1.00. Rule. Mr.L.B. Dabhi, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 and Mr.Amrish Pandya, learned advocate waives the service of rule on behalf of the respondent No.2. 2.00. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties present Revision Application is taken up for final hearing today.
3.00. Present Criminal Revision Application has been preferred by the petitioner - wife – original applicant challenging the impugned Judgement and Order passed by the learned Principal Judge, Family Court No.1, Ahmedabad in Criminal Misc.Application No. 614 of 2010 dtd.6/2/2012 in so far as not awarding Rs.10,000/- per month as prayed for by her and awarding Rs.5,000/- only per month to the original applicant towards her maintenance under section 125 of the Code of Criminal Procedure, for enhancement of the maintenance.
3.01. That the petitioner - original applicant submitted Criminal Misc.Application No.614 of 2010 before the learned Family Court, Ahmedabad claiming Rs.10,000/- per month towards maintenance under section 125 of the Code of Criminal Procedure. It was the case on behalf of the wife that after the marriage, she was harassed, ill-treated and beaten by her husband and mother-in-law, for dowry etc. and thereafter she was driven out and since then she is compelled to stay at Ahmedabad at her parental house. It was the case on behalf of the petitioner - wife that husband is serving as a Manager in Banglore and is earning Rs.50,000/-. It was also submitted that he is having a big residential house in Banglore worth Rs.1.25 Crores. It was also submitted that the husband is running a Consultancy Services in the name of Grey Work Consulting. Number of documentary evidences, inclusive of the Bank Account of the husband, was produced to show that in fact husband is paying Rs.12,447/- towards loan installment. It was submitted that in fact the husband is also visiting frequently out of India and had also visited Malasiya with his mother, which shows his financial position. Therefore, it was requested to award at least Rs.10,000/- per month towards maintenance.
3.02. The application was opposed by the respondent No.2 herein – husband denying his income at Rs.50,000/- per month. It was submitted that earlier one M/s.Jagat Surgical, a proprietorship concern was run by his father, who has expired and after the death of his father, he has become legal representative of the said firm which is now closed. It was further submitted that even he has also closed the consulting services i.e. Grey Work Consulting
3.03. That on appreciation of evidence, the learned Family Court considered the income of the husband at Rs.15,000/- and consequently awarded Rs.5,000/- per month to the original applicant – wife towards her maintenance under section 125 of the Code of Criminal Procedure w.e.f. 16/3/2010.
3.04. That Being aggrieved by and dissatisfied with the impugned order passed by the learned Family Court awarding Rs.5,000/- per month only to the petitioner herein – wife towards her maintenance, petitioner herein – wife has preferred present Revision Application for enhancement of the amount of maintenance.
3.05. Mr.Ahuja, learned advocate appearing on behalf of the petitioner herein – wife has vehemently submitted that the learned Family Court has materially erred in awarding Rs.5,000/- per month only to the petitioner - wife towards her maintenance. It is submitted that the learned Family Court has materially erred in considering the income of the husband at Rs.15,000/- per month. It is submitted that as such the respondent No.2 herein – husband is running consultancy services in the name of Grey Work Consulting. It is further submitted that the case on behalf of the husband that he has closed the said consulting services is factually incorrect.
3.06. Mr.Ahuja, learned advocate appearing on behalf of the petitioner – wife has further submitted that the respondent No.2 – husband is having his offices in the posh area of Banglore and is having other properties also.
3.07. Mr.Ahuja, learned advocate appearing on behalf of the petitioner – wife has further submitted that the respondent No.2 – husband is paying Rs.12,500/- per month towards loan installments which shows his earning capacity and his financial position.
3.08. Therefore, it is submitted that the petitioner - wife is entitled to maintenance as per the status of the husband and her in-laws. Relying upon the 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, it is requested to allow the present Revision Application and enhance the amount of maintenance as prayed for.
