Smt. Mumtaz Begum and Others vs Shri Sabir Hussain

A.K. Pathak, J.—Petitioner Nos. 2 to 4 are children born from the wedlock of Petitioner No. 1 and Respondent. Petitioner No. 2 is presently studying in class XII in Vivekanand School, Anand Vihar, Delhi; while Petitioner No. 3 is studying in class X and Petitioner No. 4 in class VI. Both Petitioner Nos. 3 and 4 are studying in Arwachin Bharti Bhawan Sr. Section School, C-Block, Vivek Vihar, New Delhi.

Petitioners have filed a petition u/s 125 of the Code of Criminal Procedure before the Metropolitan Magistrate, Delhi seeking maintenance, which is since pending for final disposal. Vide order dated 24th July, 2006, Metropolitan Magistrate had awarded interim maintenance @ Rs. 500/- per month each to Petitioner Nos. 2 and 3 with effect from January, 2006. Petitioners filed a Criminal Revision Petition No. 203/06 before the Additional Sessions Judge (ASJ) against the order of Metropolitan Magistrate which has been disposed of by the order impugned in this petition. That is how Petitioners are before this Court by way of present petition u/s 482 Code of Criminal Procedure

Learned ASJ has held that the Trial Court was right in awarding maintenance to Petitioner Nos. 2 and 3 @ Rs. 500/- per month each. However, it was not right in not awarding the maintenance to Petitioner No. 4. Respondent was directed to pay interim maintenance @ Rs. 500/- per month to Petitioner No. 4 as well.

Admittedly, Petitioner No. 1 and Respondent are gainfully employed. Their salaries are more or less same. They admitted before the ASJ that they were earning about Rs. 15,000/- per month. During the pendency of this petition, it has been admitted that after revision in their salary, in view of Sixth Pay Commission Report, they are getting more than Rs. 30,000/- per month with effect from 1st July, 2006. It may be noted here that ''Interim maintenance'' has been awarded by the courts below with effect from January, 2006. Keeping in mind the income of Respondent, in my view, Trial Court as well as ASJ has committed a patent illegality in awarding a meager amount of Rs. 500/- to each child.

Even though Respondent has claimed that he has divorced the Petitioner No. 1 but the Respondent cannot shirk away his responsibilities of sharing expenses incurred in upbringing of Petitioner Nos. 2 to 4. He cannot disown his responsibility to maintain his children. In fact, the parties have already undergone one round of civil litigation with regard to their marital status. Suit of Petitioner No. 1 has been dismissed while suit of the Respondent was decreed to the effect that Respondent had divorced the Petitioner No. 1 according to Shiya Muslim Law by the Civil JSCC/Additional Senior Civil Judge/Guardian Judge (NE), Delhi on 7th October, 2010. An appeal against this order is stated to be pending before the Additional Sessions Judge (NE), Delhi. However, this fact is inconsequential so far as question of grant of interim maintenance to the children is concerned.

Learned Counsel for the Respondent submits that Respondent has re-married and has been blessed with one child out of this marriage. Respondent is looking after them also. Petitioner is earning sufficient amount to maintain her children. In this scenario, maintenance awarded by the Trial Court is just and appropriate.

I do not find much force in the contentions of learned Counsel for the Respondent. It is legal and moral responsibility of each parent to look after their children. Future of the children cannot be put in jeopardy on account of matrimonial acrimony between the husband and wife. Petitioner Nos. 2 to 4 are supposed to be provided education and maintain standard as per the joint income of their parents. Presently, they are studying in private schools. Their mother is single handedly taking their care. Father cannot absolve himself from his responsibility to provide financial assistance to Petitioner Nos. 2 to 4 to meet their needs and education etc. He is liable to share expenses incurred on their education and upbringing so as to ensure that their education is not disturbed and they are able to stand on their feet. Presently, expenses incurred by Petitioner No. 1 on each child are about Rs. 5,000/- per month towards their school fee, transportation, uniform etc. That apart, Petitioner No. 1 would also be incurring expenses for meeting their day to day needs, that is, food, clothing, pocket money etc.

For the foregoing reasons, in my view, the amount awarded by the Courts below cannot be termed as just and reasonable by any standard. In the overall facts and circumstances of the case, in my view, a sum of Rs. 2,500/- for each child would be just and appropriate. Accordingly, impugned order is set aside. It is directed that Respondent shall pay a sum of Rs. 2,500/- per month to each child i.e. Petitioner Nos. 2 to 4 with effect from January, 2006. Respondent is also saddled with cost of Rs. 10,000/- which shall be paid to Petitioner Nos. 2 to 4 through Petitioner No. 1.

Petition is disposed of in the above terms. Copy of this order be sent to Trial Court.

Crl. M.A. No. 5022/2007 (Stay)

Disposed of as infructuous.