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Ashish Vs. D.C. Tewari - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtDelhi High Court
Decided On
Case NumberCr. Rev No. 167 of 1968
Judge
Reported inAIR1970Delhi98; 1970CriLJ670
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488 and 488(1); Hindu Marriage Act, 1955 - Sections 24
AppellantAshish
RespondentD.C. Tewari
Appellant Advocate Mohini Tewari, Adv
Respondent AdvocateParty in person
Excerpt:
.....effect that the maintenance does not cover high education and the better standard of living. 540/-.shri tewari's reply, according to the order of the learned additional sessions judge, shows that he was, to quote from the order, brought up in rich traditions of a decent family life with a special emphasis on education and living in an enlightened education atmosphere among the top educationists of the country'.beause of this reply by shri tewari, the learned additional sessions judge felt that it would not be unreasonable that a child of such a person should be educated in a good school. as maintenance was accordingly considered to be clearly inadequate and it was held proper to increase the amount to rs. tewari has urged that the learned additional sessions judge has failed to consider..........learned additional sessions judge has recommended that the amount be increased to rs. 50/- p.m.2. shri tewari was married to smt. mohini tewari, mother of ashish minor and the minor child was born on 26-11-1964, in delhi, shri d.c. tewari is stated to be working as a librarian in the malviya regional engineering college at jaipur. according to the averments in the application for maintenance, his monthly income is about rs. 700/- and he has not cared to maintain his minor child. the prayer in the application which is based on total neglect and failure of his father to maintain the minor is for payment of rs. 300/- p.m.3. the father after stating the story of his marriage with the minor's mother, pleaded in the written statement that his wife and her mother had after the marriage started.....
Judgment:
ORDER

1. Shri D. R. Khanna, Additional Sessions Judge, Delhi, has forwarded this revision to this Court with a recommendation to increase the maintenance allowance to Ashish minor fixed at Rs. 20/- p.m. by Shri V. N. Chaturvedi, Sub-Divisional Magistrate, Hauz Qazi, Delhi, payable by his father Shri D.C. Tewari. The learned Additional Sessions Judge has recommended that the amount be increased to Rs. 50/- p.m.

2. Shri Tewari was married to Smt. Mohini Tewari, mother of Ashish minor and the minor child was born on 26-11-1964, in Delhi, Shri D.C. Tewari is stated to be working as a Librarian in the Malviya Regional Engineering College at Jaipur. According to the averments in the application for maintenance, his monthly income is about Rs. 700/- and he has not cared to maintain his minor child. The prayer in the application which is based on total neglect and failure of his father to maintain the minor is for payment of Rs. 300/- p.m.

3. The father after stating the story of his marriage with the minor's mother, pleaded in the written statement that his wife and her mother had after the marriage started persuading and coercing him to live with them at their house because the minor's grandmother had no other child except his wife. They also wanted Shri Tewari to break off with his widowed mother and younger brother. To this, he obviously did not agree. When his wife saw no hope of persuading him to agree to her point of view, she left the house in August, 1964 on the pretext of Raksha Bandhan. At that time, she was in the seventh month of her pregnancy and thereafter she did not return to her matrimonial home in spite of repeated efforts to persuade her to come back. Having failed in his efforts, he filed an application for restitution of conjugal rights in October, 1965 which was decided by a Subordinate Judge, Delhi, on 29-4-1967, when his wife made a statement that she was ready to accompany her husband to his house at Jaipur. However, when shri Tewari went to take his wife, she plainly refused to accompany him. This resulted in another application for restitution of conjugal rights in July, 1967. In those proceedings, Shri Tewari pleads tohave been paying Rs. 90/- p.m. to his wife and child as maintenance allowance in compliance with the order of the Court. According to his case, he is earning about Rs 540/- p.m. It appears from the order of the learned Magistrate that Shri Tewari also obejcted to the jurisdiction of the Delhi Courts on the ground that he had neither resided within the jurisdiction of the Delhi Courts nor did he last reside within such jurisdiction with his minor child or with his wife. After considering the evidence led in the case, the learned Sub-Divisional Magistrate upheld the jurisdiction of the Delhi Courts. On the merits, after considering the arguments addressed on both sides, the learned Sub-Divisional Magistrate observed that Shri Tewari was already paying Rs. 90/- p.m. to his wife, who is the mother of the minor-petitioner. So observing the learned Magistrate proceeded:

'There are rullings to this effect that the maintenance does not cover high education and the better standard of living. In awarding the maintenance allowance, we have also to see the other circumstances of the respondent also. It is from the record clear that the respondent is maintaining his mother and brother and running a second house in Delhi. He is already also paying Rs. 90/- per month to the petitioner's mother. So looking to these circumstances and agreeing, with the arguments of the learned counsel for the petitioner I order the respondent to pay Rs. 20/- (Twenty) per month to the petitioner as maintenance allowance from the date of order.'

