Narender Gaur vs State & Ors on 22 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 491 / 2017
Narender Gaur S/o Durga Prassad, aged about 40 Years, resident
of Opposite Police Station Sadar, Rathkhana, Bikaner, Tehsil and
District Bikaner.

—-Petitioner
Versus

1. State of Rajasthan.

2. Kalpana Sharma W/o Narender Gaur D/o Om Prakash Gour,
House No. 6/201, Housing Bord Colony, Hanumangarh,
Junction.

3. Ishan Gour S/o Naendra Gour Through Mother, House No.
6/201, Housing Bord Colony, Hanumangarh, Junction.

—-Respondents
__
For Petitioner : Mr. Koushal Gautam.

For Respondent-State : Mr. L.R. Upadhyay, PP.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
22/05/2017

Petitioner has preferred this revision petition under Section

19(4) of the Family Courts Act, 1984 read with Section 397/401

Cr.P.C. against impugned order dated 20th of February 2017,

passed by learned Judge, Family Court, Hanumangarh (for short,

‘learned Family Court’). By the impugned order, learned Family

Court has partly allowed the application of respondents No.2 3

under Section 125 Cr.P.C for grant of maintenance and quantified

the amount to the tune of Rs.4,500/- per month to respondent

No.2 and Rs.2,500/- per month to respondent No.3 from the date

of filing of the application, i.e., 28.04.2014.

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Facts, in brief, are that respondent No.2 wife filed an

application claiming maintenance for herself and son from

petitioner under Section 125 Cr.P.C., before learned Family Court

stating therein that marriage between petitioner and respondent

No.2 was solemnized on 26.01.2004 at Bishnoi Dharmshala,

Bikaner and Vishambar Dayal was the mediator in the marriage. It

is averred that after marriage both husband and wife lived at

Bikaner but the in-laws were not happy by Stridhan and used to

beat and harass her despite the fact that her parents had given

dowry beyond their capacity. On the occasion of birth of son

Ishan also lot of things were given still the in-laws were not happy

and harassed and tortured her even more. Husband Narendra

even tried to kill son Ishan by chocking throat and on 20.04.2014

she was badly beaten and given knife blows on which FIR

No.70/2014 was got registered at Mahila Thana, Bikaner for

Sections 498A, 323, 34 IPC. The application further recites that

husband and in-laws also made her to drink Bhabhoot (ash) to

disturb her mental balance. It is further averred that lastly the in-

laws thrown her out of matrimonial house telling her that without

more dowry she has no place in the house and since then she is

living at Hanumangarh with her parents. In entirety, the

applicant-wife in the application has brought to the fore the cruel

behaviour of husband and in-laws subjecting her to physical and

mental cruelty. It is averred in the application that applicant has

no source of income to maintain herself and son Ishan. It is

stated that husband is having immovable properties at Khajuwala,
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Kolayat and Bikaner and also earning handsome amount of about

Rupees one lakh from his profession but he is not maintaining wife

and son and thereby denying discharge of his legal obligation.

With these averments, the applicants prayed for maintenance of

Rs.5,000/- for each one of them totalling to Rs.10,000/- per

month.

The present petitioner-husband filed reply to the application

and denied the averments contained therein except solemnization

of marriage with respondent No.2 Kalpana and birth of respondent

No.3 Ishan. It is averred that applicant-wife is a quarrelsome,

jealous, aggressive and stubborn lady and always created a

clamorous atmosphere in the family and had not properly

discharged her marital obligations and once even gave a blow of

knife to kill him which struck on his left hand and pushed him due

to which he fell down and sustained injury on his left shoulder. A

report of that incident was lodged at Police Station Sadar bearing

FIR No.156/14 and the police after investigation filed charge-sheet

for offence under Sections 341, 323, 109/34 IPC. As regards the

report filed against him, it is averred in the reply it was done so by

the applicant to save herself from her criminal deeds. It is further

averred that applicant-wife is post-graduate who has also

completed professional course and is presently earning Rs.15,000-

20,000 per month from tuition which is sufficient for maintaining

the applicants and in addition to that she earns Rs.5,000 to

10,000 per month by tailoring work. With these averments the

non-applicant husband prayed for rejection of the application.

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On the basis of pleadings of parties, learned Family Court

framed issues. In support of application, respondent No.2 herself

appeared in witness box as AW1 and one Shrikant Sharma as AW2

was examined. In defence, petitioner examined himself as NAW1.

Learned Family Court, after hearing the parties and

examining the matter, vide order dated 20 th of March 2017 has

found respondent No.2 wife Kalpana Sharma entitled for

maintenance of Rs.4,500/- per month and respondent No.3 son

Ishan Gour Rs.2,500/- per month from the date of filing of the

application under Section 125 Cr.P.C.

Learned counsel for the petitioner herein, vehemently,

argued that the quantum of maintenance awarded by the learned

Family Court is based on conjectures and surmises and therefore,

it is an appropriate case to interfere with the impugned order of

granting maintenance.

Learned Public Prosecutor opposed the petition and

submitted that no illegality or perversity in passing the impugned

order by Family Court is committed as such no interference with

the impugned order of maintenance is warranted. He also urged

that in view of the limited scope in the present petition, the

petition is required to be rejected.

