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Bhojraj Singh Tomar vs Smt. Sheetal on 23 August, 2018

1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6231/2017
(Dharmendra Singh Ors. Vs. The State of M.P.)

Gwalior, Dated 23/8/18
Shri Vikas Tikhe, learned counsel for the petitioner.
Shri R.K. Soni, learned counsel for the respondent.

The power of superintendence of this court under Article 227
of the Constitution is invoked to assail the interlocutory order
passed on 22/8/17 by Principal Judge, Family Court Morena in a
petition pending u/S. 6 of Hindu Minority and Guardianship Act,
1956 and section 25 of Guardians and Wards Act, 1890, granting
interim maintenance quantified at Rs. 2000/- to the minor
daughter aged about 15 years and Rs. 1500/- each to the two
sons aged about ten years, with further stipulation that the said
grant of maintenance shall be appropriated with the extent of any
order passed in regard to maintenance by any other court or any
other provision under the law.

Learned counsel for the petitioner primarily submits that in a
petition filed u/S. 125 CrPC by the wife/sole respondent herein
before Family Court at Agra in case No. 576/14, final order was
passed on 17/8/17 granting maintenance to the wife to the tune of
Rs. 2000/- per month and Rs. 1000/- to each of the three children
(total Rs. 5000/-).

Learned counsel for the petitioner further submits that the
impugned order has been passed without taking into account the
financial capacity of the petitioner. It is submitted that the
petitioner/husband is an agriculturist who earns not more than Rs.
7000-8000/- per month and thus shall be left with nothing if he is
compelled to pay both the amounts granted by the Family Court
Agra and Family Court Morena.

2

THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6231/2017
(Dharmendra Singh Ors. Vs. The State of M.P.)

The impugned order has been passed subject to the
stipulation that amount of interim maintenance granted to the
children would be adjusted against any order of maintenance
passed earlier by any court of law and therefore, it is obvious that
so far as maintenance to the children is concerned the award
made vide impugned order is Rs. 5000/- as against only Rs. 3000/-
awarded to the children by the Family Court Agra u/S. 125 CrPC.
Consequently, the petitioner has to now pay an additional sum of
Rs. 2000/- for his children besides paying Rs. 2000/- for his wife in
terms of the order of Family Court, Agra.

The contention of learned counsel for the petitioner that
economic resources of the petitioner/husband has not been
considered, does not appear to be correct as the impugned order
clearly reveals the contentions of both sides were gone into where
wife alleged that the husband earns income of Rs. 20,000/- p.m.
apart from possessing 15 Bigha agricultural land. The reply of the
husband has also been taken into account where he has denied
the contention of wife and stated that he has only one and a half
Bigha agricultural land and thus finds it extremely difficult to even
make his own ends meet and therefore, is not in a position to pay
maintenance.

This court would not like to comment upon the merits of the
claim and counter claim of the rival parties in view of the nature of
the impugned order being interim and not final.

As regards economic capacity suffice it to say that even if
the petitioner/husband is treated to be not having any income, the
principle adopted by the courts ordinarily is of taking notional
3
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6231/2017
(Dharmendra Singh Ors. Vs. The State of M.P.)

income. The division Bench of this court in the case of Smt. Rita
Bais Vs. Vishwapratap Singh Bais in F.A. No. 196/17 on 30/8/17
taking que from the principles behind fixation of minimum wages
under the Minimum Wages Act, arrived at a reasonable figure at
Rs. 100/- per day sufficient to sustain a child. The relevant portion
of the said judgment is reproduced below:-

“4. Thus the only question which now begs for an answer
is about the quantum of pendente lite maintenance
awarded.

4.1. It is not denied that the respondent-husband is an
able bodied man who is legally responsible to maintain
his wife who has no source of livelihood.

4.2. This Court is of the considered view that from the
current standard of living and rising price index the
amount of compensation of Rs.4000/- per month is
deficient to sustain a woman as well as her infant child.

4.3. To prima facie ascertain the minimum essentials
required to allow an individual to survive and live a life of
dignity, this court deems it appropriate to seek guidance
from the Notification No. S.O.2413(E) dated 28th July,
2017 of the Ministry of Labour and Employment issued
under the Minimum Wages Act, 1948 prescribing
minimum rates of wages for unskilled Labourer as
Rs.350/- per day.

4.4. This Court is of the considered view that taking a
modest figure of Rs.200/- per day for the appellantwife
and Rs.100/- per day for her infant child would suffice to
enable them to sustain a life of dignity allowing them to
meet the requirement of necessity and a little bit of
comfort.

5. Consequently, an amount of Rs.6,000/- per month for
wife and Rs.3,000/- per month for the child would be
reasonable pendente lite maintenance.”
Going by the above said reasonable criteria adopted by this
4
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6231/2017
(Dharmendra Singh Ors. Vs. The State of M.P.)

court, it does not appear that the amount of maintenance awarded
by the impugned order is in any manner unreasonable or
excessive.

It is not the case of the petitioner/husband that he is
suffering from mental or physical incapacity. An able bodied
person who marries and procreates children is expected to
maintain his family members who are dependent upon him,
notwithstanding absence of source of livelihood.

Consequently, no case for interference is made out in the
absence of any transgression of jurisdictional limit by the court
below. The present petition stands dismissed.

(Sheel Nagu)
Judge
ojha

Digitally signed
by YOGENDRA
OJHA
Date: 2018.08.29
11:46:24 -07’00’

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