1. Rule. Mr.L.B.Dabhi, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 herein – State and Mr.Amrish Pandya, learned advocate waives service of notice of Rule on behalf of respondent No.2 herein.
2. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of the respective parties, the present application is taken up for final hearing today.
3. The present Criminal Revision Application u/s.397 read with 401 of the Code of Criminal Procedure has been preferred by the applicants herein – wife and minor daughter challenging the impugned judgement and order dated 04/05/2011 passed by learned Principal Judge, Family Court No.1, Ahmedabad in Criminal Misc. Application No.3263 of 2007, by which, learned Judge has not enhanced the amount of maintenance as prayed for in application u/s.127 of the Code of Criminal Procedure but learned Judge has enhanced the amount of maintenance from Rs.1,500/- per month to Rs.3,000/- per month to original applicant No.1 - wife and from Rs.1,000/- per month to Rs.2,000/- per month to original applicant No.2 – minor daughter from 24/12/2007 and it is directed to respondent No.2 herein – husband to pay amount of maintenance at the rate of Rs.5,000/- per month to original applicant No.1 – wife and Rs.3,000/- per month to original applicant No.2 – daughter from 01/01/2009.
4. That the applicants herein have been paid maintenance at the rate of Rs.2,500/- per month (Rs.1,500/- per month to applicant No.1- wife and Rs.1,000/- per month to applicant No.2 - minor daughter) towards their maintenance u/s.125 of the Code of Criminal Procedure. That considering the price rise, inflation, etc. and amount to be incurred by applicant No.1 – wife towards education and maintenance of applicant No.2 – minor daughter, the applicants submitted the application before learned Family Court, Ahmedabad u/s.127 of the Code of Criminal Procedure to enhance the amount of maintenance to Rs.17,000/- per month to both the applicants (i.e. Rs.10,000/- per month to applicant No.1 – wife and Rs.7,000/- per month to applicant No.2 – minor daughter).
5. It was the case on behalf of the applicants that salary of respondent-husband is more than Rs.36,000/- and he has no other liability. It was also submitted that in fact father of the respondent-husband, who was serving in Government Department, is also getting Pension. The said application was opposed by respondent No.2-husband by submitting that he is serving as Driver in the Railways and his uncle is remaining ill and he is required to take care of him. However, considering the gross salary of respondent No.2- husband at the relevant time was Rs.30,362/- and deduction of Rs.2,339/- towards GPF, learned Family Court has considered the income of respondent No.2 – husband at Rs.30,000/- per month and consequently by impugned judgement and order dated 04/05/2011 has enhanced the amount of maintenance from Rs.2,500/- per month to Rs.5,000/- per month to both the applicants from 24/12/2007 as well as Rs.8,000/- per month to both the applicants from 01/01/2009.
6. Feeling aggrieved by and dissatisfied with the impugned judgement and order dated 04/05/2011 passed by learned Principal Judge, Family Court No.1, Ahmedabad enhancing the amount of maintenance to Rs.8,000/- per month only, the applicants have preferred the present Criminal Revision Application to enhance the amount of maintenance.
7. Mr.Aftabhusen Ansari, learned advocate appearing on behalf of the applicants has vehemently submitted that learned Family Court, Ahmedabad has materially erred in awarding maintenance at the rate of Rs.8000/- per month only to the applicants. It is submitted that in the month of July,2009, gross salary of respondent No.2 - husband was Rs.36,832/- and after deduction net salary was Rs.33,743/-. It is submitted that salary of respondent No.2-husband has increased periodically and in January,2012, his gross salary was Rs.57,095/- and after compulsory deduction, net salary of respondent-husband for maintenance can be arrived at Rs.45,000/- per month approximately. It is submitted that in January,2011, his gross salary was Rs.50,841/- and after compulsory deduction, his net salary can be considered to be approximately Rs.38,000/- to Rs.40,000/- per month. Therefore, it is requested to enhance the amount of maintenance looking to the income of respondent-husband.