I have heard learned counsel for the petitioner and perused

the impugned order.

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The object of the maintenance proceedings instituted under

the provisions of Chapter IX of the Cr.P.C. 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. Section 125,

Cr.P.C. is a measure of social justice and is specially enacted to

protect women, children and parents which falls within

constitutional sweep of Article 15(3) and is reinforced by Article

39 of the Constitution of India, 1950.

Although the expression “maintenance” occurring in Section

125, Cr.P.C. has not been statutorily defined, it includes,

undoubtedly, the expenses for food, clothing, residence, medical,

educational and other such incidental expenses, relating to the

normal pursuits of life. The Court is also required to bear in mind

the inflation prevalent in the market. To overlook the sharp fall in

value of rupee while deciding such a point, would, obviously, will

entail injustice to the persons entitled to the maintenance under

Section 125, Cr.P.C. It is not only the earning or the income of the

person bound to provide maintenance is to be considered alone,

his capacity to earn and his potentiality for earning should also be

given due weightage. It is true that the amount of maintenance

should not be luxurious so as to prompt the wife to remain away

from the husband nor it should be penurious so as to deprive the

wife or children the basic necessities of life. The Court is obliged to

address itself to all these important aspects while determining the
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quantum of maintenance. In the background of the parties and

the objects for which provisions of Section 125 of the Code are

incorporated. It may be noted that the provisions of Section

125 of the Code are benevolent provisions designed to prevent

vagrancy and destitution. Needless to repeat that minor son was

studying and needs food, clothing, medical and other expenses of

life which are basic necessities of life. Similarly, a rejected and

dejected wife, who is at the mercy of her parents staying at

parental residence, cannot get her two ends meet is entitled to

reasonable expenses for residence, for her food, clothing and

other such expenses of day-to-day life so as to prevent vagrancy

and Section 125 of the Code is, in reality, intended for ensuring

reasonably supply of food, clothing and shelter to such deserted

wife and children. That is the reason why the Parliament in Its

wisdom incorporated these provisions in Section 125 of the Code

so as to provide speedy and summary remedy against vagrancy

and starvation for a deserted wife, child or indigent parents. These

are the important questions to which the Court while dealing with

an application for maintenance should invariably look into.

The expression “means” in Section 125 of the Code does not

signify only the visible income, such as, real property or regular

source of income or a definite employment. A person who is able-

bodied and who does not suffer from any physical or mental

incapacity can be considered as a person who has the capacity to

earn sufficient income because his physical and mental capacity

provide him the capacity to earn. Therefore, even if a person who
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has no definite source of income or a regular source of income, he

cannot escape his liability to pay maintenance. It cannot be

contended, even for a moment, that the person who is not earning

or who is not sufficiently earning, cannot be fasten with the

liability for providing maintenance to his wife or children. He is

liable to pay reasonable maintenance to the wife and children so

as to see that they get their two ends meet.

A person, who has the capacity to earn, is liable

under Section 125 of the Code, even if he is an insolvent,

unemployed, a professional beggar, highly Indebted, a Sadhu or a

Monk. It is for the husband to show that he has no sufficient

means or he has no capacity to earn. Therefore, the rightful claim

for maintenance cannot be refused on the ground that the person

who is liable for payment of maintenance is not earning. What is

required to be considered is the capacity to earn. The quantum of

maintenance is required to be fixed in the light of all the relevant

facts and circumstances.

The marriage between the husband and wife took place on

26.01.2004 i.e. 10 years before filing of the petition for

maintenance. There is no dispute about the fact that the wife is

living separate at her parental place with minor son Ishan. The

original applicant/wife and minor son have no separate source of

income. The wife is unable to maintain herself and son and are

living separate. She is shouldering the responsibility of
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maintaining herself and son Ishan, who was aged about 9 years at

the time of filing of application and was pursuing his studies.

There remains no quarrel that petitioner being husband of second

respondent and father of third respondent is legally and socially

bound to maintain them. It is his pious obligation to maintain the

private respondents but he has become totally ignorant towards

them. In the facts and circumstances of the case, learned Family

Court, upon consideration of the matter in entirety, has found the

private respondents entitled for maintenance and quantified the

same moderately by the order impugned.

The learned Family Court has rightly exercised its discretion

judiciously by following the mandate of law in granting reasonable

amount of maintenance to the private respondents from the date

of application and the said order cannot be faulted. Furthermore,

apparently there is no reason to infer that it is a case wherein

learned Family Court, while passing the impugned order, has

committed any manifest error of law warranting interference in

exercise of revisional jurisdiction of this Court. In my opinion, the

quantum of maintenance, determined by learned Family Court,

cannot be categorized as excessive or exorbitant in the present

era of inflation. Learned Family Court has, in fact, moderately

assessed the quantum of maintenance.

In this view of the matter, in my opinion, learned Family

Court has not committed any error in passing the impugned order

and I am satisfied that the impugned order is neither perverse nor
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the same is contrary to law requiring interference in exercise of

revisional jurisdiction of this Court.

Resultantly, the petition fails and same is hereby dismissed.

(P.K. LOHRA), J.

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