintenance before the court of learned Special Mobile Magistrate (Passenger Tax, Shops and Establishment Act) Jammu and the Court held a Trial of the said petition titled Santosh Kumari & Ors. vs. Dwarika Nath and finally on 25.07.2013 decided the petition without hearing the arguments of counsel for the petitioner. It is stated that the learned Trial Court awarded maintenance to the tune of Rs.2,500/- per petitioner therein (respondents herein) totalling to Rs.7,500/- per month from date of filing of the application i.e., 23.03.2005. The petitioner herein challenged the said order passed by the learned Magistrate/Trial Court before the learned 2nd Addl. Sessions Judge, Jammu. The learned Revisional Court finally disposed of the Revision Petition on 20.03.2015, whereby the revision petition was partly allowed and partly dismissed. The order of the learned Magistrate to the extent of granting maintenance to the respondent no.1 was held to be illegal and was set-aside while as the order of granting maintenance to respondent nos. 2 & 3 was upheld.

Learned counsel for the petitioner states that order dated 20.03.2015 passed by the learned 2nd Additional Sessions Judge, Jammu to the extent of granting maintenance to respondent No.2 is also illegal and bad. Petitioner has also challenged the quantum of maintenance granted by courts below and also order by virtue of which court has asked the petitioner to pay maintenance from date of filing of application.

I have considered the contention of counsel for petitioner. From the perusal of documents annexed with the petition, it is evident that respondents and their mother filed a petition under section 488 Cr.P.C., before JMIC (SPECIAL MOBILE MAGISERATE PASSENGER TAX), Jammu and JMIC after hearing the parties and conclusion of trial, allowed the petition on 25.07.2013 and passed monthly maintenance of Rs.2,500/- each from the date of filing of petition; Petitioner herein then filed the revision before 2nd Additional Sessions Judge, Jammu, and on 20.03.2015 Revisional court partly allowed the revision and set aside order of maintenance so far pertaining to wife, but upheld the maintenance to children.

The operative part of the order darted 20.03.2015 passed by the learned 2nd Addl. Sessions Judge, Jammu reads as under:-

"From a perusal of the aforementioned provisions of section 188Cr. P.C, it becomes clear that it is only a wife and minor children (legitimate or illegitimate) unable to maintain themselves, who can claim maintenance under the said section. The evidence adduced reveals that the respondent no.1 has been divorced of marriage by the petitioner, by way of decree of the court. The decree of the court has not been set aside. So, the respondent no.1 has ceased to be the wife of the petitioner and, therefore, not entitled to maintenance the petitioner u/s 488 Cr. P.C. Regarding respondent no.3, the petitioner cannot escape liability by contending that he has been born out of illicit relations between the respondent no.1 and one Yog Raj Singh as alleged by the petitioner, because, as per phraseology of section 488 Cr. P.C even illegitimate children are entitled to maintenance u/s 488 Cr. P.C from their father.

The next contention of Ld counsel for the petitioner, is that the maintenance allowance ordered is exorbitant and is not in tune with the income of the petitioner. He has contended that the petitioner has monthly income of Rs.4000/- only and it is not possible for him to payRs.2500/- p. m to each of the respondents. I am not inclined to accept this contention of the petitioner. In view of the high cost of living these the amount of Rs.2500/- p. m to each of the respondents 2 and 3is absolutely genuine amount in view of the status and position of the parties and the locality to which they belong. The petitioner cannot escape from the liability merely by saying that he is earning Rs. 4000/- per month. If the pension he is getting is meager, he can take up some extra employment to earn more so that he can properly feed himself and his family. While deciding the revision in such like matters the court should not ordinarily interfere in the order of the Magistrate granting maintenance except where the order is illegal or irregular or has caused miscarriage of the justice. In so far as the order impugned to the extent of quantum of maintenance is concerned, it is perfectly in consonance with the facts of the case and law applicable.

Viewed thus, the petition partly deserves to be allowed and partly dismissed. The order impugned to the extent of granting maintenance allowance to the respondent no.1 is held to be illegal and is accordingly set aside. However, the order of granting maintenance to the respondents 2 and 3, is upheld. No costs. Let a copy of this order alongwith record of the trial court, be sent down forthwith. The petition is accordingly disposed of and the file shall be consigned to after its due compilation."

Section 488 Cr.p.c reads as under:-

"488. Order for maintenance of wives, children and parent.- (1) If any person having sufficient means neglects or refuses to maintain-*[In Section 488 words "wives, children & Parents"

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate .

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation.- For the purpose of this Chapter, "minor" means a person who, under the provisions of the Majority Act, Samvat 1977 is deemed not to have attained his majority"].

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying tines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due;

Provided further if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate consider grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing".]

(4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

(6) All evidence under this Chapter shall be taken in the presence of the *[person against whom an order for payment of maintenance is proposed to be made] or when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:

Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on an application made within three months from the date thereof.

(7) The Court in dealing with applications under this Section shall have power to make such order as to costs as may be just.

(8) Proceedings under this Section may be taken against any person in any district where *[he is or he or his wife resides] or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child."

From bare perusal of Section 488 Cr.PC, it is evident that it is a social legislation, strict law of pleading are not applicable. Procedure is of summary nature; purpose of maintenance is destitute wife and children may not be left beggared due to atrocity of husband or father as the case may be. Maintenance is right which accrues to a wife against husband the minutes former gets married to latter and similar is right of children. It is not only a moral obligation but also a legal duty of husband as well father to maintain them. In the present case, petitioner herein admitted that respondents are their children. The only objection is that they are major so not entitled for maintenance. It is fact that when main petition was filed, respondents were minor, and during pendency of proceeding they become major; so petitioner may file a petition under section 489 of Cr.PC for modification of maintenance on that grounds before trial court. It is also law that unmarried daughter is entitled to maintenance till she is married. Next argument is that, order of maintenance from date of filing of application is not as per law. This argument does not hold good, because Magistrate has power to grant maintenance from the date of application in terms of 488 (2) Cr.P.C. Last argument is that granting of maintenance of Rs.2,500/ - pm is excessive. Maintenance includes money required for purchasing goods needed for day to day life, medicine, expenditure on education and clothing etc. So the order of revisional court in granting maintenance of Rs.2,500/- pm to the children, is upheld.

In view of above, this petition is dismissed. However, petitioner may file petition under section 489 Cr.PC due to change of circumstances.