Common Oral Judgment:
1. Both the above Revision Applications arise from common judgment and order dated 16th October, 2012 passed by learned Principal Judge, Family Court, Rajkot in Miscellaneous Criminal Application No.456 of 2008 whereby the Family Court allowed Application filed under Section 127 of the Code of Criminal Procedure, 1973 praying for enhancement in the amount of maintenance to the applicant. The applicant is a minor son who filed said Application through his mother and guardian seeking increase in the maintenance from Rs.05,000/- to Rs.12,000/- every month.
2. As per the impugned order, the Family Court gave increase of Rs.03,000/- in the maintenance, enhancing the same to Rs.08,000/- to be paid from the date of Application, that is 08th of April, 2008. It was directed that the said enhanced maintenance would be payable till the applicant become major; Rs.01,000/- was awarded towards cost.
3. Originally an Application praying for maintenance under Section 125, Cr.P.C. was filed by the wife-the mother of the present applicant as well as the present applicant. The said Criminal Miscellaneous Application No.689 of 2001 came to be partially allowed by the learned Judicial Magistrate First Class, Rajkot as per his judgment and order dated 30th September, 2005, granting Rs.05,000/- towards monthly maintenance to applicant No.2-minor son, whereas the prayer for maintenance by applicant No.1-wife came to be rejected. The said order passed by learned Magistrate was challenged by the husband by filing Criminal Revision Application No.160 of 2005 before the Court of learned Additional Sessions Judge, Rajkot which came to be dismissed and it was directed to the applicant-husband to clear the arrears of maintenance and to continue to pay the maintenance amount to the minor son.
3.1 The marriage of the parties was solemnized as per Hindu rites on 28th January, 1996 at Rajkot. The applicant was borne out of the wedlock. The case of the wife in her original Application for maintenance filed in 2001 mentioned above, was inter alia that after marriage she started staying in her matrimonial house at Upleta, that after passage of some time, the husband and in-laws used to treat her by abusing and harassing and demanding money. It was her case that on 30th June, 1997 when she was pregnant, she was left alone at her parental house when she was not well and was in semi-conscious state. It was thereafter that when she was driven out from her matrimonial home, son named Nisarg-the applicant herein was borne on 06th October, 1997. The wife stated that neither her husband-father nor anybody from his family came to see her and the son at that time. As she was deserted without any cause, she filed the aforesaid Application under Section 125, Cr.P.C.
3.2 The above captioned Revision Application No.559 of 2012 was filed in December, 2012 wherein this Court issued Notice on 05th December, 2012. The other Revision Application came to be filed by the husband on 11th January, 2013, wherein he prayed to set aside the afore-mentioned order dated 16th October, 2012 passed by Family Court, Rajkot granting enhancement in maintenance to the minor son. The husband has intermittently paid the amount towards arrears of maintenance payable pursuant to original order under Section 125, Cr.P.C. as well as under the impugned order under Section 127, Cr.P.C. Lastly amount of Rs.01,00,000/- has been deposited with the Registry of this Court, leaving Rs.50,000/- towards arrears now.
4. Learned advocate Mr. Rajesh Kakkad for the applicant-son submitted that looking to the maintenance need and educational requirement of the applicant, maintenance of Rs.08,000/- on a lower side, more particularly when the respondent-father has been earning handsome salary. He submitted that the respondent-father is serving in a design institute. He relied on the pay-slip (Exh.52) of June, 2012 which showed that he was getting around Rs.50,000/- as monthly salary. It was submitted that thereafter pay revision took place and respondent's salary has been substantially increased. Learned advocate relied on decision of this Court in Remani Memon Vs K.G. Omnakuttan and another [2004(1) GLR 200], particularly observations in paragraph 6 thereof. It was submitted that looking to the income and the status of the father, Rs.12,000/- deserves to be granted to the applicant as prayed for.
4.1 As against above, learned advocate Mr.K.M. Paul submitted that the respondent lives in a metro city Delhi and had have to meet with heavy day-to-day and routine expenses. It was submitted that he has been not keeping well and suffer from heart ailment, the treatment of which consumes substantial amount from income. It was further submitted that learned Judge has mechanically allowed the application granting enhancement of Rs.03,000/-. He further submitted that wife herself was earning and could maintain the son from her income. In the next it was submitted that in any view, no documentary evidence was produced by the applicant-son in respect of period from 2008 to 2010 to show that the actual expenses towards education, etc., were incurred. Learned advocate therefore submitted that the enhancement in maintenance from Rs.05,000/- to Rs.08,000/- from the date of application was not justified.
