Judgment:
Oral Judgment:
1. Rule. Rule is made returnable forthwith. Learned Adv. Mr. Masurkar holding for Mr. M.G. Wagh, Adv., waives service for respondents. Heard learned counsel for the rival parties. By consent of rival parties, this Criminal Writ Petition is taken up for final hearing and disposed of by this Judgment and Order.
2. By the present petition, the petitioner is challenging the order dated 16th October, 2014 passed by learned Judge of the Family Court No.1, Nagpur, below Exh.6, in Petition No. E-472 of 2013, thereby allowing the interim application for maintenance.
3. Respondent nos. 1 and 2 filed an application under Section 125, Criminal Procedure Code, for maintenance. The said proceedings are registered as Petition No. E-472/2013. By the said application, the respondents claimed maintenance at the rate of Rs. 10,000/- and Rs.15,000/- respectively for them.
4. An application for interim maintenance is also filed. The same is at Exh.6. The petitioner, who is non-applicant in the proceedings before the Family Court, has filed the reply. The solemnization of marriage between the petitioner and respondent no.1 on 9th April, 1995 is not in dispute. Further, the paternity of the petitioner in respect of respondent no.2 is also not denied. The age of the respondent no.2, who is a daughter of the petitioner, is seventeen years. Thus, she is a minor. Admittedly, she is a meritorious student and she requires educational expenses.
5. In fact, in the reply filed before the Family Court, the petitioner has admitted that the respondent no.2 has scored ninety-three percent of marks in her Secondary School Certificate [SCC] Examination. Though the petitioner has denied the extent of land as claimed by respondent nos. 1 and 2, he has admitted that he is having 1.5 acre of land in his name. He has also admitted that he has purchased various golden and silver ornaments and LIC policies. He has also admitted that he has purchased a plot.
6. Learned Judge of the Family Court allowed the application [Exh.6] filed on behalf of respondents. The court below directed that the petitioner shall pay Rs. 3,000/- per month to each of the respondents towards interim maintenance, and also pay Rs. 50,000/- to the respondent no.2 â“ daughter towards her educational expenses as an interim arrangement.
7. This is assailed before this Court. According to learned counsel for the petitioner, the learned Judge of the Family Court has enlarged the scope of the provisions of Section 125, Criminal Procedure Code, by referring to Section 3 (b) of the Hindu Adoption and Maintenance Act by directing the petitioner to look after the basic needs as well as educational expenses of the respondents. According to him, by taking recourse to the said Section, the Court below has exceeded in its jurisdiction while deciding the application for interim maintenance. In order buttress his submission, he relied upon a reported decision of the Apex Court in the case of Savitaben Somanbhai Bhatiya Vs. State of Gujrat [2005 AIR (SC) 1809]. Except this submission, no other point was raised before this Court at the time of arguments.
8. The reliance placed on the aforesaid decision of the Apex Court by the learned counsel, in my view, is highly misplaced, since the said case is clearly distinguishable on the facts itself.
9. While considering the submission about the scope of Section 125, Criminal Procedure Code, I am reminded of an authoritative pronouncement of Hon'ble Apex Court in the case of Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak alias Kishun B. Pathak [AIR 2008 SC 3006]. Reproduction of Paragraph 21 of the said authoritative pronouncement will be useful and it is reproduced hereunder:-
â21. So far as `interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make such order and direct payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had `implied power' to make such order. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance subject to a decree passed by a competent civil Court. Hence, in absence of any express bar or prohibition, Section 125 could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application.â?
In view of the aforesaid dictum, it is crystal clear that in absence of any express bar or prohibition, Section 125, Criminal Procedure Code, could be interpreted as conferring power by necessary implication to make interim order of maintenance. Therefore, even without resorting to the provisions of Section 3 (b) of the Hindu Adoption and Maintenance Act, the Court exercising powers and jurisdiction under Section 125, Criminal Procedure Code, will be within its ambit to pass necessary orders for interim maintenance. Section 125 of Criminal Procedure Code does not prohibit or debar such court to grant necessary order for meeting the requirement of a ward or a child in respect of the educational expenses. Therefore, in my view, no wrong is committed by the court below while awarding the amount towards educational expenses of respondent no.2, especially when respondent no.2 is a meritorious student and has cleared her SCC Examination with flying colours.
Respondents have filed two Receipts of Rs.64,000-00 and Rs. 40,000-00 in respect of payment of the fees for taking necessary educational help from the classes, and also passed a Pursis [Exh.30], stating that one more installment is also required to be paid. It is stated in para 7 of the main application under Section 125, Criminal Procedure Code, by the respondents that the respondent no.2 is studying in XIth Standard in Dharampeth Science College and she is taking coaching in âAli's Medical Coaching Classesâ?. It is also stated that she has to pay fees of Rs.1,35,000/- towards coaching. The said assertion in the application appears to have been supported by the receipts filed on record for Rs. 64,000/- and Rs. 40,000/-. In that view of the matter, no fault can be located in the order passed by the learned Judge of the Family Court directing the petitioner to pay Rs. 50,000/- towards educational expenses. It is the utmost duty of a father not only to take care of his daughter/son, but at the same time, the father is under obligation to provide best possible education. In the present case, respondent no.2 by securing 93 per cent of marks has shown that she deserves the best education to create her future and she is able to do so. Therefore, the father cannot be allowed to escape his liability of providing financial assistance to her by taking recourse to the technical submissions.
10. From the reply filed on behalf of the petitioner, it is clear that he is a well off person. Petitioner is a person who can purchase a plot in the city of Nagpur, golden and silver ornaments, though at the instance of his wife as claimed by him in his reply and also the LIC policies, however, fact remains that he is having sufficient means. He himself has admitted that he is working with Western Coalfields Ltd.. However, according to him, his salary is not to the extent as claimed by the respondent.
At the time of passing of the impugned order, the court below was deciding the application for interim maintenance. The main proceedings are still pending. It is always open to the petitioner/husband to prove his case by adducing sufficient evidence. However, in view of the pleadings available on record and the documents as referred herein above, in my view, there was sufficient material before the learned Judge of the Family Court to pass the order allowing the application for interim maintenance.
11. Upon the aforesaid discussion, I see no reason to upset the order passed by the Family Court. Hence Writ Petition No. 5 of 2015 is dismissed, however, no costs. Rule is discharged.