Manish Shrivastava vs State Of H.P. And Another

Anoop Chitkara, J

Challenging the enhancement of compensation by learned Additional Sessions Judge, Sirmaur at Nahan from Rs.3000/- and Rs.4000/- awarded by

learned ACJM, Court No.1, Paonta Sahib to the wife and the minor child respectively to Rs.5000/- each, the husband-petitioner has come up before

this Court on the grounds that he and his mother are suffering from severe medical problem and he has no source of income and is even unable to get

medical treatments and thus, he has no sufficient means to pay enhanced compensation.

Both husband and wife stand divorced by a decree dated 12.5.2017 passed by the learned Additional Sessions Judge, Sirmaur District at Nahan in

HMA No.5-N/3 of 2014/13.

Petitioner-husband does not claim that he has challenged such decree by filing an appropriate petition in this Court.

Earlier to the filing of the Divorce Petition, the wife alongwith minor daughter had filed a petition under Section 125, Cr.PC in the Court of learned

ACJM, Court No.1, Paonta Sahib, District Sirmaur. Vide order dated 19.9.2016 passed in CIS No.478 of 2013, learned ACJM, Court No.1, Paonta

Sahib awarded monthly maintenance allowance @ Rs. 3000/- to the wife and Rs.4000/- to the minor daughter.

Feeling dis -satisfied with the less maintenance allowance, the wife alongwith minor daughter filed Criminal Revision Petition No.10-N/10 of 2018

under Section 397, Cr.PC in the Sessions Court, Sirmaur at Nahan. Vide order dated 10.8.2018, learned Additional Sessions Judge, Sirmaur District at

Nahan enhanced the compensation to Rs.5000/- each. Challenging such order, the husband has come up before this Court under Section 482, Cr.PC.

I have heard learned counsel for the parties and also gone through the record.

ANALYSIS & REASONING:

The petitioner-husband did not challenge the grant of maintenance allowance by the learned ACJM, Paonta Sahib, vide which the court had

awarded monthly maintenance allowance @ Rs. 3000/- and 4000/- to the mother and minor daughter respectively. His only challenge is the

enhancement of the said amount to Rs.5000/-each per month to both the respondents, i.e., wife and daughter. In paragraph 7(F), the petitioner has

taken a ground that he had re-located at Bangalore and could not get regular income and his mother is suffering from various old age ailments and he

has no money even to give proper treatment to his mother.

During the pendency of this petition, the husband filed an application under Section 482, Cr.PC for placing on record the medical record of the

petitioner, which was registered as Cr.MP No.2394 of 2019. Paragraph 3 of the said application is extracted as follows:-

“3. That the applicant/petitioner is suffering from a disease named esophageal achalasia Cardia, for which he is under treatment and is under

medication. It is submitted that doctors have advised the applicant/petitioner for a surgery in order to avoid any further damage to his esophagus,

which is termed as Peroral endoscopy myotomy (POEM): where the surgeon passes an electrical scalpel through an endoscope, makes an incision in

the lining of the esophagus and creates a tunnel within the esophageal wall. The said process is expensive and because the petitioner is unemployed

person, he is fighting for his life.â€​

I have gone through the medical records filed by the petitioner-husband. He has stated on affidavit that due to re-location to Bangalore, he could not

get a regular source of income. Be that as it may, this Court cannot lose sight of the ground reality that Covid-19 pandemic has taken its toll on

employment opportunities. Given the unemployment, it is very difficult to say that wages did not fall coupled with the fact that the petitioner needs to

take care of his medical condition as well as to give treatment to his mother. This court is of the opinion that for the time being and keeping in view the

rights conferred under Section 127, Cr.PC, the petitioner-husband has no sufficient means to pay the enhanced maintenance.

Given above, the order dated 10.8.2018 passed by the learned Additional Sessions Judge, Sirmaur at Nahan is hereby set aside. Consequently,

order dated 19.9.2016 passed by the learned ACJM, Court No.1, Paonta Sahib would hold good.

Petition is allowed in the aforesaid terms. Pending application(s), if any, shall stand disposed of accordingly.