Hira Lal vs Parkasho and Others

M.L. Singhal, J.—Smt. Parkasho and her minor children Som Raj and Pala were allowed maintenance by the Magistrate vide order dated 21.10.1987 at the rate of Rs. 200/-, Rs. 100/- and Rs. 100/- per mensem, in application u/s 125 of the Code of Criminal Procedure filed by them against Hira Lal husband/father on 7.2.1984.

In the year 1992 they claimed enhancement in the maintenance allowed to them, vide order dated 21.10.1987 u/s 125 Cr.P.C. urging that the prices of the essentials of life have gone up manifolds and they are not able to maintain themselves with the paltry amount allowed to them earlier, as also that earlier Pala minor was not studying and now he is admitted to school. The income of Hira Lal has also gone up from Rs. 800/- to Rs. 2,200/- per mensem. He is also keeping buffaloes and earning by the sale of milk. They on the other hand have no means wherewith to maintain themselves.

Hira Lal opposed this prayer of theirs urging that the prices of essentials of life have come down. Smt. Parkasho has source of income. Her income has also risen. His salary on the other hand has not increased. He has kept no buffaloes.

The Magistrate, who tried this application, allowed enhancement in the maintenance allowance in favour of the wife as well as children. Resultantly, the wife was allowed maintenance allowance to the tune of Rs 300/- while children were allowed maintenance to the tune of Rs. 150/- each vide order dated 1.9.1994.

Aggrieved from this order, being not satisfied with the quantum of enhancement effected by the Magistrate, Smt. Parkasho and her children knocked the door of the Court of Sessions through revision. The Court of Sessions vide order dated 18th of July, 1995 allowed further enhancement in favour of the wife and children. He allowed Rs. 500/- per mensem to the wife and Rs. 250/- per mensem each to the children; maintenance to be operative w.e.f the date when the application for enhancement was made by them before the Magistrate. Not satisfied with the order passed by the Additional Sessions Judge, Hira Lal has approached this Court through this criminal revision.

I have heard the learned counsel for the parties and have gone through the records.

Shri S.P. Singla, Accountant, office of the Market Committee, Bhucho appeared before the Magistrate who proved the salary being drawn by Hira Lal. He stated that total emoluments of Hira Lal are Rs. 2,169/- per mensem. He produced salary certificate Ex.A.1 in respect of Hira Lal. Ms. Parkasho stated that both of her children are grown up. One is studying in 9th class and the other is studying in 5th class and the enhancement in the maintenance allowed to them earlier does not suffice. Hira Lal is maintaining himself only, while Smt. Parkasho is to maintain herself and her two children. She is to give education to them. Everybody knows that after the year 1984, there has been serious escalation in the prices of the essentials of life. Salaries of employees have also considerably gone up since after the year 1984. Hira Lal should not shirk maintaining his wife whom he married. He should not shirk maintaining his children whom he brought forth in this world. Maintenance allowance allowed to the wife and children by Additional Sessions Judge, Barnala vide the impugned order cannot be said to be on the higher side. Faced with this position, the learned counsel for the petitioner has submitted that the learned Additional Sessions Judge has overlooked the provisions of Section 125 of the Code of Criminal Procedure (Hereinafter to be referred as Code) inasmuch as he has awarded maintenance at the rate of Rs. 1,000/- per mensem to Smt. Parkasho and children. He could award maintenance at the rate of Rs. 500/- per mensem only.

Section 125 of the Code reads as follows:

Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain (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 not exceeding five hundred rupee in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct : 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 purposes of this Chapter -

(a) ''minor'' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority; (b) wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

(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 with the order any such Magistrate may, for every breach of the order, issue warrant for levying the amount due in the manner provided for levying fines, 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 is 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 becomes due;

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any 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.

Explanation - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife''s refusal to live with him.

(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 reasons who refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Plain language of Section 125 of the Code suggests that wife unable to maintain herself can be allowed maintenance at the rate of Rs. 500/- per mensem. Child unable to maintain itself whether married or not can be allowed maintenance at the rate of Rs. 500/- per mensem. It is thus clear that each of them could be allowed maintenance at the rate of Rs. 500/- per mensem. While allowing maintenance in the application u/s 125 of the Code, the Court has to see how many units are there who are entitled to be maintained.

For the reasons given above, this revision is absolutely without any merit. It is accordingly dismissed. Hira Lal is further burdened with Rs. 1,000/- as the expenses incurred by the wife and the children in engaging counsel in this Court.