Rudansingh vs Mamta Bai and another

This Criminal Revision under Section 397 of Cr.P.C. read with Section 19 (4) of the Family Court, Act, 1987 has been filed against the order dated

5/1/2018 passed by the Principal Judge, Family Court, Dhar in M.Cr.C. No.128/2015, by which the Family Court has awarded an amount of Rs.3,000/-

per month to each of the respondents by way of maintenance.

The necessary facts for disposal of present revision in short are that initially the respondents had filed an application under Section 125 of Cr.P.C.,

which was registered as M.Cr.C. No.29/2002 and the Court of competent jurisdiction by order dated 16/7/2003 had directed the applicant to pay

Rs.500/- per month to each of the respondents. However, it appears that the applicant did not deposit the said amount also and accordingly, the

applicant was sent to jail, but still the recovery proceedings are pending. Thereafter, an application under Section 127 of Cr.P.C. was filed on the

allegation that the respondent no.2 is the student of Class 9th and the respondent no.1 has no independent source of income and she spends about

Rs.5,000/- per month on the education as well as school dress of respondent no.2. The respondent no.1 is also suffering from skin diseases, as a result

of which, she is required to spend Rs.5,000/- per month, whereas the applicant has 15 Bigha agricultural land and is earning Rs.10,00,000/- per year

and accordingly, prayer for alteration of maintenance amount was made and it was prayed that the maintenance amount be enhanced to Rs.5,000/- to

each of the respondents.

The applicant filed his reply. It was alleged that the respondent no.1 is residing in her own house and the respondent no.2 is major and is helping the

respondent no.1 in carrying out the agricultural activities, whereas the applicant is an unskilled labour and is looking after his parents being the sole

issue. The applicant also generally remains sick, in spite of that he is making payment of maintenance amount. Accordingly, it was prayed that the

application filed under Section 127 of Cr.P.C. may be rejected.

The trial court after recording the statement of the witnesses, came to the conclusion that the amount of Rs.500/-per month to each of the respondents

is not sufficient in the light of the educational expenses as well as the price index and accordingly, allowed the said application and enhanced the

maintenance amount from Rs.500/- per month to Rs.3,000/-per month to each of the respondents.

Challenging the order passed by the court below, it is submitted by the counsel for the applicant that the respondent no.1 has a joint Hindu family

property to the extent of 30 Bigha of land alongwith her two sisters, whereas the applicant is a labourer and occasionally gets the labour job.

Heard learned counsel for the applicant.

It is submitted by the counsel for the applicant that the applicant is a labour, however, the fact that he occasionally gets the labour job cannot be

accepted. Although the applicant has denied the suggestion given by the respondents that he has remarried and has five daughters from his second

wife, but it is well established principle of law that where the husband is an able-bodied person, then the maintenance amount cannot be refused to the

wife/dependents merely on the ground that the husband has limited source of income.

The Supreme Court in the case of Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 has held as under:-

''15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun (1997) 7 SCC 7 has held as follows:

(SCC p. 12, para 8)

“8. … The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable

expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of

maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when

she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot

be excessive or extortionate.â€​

Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC 316, it has

been ruled that: (SCC p. 320, para 6)

“6. … Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt.

Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the

Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the

supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children

and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat

(2005) 3 SCC 636 .â€​

This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain

the wife due to financial constraints as long as he is capable of earning.

In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila

Rani Chander Prakash 1968 SCC Online Del 52 wherein it has been opined thus: (SCC On Line Del para 7)

… an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and

child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for

such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge

his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption

will be easily permissible against him.

From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife

and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her

faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the

misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing

legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.''

Thus, in the light of the aforesaid judgment passed by the Supreme Court as well as the prince index, price of the goods of daily needs and the fact

that the respondent no.2 is the student of Class 11th , the court below has rightly came to the conclusion that the maintenance amount of Rs.500/-

awarded to each of the respondents is not sufficient and the same is required to be altered under Section 127 of Cr.P.C.

Considering the submissions of the counsel for the applicant as well as the findings given by the court below, this Court is of the considered opinion

that the enhancement of maintenance amount from Rs.500/- per month to Rs.3,000/-per month to each of the respondents by the Family Court cannot

be said to be excessive or on a higher side.

Accordingly, the order dated 5/1/2018 passed by the Principal Judge, Family Court, Dhar in M.Cr.C. No.128/2015 is hereby affirmed.

The revision fails and is hereby dismissed.