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Judgment
B.S. Chauhan, J.—The instant revision has been filed against the order dated 22.7.2000 of the learned Judge, Family Court, Jodhpur, passed in Criminal Case No. 25/1992 fixing the maintenance under the provisions of Section 125 of the Code of Criminal Procedure (for short "the Cr.P.C").
The facts and circumstances giving rise to this revision are that the revisionist and respondent No. 1 got married on 15.2.1982. Respondent Nos. 2 and 3 were born out of their wedlock. For certain reasons, relationship between the husband and wife became strained and criminal case u/s 498-A, I.P.C. was filed by the wife against the revisionist. Another case u/s 494, I.P.C. is pending before the Criminal Court on the allegation that the revisionist, though having legally wedded wife, respondent No. 1, alive, got married with one Ms. Suman and has children from her. On the same charges, revisionist, who is a Medical Jurist in Medical College, Jodhpur, had been put under suspension and disciplinary proceedings were initiated; however, because of intervention of this Court, the suspension order was revoked and he stood reinstated but the proceedings are still pending. Revisionist is living separately and respondents are staying in the house of revisionist''s father. Respondents filed an application on 20.4.1992 u/s 125, Cr.P.C. for maintenance, alleging that revisionist had neglected them and refused to maintain. The learned Family Court passed interim order directing the revisionist to pay Rs. 350/- per month to respondent No. 1, the wife, and Rs. 200/- per month to respondent Nos. 2 and 3, the children. The same has been paid by the revisionist and after trying the case, the Court fixed the maintenance to the tune of Rs. 500/- per month to each of the respondents and also directed him to pay the said amount from the date of filing the application. Thus, the arrear of maintenance is also to be paid. Hence this revision.
Mr. R.R. Chacha, learned Counsel for the revisionist has raised issues that, (i) findings of facts recorded by the Family Court are contrary to the evidence on record and being perverse, the same are liable to be set aside and the maintenance fixed is excessive; (ii) criminal case u/s 494, I.P.C. for committing the offence of bigamy is still pending before the Criminal Court, thus, the Family Court was not justified in taking even a prima facie view that the revisionist had committed the offence of bigamy and that was the cause of strained relationship between husband and wife; (iii) the daughter, respondent No. 3, could not have been given the maintenance after attaining majority and the order passed by the Family Court to pay her maintenance upto the date of marriage is in flagrant violation of the statutory provisions; and (iv) in no case the Family Court could have issued direction for payment of the- arrears giving effect to the order from the date of application.
Mr. M.L. Kala, appearing on behalf of respondents opposed all the submissions made Mr. Chacha submitting that none of the grounds taken in the revision is tenable and the revision is liable to be dismissed.
I have considered the rival submissions made by the learned Counsel for the parties and gone through a large number of judgments referred by them and the written submissions filed on behalf of the revisionist.
The object of the provisions of Section 125, Cr.P.C. is to provide for a social justice falling within the swim of Articles 15(3) and 39 of the Constitution of India, which have been enacted to protect the weaker of the society like women and children. It is in the form of secular safeguard irrespective of personal law of the parties. The object is to compel a man to perform moral obligations towards the society in respect of maintaining his wife, children and old parents so that they may not face destitution and become the liability of the society or may be forced to adopt a life of vagrancy, immorality and crime for their subsistence or go astray. [Vide Begum Subanu @ Saira Banu v. A.M. Abdul Gafoor, : AIR 1987 SC 1103] The proceedings are summary in nature and provide for a speedy remedy against starvation of a deserted wife, children or indigent parents. Thus, entire civil liabilities of a husband or father, which may arise under the Personal Law, cannot be decided in these proceedings. To enforce the substantial issues of civil law, the only remedy available is in Civil Court, therefore, findings recorded in proceedings u/s 125, Cr.P.C. are not final and parties are always at liberty to agitate their rights in Civil Court. Neither the Personal Law nor custom governing the parties can become a hinderance in the proceedings u/s 125, Cr.P.C. Availability of any other remedy under the civil law or any other statute cannot be a bar to this remedy. [Viue Nand Lal Misra v. Kanhaiya Lal Misra, AIR 1960 SC 382; Shri Bhagwan Dutt Vs. Smt. Kamla Devi and Another, ; Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, ; Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, ; and Fuzlunbi Vs. K. Khader Vali and Another, ]. Order u/s 125, Cr.P.C. does not finally determine the status, rights and obligations of the parties and it only provides for maintenance of indigent wives, children and parents. [Vide Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. (1999) SCC 1345:IV (1999) CCR 161 (SC) : (1999) SLT 508].
