Mahendrabhai Kantilal Agravat & 1

1.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the applicants herein­original applicant challenging the impugned judgment and order dated 19.7.2012 passed in Criminal Miscellaneous Application No.11 of 2010 by the learned Principal Judge, Family Court, Rajkot in so far as not awarding Rs.10,000/­ per month to the original applicants towards their maintenance and awarding Rs. 4000/­ per month only. Thus, Criminal Revision Application preferred to enhance the amount of maintenance as awarded by the learned Judge, Family Court.

2.0 That applicants herein­original applicants preferred application under Section 125 of the Code of Criminal Procedure against the respondent no.1 herein before the learned Family Court, Rajkot being Criminal Miscellaneous Application No.11 of 2010 claiming Rs.10,000/­ in all towards their maintenance from the respondent no.1 herein­original opponent. It was the case on behalf of the original applicants that the original opponent­husband was ill treating them and was even having illicit relation and that they have been deserted by him. It was the case on behalf of the original applicants that original opponent husband is serving in BSNL and his salary is Rs.20,000/­ per month and therefore, it was requested to award at least Rs.10,000/­ per month to them towards their maintenance.

2.1. Application was opposed by the original opponent husband denying the allegations of harassment, ill­treatment and having illicit relation. It was the case on behalf of the husband that his net salary is Rs.11,435/­.

2.2. That on appreciation of evidence the learned Judge has held that the original opponent has deserted the applicants without any reasonable cause and they are not in a position to maintain them as they have no other independent income and considering the net salary of husband at Rs. 11,435/­ (on 1.7.2010) the learned Judge by impugned judgment and order has awarded Rs.2000/­ per month to the original applicant and Rs.1000/­ per month to each of the original applicant nos. 2 and 3 minor sons i.e. in all Rs.4000/­.

2.3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Judge, Family Court, Rajkot in awarding Rs.4000/­ per month only to them as maintenance under Section 125 of the Code of Criminal Procedure, the applicants herein have preferred present Criminal Revision Application under Section 397 r/w 401 of the Code of Criminal Procedure and has requested to enhance the amount of maintenance.

3.0 Shri Kotecha, learned advocate for the applicants has vehemently submitted that the learned Judge has materially erred in awarding in all Rs. 4000/­ only to the original applicants towards their maintenance considering the net salary of the opponent husband at Rs.11,435/­per month. It is submitted that as such even in the month of July 2010 gross salary of the husband was Rs.18,049/­ out of which Rs.3406 was deducted towards loan taken from the credit society and Rs.3000/­ was deducted towards GPF. Relying upon the decision of this Court in the case of Pratibha Dineshkumar Vania & Anr vs. State of Gujarat & Anr reported in 2007(3) GLR 2581 deduction of GPF etc 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. It is submitted that the aforesaid amount of Rs.6406/­ which is deducted towards loan taken from the Credit Society and GPF is to be considered as his savings and is required to be included in the income of the husband while awarding maintenance to the applicants. Therefore, it is submitted that as such income of the husband was required to be considered at Rs.17500/­.

3.1. Shri Kotecha, learned advocate for the applicants has heavily relied upon the decision of 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.

4.0 Present application is opposed by Shri Jay Thakkar, learned advocate for the opponent husband. It is submitted by Shri Jay Thakkar, learned advocate for the opponent husband that considering the net salary of the respondent no.1­husband at Rs.

11,435/­, no illegality has been committed by the learned Judge in awarding Rs.4000/­ per month to the original applicants towards their maintenance under Section 125 of the Code of Criminal Procedure.

5.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the respondent no.1 herein­original husband is serving in the BSNL and at the relevant time i.e. in the month of July 2010 his gross salary is Rs.18049/­ out of which Rs.s.3406 was deducted towards loan taken from the credit society and Rs.3000/­ was deducted towards GPF. As per the decision of this Court in the case of ratibha Dineshkumar Vania & Anr (supra) the aforesaid amount is to be considered as his savings and is required to be considered in the total income of the husband while awarding maintenance to the applicants. Thus, as such learned Judge has materially erred in awarding maintenance to the original applicants considering net salary of the husband i.e. Rs.11,435/.

5.1. 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.

5.2. 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.

5.3. 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).

5.4. 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.

5.5. 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.

5.6. 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.”

6.0 In view of the above, the learned Judge ought to have considered the income / salary of the respondent no.1­original opponent at Rs. 17500/­ per month which was in the month of July 2010. It has come on record that thereafter periodically salary of the respondent ­husband has been increased from time to time and in the month of October 2011 his gross salary was Rs.25,237/­ out of which deliberately the respondent no.1 ­original opponent has increased the deduction towards GPF to Rs.10,000/­ per month. It appears that probably as the proceedings for maintenance is pending, husband has deliberately increased the deduction towards GPF to Rs.10,000/­ so that is not to be considered while awarding maintenance to the applicant. It has also come on record that since many months installments towards loan of the house is being paid by the brother of the applicant no.1 as they were facing dispossession, respondent ­original opponent stopped to pay the installment. Considering the aforesaid facts and circumstances and even salary of the respondent husband at Rs.17,500/­ in April 2010 and Rs.24000/­ per month in October 2011 and thereafter same has been increased, it appears to the Court that impugned judgment and order passed by the learned Judge, Family Court, Rajkot awarding Rs.4000/­ per month only to the applicants towards their maintenance deserves to be modified. In these hard days and looking to the price rise, inflation, value of the rupee etc and the amount / expenditure to be incurred by the applicants towards their maintenance, education etc. it appears to the Court that original applicants are entitled to at least Rs.9000/­ per month towards their maintenance under Section 125 of the Code of Criminal Procedure. Under the circumstances, impugned judgment and order passed by the learned Judge, Family Court, Rajkot deserves to be modified to the aforesaid extent.

7.0 In view of the above and for the reasons stated herein above, present Criminal Revision Application succeeds in part. The impugned judgment and order passed by the learned Judge, Family Court, Rajkot dated 19.7.2012 passed in Criminal Miscellaneous Application No.11 of 2010 is hereby modified and respondent no.1 herein­original opponent ­husband is hereby directed to pay Rs.5000/­ per month to the original applicant no.1 wife and Rs.2000/­ per month each to the original applicants no. 2 and 3 minor children towards their maintenance under Section 125 of the Code of Criminal Procedure from the date of the application i.e. 4.1.2010. The arrears pursuant to the present order shall be cleared by the opponent­husband within a period of two months from today and respondent no.1 herein is hereby directed to pay maintenance to the original applicants as stated above i.e. Rs.5000/­ per month to the original applicant no.1 wife and Rs.2000/­ per month each to the original applicants no. 2 and 3 minor children towards their maintenance regularly as and when due and payable between 1st and 10th day of every English Calendar Month. Rule is made absolute to the aforesaid extent.

Kaushik sd/-

(M.R.SHAH, J.)