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.
(2 of 9)
[CRLR-491/2017]
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,
(3 of 9)
[CRLR-491/2017]
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.
(4 of 9)
[CRLR-491/2017]
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.
(5 of 9)
[CRLR-491/2017]
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
(6 of 9)
[CRLR-491/2017]
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
(7 of 9)
[CRLR-491/2017]
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
(8 of 9)
[CRLR-491/2017]
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
(9 of 9)
[CRLR-491/2017]
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.