Therefore, from the aforesaid, it is evident that the proceedings u/s 125, Cr.P.C. are summary and preventive in nature. However, the said proceedings do not restrict or limit constitutional and civil rights of the parties available to them either under the constitutional provisions or under any other statute. In spite of availing the benefit under the provisions of Section 125, Cr.P.C., the parties can approach the Civil Court to get the issues involving their rights decided and the order passed u/s 125, Cr.P.C. is liable to be modified/ cancelled in view of Civil Court''s order by virtue of Section 127, Cr.P.C. Thus, it is clear that even if a child availed the benefit u/s 125, Cr.P.C, he is also entitled to enforce his rights u/s 20(3) of Hindu Adoptions and Maintenance Act, 1956 (for short "the Act, 1956") or under Personal Law governing him, which provides for a more comprehensive relief.
The case requires to be considered not only bearing in mind the aforesaid proposition of law but also considering that the powers of Revisional Court against such an order are very limited for the reason that in revisional jurisdiction the Court satisfies itself as to the correctness, legality and propriety of any finding, sentence or order and as to the regularity of the proceedings of the inferior Criminal Court.
In Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., , the Hon''ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
In State of Orissa Vs. Nakula Sahu and Others, , Hon''ble Supreme Court, placing reliance upon a large number of its judgments including Akalu Ahir and Others Vs. Ramdeo Ram, , held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".
In State of Karnataka Vs. Appa Balu Ingale and others, , Hon''ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence. In Pathumma and Another Vs. Muhammad, , the Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".
In Catering Cleaners of Southern Railways Vs. Chief Commericial Supdt., Southern Railway, , Hon''ble Supreme Court cautioned the Revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
In Kaptan Singh and others Vs. State of M.P. and another, , Hon''ble Apex Court considered a large number of its earlier judgments, particularly K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, ; Mahendra Pratap Singh Vs. Sarju Singh and Another, Pakalapati Narayana Gajapathi Raju and Others Vs. Bonapalli Peda Appadu and Another, , and Ayodhya Dube and Others Vs. Ram Sumer Singh, , and held that revisional power can be exercised only when "there exists a manifest illegality in the order or there is a grave miscarriage of justice".
If the instant case is examined in view of the aforesaid settled legal propositions, it is not permissible for the Court to reappreciate the evidence. More so, there is nothing on record to show that the findings of facts recorded by the Family Court are perverse, based on no evidence or have been arrived contrary to the evidence on record. The submission made by Mr. Chacha that respondent No. 1 had sufficient means to maintain herself and her children, is not worth consideration in view of the specific findings of facts recorded by the Court below that she had no such means to maintain herself.
So far as quantum of maintenance is concerned, the learned Counsel has given Rs. 500/- per month to each applicant-respondent Revisionist is a qualified doctor having about two decades service tenure. Without disclosing the date of appointment or exact amount of salary, etc. in his affidavit filed today, he has submitted that he is in the pay scale of Rs. 8,000-13,000/- and claims that after deducting the compulsory deductions like G.P.F., Insurance and Advance Income Tax, etc., he gets about Rs. 13,000/- per month as net salary. Revisionist adopted an attitude unexpected of any educated person as he stated that it was not necessary to give education to the children in Public Schools rather they can be sent to Government schools. Firstly, respondents cannot be relegated to a standard below the standard of the revisionist himself. He is a qualified doctor posted as Medical Jurist in Medical College, Jodhpur for a very long time. Had respondent No. 1 applied under the provision of the Act, 1956, even interim maintenance u/s 24 could have been 1/5th of his income from all sources, as held by this Court in Mukan Kunwar Vs. Ajeetchand, ; Vinay Kumar Vs. Smt. Purnima Devi, ; and Smt. Priti Parihar v. Kailash Singh, 1977 RLW 372 . All the said judgments were considered, approved and followed in Dharamichand Vs. Smt. Sobha Devi, . The aforesaid formula was drawn on the analogy that wife should not be relegated to a lower standard of living than that the husband enjoys. [Vide Kershaw v. Kershaw, (1964) 3 All ER 635], Though it may not be a hidebound formula.
