1.0 As common question of law and facts arise in both these Criminal Revision Applications and are between the same parties and as such it can be said to be cross Revision Applications, both these Criminal Revision Applications are heard, decided and disposed of together by this common judgment and order.
2.0 Criminal Revision Application No. 387 of 2012 has been preferred by the applicant husband to quash and set aside the impugned judgment and order passed by the learned Family Court, Rajkot dated 18.5.2012 passed in Criminal Miscellaneous Application No.1834 of 2008 passed under Section 127 of the Code of Criminal Procedure and enhancing the amount of maintenance to Rs.1300/ per month to be paid to the original applicant wife.
3.0 Criminal Revision Application No.428 of 2012 has been preferred by the original applicant wife for enhancement of amount of maintenance from Rs.1300/ per month and to modify the impugned judgment and order passed by the learned Principal Judge, Family Court, Rajkot dated 18.5.2012 passed in Criminal Miscellaneous Application No.1834 of 2008 awarding amount of maintenance of Rs. 1300/ per month only.
4.0 That the original applicantwife was getting of Rs. 275/ per month towards maintenance pursuant to the earlier order passed under Section 125 of the Code of Criminal Procedure. Looking to the price rise, value of rupees, inflation etc. , the applicant wife submitted Criminal Miscellaneous Application No.1834 of 2008 under Section 127 of the Code of Criminal Procedure and requested to enhance the maintenance to Rs. 5000/ per month. It was the case on behalf of the original applicant wife that respondent husband is running Sahakar Printing Press at Surendranagar and is getting Rs.15000/ per month. The said application was opposed by the respondent husband by denying his income of Rs. 15000/ per month. It was the case on behalf of the respondent husband that as his income is of Rs.1500/ per month only. That on appreciation of evidence, the learned Family Court, Rajkot has enhanced the amount of maintenance to Rs.1300/ per month.
4.1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Family Court, Rajkot in enhancing the maintenance to Rs.1300/ per month, the husband has preferred Criminal Revision Application No. 387 of 2012 and being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Family Court in enhancing the amount of maintenance to Rs.1300/ per month only, the original applicant wife has preferred Criminal Revision Application No. 428 of 2012 for the enhancement of the amount of maintenance.
5.0 Shri Panthil Majmudar, learned advocate for the husband has vehemently submitted that learned Family Court has materially erred in enhancing amount of maintenance from Rs.275/ to Rs.1300/ per month. It is further submitted by Shri P. P. Majmudar, learned advocate for the husband that learned Judge has materially erred in awarding Rs. 1300/ per month to the wife towards maintenance in absence of any evidence on record with respect to the income of the husband. It is submitted that as such income of the husband is Rs.1500/ per month only and therefore, learned Family Court has committed an error in awarding Rs.1300/ per month towards maintenance to the original applicant wife. It is further submitted even now son has also become major who is residing with the wife and he can maintain the original applicant wife. By making above submissions, it is requested to allow the present application. No other submissions have been made.
6.0 On the other hand, Shri Pathak, learned advocate appearing for the original applicantwife through Gujarat High Court Legal Aid Committee has submitted that as such respondent husband is running Printing Press at Surendranagar and his monthly income is Rs.15000/ per month. It is submitted that the respondent husband has deliberately not produced any documentary evidence to show his income and he has tried to suppress his income. It is submitted that as such respondent husband is the best person in whose custody or possession evidence with respect to income is supposed to be. It is submitted that even husband is having the high status in the society and in the community and in fact he is the Secretary of Shri Gujarat Rajya Mochi Gnyati Kalyan Samiti, Surendranagar and the trustee / member of Shri Surendranagar Mochi Samaj Trust, Surendranagar and in the recent advertisement given by him in the booklet produced by his Samaj / community the husband has given one page full advertisement and given his address at Sahakar Printing Press at Surendranagar with his three mobile numbers and even the said booklet was printed at his printing press. It is submitted that a person who is running a printing press in the big Town of Surendranagar and is having three mobiles, his income cannot be believed at Rs.1500/ per month only as alleged. Therefore, considering the inflation, price rise, value of rupees and the expenditure to be incurred by the wife towards her maintenance, it is requested to allow Criminal Revision Application No.428 of 2012 at least by awarding Rs.3000/ per month. It is submitted that as such the applicant wife is so poor and financially weak that she could not even approach this Court and she had approached Gujarat High Court Legal Aid Committee and through that wife is able to prefer present Criminal Revision Application for enhancement of the amount of maintenance and to appear in the Criminal Revision Application filed by the husband. Therefore, it is requested to dismiss the Criminal Revision Application filed by the husband and allow the Criminal Revision Application filed by the wife with costs.
7.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that as such the wife was getting Rs.275/ per month only towards maintenance under Section 125 of the Code of Criminal Procedure. Considering the price rise, inflation etc. she submitted the application under Section 127 of the Code of Criminal Procedure to enhance the amount of maintenance submitting that the respondent husband is running Printing Press at Surendranagar and his income is Rs.15000/ per month. Unfortunately, the husband did not produce any documentary evidence to show his income. However, he submitted that his income is Rs. 1500/ per month. It is not in dispute that as such the respondent husband is having Printing Press named Sahakar Printing Press at Surendranaga. It is also borne out from the record that he is having high position in the society and community. The husband is the Joint Secretary in Shri Gujarat Rajya Mochi Gnyati Kalyan Samiti, Surendranagar and the Trustee /member of Shri Surendranagar Mochi Samaj Trust, Surendranagar. From the full page advertisement given in the booklet published of the community, it is established and proved that the husband is running Sahakar Printing Press at Surendranagar. From the said advertisement, it also appears that he is having three mobiles. A person who is the owner of a printing press and having three mobiles his income cannot be believed at Rs.1500/ per month as alleged. As stated above the husband has not produced any evidence to show his actual income. Under the circumstances, considering his social status as well as he is the owner of one Printing Press wife is entitled to maintenance.
7.1. 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.
7.2. 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.
7.3. 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).
7.4. 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.
7.5. 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.
7.6. 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.”
8.0 Considering the aforesaid facts and circumstances of the case and price rise, inflation and value of rupee and expenditure to be incurred by the wife towards her maintenance (though her son has become major) it appears to the Court that wife is entitled to at least Rs.2750/ per month towards her maintenance from the date of application. Under the circumstances, the impugned judgment and order passed by the learned Family Court awarding maintenance of Rs.1300/ per month is required to be modified to the aforesaid extent.
9.0 In view of the above and for the reasons Criminal Revision Application No.387 of 2012 preferred by the husband deserves to be dismissed and is accordingly dismissed with cost which is quantified at Rs.2000/ per month. Notice discharged.
9.1. Criminal Revision Application No.428 of 2012 preferred by the original applicantwife is hereby allowed in part and the impugned judgment and order passed by the learned Family Court, Rajkot dated 18.5.2012 passed in Criminal Miscellaneous Application No.1834 of 2008 passed under Section 127 of the Code of Criminal Procedure is hereby modified to the aforesaid extent and awarding maintenance to the original wife at Rs.2750/per month from the date of application which the original opponent husband is directed to pay to the original applicant wife from the date of application and continue to pay regularly as and when due and payable between 1st and 10 the day of even English Calender month. Arrears to be cleared within a period of four weeks from today. Rule is made absolute to the aforesaid extent with cost which is quantified at Rs.2000/ which the respondent husband is directed to pay with the arrears (in all Rs.4000/ towards costs).
“kaushik”
sd/ ( M. R. Shah, J. )