This order, it may be pointed out, was made on 30-8-1968.

4. On revision, the learned Additional Sessions Judge observed that Shri Tewari is employed at Jaipur and his total emoluments come to Rs. 540/-. Shri Tewari's reply, according to the order of the learned Additional Sessions Judge, shows that he was, to quote from the order, 'brought up in rich traditions of a decent family life with a special emphasis on education and living in an enlightened education atmosphere among the top educationists of the country'. Beause of this reply by Shri Tewari, the learned Additional Sessions Judge felt that it would not be unreasonable that a child of such a person should be educated in a good school. At that time the minor was studying in Frank Anthony Junior School where the monthy fee payable is Rs. 24/-. The sum of Rs. 20/- p.m. as maintenance was accordingly considered to be clearly inadequate and it was held proper to increase the amount to Rs. 50/- p.m. at least adverting to the expenses of Shri Tewari, the learned Additional Sessions Judge observed in his order that according to the order of the Matrimonial Court, out of Shri Tewari's salary of Rs. 540/- p.m. Rs. 83/- are deducted towards Provident Fund, Income-tax and insurance premium, out of the balance of Rs. 457/- he had to pay Rs. 90/- to his wife and with the rest to maintain himself, his old mother and younger brother, who is studying. Paying of Rs. 50/- p.m. by Shri Tewari towards his child was, in the circumstances, held not to be too much.

5. Before me, both the minor's mother as his guardian and his father have appeared in peson. Shri. Tewari has urged that the learned Additional Sessions Judge has failed to consider all the relevant circumstances of the case. According to him, he has not refused to maintain his minor child and has emphasised his assertion that whenever he met his wife and child, he paid some amount towards the child's maintenance. He has also argued that his wife is not willing to live with him and to redress this grievance, he has institued another suit against her. He has also prayed that I should go into the entire record to see which way justice lies.

6. It is proper at this stage to reproduce Section 488, Cr.P.C.

'488. Order for maintenance of wives and children - (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Prsidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whle or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made;

Provided that, if such person offers to maintain his wife on conditions of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal sated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him:

Provided, further that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a perios of one year from the date on which it became due. (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutualconsent.

(5) On proof that any wife in whose favor an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent the Magistrate shall cancel the order.

(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases;

Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.

(7) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.

(8) Proceedings underthe i section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of illegitimate child.'

This section has been enacted with the object of enabling discarded wives and helpless deserted children to secure the much-needed and urgent relief. It is thus intended to serve a social purpose, the desirability and effectiveness of which cannot be over-emphasised. The fact that the minor child is living with his mother, is not a sufficiently cogent ground by itself for refusing him relief by way of maintenance and this would be all the more so in the case of a child of the age of Ashish. At this age, normally speaking, the mother is entitled to have his custody. The child's right and his father's correponding liability in regard to the maintenance is not broadly speaking, dependent on the former living with the latter. Neither statute nor any recognised principle that I know of provides that a child of the age of Ashish living with his real mother would, merely for that reason, lose right of maintenance from his father. The fact that the father and the mother cannot pull on together is hardly material so far as the minor child's rights are concerned. Shri Tewari's submission that he has never refused to maintain his child, ignores that formal refusal to maintain is no answer under the law and that it can be implied or inferred even from conduct. It also ignores the legal position that even neglect to maintain is sufficient to justify an order under this section. And then, neglect or refusal to maintain seems to be to mean neglect or refusal to maintain properly and assuming, without holding, that Shri Tewari has, once in a while, given some money or present for the 'child', as he argues in his Court, that cannot be successfully pleaded as a complete defense to the child's claim to be adequately and regularly maintained according to the means and status of the father. I must not be understood to equate proceedings under Section 488, Cr. P.C., with a regular civiil suit for maintenance because it is obvious from the statutory scheme of Chapter xxxvi of the Code that these provisions are relatively summary, designed to afford urged relief to the needy, neglected wife and child to a limited extent through the Courts of Magistrate. The somewhat summary method of enforcement of orders under this section also highlights the sense of urgency which inspired the enactment of this statutory provision. Such orders are, it is unnecessary to point out, subject to the final determination of the rights of the parties by Civil Court, and are also tentative liable to be varied with change of circumstances.