Maintenance does not mean only a provision for food, clothing and lodging but it provides that there must be a proper provision for education of the children also. Thus, maintenance has to be awarded keeping in view that standard of living should neither be very luxurious nor penurious but modestly consistent with the status of the family, the earning of husband from all sources and taking into consideration his other commitments also. In Nanak Chand Vs. Chandra Kishore Aggarwal and Others, , the Hon''ble Supreme Court held that the Family Court must take into consideration the existing situation, including the standard of education of children, at the time of passing the order. In the said case, one of the children was doing M. Com. and another was perusing the M.B.B.S. course and the Hon''ble Supreme Court held that their expenditure on education should also be taken into consideration while fixing the maintenance.
Maintenance u/s 125 includes expenses for food, clothing, residence, medical and other expenses relating to normal persuit of fife and it has certainly no bearing from starvation maintenance so that the person maintained is forced to lead an indignified life. However, Court must consider that awarding such amount should not render the person liable to maintain a pauper. [Vide Kiran Bala v. Bankim Chandra AIR 1967 Cal. 103]. Maintenance must also have a provision for child''s developing mind and conscience.
In State of Haryana and Others Vs. Smt. Santra, , the Hon''ble Supreme Court dealt with the issue observing as under :
"Maintenance'' would obviously include provision for food, clothing, residence, education of children and medical attendance or treatment."
Considering from that angle and looking to the age of the children and bearing in mind the interest of their education, it cannot be held even by any stretch of imagination that the maintenance fixed by the Court is excessive, rather it is too low, but as there is maximum limit of fixing the maintenance, the Family Court could not give more than that. In Vimala (K.) Vs. Veeraswamy (K.), , the Hon''ble Supreme Court laid down that maintenance should commensurate with the means of the husband. In Jayanata Kumar Laha v. Kabita Laha, (1994) SCC 1749 , in a case where the total income of the husband was Rs. 5,388/- per month, the Hon''ble Supreme Court fixed the maintenance at the rate of Rs. 1,600/- per month, i.e. more than l/3rd of the total income of the husband. In S. Jaya Laxmi v. T. Pmkash Rao, (1996) 8 SCC 501 , the Hon''ble Supreme Court, after considering the facts, fixed the maintenance at the rate of Rs. 1,000/- per month for each of the two college-going daughters and further directed the father to deposit a sum of Rs. 30,000/- in the name of each daughter in a Fixed Deposit Account and further to spend Rs. 1,00,000/- on the marriage of each of them. The Revisional Court cannot interfere with quantum of maintenance unless it is so manifestly perverse that requires interference without any further argument on the subject. Thus, there is no force in the submission made by Mr. Chacha on this count.
It has next been urged by Mr. Chacha that the Court below could not have granted the maintenance from the date of application and, therefore, the arrears could not have been directed to be paid. The submission in this regard is contrary to the basic provisions of law itself. Sub-section (2) of Section 125, Cr.P.C. empowers the Court to make an order of maintenance payable from the date of the order or from the date of the application. Therefore, there is no absolute bar in law that the maintenance cannot be directed to be paid from the date of application over and above what had been fixed as an interim measure, or in case no interim maintenance had been fixed, to pay from the date of application. This Court, in Smt. Kiran v. Banshi Lal, 1988 RCC 92, held that there must be special circumstances existing which may justify the award of maintenance from the date of application and ordinarily the maintenance is payable from the date of order. The aforesaid judgment does not lay down the law of universal application. It runs counter to the law laid down by this Court in Dinesh Chand Vs. Smt. Maya Devi, .
In K. Sivaram Vs. K. Mangalamba and Others, , it has been held that where maintenance is awarded from the date of application, the Court is not supposed to record the reasons. Proceedings, though by nomenclature criminal but are of a civil nature as explained by the Hon''ble Supreme Court in Jagir Kaur and Another Vs. Jaswant Singh, , thus, maintenance can be made payable from the date of application as held by the Kerala High Court in C.M. Mani v. Esther Pachikara and Ors., 1981 Cri. LJ 76. In Rohtash Singh v. Ramendri and Ors., (2000) 3 SCC 280=II (2000) SLT 385:(2000) CCR 268 , the Hon''ble Supreme Court held that there could be no justification to grant maintenance from the date of application where the wife herself deserted the husband and divorce petition was filed by the husband. But in the instant case, facts are quite distinct.
In Lokesh Parameswar Uchil Vs. Lekha Lokesh Uchil, , it has been held that it is always the discretion of the Court to award maintenance either from the date of the order or from the date of the application and for that there is no requirement of recording reasons. In Nachhattar Singh Vs. Harjinder Kaur and Another, , the Court held that in view of the facts and circumstances of the case, maintenance should have been granted from the date of the application and not from the date of order as there can be no justification for the husband to withhold the same.
