Wife looses 3 lakhs lumpsum awarded ! However Family court has rights to award monthly maintenance based on merits of the case and earning of the husband
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 505 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
KETAN PRAFULBHAI VYAS….Applicant(s)
STATE OF GUJARAT & 2….Respondent(s) ==========================================================
MR ASIT B JOSHI, ADVOCATE for the Applicant(s) No. 1
MR BHASH H MANKAD, ADVOCATE with MS GARIMA MALHOTRA, ==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 03/08/2016
- Heard learned advocate Mr.Asit B.Joshi for the applicant, learned advocates Ms.Garima Malhotra with Mr.Bhash H.Mankad for respondents No.2 and 3 and learned APP Mr.K.P. Raval for respondent No.1 – State being formal party.
- The applicant – husband has challenged the order dated 5.8.2015 by the Principal Judge, Family Court, Rajkot in Criminal Misc.Application No.61 of 2011. By such impugned order, Principal Judge, Family Court, Rajkot has awarded an amount of Rs.7,000/- to Rs.10,000/- for different period between 25.1.2011 being date of application till date of order and period thereafter. By same impugned order, an amount between Rs.3,500/- to Rs.5,000/- is also awarded towards maintenance of minor son of the spouse. Thereby, from 1.1.2015, the total liability of the applicant – husband is to pay Rs.10,000/- as maintenance to the wife and Rs.5,000/- to their minor son i.e. total Rs.15,000/-. In addition to such amount of maintenance, the Family Court has also directed the husband to pay a lump sum amount of Rs.3 Lacs for the provision of residential accommodation. I have heard both the sides and perused the available record, which includes oral evidence of both the sides so also reply and affidavit-in- rejoinder before this Court.
- However, irrespective of factual details emerging from record, it is clear that Family Court has no jurisdiction whatsoever to award lump sum amount towards provision for residential accommodation when claim is under Section 127 of the Code of Criminal Procedure (‘the Code’, for short) for increasing the amount of maintenance already awarded u/s.125 of the Code, though the Family Court may have similar jurisdiction in case of appropriate application under any other enactment viz. Protection of Women from Domestic Violence Act, 2005 and Hindu Adoption and Maintenance Act, 1956 etc. Therefore, by all means, there is reason to interfere with the impugned order and to quash and set-aside the impugned order so far as it is directing the applicant – husband to pay the lump sum amount of Rs.3 Lacs towards provision for residential accommodation.
- Therefore, so far as additional amount of Rs.3,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Komalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
- It is a settled legal position that the word ‘maintenance’ has no limited consideration, meaning thereby though the word ‘maintenance’ includes all benefits towards for food, lodging, boarding, medicines, clothes, transportation, entertainment etc., in other words, it includes all the facilities that may be made available to the wife in her house with her husband, but in any case, the word ‘maintenance’ does not include the provision or a right to seek lump sum amount for residential accommodation.
- For the purpose, reference of Section 125 of the Code of Criminal Procedure is material which speaks about the right of the person to get maintenance and though the word ‘maintenance’ is nowhere defined, it is clear and obvious that ‘maintenance’ means monthly amount to be paid by the husband or the concerned person to the wife or parents or children as the case may be; where the material part of Section 125 of the Code of Criminal Procedure reads as under :- Section : 125. Order for maintenance of wives, children and parents :- (1) xxxx xxxx xxxx (a) xxxx xxxx xxxx (b) xxxx xxxx xxxx (c) xxxx xxxx xxxx (d) xxxx xxxx xxxx A Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[***], as such Magistrate thinks fit, and to pay to such person as the Magistrate may from time to time direct:
- Therefore, a bare reading of the relevant provisions of Section 125 of Code of Criminal Procedure makes it clear that under such Section, right of the wife or the concerned person is to get the monthly allowance on such monthly rate that the Magistrate may think fit from time to time. Thus, in any case, the learned Family Court has no right or jurisdiction whatsoever, to direct the present applicant to provide lump sum amount to the wife for residential accommodation.
- However, learned advocate for the respondents are relying upon following citations and therefore, they need to be referred and explained:- 8.1 In the matter between Chaturbhuj Vs. Sita Bai reported in AIR 2007 SCW 7416. Learned advocate has referred last few lines of paragraph 5, which reads that – “It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution.”. However, though this is a well-known citation on this subject, it cannot be ignored that it nowhere confirms that provision for shelter is to be provided in lump sum, which is certainly not in consonance with the provisions of statute itself wherein words used are “a monthly allowance for the maintenance”. Therefore, though amount of maintenance may include amount for shelter, it should be paid per month either as rent or in any other manner, but not in lump sum as awarded in the impugned order. 8.2 In the matter between Komalam Amma (supra), which is relied upon by the respondents is already discussed herein above. 8.3 Unreported judgment dated 19.4.2016 between Sandip Pramodrai Jani Vs. State of Gujarat & Ors. decided in Special Criminal Application No.1129 of 2016, the Single Judge of this Court has relying upon the decision of Komalam Amma (supra) and Mangat (dead) and Anr. vs. Punna Devi (Smt.) (Dead) and Ors reported in (1995)6 SCC 88 held that order of payment of lump sum amount towards provision for residential accommodation is provided and thereby, refused to quash such order by dismissing the petition. However, judgment of Komalam Amma (supra) is already discussed herein above, which makes it clear that it does not confirm that the Family Court or the Magistrate has power to grant lump sum amount towards provision for residential accommodation in favour HC-NIC Page 7 of 10 Created On Sat Aug 06 03:40:38 IST 2016 of wife, more particularly with reference to Section 125 of the Code.
- Therefore, none of above judgment makes it clear that the trial Court has absolute and uncontrolled jurisdiction to grant lump sum amount towards residential accommodation also though the phrase used in Section 125 of the Code is quite clear that a Magistrate may order to make a monthly allowance in maintenance. It is also evident that in all such cited cases, the Court has relied upon the provisions of Hindu Adoption and Maintenance Act and not under the provisions of Section 125 of the Code.
- Whereas, so far as the amount of monthly maintenance is concerned, Family Court has rightly bifurcated the total amount in three slabs by awarding Rs.10,500/- in aggregate for both the respondents for the period between January, 2011 to December, 2012 and again Rs.12,000/- for two years from January, 2013 to December, 2014 and Rs.15,000/- from January, 2015 onwards. So far as quantum is concerned, there is specific documentary evidence on record regarding income of the applicant – husband in the form of his salary slips, which confirms that though his salary was approximately Rs.18,000/- in the year 2008, the same has been increased to approximately Rs.44,000/- from October, 2014 and HC-NIC Page 8 of 10 Created On Sat Aug 06 03:40:38 IST 2016 it must have been increased thereafter. Therefore, when a person is earning Rs.44,000/- in the month of February, 2015, when his evidence was recorded, then, an amount of Rs.15,000/- i.e. only 1/3rd of his earnings for two living persons can never be said to be excessive in any manner whatsoever. Therefore, so far as quantum of maintenance is concerned, I do not see any reason or substance to interfere with the impugned order, more particularly considering the fact that impugned order is passed in an application u/s.127 of the Code by wife and minor for enhancement of maintenance and thereby, so far as their right to get maintenance and liability of the applicant to pay maintenance is now not in dispute.
- In view of above facts and circumstances, the present Criminal Revision Application is partly allowed. Thereby, though order of monthly maintenance is upheld and confirmed as per the impugned order, the order regarding payment of Rs.3 Lacs lump sum towards provision for residential accommodation to be paid by the husband to the wife is hereby quashed and set- aside.
- Interim relief, if any, shall stand vacated.