Jasbir Singh vs Satnam Kour And Ors.

The above said two revisions have been clubbed together vide order dated 01.02.2016 on the request of counsel for petitioner. CRR No.D-15/2013 has been directed against the ex-parte judgment dated 31.12.2012, passed by 2nd Additional Munsiff Jammu, under Section 488 Cr.P.C, in case titled Satnam Kour and orss vs. Jasbir Singh, by virtue of which petitioner has been directed to pay Rs.3,000/- pm each to wife and son (respondent Nos.1 & 3 herein), whereas Rs.3,500/- to daughter (respondent No.2 herein). Whereas CRR No.34/2014 has been filed against the order dated 31.12.2012 as well as order dated 20.03.2014 by virtue of which application for setting aside ex-parte judgment of maintenance, has been dismissed.

In both revisions petitions facts are the same.

Respondent No.1-Satnam Kour is wife of petitioner, whereas other respondents are his children. Respondents filed a petition under section 488 Cr.P.C. for grant of maintenance. In the petition, it has been stated that she is legally wedded wife of petitioner herein; marriage was solemnized on 28.04.1986. Out of the wedlock two children were born; Amandeep Kour, daughter is pursuing LL.B at Dogra law College and Manmeet Singh, son, studying in the seventh class. The respondent-Jasbir Singh was serving in Army and refused to maintain, and thrashed and beaten the petitioner. The respondent-Jasbir Singh is getting 15,000/-salary and can pay at least Rs.10,000/- to the petitioners easily; petitioners (respondents herein) prayed for rupees 2000/- per petitioner as monthly maintenance.

Petitioner herein (respondent before the trial court) appeared and filed objections stating therein that that the petitioner/wife has kept a boy namely Pintu in the house since five years and showing him as her cousin and she has illicit relations with him. Despite objection, she is sleeping with that boy in different room and petitioner is sleeping in the other room. The respondent many a times seen them in objectionable conditions and tried to advise her but she is not mending her ways. The respondent was maintaining whole of the family including that boy Pintu. He brought this fact to the notice of the mother of the wife, she instead of advising her, abused and insulted him. The mother of the petitioner/wife also deserted her husband and two other sisters of the petitioner/wife too deserted. The petitioner/wife deserted respondent after 22 years of marriage. The respondent told the petitioner-wife to send that boy out of house but petitioner saying she can leave the respondent but cannot leave the Pintu. The petitioner-wife thrown the respondent out of the house and filed two complaints before the police u/s 107/117 Cr.P.C against him and got him arrested; that the daughter is major and he is meeting all the expenses of the daughter and fee of the Jammu Law College; that he tried to meet the daughter and visited her college but daughter insulted him before her friends in the college. She is major and is not entitled to any maintenance under law despite the petitioner is bearing her all expenses.

Heard both counsel and perused the records and law on the subject.

Learned counsel for the petitioner states that the learned 2nd Additional Munsiff, Jammu has granted interim maintenance to all the petitioners @ Rs.2,700/- per month which is being regularly paid by the petitioner and being deposited before the trial court in 1st week of every month. It is stated that the respondents herein led evidence and all the witnesses were cross-examined by the petitioner. The petitioner herein was serving in the defense force and could not appear on each and every date before the court; his counsel could not appear in the court due to some examination; the Petitioner came to know the passing of an ex-parte Judgment through his officers on 25th of Feb. 2013. It is stated that petitioner contacted his counsel and applied for the copy of the Judgment on 26th of Feb. 2013; that petitioner has categorically proved through respondents and their witnesses that respondent no.2 is major and Advocate by profession practicing here at Jammu and respondents no. 3 too attained majority during the pendency of the petition. It is further contended that the respondent no.1 is living adulterous life with boy Pintu who is still living in the house of the petitioner with respondent-wife and respondent no.2 and 3 are major so, they are not entitled to any maintenance from petitioner herein.

Learned counsel for the petitioner further states that the learned 2nd Additional Munsiff has granted maintenance to the respondents against the settled position of law and provisions of Section 488 Cr.P.C; that the trial court granted the maintenance much more than what the respondents prayed before the trial court. Rs.3000/- for respondent no.1 and 3 and Rs. 3500/- for respondent no.2, whereas prayer was for Rs. 2000/-per month.

Whereas counsel for respondents herein has argued that petitioner-husband has not come before this court with clean hand as he filed an application for setting aside ex-parte order of maintenance as well as revision against same order before this court; that orders of court below are correct as per law and facts.

I have given my thoughtful consideration to all aspects of the matter.

Section 488 Cr.P.C reads as under: -

"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 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 two thousand rupees 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 allowances, 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."

Section 488 Cr. PC is a social legislation, strict law of pleading is not applicable. Procedure is of summary nature; Maintenance is right which accrues to a wife against husband the minutes former gets married to latter. It is not only a moral obligation but also a legal duty. The primary object for granting maintenance to a deserted and destitute wife and children is for ensuring that they should not be left beggared. The remedy provided u/s 488 Cr. PC is a summary remedy for securing reasonable sum by way of interim maintenance.