In Sahu Suman Narayan Niphade and another Vs. Narayan Sitaram Niphade and another, 1995(4) Supp (4) SCC 243 , the Hon''ble Supreme Court held that it is always a matter of discretion for the Trial Court whether to allow enhanced maintenance from the date of application or from the date of order and there can be no justification for the High Court to interfere with the discretion so exercised by the Court below.
In Ashok Kumar Singh Vs. VIth Addl. Sessions Judge, Varanasi and others, , the grant of maximum amount of Rs. 500/- per month from the date of application was found to be justified by the Hon''ble Supreme Court.
Therefore, in view of the above, I find the submission made oh behalf of the revisionist devoid of any merit.
It is next contended by Mr. Chacha that there could be no justification for giving the compensation to the daughter beyond attaining the age of majority as per the provisions of the Indian Majority Act, 1875. As explained above, the proceedings are summary in nature and independent of all other civil and statutory rights available to the parties. Once a child gets the benefit under the provisions of Section 125, Cr.P.C, she cannot be deprived of her rights to get the benefit under any other law, particularly the provisions of the Act, 1956 or under any other statute/Personal Law.
Under the provisions of Section 488 of the old Cr.P.C, the maintenance was payable to the child unable to maintain itself. The term ''child'' had not been defined therein. Thus, it had been interpreted by judicial pronouncements that the ''child'' means upto the age of attaining majority, but qualified by the words ''unable to maintain'' himself/herself, child was entitled to avail the benefit of maintenance even after attaining majority so long he/she remains unable to maintain himself/ herself. Under the New Cr.P.C, it has been made available only to the minor child and ''minor'' has been defined giving reference to the Indian Majority Act, 1875.
The relevant part of provisions of Section 125, Cr.P.C. reads as under :
"If any person having sufficient means neglects or refuses to maintain,-
(a) ......................
(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."
The literal meaning of the aforesaid provisions simply provides that a child would not get the benefit of this provision on attaining majority unless suffers from mental or physical abnormality/deformity and for that reason, incapable to maintain himself/herself.
The old conflict of law as whether ''child'' within this means only a minor child or, irrespective of age, is of no avail rather the new Code has resolved the divergent view on this issue. In K. Sivaram (supra), it has been held that in view of the plain and simple language of the new Code, maintenance to children cannot be granted beyond the age of their attaining majority in absence of any physical or mental abnormality or injury. On the contrary, in Satya Narain Chandra Rao v. Kumari Rajmani Devi 1985 (2) DM 411, the Orissa High Court held that such a maintenance can be made to daughter upto the date of marriage.
Undoubtedly, under Sub-section(3) of Section 20 of the Act, 1956, a Hindu parent is bound not only to maintain the unmarried daughter even after she attains majority but the marriage expenses of the daughter is also a legal obligation of parents and property given to her in marriage would amount to be a gift. Thus, under the Act of 1956, obligation of a Hindu father to maintain his unmarried daughter remains so far as she is unable to maintain herself out of her own earnings. Similar remains the position under Mohammedan Law.
The question, thus, arises whether under the provisions of Section 125, Cr.P.C, a relief can be extended to a daughter not suffering from mental/physical abnormality beyond the date of attaining her majority ? If she is allowed to have maintenance upto the date of marriage, the word ''minor'' which has been defined by giving reference to the provisions of Majority Act, 1875, would be reduced to otiose and such an interpretation is not permissible, nor it is permissible by judicial interpretation that any word can be added or subtracted. [Vide A.K. Gopalan Vs. The State of Madras, ; Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, ; The State of Bihar Vs. Hiralal Kejriwal and Another, ; Smt. Shyam Kishori Devi Vs. Patna Municipal Corporation and Another, ; Patel Chunibhai Dajibhai etc. Vs. Narayanrao Khanderao Jambekar and Another, ; Sultana Begum Vs. Prem Chand Jain, ; South Central Railway Employees Cooperative Society Employees Union, Secunderabad v. Registrar of Co-operative Societies and Ors., (1998) 2 SCC 570:II (1998) SLT 273 ; and Subhash Chander Sharma and Another Vs. State of Punjab and Others, ].
In Martin Burn Ltd. Vs. The Corporation of Calcutta, , the Hon''ble Supreme Court held as under :
"That a result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must, of course, be given effect to whether a Court likes the result or not."
Undoubtedly, the provision has been enacted to serve the social purpose. Therefore, the approach of the Court, while interpreting such a social legislation, should be benevolent and justice oriented. The principles of equity, justice and good conscience along with human consideration must dominate the scene. But the question does arise whether such consideration can sweep the plain and simple language provided by the Legislature in its wisdom knowing the previous enactment well?
