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Kailash Chandra Gupta Vs. Chaman Lal Gupta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 472 of 1983
Judge
Reported in1984(2)Crimes935; 27(1985)DLT185
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 125
AppellantKailash Chandra Gupta
RespondentChaman Lal Gupta and anr.
Advocates: S. Pappu and; Usha Kumari, Advs
Excerpt:
.....to give them proper education so that they grow in the manner in which every parent would like their children to grow. in a case such as this the allowance should not have been permitted from the date of the application and this is a case in which the quantum of allowance has been fixed arbitrarily without taking into consideration the capacity to pay, the status, the commitment and other such like factors of the persons from whom the maintenance is claimed......month. it is true that the income of the wife was not taken into consideration while fixing the quantum of maintenance but then it appears that this has affected the minds of both the courts below. the petitioner has submitted a chart of his latest income before me wherein he has pointed out to various deductions he has to make from his pay and has stated that after making the compulsory deduction he is only left with rs. l,300.00 . he has placed his total income at rs. 3,349.00 . he has further stated therein that after paying rs. 900.00 to his parents he is left with only rs. 400.00 to maintain himself, his wife and two children. the only consideration in allowing the quantum of maintenance that seems to have weighed with the courts below was the income of the petitioner and they.....
Judgment:

Malik Sharief-Ud-Din, J.

(1) This petition has been filed under section 482 Cr.P.C. seeking the setting aside of orders (Judgments) of the learned Metropolitan Magistrate dated 12-11-1982 and the learned Sessions Judge, Delhi dated 27-1-1983 by which orders both the courts below had directed the petitioner to pay maintenance allowance to the tune of Rs. 450.00 to each of the respondents I and 2 from the date of the application.

(2) The case of the respondents was that the petitioner is their son and they are father and mother respectively of the petitioner Kailash Chandra Gupta, that such circumstances were created as to force them out of the house of the petitioner and they were as such forced to take refuge with their daughter in the house of their son-in-law, that they were unable to maintain themselves and in this manner the petitioner has neglected to maintain them even though he was obliged to do so under section 125 Cr.P.C. The Court of the first instance after receiving objections and after allowing parties to lead evidence and after hearing them accepted the contentions of the respondents herein and acted upon the evidence. The Court came to the conclusion that the applicant even though is possessed of sufficient means has neglected to maintain his father and mother who are unable to maintain themselves and allowed a monthly allowance of Rs. 450.00 to each one of the respondents and this was directed to be paid from the date when the application was made. The learned Sessions Judge while hearing the revision accepted the evidence and after acting upon the same has upheld the order of the learned Metropolitan Magistrate.

(3) After giving my careful consideration to the arguments advanced, I may point out that normally this court would refuse to act to interfere under section 482 Cr.P.C. if what is sought to be achieved has been disallowed by the revisional court. In fact the object of section 397(3) Cr.P.C. is to prevent a multiple exercise of revisional power and to secure early finality of orders. A person aggrieved of an order can either invoke the revisional jurisdiction of this court or that of Sessions Court and once a forum is selected no further revision can be entertained. In fact, the learned counsel for the respondents' first objection was that this court under the circumstances of this case should refrain from interfering with the order under section 482 Cr.P.C. It is true that the power given to the High Court under section 482 Cr.P.C. is an exceptional one but to suggest that the court cannot interfere under this section in such matters is not correct. In fact, if the court does not act under this section it is only because of self-restraint the court has imposed upon itself but where the court finds it necessary to exercise its inherent power in order to secure the ends of justice there is no reason for the court no to act accordingly.

(4) In the present case it will be seen that both the courts have accepted and acted upon the evidence and have found the petitioner guilty of having neglected to maintain his parents who are unable to maintain themselves. The courts have also accepted the evidence that such circumstances were created where the parents were forced to abandon the son's house and take shelter in the house of their daughter. On examination of the evidence I find that this finding of the courts below cannot be upset.

(5) The only point that arises for consideration in this criminal miscellaneous petition is the quantum of the maintenance allowance and the date from which alimony ought to have been granted. I may take up last part for consideration first. The object behind section 125 Cr.P.C. is to prevent vagrancy and desertion and if the n.an is possessed of sufficient means the law casts a duty upon him to maintain his wife, his minor children, his child not. being a married daughter who has attained the age of majority and by reason of physical or mental abnormality or injury is unable to maintain itself as also his parents who are unable to maintain themselves. The sole idea behind this is to prevent desertion and vagrancy.