4.00. Present Revision Application is opposed by Mr.Amrish Pandya, learned advocate appearing on behalf of the respondent No.2 – husband. It is submitted that as such the house in which the husband is residing belongs to her mother. It is further submitted that even Grey Work Consulting has been closed. It has been further submitted that as such no documentary evidence has been produced by the wife about the income of the husband and therefore, the learned Family Court has not committed any error and/or illegality in considering the income of the husband at Rs.15,000/- per month.
4.01. It is further submitted by Mr.Pandya, learned advocate appearing on behalf of the respondent No.2 – husband that as such the petitioner - wife is able to earn and as such she was earlier serving and therefore, is not entitled to any maintenance from the husband. It is further submitted that his father was running the proprietorship concern in the name of M/s.Jagat Surgicals and on his death, respondent - husband has become legal representative along with his mother and even the said M/s.Jagat Surgicals is also closed. Therefore, it is requested to dismiss the present Revision Application.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned order passed by the learned Family Court as well as the documentary evidence on record.
5.01. At the outset, it is required to be noted that the petitioner - wife submitted application for maintenance under section 125 of the Code of Criminal Procedure claiming Rs.10,000 per month towards her maintenance submitting that the income of her husband is Rs.50,000/- per month. However, husband denied his income at Rs.50,000/- per month, but did not produce any documentary evidence to show his actual income. However, it has come on record that the husband is running Consultancy Services for recruitment in the name and style of Grey Work Consulting and the same is proved by documents on record i.e. Bank Accounts, Accounts of the respondent No.2 - husband on Face Book with his mobile number and therefore, the contention on behalf of the husband that the aforesaid Consulting Services has been closed is factually incorrect. From the documentary evidence on record, more particularly Bank Accounts of the husband in the Syndicate Bank and other Bank, it appears that the husband is paying Rs.12,500/- toward loan installment which is deducted from the aforesaid Bank Account. The aforesaid shows the financial capacity of the husband. If the husband is in a capacity to pay Rs.12,500/- towards loan installment, it cannot be believed that the income of the husband is Rs.15,000/- per month only. It also appears that the husband has residential premises / office in the posh area of Banglore and he is having residential premises at 261, Upper Palace Aorchards, Banglore and is having his address at 2nd / 3rd Floor, Manirathnam Complex, 11th Cross Malleswaram, Banglore, and is having another property at B/502, Sangeetha Apartment 4th Cross Malleswaram, Banglore. It has also come on record that the respondent No.2 – husband has also visited Singapore and Malasiya. The aforesaid shows financial condition and status of the respondent No.2 husband. Under the aforesaid circumstances, as such the learned Family Court has committed an error in considering the income of the respondent No.2 – husband at Rs.15,000/- only.
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 of the case, the impugned order passed by the learned family court awarding Rs.5000/- per month only to the petitioner - wife towards her maintenance under section 125 of the Code of Criminal Procedure cannot sustain and the same requires to be modified by enhancing the amount of maintenance from Rs.5,000/- to Rs.10,000/-, per month.
6.00. In view of the above and for the reasons stated above, present Revision Application succeeds. The impugned Judgement and Order passed by the learned Principal Judge, Family Court No.1, Ahmedabad in Criminal Misc.Application No. 614 of 2010 dtd.6/2/2012 awarding Rs.5,000/- per month only to the petitioner herein – wife towards her maintenance under section 125 of the Code of Criminal Procedure, is hereby modified by enhancing the amount of maintenance from Rs.5,000/- to Rs.10,000/- and the respondent No.2 herein – husband is hereby directed to pay Rs.10,000/- to the petitioner herein – wife towards her maintenance under section 125 of the Code of Criminal Procedure from the date of maintenance application i.e. with effect from 16/3/2010. The respondent No.2 herein – husband is hereby directed to pay the aforesaid amount of maintenance of Rs.10,000/- every month regularly between 1st and 10th of every English calender month. Arrears as per the present order shall be cleared by the respondent No.2 herein – husband within a period of two months from today. Rule is made absolute to the aforesaid extent.
[M.R. SHAH, J.] rafik