8. Mr.Ansari, learned advocate appearing on behalf of the applicants has relied upon decision of this Court in the case of Pratibha Dineshkumar Vania & Anr. V/s. State of Gujarat & Anr. reported in 2007(3) GLR 2581 and has submitted that deduction of GPF is to be considered in the income of the husband while awarding maintenance, as the same can be said to be the savings and therefore, the same is required to be considered while awarding maintenance.
Mr.Ansari, learned advocate appearing on behalf of the applicants has heavily relied upon the decision rendered in the case of Chaturbhuj v. Sita Bai reported in AIR 2008 SC 530 as well as decision of the learned Single Judge in the case of Sushilaben Mohanlal v. Mali Chunilal Hargovind & Anr reported 1991(1) GLH 342 as well as decision in the the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in AIR 1978 SC 1807 as well as decision of the Himachal Pradesh High Court in the case of Smt. Shakuntla v. Rattan Lal reported in 1981 Cri.L.J. 1420 as well as in the decision of this Court in Special Criminal Application No.2462 of 2010, in support of his prayer to quash and set aside impugned order passed by the learned Family Court and to enhance the amount of maintenance at the rate of Rs.17,000/- per month to the applicants considering income/salary of the respondent-husband.
9. The present application is opposed by Mr.Amrish Pandya, learned advocate appearing on behalf of respondent No.2 – husband and as such he is not disputing the income of the respondent – husband as stated hereinabove. However, he has stated that respondent No.2-husband is also required to pay Rs.3,500/- per month to the applicants as awarded by the Criminal Court under the Domestic Violence Act and, therefore, no illegality has been committed by the learned Family Court in enhancing the amount of maintenance to Rs.8,000/- per month u/s.127 of the Code of Criminal Procedure. It is further submitted that respondent No.2 - husband is also required to take care of his uncle and maintain his parents and, therefore, considering the above, it is requested to dismiss the present application.
10. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No.2 – husband is serving as Driver in the Railways. The application was submitted by the applicants to enhance the amount of maintenance u/s.127 of the Code of Criminal Procedure. Considering the salary slip produced by respondent No.2–husband for the months of January,2010; January,2011 and January,2012 and even July,2009, the salary of respondent No.2-husband can be considered at Rs.50,000/- per month including the amount of GPF. As held by this Court in the case of Pratibha Dineshkumar Vania (supra), deduction of GPF is required to be included in the income of the husband while awarding maintenance, as the same can be said to be the savings and, therefore, the same is required to be considered while awarding maintenance. Only compulsory deductions such as Professional Tax, Income Tax, Group Insurance, etc. are to be excluded for the purpose of considering the income of the husband while awarding maintenance
10.1. In the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in AIR 1978 SC 1807, the Hon'ble Supreme Court has observed that Section 125 of the Code of Criminal Procedure is a measure of social justice and specially enacted to protect woman and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39.
10.2. In the case of Savitaben Somabhai Bhatiya v. State of Gujarat & Ors. reported in AIR 2005 SCW 1601, the Hon'ble Supreme Court has reiterated the aforesaid principle and has further observed that the provision of Section 125 of the Code of Criminal Procedure gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.
10.3. Subsequently both the aforesaid decisions came to be considered in the case of Chaturbhuj v. Sita Bai reported in AIR 2008 SC 530 and in para 5 the Hon'ble Supreme Court has observed as under:
The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). 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 and Ors. (2005 (2) Supreme 503).
10.4. In the case of Sushilaben Mohanlal v. Mali Chunilal Hargovind & Anr. reported in 1991(1) GLH 342 the learned Single Judge has observed that word “maintenance” occurring in Section 125 of the Code of Criminal Procedure includes food, clothing, shelter, medical expenses and other expenses related to the normal pursuits of life and while considering the quantum of maintenance these aspects have to be borne in mind. It is further observed by the learned Single Judge in the said decision that while fixing quantum of maintenance value of the rupee is also required to be borne in mind. It is observed by the learned Single Judge that Court cannot be oblivious to the hard fact about the real value of rupee while fixing the quantum of maintenance along with circumstances.