5. Initially the amount of Rs.03,000/- was granted to the minor son on the basis of the income of the husband which was taken at Rs.18,500/-. The case of the claimants of maintenance was that the husband-father was earning much more however, at that time no pay-slip was produced and drawing inference regarding sources of income including that the father owned agricultural land, the amount awarded to son. No maintenance was awarded to wife since she was shown to be serving as teacher and earning some salary.
5.1 Now, in the application filed under Section 125, Cr.P.C. by the son, the case that the respondent-father has the income to the tune of Rs.60,000/- per month is directly supported from the pay slip of month of June, 2012 which showed the total earning by way of salary and other perks would be of Rs.49,569/-. He is shown to be working as Professor in one Apeejay Institute of Design, New Delhi. The said pay slip (Exh.52) is of the year 2012 and it is reasonable to infer that the total salary of the father must have increased further. The evidence of mother of the minor applicant-son (Exh.12) brings out that in the year 2008 the applicant-son Nisarg was studying at Panchgini in standard 8 and that towards books, uniform and other educational needs, sizeable expenses have to be incurred. In the cross-examination it was suggested that the educational expenses, hostel fees, etc., of son Nisarg yearly comes to Rs.85,000/- and other miscellaneous expenses are required to be spent. The receipts of payment of hostel fee, etc., were on record at Exhibit 33 to 35.
5.2 It was given out that the applicant-son has still been studying at Panchgini pursuing his higher education. His expenses towards educational needs have increased and the educational expenses are required to be incurred in addition to normal maintenance requirement. Considering this aspect which is not in dispute vis- -vis the direct proof of income of the respondent-father, case for enhancement in the maintenance amount further and over and above Rs.08,000/- presently granted, could be said to be well made out. The applicant is due to become major in the month of October, 2015. Had he been with father, the father would have spent for all his education and other expenses for his proper upbringing and settling him in life in accordance with his own status. The respondent-father is shown to be earning more than adequate amount and he is duty bound to pay the maintenance towards the educational and other needs of minor son till he becomes major, at an appropriate enhanced rate.
5.3 It is well settled that out of the total determined income, one-third amount would be considered to be reasonable amount to be paid towards maintenance. This is reiterated by this Court in Minesh Rajnikant Dalal Vs Avani Minesh Dalal [2000(2) GLR 1685]. Therefore looking to the salary of the respondent-father which could be assessed at present at least between Rs.50,000/- and Rs.60,000/- looking to the salary slip of June, 2012, even after taking into amount which father may require for his own needs and expenses, he is bound to pay suitably hiked amount to his son towards maintenance. Looking to the present case of the applicant, the claim for Rs.12,000/- as maintenance per month is a reasonable claim for which the respondent has income capacity.
5.4 It was the submission of learned advocate for the respondent-father that during the period from 2008-09, no document or receipts regarding payment of any educational expenses of the applicant was produced. Though merely because non-production of the receipts of payment of fees, etc., would not be a ground to infer that no expenditure towards education was incurred, when the factum of the applicant-son studying at Panchginin is not disputed. However at the same time during those years, the applicant-son was taking his secondary education studying in standard 8 onwards. In that view, the said period deserves to be accordingly considered while considering the prayer for increase in the maintenance.
6. As a result of above discussion, the maintenance amount to applicant-minor son is enhanced by allowing Criminal Revision Application No.559 of 2012 in terms of the following directions,
(i) the applicant shall be entitled to receive Rs.12,000/- towards maintenance every month, but the said amount of Rs.12,000/- per month shall be payable from the date of filing of Criminal Revision Application by him, that is from 04th December, 2012,
(ii) for the period from the date of Application under Section 127, that is from 08th April, 2008 till 03rd December, 2012, the applicant shall be entitled to the maintenance at the rate of Rs.10,000/- every month,
(iii) the respondent No.1-husband is held liable to pay the maintenance to the applicant-the minor son at the above increased rate and shall pay such amount at the increased rate till the applicant attains the age of majority,
(iv) the aggregate amount comprising of Rs.50,000/- payable towards past arrears as well as the arrears becoming payable on account of the hike in the amount of maintenance granted as per the present order, shall be cleared by respondent No.1-husband within 15 weeks from the date of this order.
7. Rule in Criminal Revision Application No.559 of 2012 is made absolute in the terms and to the extent aforesaid. Criminal Revision Application No.15 of 2013 is dismissed and the Rule issued therein stands discharged.
ORDER IN CRIMINAL MISC. APPLICATION
Since main Revision Application is allowed as per above judgment and order, Criminal Miscellaneous Application No.5928 of 2013 does not survive for any orders. Accordingly the same stands disposed of.