1. Present Criminal Revision Application under Section 397 r/w 401 of the Code of Criminal Procedure has been preferred by the petitioners herein minor son of respondent no.2 to modify the impugned order dated 21.10.2010 passed by the learned Principal Family Judge, Family Court, Surat passed in Maintenance Application No. 230 of 2008 and to enhance the amount of maintenance as well as to quash and set aside the impugned order dated 21.10.2010 passed by the learned Principal Judge, Family Court, Surat passed in Maintenance Application No. 489 of 2008 in so far as rejecting the said application.
2. That the petitioners herein minor son and wife of respondent no.2 herein submitted the applications before learned Family Court, Surat against respondent no.2 herein original opponent father/husband claiming maintenance under Section 125 of the Code of Criminal Procedure being Criminal Miscellaneous Application Nos. 230 of 2008 and 489 of 2008.
2.1. It was the case on behalf of the original applicants that the income of the respondent husband is minimum Rs. 50,000/ by running private dispensary and that he has no other responsibility and / or liability. Therefore, it was prayed to award compensation to the minor son at Rs.10,000/ per month. Similar request was made to award maintenance to the wife also.
2.2. The applications were opposed by the original opponent fatherhusband. It was submitted that the original applicant wife is also practicing Doctor and is earning Rs. 50,000/ per month. The original opponent husband also denied that his income is Rs. 50,000/ per month. It was the case on behalf of the husband that his monthly income is Rs. 3500/ to Rs. 4500/ per month. That on appreciation of evidence, the learned Family Court, Surat considered the income of the husband at Rs. 10,000/ per month and considering the fact that the original applicant of Criminal Miscellaneous Application No.489 of 2008 is a practicing Doctor, learned Family Court by impugned judgment and order has dismissed the Criminal Miscellaneous Application No. 489 of 2008 preferred by the applicant no.2 herein and has partly allowed the Criminal Miscellaneous Application No.230 of 2008 preferred by the applicant no.1 hereinminor son awarding Rs.3000/ per month to him as maintenance under Section 125 of the Code of Criminal Procedure.
2.3. Being aggrieved and dissatisfied with the common impugned judgment and order dated 21.10.2010 passed in Criminal Miscellaneous Application Nos. 230 of 2008 and 489 of 2008, both the original applicants have preferred the present Criminal Revision Application.
3. Ms. Kruti M. Shah, learned advocate for the original applicants has vehemently submitted that the learned Judge has materially erred in awarding Rs. 3000/ per month only to the original applicant no.1 minor son. It is further submitted that even the learned Judge has materially erred in considering the income of the respondent no.2 husband / father at Rs.10,000/ per month. It is further submitted that even otherwise and even considering the income of the respondent no.2 father of the original applicant no.1 at Rs. 10,000/ per month, in that case, also the original opponent no.1 would be entitled to at least Rs.5000/ towards maintenance. Ms. Kruti M. Shah, learned advocate for the applicants does not press present Criminal Revision Application qua applicant no.2 hereinoriginal applicant of Criminal Miscellaneous Application No.489 of 2008.
3.1. Ms. Shah, learned advocate for the applicant no.1 of Criminal Miscellaneous Application No.230 of 2008 has relied upon the following decision of the Hon’ble Supreme Court 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 her prayer to award at least Rs.5000/ per month towards maintenance to applicant no.1 herein minor son.
4. Shri Viral Shah, learned advocate has appeared on behalf of the original opponent husbandfather. He has fairly conceded that as such despite the fact that applicant no.2 herein is a practicing Doctor and is earning, respondent no.2 is not absolved of his liability or responsibility to maintain applicant no.2. He has fairly stated at the bar under the instruction from respondent no.2 that respondent no.2 would not have any objection if the amount of maintenance is enhanced to Rs.4500/ per month.
5. Heard the learned advocates for the respective parties at length. It is not in dispute that respondent no.2father of the original applicant no.1 is a Doctor and it has come on record that even he is paying Rs.24000/ yearly towards LIC premium. The learned Family Court has considered the income of the respondent no.2 at Rs.10,000/ per month. Even considering the income of the respondent no.2 father of the original applicant no.1 who is practicing Doctor at Rs.10,000/ per month, the applicant no.1 herein minor son would at least be entitled to Rs.5000/ per month. Even as stated above, learned advocate for the respondent no.2 father of the applicant no.1 has agreed to pay Rs.4500/ per month to the original applicant no.1 towards his maintenance. Considering the income of the respondent no.2 even at Rs.10,000/ per month and considering his social status etc. it appears to the Court that if the applicant no.1 herein minor son is awarded the maintenance at the rate of Rs.5000/ per month w.e.f. November 2010 (which is not seriously opposed and disputed by learned advocate for the respondent no.2 herein) it will meet the end of justice.
6. 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.
6.1. 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.
6.2. 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).
6.3. 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.
6.4. 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.
6.5. 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.”
7. Considering the aforesaid facts and circumstances of the case and considering the aforesaid decisions, it appears to the Court that impugned judgment and order passed by the learned Family Court, Surat dated 21.10.2010 passed in Criminal Miscellaneous Application No. 230 of 2008 deserves to be modified to the extent awarding maintenance to applicant no.2 hereinminor son at Rs.5000/ per month w.e.f. November 2010.
8. In view of the above and for the reasons stated above, present application succeeds in part. The impugned judgment and order passed by the learned Family Court, Surat passed in Criminal Miscellaneous Application No.230 of 2008 is hereby modified to the extent awarding Rs.5000/ per month to the applicant no.1 herein minor son w.e.f. November 2010 towards his maintenance under Section 125 of the Code of Criminal Procedure. The present Criminal Revision Application filed by the present applicant no.2 is dismissed as not pressed. Arrears of maintenance pursuant to the present order shall be cleared by respondent no.2 within a period of three months from today and respondent no.2 herein original opponent no.2 is hereby directed to pay maintenance to the applicant no.1 at Rs.5000/ per month regularly as and when due and payable between 1st and 10th day of even English Calendar Month. Rule is made absolute to the aforesaid extent qua applicant no.1minor son.
kaushik sd/ (M.R.SHAH, J.)