10.5. As observed by the Himachal Pradesh High Court in the case of Smt. Shakuntla v. Rattan Lal reported in 1981 Cri.LJ 1420 1420 while considering the application of wife for maintenance under Section 125 of the Code of Criminal Procedure it would not be enough that wife should be paid minimum amount to just somehow exist under the sun. It is observed that standard of living of parties must also be taken into consideration.
10.6. Identical question came to be considered by this Court in Special Criminal Application No.2462 of 2010 and after considering various decisions of the Hon'ble Supreme Court as well as decision of the Himachal Pradesh High Court, in para 5.7 this Court has observed and held as under:
“Considering the aforesaid decisions of the Hon'ble Supreme Court as well as this Court the following principle emerge what required to be considered while considering the application of the wife and/ or children for maintenance under Section 125 of the Code of Criminal Procedure. (A)The object of the maintenance proceedings is not to punish person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support.
(B).The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.
(C).Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It is meant to achieve a social purpose.
(D). It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. (E).Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient and that she is unable to maintain herself.
(F).Even if it is found that the wife is earning or having some income to survive somehow, that is not sufficient to rule out of application under Section 125 of the Code of Criminal Procedure and it has to be established that from the amount she earned she is able to maintain herself. (G).While considering the application under Section 125 of the Code of Criminal Procedure and while awarding the maintenance, what is to be applied is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband and it should be consistent with status of a family.
(H).While considering the award of maintenance under Section 125 of the Code of Criminal Procedure the “maintenance” includes food, clothing, shelter, medical expenses and other expenses related to the normal pursuits of life and while considering the quantum of maintenance these aspects have to be borne in mind.
(I).While considering the quantum of maintenance, price rise, value of the rupee is also required to be borne in mind.”
11. Considering the aforesaid decisions, it cannot be disputed that wife and the children are entitled to live as per the status of the husband/father and entitled to live in the same/same position as they were living at the place of husband/father and as per the status of the family. As stated above, the respondent-husband is serving as Driver in the Railways and his monthly income can be said approximately Rs.45,000/- per month. It is also not disputed that father of the respondent-husband, who was serving in the Postal Department, who is now retired and is getting pension. Thus, considering the aforesaid facts and circumstances of the case, learned Family Court has materially erred in enhancing the maintenance at the rate of Rs.8,000/- per month from 01/01/2009. Looking to salary of respondent-husband and aforesaid decisions and Law on maintenance, applicant No.1– wife is entitled to Rs.10,000/- per moth and applicant No.2 – minor daughter is entitled to Rs.7,500/- per month towards their maintenance w.e.f. 01/01/2009.
12. In view of the above and for the reasons stated hereinabove, the present application succeeds and impugned judgement and order dated 04/05/2011 passed by learned Family Court No.1, Ahmedabad is hereby modified to the extent directing respondent No.2– husband to pay maintenance to applicant No.1-wife at the rate of Rs.10,000/- per month and applicant No.2 – minor daughter at the rate of Rs.7,500/- per month from 01/01/2009 i.e. in all Rs.17,500/- per month to the applicants. However, it is clarified that the aforesaid amount of Rs.17,500/- per month is inclusive of Rs.3,500/- as awarded by concerned Court under the Domestic Violence Act and in case the order passed by concerned Court is set aside and/or modified, in that case also, respondent-husband to pay in all Rs.17,500/- per month towards maintenance to the applicants. Arrears of maintenance, pursuant to the present order, shall be cleared by the respondent-husband within a period of three months in three equal monthly installments and respondent-husband is directed to continue to pay the amount of maintenance at the rate of Rs.17,500/- per month between 1st and 10th of every English Calendar Month regularly. Rule is made absolute accordingly.
*dipti [M.R.SHAH,J]