AI Structured Summary
Not yet generated for this judgment
Judgment
Nirmaljit Kaur, J.—Crl. Misc. No. M-928 of 2009, Crl. Misc. No. M-33132 of 2008 and Crl. Misc. No. 21421 of 2009 shall stand disposed of vide this common order as the parties, in all the cases, are same.
Facts of the case are that the Petitioner filed petition for decree of divorce u/s 13 of the Hindu Marriage Act, 1955 (here-in-after referred to as "the Act") and also filed petition for seeking the custody of the minor children. Both the petitions were dismissed. The appeal against the order, vide which, the custody of the minor children was declined, was also dismissed, whereas, the appeal against the dismissal of the application for decree of divorce is pending in this Court for final adjudication. The Respondent had filed an application u/s 24 of the Act for grant of maintenance pendente lite and litigation expenses before the Additional District Judge, who, vide order dated 12.12.2000, granted maintenance to the Respondent @ Rs. 450/-per month and Rs. 300/-p.m. each to both the minor children from the date of application and litigation expenses to the tune of Rs. 1500/-Against the said order, the Respondent-wife filed Civil Revision No. 865/2003 before this Court for enhancement of maintenance amount awarded by the Additional District Judge. This Court, vide order dated 22.04.2003, enhanced the amount of maintenance pendente lite to Rs. 3,000/-per month for the Respondent-wife and children with effect from the date of application before the trial Court. It was further ordered that the maintenance being paid u/s 125 Code of Criminal Procedure, proceedings would be adjusted in Rs. 3,000/-. The amount of litigation expenses was also enhanced to Rs. 3,000/-. The Respondent-wife also filed an application u/s 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate First Class, Pathankot, for grant of maintenance. The Judicial Magistrate First Class, vide order dated 06.12.2007, granted maintenance of Rs. 2,000/-each to the Respondent and two children (i.e. Rs. 6,000/-per month) from the date of application and awarded litigation expenses of Rs. 3,000/-. It was directed by the Judicial Magistrate First Class that the maintenance allowance already paid by the Petitioner be adjusted at the time of payment of maintenance to the Respondent. The Respondent-wife filed revision petition for enhancement before the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur. The Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, vide order dated 01.10.2008 has allowed the revision petition of the Respondent and enhanced the maintenance to Rs. 3,000/-per month to the Respondent and Rs. 3,500/-per month to each children from the date of the order i.e from 01.10.2008 and further directed the Petitioner to pay maintenance upto September 30,2008, as well as, litigation expenses as ordered by the trial Court, subject to adjustment of payment already made by the Petitioner, whereas, the revision petition filed by the Petitioner was dismissed vide same order i.e 01.10.2008.
Accordingly, the Petitioner has filed the present petition challenging the order of the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, vide which, the revision filed by the Respondent-wife was allowed and the maintenance was enhanced from Rs. 2,000/-per month to Rs. 3,000/-per month to the Respondent-wife and Rs. 3,500/-per month to each children from the date of the order dated 01.10.2008, whereas, the revision filed by the Petitioner was dismissed, by raising following arguments:
(a) that it has been proved on record that the carry home salary of the Petitioner, who is working as a Development Officer in Life Insurance Corporation, is Rs. 7,470/-per month after compulsory deductions. The Petitioner is working on the same post at which he was working at the time of passing of the order dated 22.04.2003 by this Court.
(b) that it is well established that the Respondent has independent income sufficient for her support, maintenance of the minor children and incurring the necessary expenses of the proceedings. It is also established on record that the Petitioner was and is still ready to take the custody of the children. As such, the question of grant of any maintenance u/s 125 Code of Criminal Procedure did not arise.
Learned Counsel for the Respondent-wife, on the other hand, argued that the Respondent-wife has no source of income to sustain her livelihood, whereas, the Petitioner is enjoying a position of Senior Development Officer in the Life Insurance Corporation of India and is enjoying a high standard of life and that there was sufficient evidence to prove that the income of the Petitioner was Rs. 40,000/- per month.
In fact, Respondent-wife also filed Crl. Misc. No. M-21421 of 2009 praying for further enhancement while stating therein that the salary of the Petitioner has been calculated by the Additional Sessions Judge as Rs. 30,000/-plus allowances. As such, the same should have been divided into four units as there are four members in the family. Therefore, she is entitled to Rs. 6,000/-per month and the children are entitled to at least Rs. 8,000/-each per month. More so, because education of the children is very expensive and the Petitioner is in a position to bear the burden of quality education for his kids, especially when, the Petitioner is rather earning more than Rs. 40,000/-per month apart from hefty incentives and bonus. It was further contended that Rajiv Kumar Dhir, Assistant Branch Manager, LIC, Batala appeared in the witness box and proved the salary certificate of the Respondent and also proved documents Ex.A-1 to A-5, which clearly established that the Petitioner was earning more than Rs. 40,000/-per month apart from hefty incentives and bonus. Further, from the testimony of said Assistant Branch Manager and various documents exhibited on record including the salary certificate i.e. Ex.A1 to Ex.A6, it was clearly established that the monthly income of the Petitioner was more than Rs. 40,000/-per month plus other allowances, which the Petitioner miserably failed to controvert.
Heard.
It is not disputed that the Petitioner-husband in Crl. Misc. No. 928 of 2009 is posted as Development Officer in LIC Branch at Batala since 1993. The Petitioner has not even been able to dispute the situation that he got incentive of Rs. 1,35,400/-during financial year 2004-05, Rs. 2,39,204.00/-during financial year 2005-06 and Rs. 78,941/-during financial year 2006-07. It shows that he got incentive to the tune of Rs. 4,53,545/-for the period 2004 to 2007. Thus, his income is almost Rs. 30,000/-besides conveyance allowance. Moreover, the said salary and the incentives have been calculated by the trial Court and the Additional Sessions Judge between the period from 2004 to 2007. Today it is 2011. It is a common knowledge that the education is expensive. Besides daily need of clothes, tuition, transport, food, shelter, medical expenses also have to be incurred and the Respondent-wife also needs to take care of the increasing demands of growing children. It goes without saying that needs today are much more expensive.
Thus, no fault can be found with the order dated 01.10.2008 passed by Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, vide which, the maintenance was granted Rs. 3,000/-per month to the Respondent-wife and Rs. 3,500/-per month to each children from the date of the order i.e 01.10.2008.
As such, the petitions i.e. Crl. Misc. No. M-928 of 2009 and Crl. Misc. No. M-33132 of 2008 filed by the Petitioner-husband, are dismissed being without merit.
On the other hand, Crl. Misc. No. M-21421 of 2009 filed by the Petitioner-wife for enhancement is also devoid of merit as it is second revision. Second revision is not maintainable. The present petition is nothing but a second revision under the garb of Section 482 Code of Criminal Procedure It is a well settled proposition of law that petition u/s 482 Code of Criminal Procedure can be entertained only in case of miscarriage of justice or misuse of process of law.
Learned Counsel for the Petitioner-wife has not been able to show as to how the order dated 01.10.2008 passed by the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur is unjust or arbitrary or how the same has caused injustice. In fact, the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur enhanced the amount of maintenance. Taking into account the income of the husband as Rs. 30,000/-as assessed by two Courts below, the amount of Rs. 3,000/-per month to Petitioner-wife and Rs. 3,500/-per month to each of the two children is fair and no case to enhance the same further is made out.
No interference is called for in the order dated 01.10.2008 passed by the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur and accordingly the present petition filed by the Petitioner-wife is also dismissed.
A photocopy of this order be placed on the files of other connected cases.