Harvinder Kumar vs Smt. Punam and Another

Kuldip Singh, J.—This petition has been filed u/s 482 Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing order dated 18.1.2011 passed by learned Sessions Judge, Shimla in Criminal Revision No. 3-s/10 of 2010, affirming order dated 18.9.2009 passed by learned Judicial Magistrate Ist Class, Court No. 1, Shimla in Petition No. 74/4 of 2007.

The facts in brief are that Respondents No. 1 and 2 had filed petition u/s 125 Code of Criminal Procedure being Case No. 18/4 of 2000/99 against Petitioner which was allowed by learned Addl. Chief Judicial Magistrate, Court No. 1, Shimla on 16.3.2002. Respondent No. 1 was granted Rs. 500/-per month and Respondent No. 2, Rs. 350/- per month maintenance from the date of order.

The Respondents filed application u/s 127 Code of Criminal Procedure being Petition No. 74/4 of 2007 for enhancement of maintenance allowed on 16.3.2003 in view of change of circumstances. It was alleged that Petitioner is earning Rs. 25,000/- per month from the business. He is owner of agricultural land and earning Rs. 25,000/- per month from the land. The Respondent No. 1 claimed Rs. 5,000/-per month and Respondent No. 2 Rs. 3000/- per month maintenance.

The petition was contested by Petitioner. He has denied that he is having Rs. 50,000/- per month income from business and agricultural land. He took stand of mental illness and pleaded that he is undergoing treatment for his illness. He denied the change of circumstance. The Petitioner pleaded that Respondent No. 1 is employed and is earning good money. The Respondent No. 1 appeared as PW-1. The Petitioner examined himself as RW-1 and has also examined RW-2 Sukh Dev Singh, RW-3 Smt. Abhilasha Joshi and RW-4 T.K. Kashyap. The learned Magistrate allowed the application on 18.9.2009 and granted maintenance in favour of Respondents No. 1 and 2 herein at the rate of Rs. 850/- and Rs. 750/-per month w.e.f. 7.8.2007. The order dated 18.9.2009 was assailed by Petitioner in revision which was dismissed by learned Sessions Judge on 18.1.2011, hence this petition.

I have heard the learned Counsel for the parties and have also gone through the records. It has been submitted by learned Counsel for the Petitioner that the two Courts below have erred in enhancing the maintenance in favour of Respondents. It has not been appreciated that Petitioner is not keeping good health. The Petitioner is a case of chronic schizophrenia since 2001 and in support of this submission the learned Counsel for the Petitioner has relied certificate dated 4.12.2008 filed with the petition. He has also submitted that Respondent No. 1 is drawing monthly salary Rs. 3113.53 from UCO Bank, Jubberhati w.e.f. 1.5.2010, as per letter dated 29.3.2011 of UCO Bank, Zonal Office, Shimla. He has submitted that the Petitioner had filed the revision in the Court below through his brother and the present petition through his second wife as the Petitioner himself is not in a position to pursue the matter.

The learned Counsel for the Respondents has submitted that the two Courts below after recording findings of facts have allowed maintenance at the rate of Rs. 850 and Rs. 750 per month to the Respondents No. 1,2 respectively. The Petitioner was given full opportunity to defend the application u/s 127 Code of Criminal Procedure for enhancement of maintenance. He infact contested the application, he himself appeared as witness. The documents dated 4.12.2008 and 29.3.2011 filed with the petition have not been proved, these documents cannot be considered in the present petition while determining the dispute of maintenance claimed by Respondents. He has prayed for dismissal of the petition.

The order dated 18.9.2009, indicates that the Petitioner has taken the plea of mental illness before the learned Magistrate. He has examined four witnesses including himself. The application u/s 127 Code of Criminal Procedure was decided by learned Magistrate on 18.9.2009. The Petitioner in the trial Court had placed on record photocopy of certificate dated 7.6.2003 of Ashoka Neuro-Psychiatric Hospital, Jalandhar City but that was not proved. The Petitioner has not given any legally acceptable reasons why the certificate dated 4.12.2008 was not placed on record and proved by him when the case was pending before the learned Magistrate or even when the matter was pending before learned Sessions Judge. The Petitioner had placed a photocopy of certificate dated 4.12.2008 on the file of revisional Court but No. steps were taken by him for proving certificate dated 4.12.2008 in the revisional Court. There is substance in the objection of learned Counsel for the Respondents that certificate dated 4.12.2008 now cannot be considered in the present petition in as much as the Respondents have every right to object to the authenticity and legality of the certificate dated 4.12.2008.

It has been submitted by learned Counsel for the Petitioner that Respondent No. 1 is drawing salary Rs. 3213.53 per month while working as sweeperess in the UCO Bank, Jubberhati w.e.f. from 1.5.2010. RW-1 Harwinder Kumar has admitted that they have a shop at Bharatgarh. RW-2 Sukhdev has stated that the shop at Bharatgarh is a general store and is running well. RW-4 T.K. Kashyap, Manager UCO Bank, Jubberhati has stated that bank has not given rent to Respondent No. 1 nor she was accepted to be the owner by the bank. In certificate dated 29.3.2011, it has been stated that Respondent No. 1 is working as sweeperess in UCO Bank, Jubberhati since 1.5.2010. The revision was decided on 18.1.2011. It has not been stated in the petition why evidence with respect to alleged employment of Respondent No. 1 with the bank was not produced when the matter was pending before the revisional Court.

In the present petition also, No. prayer has been made for proving the certificate dated 29.3.2011 in evidence. This apart, the learned Counsel for the Respondents has stated that Respondent No. 2 is now studying in 9th class, therefore, even if, it is assumed that Respondent No. 1 is drawing monthly salary Rs. 3213.53 and this amount added in the maintenance amount Rs. 850/- +Rs. 750/- =Rs. 1600/- than the total comes to Rs. 4813.53. Need of the Respondent No. 2 is growing and therefore, as of today an amount of Rs. 4813.53 per month in the hands of Respondents cannot be considered on the higher side to meet the bare necessities of life. The Petitioner has means to pay Rs. 1600/- per month to Respondents as ordered by the Courts below. This is evident, the Petitioner after leaving Respondent No. 1 got married with Rajni Bala who is now living with the Petitioner. This belies the plea of the Petitioner that he is suffering from chronic schizophrenia and has No. means to pay any amount to the Respondents In any case the Petitioner has failed to make out a case for error of jurisdiction by two Courts below in awarding maintenance at the rate of Rs. 850/- and Rs. 750/- per month respectively to the Respondents on the basis of material on record. The scope of interference under Article 227 of the Constitution of India and u/s 482 Code of Criminal Procedure is very narrow.

The Petitioner has failed to make out a case of jurisdictional error. There is No. merit in the petition In view of above discussion, petition fails and is accordingly dismissed. Cr.MP No. 313 of 2011 also stands disposed of.