In the present case, petitioner herein has admitted that respondent no.1 is his legally wedded wife and respondents 2 and 3 are his children. Petitioner herein has taken objection before trial court that wife is leading adulterous life and daughter is major. But during trial, petitioner did not produce his evidence and objections taken remained on papers. Petitioner herein absented himself during trial after the evidence of wife was closed on 08.05.2012. The court accordingly set him ex-parte and passed the judgment on 31.12.2012.

Law is now quite clear that if respondent in a case does not appear and produce his evidence in order to prove the defenses taken in objections, then court has to draw adverse inference that defenses taken in objections are false and incorrect.

The argument of counsel for petitioner that court below has granted maintenance in excess to what was prayed, is also not maintainable as maintenance cannot be limited to daily need of claimant, but it also includes expense for medicines, clothes and other things. Further in present case, petition was filed in 2007 and has been decided on 31.12.2012 i.e. after more than five years in 2012. So granting of the maintenance excess to what was prayed does not suffer from any infirmity of facts and law; maintenance of Rs.3000/- pm to each wife and son and Rs.3500/- pm to daughter is not excessive in present set of circumstances and due to globalization of economy.

Another argument of counsel for petitioner is that as per section 488 Cr.P.C only minor children are entitled and in this case daughter has already attained majority and son not entitled to maintenance.

Perusal of Section 488 of Cr.P.C. would reveal that the said provision enables a wife, a legitimate or illegitimate minor child and the legitimate or illegitimate child, who has attained majority, but unable to maintain itself on account of physical or mental abnormality or injury and a father or mother can claim maintenance, if there is neglect or refusal to maintain and if they are unable to maintain themselves. What is pertinent to note in Section 488 of the Cr.P.C. is the neglect or refusal on the part of a person having sufficient means to maintain his wife, his legitimate or illegitimate minor children who are unable to maintain themselves. The order of maintenance can be made under Section 488 of Cr.P.C. by a Magistrate of First Class, upon proof of such neglect or refusal and a direction can be issued to make monthly allowance for maintenance of those who are entitled under various clauses of Section 488 (1) of the Cr.P.C. Under this Section, it is only the minor child who is entitled to claim maintenance, if such child is not able to maintain itself. A child who has attained majority is held entitled for claiming maintenance, on account of physical or mental abnormality or injury he is unable to maintain himself. There is no any specific provision contained in Section 488 for grant of maintenance to daughter who is major.

In 2004 (3) CCR (SC) 12 in case titled Jagdish Jugtawat v. Manju Lata, a three judges bench has held that major daughter is entitled for maintenance from her parents till her marriage in petition u/s 125 of Cr.P.C. read section 23 of Hindu Adoption and Maintenance Act.

Further, in 2004 (1) JKJ 418 in case titled Lubna Mehraj And Ors. vs Mehraj-Ud-Din Kanth (Cr. Ref. No.15/2003) on 8 October, 2003, it is held as under:-

"In Noor Saba Khatoon v. Mohd. Quasim (supra) the Supreme Court was dealing with a similar question. Their lordships held as under :

"... the obligation of a Muslim father to maintain the minor children is governed by Section 125 Cr. P.C. and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children this obligation extends till their marriage. Apart from the statutory provisions referred to above, even under the Muslim Personal Law, the right of minor children to receive maintenance from their father, till they are able to maintain themselves is absolute."

In the aforesaid judgment, their lordships of the Supreme Court also quoted a passage from the Book "Statute Law relating to Muslims in India (1995 Edn.) in relation to Section 125 Cr. P. C. written by Professor Tahir Mahamood. The relevant portion of the said passage, as quoted in the judgment is reproduced hereunder:

"By Muslim Law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are e ntitled of maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thayiba (divorcee/widow). Sons are entitled to it till they attain bulugh if they are normal, and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet had said:

'Whoever has daughters and spends all that he has on their upbringing well, on the Day of judgment, be as close to me as two fingers of a hand.' If a father is poverty stricken and cannot therefore provide maintenance to his children while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves."

The Apex Court supplied emphasis to the aforesaid passages from Tahir Mahamood's book. It was further held as under:

"10. Thus, both under the personal law and the statutory law (Section 125 Cr. P. C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.

Thus, our answer to the, question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance under Section 125 Cr. P. C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they got married, and this right is not restricted, affected or controlled by divorcee wife's right to claim maintenance ... In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125 Cr. P. C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married,"

In Jagdesh Jugtawat v. Manju Lata (supra) again a similar question, arising out of Section 125 of Cr. P. C. and Section 20(3) of Hindu Adoptions and Maintenance Act, came up for consideration before the Supreme Court. Relying on the principles laid down in Noor Saba Khatoon v. Mohd. Quasim (supa) the Apex Court observed as under:

"Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act..."

In this view of the matter, not only the Muslim Personal Law, but also the provisions of Hindu Adoptions and Maintenance Act can be read together with the provisions of Section 488 Cr. P. C."

