1.00. Present Criminal Revision Application, under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the petitioner - original opponent – husband to quash and set aside the impugned Judgement and Order dtd.17/2/2012 passed by the learned Family Court No.2, Ahmedabad in Criminal Misc.Application No. 3031 of 2009 by which the learned Family Court has partly allowed the said application preferred by the original applicants – wife and minor daughter, by directing the petitioner herein – husband to pay Rs.7,000/- per month to the original applicant No.1 – wife and Rs.3,000/- per month to the original applicant No.2 – minor daughter, in all Rs.10,000/- towards maintenance under section 125 of the Code of Criminal Procedure from the date of application i.e. 29/12/2009. 2.00. That the respondent Nos.2 and 3 herein – original applicants – wife and minor daughter submitted Criminal Misc.Application No. 3031 of 2009 against the petitioner herein – original opponent – husband claiming maintenance at the rate of Rs.12,000/- per month towards their maintenance under section 125 of the Code of Criminal Procedure. It was the case on behalf of the original applicants that both of them have been deserted by the petitioner herein – husband and that original applicant No.1 – wife was ill-treated and harassed for non-fulfillment of demand of dowry by the husband and since then they have been compelled to stay at their parental home. It was the case on behalf of the original applicants that petitioner - husband is serving as Electrical Inspector in the State Government and his monthly salary is Rs.30,000/- per month. It was also the case on behalf of the applicants that the husband is also earning Rs.25,000/- per month by doing electric consultancy etc. and thus, in all earning Rs.55,000/- per month. It was also submitted that except the original applicants – wife and minor daughter, the husband has no other liability to discharge.
2.01. That the maintenance application was opposed by the petitioner herein – original opponent – husband denying allegations of harassment, ill-treatment etc. It was submitted that he is already and willing to take back original applicants and stay with them. He also denied that his income is Rs.55,000/- per month, as alleged. It was submitted that he is serving as Assistant Electrical Inspector and his monthly salary is Rs.17,000/- per month.
2.02. That on appreciation of evidence and considering the net salary of the husband in the month of November, 2011 at Rs.32,201/-, the learned Family Court, by the impugned Judgement and Order partly allowed the said maintenance application awarding, in all Rs.10,000/- to the original applicants towards maintenance under section 125 of the Code of Criminal Procedure.
2.03. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned Family Court No.2, Ahmedabad in Criminal Misc.Application No. 3031 of 2009, by which the learned Family Court has partly allowed the said application preferred by the original applicants – wife and minor daughter, directing the petitioner herein – husband to pay Rs.7,000/- per month to the original applicant No.1 – wife and Rs.3,000/- per month to the original applicant No.2 – minor daughter, in all Rs.10,000/- towards maintenance under section 125 of the Code of Criminal Procedure from the date of application i.e. 29/12/2009, petitioner herein – original opponent – husband has preferred present Criminal Revision Application under section 397 of the Code of Criminal Procedure.
3.00. Mr.Gaurang Patel, learned advocate appearing on behalf of the respondent No.2 - husband has vehemently submitted that in the facts and circumstances of the case, the learned Family Court has materially erred in awarding in all Rs.10,000/- per month towards maintenance to the original applicants towards maintenance. It is submitted that as such at the relevant time, when the application for maintenance under section 125 of the Code of Criminal Procedure was submitted, net salary of the husband was Rs.17,000/- and even the husband was required to pay installment towards Car loan and installments of loan for housing renovation / repair, drawn by the father of the husband. Therefore, it is submitted that the learned Judge has materially erred in awarding Rs.10,000/- to the original applicants considering the salary / income of the husband drawn in the month of November, 2011.
By making above submissions, it is requested to allow the present Criminal Revision Application.
4.00. Present Criminal Revision Application is opposed by Mr.Dipak Dave, learned advocate appearing on behalf of the original applicants. It is submitted that in the facts and circumstances of the case and considering the salary / income of the husband and social and family status, price rise, inflation value of money, and considering the expenditure to be incurred by the original applicants towards their maintenance and even towards education of the original applicant No.2 – minor daughter,no illegality has been committed by the learned Family Court in warding Rs.10,000/- per month towards maintenance under section 125 of the Code of Criminal Procedure.
4.01. Mr.Dipak Patel, learned advocate appearing on behalf of the original applicants has heavily relied upon decisions of the Hon’ble Supreme Court in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. reported in AIR 1978 SC 1807; in the case of Savitaben Somabhai Bhatiya v. State of Gujarat & Ors. reported in AIR 2005 SCW 1601; as well as decision of the learned Single Judge in the case of Chaturbhuj v. Sita Bai reported in AIR 2008 SC 530; in the case of Sushilaben Mohanlal Vs. Mali Chunilal Hargovind & Anr. reported in 1991(1) GLH 342; as well as the Himachal Pradesh High Court in the case of Smt. Shakuntla Vs. Rattan Lal, reported in 1981 Cri.LJ 1420 1420 as well as decision of this Court in Special Criminal Application No.2462 of 2010.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
5.01. At the outset, it is required to be noted that the original opponent – husband is serving as Assistant Electrical Inspector in the Government of Gujarat and in the month of March, 2011, his gross salary was Rs.24,373 and his net salary, after deduction, was Rs.21,302/-. In the month of July, 2011, his gross salary was Rs.27,582/- and his net salary, after deduction, was Rs.24,346/-. In the month of November, 2011, his gross monthly salary was Rs.36,144 and his net monthly salary for the month of November, 2011 at Rs.32,201/- and in the month of April, 2012, his gross salary was Rs.36,144 and his net salary, after deduction, was Rs.31,101/-. The salary of the husband has been increased periodically. Considering the above, the amount of maintenance to the original opponent – husband is required to be considered.
5.02. 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.
5.03. 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.
5.04. 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).
5.05. 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.
5.06. 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.
5.07. 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.”
5.08. Considering the aforesaid facts and circumstances and aforesaid decisions and the income/salary of the husband and price rise, inflation, value of rupee and expenditure to be born by the original applicants towards their maintenance and even education of the original applicant No.2 – minor daughter and status of the family members of the husband, it cannot said that the learned Family Court has committed any error and/or illegality in awarding in all Rs.10,000/- per month towards their maintenance under section 125 of the Code of Criminal Procedure and/or the same is exorbitant and/or excessive. Under the circumstances, no interference of this Court is required in revisional jurisdiction.
5.09. In the facts and circumstances of the case, no illegality has been committed by the learned Family Court in warding in all Rs.10,000/- to the original applicants towards their maintenance under section 125 of the Code of Criminal Procedure.
6.00. In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application and the same deserves to be dismissed and is accordingly dismissed.
[M.R. SHAH, J.] rafik