(6) In the present case the undisputed fact is that ever since the parents were forced out of the petitioner's house they were provided for and looked after in the house of their daughter and son-in-law. It is indeed true that there has been a willful neglect on the part of the son to maintain them but the fact remains that they were looked after by their son-in-law and the daughter who provided them shelter. The question that arises for consideration, thereforee, is as to whether for the period when they were deserted till the date the learned Magistrate passed the order they should or should not be allowed maintenance. This is a case where both the courts below have failed to take notice of the fact that the respondents (parents) really did not become vagrant and even when they were unable to maintain themselves they were taken care of by their daughter and son-in-law. The judicial view of discretion thereforee would demand that the maintenance should have been directed to be paid from the date of the order and not from the date of the application as this order in view of other obligations of the petitioner, to which reference will bs made shortly, is definitely operating hard. As a matter of fact sub-section (2) of section 125 Cr.P.C. by operation of law makes it incumbent that allowance shall be paid from the date of order but it also vests a discretion in the court to allow maintenance from the date of the application. This clearly goes to show that this discretion has to be exercised in a judicial manner. I am of the view that since the respondent parents were being looked after by their daughter and son-in-law throughout this period the allowance should have been allowed only from the date of the order and not from the date of the application.

(7) The next point for consideration is as to whether the allowance of Rs. 4.50.00 granted to each one of the respondent parents per month can be said to be reasonable or not. It would appear that while allowing this allowance the courts below have taken into consideration that the income of the petitioner is about Rs. 3,000.00 per month. There is also a mention of the fact that the wife of the petitioner is also earning about Rs. l,000.00 per month. It is true that the income of the wife was not taken into consideration while fixing the quantum of maintenance but then it appears that this has affected the minds of both the courts below. The petitioner has submitted a chart of his latest income before me wherein he has pointed out to various deductions he has to make from his pay and has stated that after making the compulsory deduction he is only left with Rs. l,300.00 . He has placed his total income at Rs. 3,349.00 . He has further stated therein that after paying Rs. 900.00 to his parents he is left with only Rs. 400.00 to maintain himself, his wife and two children. The only consideration in allowing the quantum of maintenance that seems to have weighed with the courts below was the income of the petitioner and they have not taken into consideration the compulsory deductions which the petitioner had to make from his income as an employee. Both the courts below have failed to take into consideration some other factors while fixing the quantum . of allowance. In fixing maintenance allowance the court has to take into account not only the needs of the person who claims maintenance but also the capacity, status, commitments and the obligations of the person who is to pay it. It is to be recalled that the applicant has two infants who are to be looked after by him and this is the stage when he is to bring them up and also to give them proper education so that they grow in the manner in which every parent would like their children to grow. The court while dealing with such matters should not only take into account the respective needs and requirements of the parties but should also take into account the status, the capacity to pay, commitments and the obligations of the person held guilty of neglect. It would be unjust to grant maintenance in an arbitrary manner. In certain circumstances it might have the effect of virtually rendering the other side a destitute. In the present case I find .that in dealing with this aspect of the case the courts below have made an emotional approach and that is how the quantum of maintenance was fixed. It has been totally forgotten that the respondents to whom the maintenance is being granted have to live together-under one roof and one hearth. The idea is to provide for their maintenance and not to make provisions for saving.

(8) It is in this view of the matter that I find it a fit case in which this court should interfere in order to secure the ends of justice. In a case such as this the allowance should not have been permitted from the date of the application and this is a case in which the quantum of allowance has been fixed arbitrarily without taking into consideration the capacity to pay, the status, the commitment and other such like factors of the persons from whom the maintenance is claimed. I am, thereforee, of the view that quantum also has to be reduced. It is, thereforee, ordered that the respondents (parents) shall be paid maintenance allowance at the rate of Rs. 2507- per month and this shall be paid from the date of this order. It is also-directed that the maintenance allowed by the courts below shall take effect from the date of the order passed by the learned Metropolitan Magistrate and not from the date of the application as was directed by the court below. As far as the quantum of maintenance is concerned, this order shall not be applicable to the maintenance already paid at the rate of Rs. 450.00 per month to each of the respondents. The orders of the courts below shall stand modified accordingly.

(9) The petition is accordingly disposed of.


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