7. Shri Tewari's opposition to the recommendation of the learned Additional Sessions Judge on the ground that all the circumstances have not been considered is unacceptable on a proper perusal of the order and the record. The fact that after paying additional sum of Rs. 30 p.m. to the minor child (which brings the total monthly maintenance to him under Section 488, Cr.P.C., to Rs. 50 p.m.) Shri Tewari would be left with only about Rs. 315 to support himself his old mother and his younger brother, who is still studying is certainly a relevant consideration, but the argument based on this circumstance ignores the vital consideration that Shri Tewari's responsibility towards his own minor son is of no less importance, and this responsibility is expressly enforceable under Section 488 of the Code. It is wrong to presume that unless the father can spare some money after maintaining himself, his old mother and his brother, he has no legal obligation to maintain his own minor son, of course in accordance with his status and standard.

8. The further contention that Shri Tewari is already paying Rs. 90 p.m. to his wife, pursuant to an order under Section 24 of the Hindu Marriage Act and that this amount is meant for his child as well, assuming, without holding, the last assertion to be correct, does not render the recommendation of the learned Additional Sessions Judge to be unacceptable because, in view of Shri Tewari's status as represented by him and keepin in view the present high cost of living Rs. 50 p.m. can scarcely be considered to be sufficient and certainly not excessive for the maintenance of the minor child. Section 24 of the Hindu Marriage Act is enacted for the purpose of providing, inter alia, maintenance pendente lite and Rs. 90 p.m. can by no means be considered to be adequate for both the mother and the child to such an extent as to disentitle Ashish in the present proceedings to get an order for reasonable amount and Rs. 50p.m. can on no account be held to be unreasonable or excessive. I am not expressing any opinion on the question whether or not the amount allowed under Section 24 was ment for the maintenance of child, and indeed I am doubtful if the amount allowed was intended by the learned Subordinate Judge to include the needs of the minor child.

9. The recommendation of the learned Additional Sessions Judge, on an overall view of all the circumstances deserves to be accepted and I hereby accept it and vary the order of the learned magistrate as suggested. The amount would of course be payable from the date of the order of the learned Magistrate because no recommendation has been made that it should be made payable from the date of the application.

10. Before concluding, I cannot help observing that this is a typical case of absence of proper adjustment on collective deliberation by the husband and the wife genuinely attempting to solve the difficult problem confronting them and arising out of their affection for their respective parents and other near relations. Mrs. Tewari and her mother must realise that after marriage, the wife's home is where the husband lives and the husband's family has tobe considered by her to be her family. Her mother must properly grasp this vital fact, taking it for granted that after marriage the firl has to go and live with her husband. She must, thereforee, adjust herself to the changed situation after her daughter's marriage. Similarly, Shri Tewari and his nmother and brother have to face the new situation created by the marriage. The introduction of his wife in his family means that all the family members must welcome her with affection and they must help her in all respects to strengthen her roots in the family life of her husband. Mrs Tewari has to look upon her mother-in-law as her own mother, who in turn must look upon her daughter-in-law as if she is her daughter. The younger brother is also entitled to be looked upon as the child of the family. This of course does not mean that if Mrs. Tewari's mother is unprovided for and is otherwise needy, then Mr. Tewari must ignore her requirements. Within reasonable limits, Shri Tewari must allow his wife to look after her own mother. All this requires joint co-operative effort with good will on all sides and I have no doubt that educated, sensible and practical as all the persons concerned in this controversy are, and belonging as they do to respectable families with high Indian traditions, they will all realise the futility of avoidable litigation which is calculated to bring disharmony and financial difficulties in the family. The litigation in which the parties seem to be involved at the present point of time can neither solve their problem nor bring peace of mind to them, leave alone the financial and other difficulties and most of all the unhealthy environments for their own child, to whom they owe both legal and moral obligation to bring up as a good human being. In the civil litigation for restitution of conjugal rights, that Court has a judicial duty to try to bring about reconciliation between the two spouses, and I hope serious and genuine effort would be made to this end. That Court would no doubt use its good offices in accordance with law to remove misunderstandings, if any, between the parties and see that the two spouses forget their past differences and begin to live together, if for no other reasons, at least for the goods of their child and their own aged parents. I true that their aged parents also are anxious to see their children living happily together in the normal way.

11. Referene accepted and maintenance enhanced.


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