From the afore stated position, it is clear that the unmarried daughter though attained majority is entitled to claim maintenance from the father. It is worthwhile to mention here that petitioner has not come before court with clean hand as he has filed revision before this court for setting aside ex-parte order dated 31.12.2012 of maintenance as well filed an application before trial court for setting aside ex-parte judgment dated 31.12.2012 simultaneously. This is not fair on part of petitioner.

Now coming to revision filed by petitioner against order dated 20.03.2014, by virtue of which application for setting aside ex-parte judgment, has been dismissed, the relevant extract of order reads as under:-

"9. Heard the Ld. Counsels for the parties, perused the application, objections, the evidence on record and the documents annexed with.

Before adverting upon the contentions of both the parties, it is necessary to reiterate the provision of proviso to Section 488 (6) which reads as under:-

"Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case exparte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper."

From the above referred provision, it is clear that if the respondent is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may precede to hear and determine the case ex-parte. But thereafter if such an order is passed the opposite may apply to set aside that order by showing any good cause. It further provides that if Magistrate is satisfied that the respondent has shown good cause for his non-appearance on subsequent date and if he applies within 3 months from the date on which order was passed, the Magistrate is competent to allow that application on such terms and conditions as he may thing just and proper.

The ground stated by the applicant for setting aside exparte proceeding in his application is that he was transferred to Allahabad and therefore could not contact his counsel, but perusal of the RTI record annexed with the file depicts that since 1986 the applicant remain present with 626 EME Bn at Satwari Jammu and the same is corroborated with the statement made by the applicant himself in his cross examination where he deposed that he was posted at MCM 626 Mechanical Battalion Stationed at Satwari, Jammu. Therefore, there is no question of his being transferred to Allahabad as stated in the application by the applicant. The picture created by the applicant in his application and deposition takes a U-turn when the applicant's witness namely Padam Kour deposed in his deposition that since the father of the applicant had died and he had to go to Allahabad for performing the rituals of immersion of ashes in the Holy river Ganga and therefore, for that reason, the applicant could not appear in the Court and contacted his counsel as a result of which exparte proceedings initiated against him and the applicant came to know about the exparte proceedings only when he received a notice in the unit.

Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. The pleadings help the court in narrowing down the controversy involved and to inform the parties concerned to the question in issue so that the parties may adduce evidence on the said issue. In other words, pleadings form the platforms on which the edifice of the case is erected, the evidence is the construction carried out on the said plinth. Evidence beyond pleadings is generally not admissible

Here whatever is deposed by the applicant and his witness in their deposition is not in live with what is stated by the applicant in his application. The applicant cannot be allowed to plead one thing and canvass another at the stage of evidence, it would cause great prejudice and unfairness to the other party and also defeat the effort of this social legislation. I am supported by AIR 1987 SS 1242 and 2003 SCC 740, wherein it has been held that "where the evidence is not in live with the pleadings and is at variance with it, the said evidence cannot be relied upon."

The defence of typographical error taken by the Ld counsel for the applicant is not maintenance here as a typographical error is that error which is made in the typing process such as splitting or leaving out a word of printed material and it includes errors due to mechanical failure or slips of the hand or finger but excludes error of ignorance.

Another argument put forward by the Ld Counsel for applicant for their absence is that he was busy in preparation of his exams for District judiciary and the applicant's father had also died on 16.04.2012, therefore, neither he nor the applicant could appear in the court during that period. But this argument also cannot be relied upon as the competitive exams for District Judiciary were already held on 31.03.2012 and 01.04.2012and exparte proceedings were initiated on 12.11.2012, so therefore, there is no question of the applicant's counsel being busy in his exams what to talk of preparation for exams. The death of the father of the applicant took place on 16.04.2012 but during this period his counsel could have appeared on his behalf in the court and made statement about the death of father of the applicant and thereafter applicant also could have appeared which he failed to do so. The applicant stated in his cross-examination that when interim maintenance was announced he was regularly appearing and depositing the maintenance amount in the court but perusal of the main file further depicts that the conduct of the applicant/respondent was not fair throughout the proceedings as he appeared off and on during the pendency of the proceedings and from 28.08.2012 onwards till 31.12.2012none appeared on behalf of the respondent when exparte judgment was pronounced. It shows clearly that he was willfully neglecting to attend the court. Ld Counsel for the applicant has not been able to satisfy the court that the applicant was not willfully neglecting to attend the Court, as such, the exparte judgment dated 31.12.2012 passed by this Court will remain intact. The application in hand is disposed off accordingly as dismissed and Consigned to record under rule."

From bare perusal of order impugned, it is evident that trial court has passed reasoned and correct order based on facts and law on the subject. Further, petitioner has made several exaggerations of facts in his memo of revision petition, which he never took and pleaded before court below.

In view of what has been discussed above, I am of the view that order of court below in dismissing application for setting aside ex-parte judgment is correct and legal. Hence, present revision petition is also devoid of any merit; it is dismissed.

Resultantly, both the revisions are dismissed.