In Directorate of Enforcement Vs. Deepak Mahajan and another, , the Supreme Court observed as under :
"True, normally Court should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter arising wholly within its will and take its plain and ordinary grammatical meaning of the words of the enactment as affording best guide, but to winch up the legislative intent, it is permissible for the Court to take into account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane... in given circumstances it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes may be even necessary to go behind the words of the enactment and taken other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and its scope and object may not become futile."
In Nanak Chand (supra), the Hon''ble Supreme Court has held that there was no inconsistency between the two provisions. The Act, 1956 was an Act to amend and codify the law relating to adoption and maintenance amongst the Hindus. The Hindu Law was substantially similar and nobody suggested that even in Hindu Law, as enforced immediately before commencement of the Act, 1956 insofar as it dealt with maintenance of children, was in any way inconsistent with Section 125, Cr.P.C. The scope of the two law is different as Section 125, Cr.P.C. provides a summary remedy and is applicable to all persons belonging to all religion and has no relationship with the Personal Law of the parties Clause (b) of Section 4 of the Act, 1956 does not repel or affect in any manner the provision contained in Section 125, Cr.P.C. In Smt. Krishna Kamalini Debeya Vs. Junior Land Reforms Officer, Khandaghosh and Others, , the Calcutta High Court has held that the daughter has a right to be maintained till her marriage.
In Wali Ram Waryam Singh Vs. Mukhtiar Kaur, , the Division Bench held that there was an obligation on the person to maintain the daughter till she gets married and maintenance cannot be stopped or refused merely on the ground that she attained majority.
The issue was considered by the Hon''ble Supreme Court, while interpreting the provisions of Section 125, Cr.P.C, in Noorsaba Khatoon v. Mohammad Quasim, AIR 1997 SC 3282:II (1998) DMC 322 (SC)=III (1998) CCR 84 (SC), and the Court held as under :
"Obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of female till they get married, is absolute notwithstanding the fact that minor children are living with the divorced wife... Thus, our answer to the question posed in the earlier part of the opinion is that the children of Muslim parents are entitled to claim maintenance u/s 125, Cr.P.C. for the period till they attain majority or are unable to and in case of female, they get married and this right is not restricted, affected or controlled by divorcee wife''s right to claim maintenance for maintaining the Infant child/children in her custody for a period of two years from the date or birth of the child concerned u/s 3(1)(b) of the 1986 Act. In other words, Section 3(1)(b) of 1986 Act does not, in any way, affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father u/s 125, Cr.P.C. till they attain majority or are unable to maintain themselves, or in case of female, till they are married."
In Kirtikant D. Vadodaria Vs. State of Gujarat and Another, , the Hon''ble Apex Court categorically held that "to exclude altogether the Personal Law applicable to the parties from consideration in matters of maintenance u/s 125 of the Code may not be wholly justified".
In M/s. Whirlpool of India Ltd. Vs. Employees'' State Insurance Corporation, , the Hon''ble Apex Court has held that even the social legislation enacted to prevent benefits to a particular class of citizens, if amenable to two interpretations, the interpretation which is beneficial to the working class, should be adopted but the Court should not forget that it "cannot give a go-bye to plain language of the provisions". The question of interpretation arises only when there is an ambiguity in the language. If the language is plain and simple, the question of interpreting the provision does not arise.
Thus, in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon''ble Supreme Court. The provisions of Section 125, Cr.P.C. are applicable irrespective of the Personal Law and it does not make any distinction whether the daughter claiming maintenance is Hindu or Muslim. However, taking an over-all view of the matter, I, with all respect to the Hon''ble Court, am of the candid view that the provisions require literal interpretation and daughter would cease to have the benefit of the provisions u/s 125, Cr.P.C. on attaining majority, though she would be entitled to claim the benefits further under the Statute/Personal Law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to respondent No. 3 as she would be forced to file another petition under Sub-section (3) of Section 20 of the Act, 1956 for further maintenance, etc. Thus, in order to avoid multiplicity of litigations, the order impugned does not warrant interference.
Revision petition is accordingly dismissed. However, looking to the facts and circumstances of the case and submissions made by Mr. Chacha that revisionist is not in a position to pay the arrears of maintenance in lumpsum, the impugned order is modified to the extent that the arrears be paid in monthly instalments of Rs. 5,000/- (Rs. five thousand) each apart from the current maintenance payable to the respondents. There shall be no order as to costs.