Sudhir Kumar Rehani vs Indu Bala and Others

Nirmaljit Kaur, J.—This is a petition u/s 482 Code of Criminal Procedure. for quashing of the impugned orders dated 16.10.2008 passed by the learned Additional Sessions Judge, Kamal and order dated 25.08.2006 passed by the learned Chief Judicial Magistrate, Karnal.

Facts, in short, are that the marriage between the Petitioner and Respondent No. 1 was solemnized on 11.12.1986 and two children were born out of the wedlock on 02.02.1988 and 30.2.1990, respectively. The matrimonial life could not survive for very long and the parties separated by way of decree of divorce dated 15.02.1993. However Respondent spondent wife filed an application as late as on 19.12.2005 for grant of maintenance u/s 125 Code of Criminal Procedure The same is still pending. Along, with the main application, Respondent wife filed an application for grant of interim maintenance claiming an interim maintenance to the tune of Rs. 25,000/- per month. The trial Court Vide order dated 25.08.2006 awarded an interim maintenance to the tune of Rs. 1,500/- per month to resppondent wife and Rs. 2000/- to the daughter from the date of filing of the application but the claim qua the son was declined as he had attained the age of majority. However, in revision, the Additional Sessions Judge, Karnal vide order dated 16.10:2008 increased the amount of interim maintenance to the tune of Rs. 6000/- per month to the Respondent wife, Rs. 7000/- per month to the daughter and Rs. 7000/- per month were also granted to the son qua whom the maintenance was declined by the trial Court Aggrieved against the said order, the instant petition has been filed.

While challenging the aforesaid order, learned Counsel for the Petitioner raised two fold arguments;-

i) That no maintenance can be granted to a son who has attained the age of majority; and

ii) That Respondent No. 1 is a well qualified having done B. Ed. Course and is earning a sum of Rs. 10,000/-.

Learned Counsel for the Respondents has vehemently opposed the present petition and has placed on record the salary certificate of Respondent No. 1, issued by the School Management Committee (Rl) showing that Respondent wife is getting consolidated salary of Rs. 1913 per month only, whereas, the Petitioner is getting total salary of Rs. 40,538/- per month from Mazagaon Dock Limited where he is employed. The salary certificate to the said effect related to the year 2008 and issued by the employer of the Petitioner was placed before the Chief Judicial Magistrate. It is further stated that the said salary of the Petitioner is bound to have increased now. It is also stated that no doubt one of the children is major but he is pursuing his education and has no source of income. He is totally dependent on his parents for his basic needs and education. Therefore, he has every right to claim maintenance from his father till such,time he is pursuing his education and starts earning. It is also stated that till now the Respondent wife and children were living on the mercy of her brothers and mother, who have their own family to take care of

Heard.

Section 125 Code of Criminal Procedure reads as under:

Order for maintenance of wives, children and parents.

(l) 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,

There is no doubt that the said Section talks only of a child who is a major and is unable to maintain himself on account of his being physical or mental abnormality or injury.

However, this Court in the case of Satish Kumar v. State of Punjab reported as 2005 (1) RCR (Cri) 256, while interpreting the provision of Inability to maintain" held as under:

On the close reading of the above provisions, it is clear that emphasis has been laid in all cases on the "inability to maintain" because the primary object to the Section is the survival of the human being who is unable to maintain himself in a Survival of fittest society.

In this light, Clause (c) of Section 125 of the Code is to be interpreted. No restricted meaning can be given to the words where such child by reason of any physical or mental abnormality or injury to maintain itself used in Section 125 of the Code. The emphasis has been given by the legislation on the ability of the child to maintain himself or herself. The object of this Section is to provide maintenance to those minor children, whether legitimate or illegitimate, who are unable to maintain themselves. Only married daughter, who has attained majority, is not entitled for maintenance under this clause because in such a case, it is the responsibility of the husband of such daughter to maintain her, but in case of unmarried major daughter, the obligation of father still exists to maintain her till her marriage. This legal obligation of a father cannot be water-towered by giving the restricted interpretation to the words "physical or mental abnormality or injury

It was further held in para 10 as under:

For achieving the substantial justice and the object to the statute, it is necessary to give a liberal interpretation to the words physical or mental abnormality or injury''. In my view, if an unmarried daughter is unable to maintain herself due to her illiteracy or unemployment, then such situation is covered by the physical or mental abnormality. The Hon''ble Apex Court in Noor Saba Khatoon Vs. Mohd. Quasim, , has categorically held that the effect of a beneficial legislation like Section 125 of, the Code cannot be allowed to be defeated except through clear provisions of a statue. u/s 125 of the Code, the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own. It remains his absolute obligation to provide maintenance for them. While interpreting Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1996 the Hon''ble Apex Court held that obligation of the father to maintain a female child is till her marriage.

Thus, adopting the same principle inability to maintain itself, would also apply to a son who is major and unable to maintain himself not just because of physical or mental abnormality or suffer from any injury but also on account of the fact that he is still a student and is pursuing is education. He too would fall under the category of ''unable to maintain himself and as such, entitles for the expenses incurred towards his education.

It is not disputed that Respondent No. 2 is still pursuing his education of engineering. It is proved on record that an amount of Rs. 46,000/- was incurred as expenses only for the year 2005-06 towards his educational fee. Respondent wife is earning only Rs. 1913A per month. She is trying to give the best of education to her children as per their entitlement. Father must contribute his share towards the education especially when admittedly, he is drawing salary of Rs. 40,538/- as per annexure R-2. In fact, it is also alleged by the Respondents that the peititoner has other source of income including savings.

There is another way of looking at it The Petitioner at this stage has not been able to rebut the expenses being incurred by the Respondents towards their need and other educational expenses. In order to bear the day to day expenses as well as other miscellaneous expenses including the education expenses of two grown up children,'' a total amount of Rs. 20,000/- per month between the three i.e. Respondent-wife and her two children is hardly on the higher side especially taking into account a handsome salary being drawn by the Petitioner. The divorce was granted Way back on l5.02.1993. The Respondent wife has filed this application after 12 years. All these years, she was living at the mercy of her brothers and has brought up her children single handedly with no contribution from father. It is only when things have become more expensive arid education too is an expensive proposition that the Respondent wife was forced to file an application for maintenance. As such, there is no, ground to interfere in the impugned order passed by the court below, vide which, the maintenance was granted/enhanced.

In view of the foregoing discussion, the present petition is dismissed being devoid of merit.