HIGH COURT OF JAMMU & KASHMIR
Date of order: 18.12.2018
Jyoti Jamwal and anr
Coram:Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
For petitioner/appellant (s) : Mr. C.M.Gupta, Advocate
For respondent(s) :
2. Through the medium of this petition, the petitioner inter alia challenged the order dated 30.07.2018 passed by the learned Sessions Judge, Samba by virtue of which who modified the order dated 15.05.2018 passed the learned Chief Judicial Magistrate, Samba by reducing the interim maintenance to the respondents from Rs.4000/- per month to Rs.2700/- per month on the following grounds:
a) That orders of Learned Chief Judicial Magistrate, Samba and Sessions Judge, Samba dated 15-05-2018 & 30-07-2018 respectively are against law.
b) That while passing order the Learned Chief Judicial Magistrate, did not consider the petition and the/ objection in as much as respondents in a case filed by the petitioner u/S 13 of the Hindu Marriage Act has filed petition u/S 30 of the Hindu Marriage Act and the Learned Session Judge, Samba granted Rs.5000/-in favor of respondents as maintenance u/s 30 and Rs.15000/-as litigation expenses etc. which fact was neither considered by Chief Judicial Samba nor Sessions Judge, Samba which in appeal before this Hon’ble Court filed by the petitioner has been stayed.
c) That both the courts did not consider the certificate issued by the employer of the petitioner which was stated at that time in the said certificate Rs. 7000/-and now in fresh certificate issued by the employer has stated the monthly pay of the petitioner as Rs.7500/-. Certificate in original is annexed and marked as Annexure F.
d) That the orders passed by both the courts are silent regarding matrimonial proceedings inter-se parties and maintenance etc granted in favour of respondents.
e) That the orders passed by both the courts are abuse of the process of the court in as much as both the orders are illegal, arbitrary, violative of natural justice not in consonance of law and has resulted into miscarriage of justice.
f) That the poor petitioner who gets Rs.7500/-per month has been directed to pay maintenance etc to the respondents more than his pay.
3. I have considered the contentions of learned counsel for the petitioner. From perusal of the documents annexed with the petition, it appears that respondents have filed petition under Section 488 CrPC for grant of an interim maintenance on the grounds of demand of dowry and cruelty. Along with the petition, an interim application for grant of an interim maintenance was also filed and the learned CJM, Samba after inviting the objections granted interim maintenance vide order dated 15.05.2018. The concluding para of the said order reads as under:
“Keeping kin view the law laid down by Hon’ble Supreme Court of India in case titled Savitri Devi versus Govind Ram I consider petitioner No.1 and 2 entitled to maintenance. Next question is what should be the quantum of interim maintenance which the petitioner is entitled and keeping in view the pleadings of the parties, respondent is a able bodied man and has earning more than Rs.30,000/- per month as submitted in petition. However, he is duty bound to maintain the petitioner to save her from vagrancy and destitution. Accordingly, I hold petitioner No.1 and 2 are entitled to interim maintenance of Rs.2000/- each as interim maintenance.”
4. Aggrieved of this order, the petitioner filed a revision petition before the learned Sessions Judge, Samba, who modified the order and reduced the interim maintenance from Rs.4000/- per month to Rs.2700/- per month.
5. The ground taken in this petition is that the petitioner has only salary of Rs.7500/-per month, so he is unable to pay the interim maintenance which is on higher side, is not tenable. Because in this petition, this court cannot appreciate this aspect of matter; the petitioner is required to prove this fact before court below during trial. Petitioner has admitted his marriage with respondent no.1 and child (respondent no.2) born out from marriage wedlock in memo of this petition. One relationship is admitted then it becomes moral duty of husband to maintain his wife and children. All the grounds taken in memo of this petition are subject to judicial adjudication, which can be proved during trial. Another argument advanced that maintenance is on higher side, is also not tenable. Because maintenance always includes money required for purchasing goods needed for day to day, medicine and clothing etc. The Magistrate is not required to conduct detailed inquiry while passing order of interim maintenance. The purpose of granting interim maintenance is to save claimant from vagrancy and destitution. Another argument that petitioner is already getting maintenance under section 30 of H.M.Act, is also not tenable, the petitioner has statutory right to get maintenance. Further petitioner has not annexed any evidence in this regard. Maintenance always should be reasonable. By granting interim maintenance to respondents, I am of the view that both courts below have not exceeded their jurisdiction. It is not the case of petitioner that there is some legal bar in granting interim maintenance.
6. In view of the above, this petition is dismissed. Let a copy of order be sent to court below for information.
(Sanjay Kumar Gupta)