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Abhishek Verma vs Vaishnavi Verma on 26 April, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M-3521-2014 (OM)
Date of decision: 26.04.2018

Abhishek Verma
…Petitioner

Versus

Vaishnavi Verma
…Respondent

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. D.K. Bhatti, Advocate,
for the petitioner.

Mr. H.S. Bhullar, Advocate,
for the respondent.

****

JAISHREE THAKUR, J.

1. The petitioner has filed this petition under Section 482 Cr.P.C

seeking to set aside impugned orders dated 06.06.2013 by which the

petitioner was directed to pay a sum of ` 4000/- as maintenance from the

date of order and the order dated 07.11.2013 by which maintenance was

made payable from the date of filing of the petition.

2. In brief, it was stated in the petition filed seeking maintenance

that the petitioner Abhishek Verma promised to marry Khushboo and it is

thereafter both got involved in a physical relationship. Out of this

relationship, a female child was born on 28.07.2008. The family and friends

of Khushboo Verma, tried to convince the petitioner herein to solemnize a

marriage but to no avail. After the birth of the daughter, Khushboo Verma

filed a petition under Section 125 Cr.P.C seeking maintenance for herself

and the minor child on the ground that she had lost her job on account of her

pregnancy and being unemployed was unable to maintain herself and the

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minor. Along with the said application, interim maintenance was sought as

well. The petition for grant of maintenance was contested on the ground that

there is no relationship between the parties, while arguing that the

petitioner- respondent has no source of income being confined in Model

Jail, Chandigarh in criminal proceedings that had been initiated, in which

he stood convicted. DNA analysis report was submitted showing the

petitioner herein to be the biological father of the minor. The application for

interim maintenance was disposed of with a direction to the petitioner to pay

a sum of ` 500/- per month from the date of the application. Thereafter, on

appreciation of the evidence, maintenance was allowed payable to the

minor, Vaishnavi Verma @ ` 4000/- per month from the date of the order

dated 06.06.2013. Khushboo Verma by a separate statement dated

05.06.2013 withdrew her petition claiming maintenance under Section 125

Cr.P.C. Aggrieved against the order of maintenance, two revision petitions

were preferred. One revision was instituted by the petitioner herein

challenging the order of maintenance being highly excessive, and the other

revision was instituted by the minor Vaishnavi Verma claiming maintenance

from the date of filing of the petition. The Sessions Judge, Chandigarh

dismissed the petition as filed by the petitioner while allowing the

modification in the petition filed by the minor to the extent that she would

be entitled to get maintenance from the date of filing of the petition.

Aggrieved against the said order, the instant criminal miscellaneous petition

has been preferred.

3. Mr. D.K. Bhatti, learned counsel appearing on behalf of the

petitioner contends that he was incarcerated on account of criminal

proceedings initiated against him from August 2008 to March 2011 and,

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therefore, while in custody, he did not have sufficient means to pay

maintenance and, therefore, could not have been fastened with a liability to

pay maintenance @ ` 4000/- per month, payable from the date of instituting

the application under Section 125 Cr. P.C.

4. Per contra, Mr. H.S. Bhullar, learned counsel appearing on

behalf of the respondent, Vaishnavi Verma contends that being the

biological minor child of the petitioner, she is entitled to claim maintenance,

while arguing that it is the moral and statutory duty of a father to maintain

his child in order to meet her educational and daily expenses.

5. I have heard the counsel for the parties and with their able

assistance have gone through the pleadings of the parties.

6. The petitioner herein had initially been directed to pay ` 4000/-

per month as maintenance to the minor child, the respondent herein, from

the date of the order i.e. 06.06.2013 which order was subsequently modified

in a revision petition to make the maintenance payable from the date the

petition under section 125 Cr.P.C claiming maintenance was instituted.

7. The DNA report furnished to the Court clearly establishes the

petitioner to be the biological father of the respondent, Vaishnavi Verma.

Section 125 Cr.P.C has been enacted to ensure that a wife, minor child (his

legitimate or illegitimate minor child) or old-age parents are maintained and

not subjected to vagrancy and destitution. Grant of maintenance has been

perceived as a measure of social justice by the Courts and the said Section

falls within the Constitutional sweep of Article 15(3) reinforced by Article

39 of the Constitution of India. It provides speedy remedy for supply of

food court, clothing, shelter to the deserted family, while ensuring that the

person fulfils his moral and legal obligation to support his family, be it a

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minor child, wife or aged parents. Section 125 Cr.P.C. reads as :-

“125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to
maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married
or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is, by
reason of any physical or mental abnormality or injury unable
to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect
or refusal, order such person to make a monthly allowance for
the maintenance of his wife or such child, father or mother, at
such monthly rate not exceeding five hundred rupees in the
whole, as such Magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor
female child referred to in clause (b) to make such allowance,
until she attains her majority, if the Magistrate is satisfied that
the husband of such minor female child, if married, is not
possessed of sufficient means. Explanation.- For the purposes
of this Chapter,-

(a) ” minor” means a person who, under the provisions of the
Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have
attained his majority;

(b) ” wife” includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order,
or, if so ordered, from the date of the application for
maintenance.

(3) If any person so ordered fails without sufficient cause to
comply with the order, any such Magistrate may, for every

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breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence
such person, for the whole or any part of each month’ s
allowances remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one
month or until payment if sooner made: Provided that no
warrant shall be issued for the recovery of any amount due
under this section unless application be made to the Court to
levy such amount within a period of one year from the date on
which it became due: Provided further that if such person
offers to maintain his wife on condition of her living with him,
and she refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make an order
under this section notwithstanding such offer, if he is satisfied
that there is just ground for so doing. Explanation.- If a
husband has contracted marriage with another woman or
keeps a mistress, it shall be considered to be just ground for his
wife’ s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her
husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been
made under this section is living in adultery, or that without
sufficient reason she refuses to live with her husband, or that
they are living separately by mutual consent, the Magistrate
shall cancel the order.”

8. Is there any infirmity in the orders so passed by the Session

Judge, Chandigarh modifying the order of maintenance, making it payable

from the date of the petition as directed by JMIC, Chandigarh from the date

of the petition?

9 Section 125 Cr.P.C. uses the term ‘If any person having

sufficient means neglects or refuses to maintain’ his wife, minor children,

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illegitimate or otherwise, aged parents, then a Magistrate of Ist Class may,

upon proof of such neglect or refusal, order such person to make a monthly

allowance for the maintenance of his wife or such child, father or mother, at

such monthly rate. A son, father or husband cannot shirk his responsibility

in maintaining his family and even if it is claimed that he is without a job,

such person being an able bodied person has been held capable of doing a

daily wagers job and earning accordingly.

10. The term ‘sufficient’ has not been defined under the Code but

in common parlance and as per the Oxford dictionary, the term ‘sufficient’

has been defined as ‘Adequate: Enough’. The earnings of a person have to

be taken into account while assessing the quantum of maintenance, while

also keeping in mind the other liabilities of the person responsible for

paying maintenance.

11. In the instant case, while deciding the interim application dated

06.06.2009 a sum of ` 500/-was awarded by an order dated 06.01.2010 and

thereafter, the amount was enhanced by order dated 06.06.2013 to ` 4000/-

per month payable from the date of the order. This order was modified to

make it payable from the date of the application. The Sessions Judge,

Chandigarh failed to take into account the facts of the instant case, wherein

the petitioner was arrested in proceedings under FIR registered under

Section 376 IPC in the year 2008. He remained in custody till he was

granted bail in March 2011. As per the statement recorded, he was studying

after his release and doing his MBA through correspondence and was

wholly dependent upon his parents. The record summoned would show that

the petitioner received wages while in custody from the month of October,

2009 onwards till the time of his release. As per the statement, half of the

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sum earned while in custody was kept to be given to the accused on release

from jail and the other amount was allowed for his expenses like canteen

soap etc. The petitioner while in custody only earned a paltry sum, which is

stated to be ` 3115/-, whereas the petitioner has been directed to pay a sum

of ` 4,000/- per month from the date of the application. Since he was not

holding a regular job on account of being in judicial custody, it cannot be

said that the petitioner herein is guilty of shirking his responsibility towards

his minor child. He certainly did not have the “sufficient means” at that

point in time to pay maintenance @ ` 4000/- per month as has been allowed

by the Session Judge, Chandigarh.

12. The respondent was born on 27.07.2009 and was awarded

interim maintenance of ` 500/- per month from January, 2010 itself which

would have been sufficient at that point in time, since she was only a few

months old. The petitioner was 20 years of age and was a student of 4th year

B. Tech engineering studying in Punjab Engineering College when he met

mother of the respondent, who was aged 24 years and working with

Reliance Company. He was in custody from August, 2009 till his release in

March, 2011 and, therefore, even though the petitioner being able bodied

and capable of earning livelihood in normal circumstance, was in a fashion

handicapped, being in custody and restricted of free movement. There is no

illegality in holding maintenance @ ` 4,000/- per month, but it should be

from the date of the order. Therefore, in the facts and circumstances of the

instant case, there is no justification in awarding maintence from the date of

petition.

13. In view of the discussion above, the order dated 07.11.2013 is

hereby set aside while restoring the order of the Magistrate making the

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payment of maintenance from the date of order i.e. 06.06.2013.

14. Petition stands allowed to that extent.

26.04.2018 (JAISHREE THAKUR)
Satyawan JUDGE

Whether speaking/reasoned Yes.
Whether reportable No.

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