Bidutlata Rout and anr. Vs. Pramod Kumar Rout - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1 being poor could only pay rs. 7. once the statutory pre-conditions are satisfied, the husband is under legal obligation to maintain the wife.dipak misra, j.1. the deserted and neglected wife-the petitioner no. 1, along with her innocent, deprived of fatherly care and concern-the minor child, has preferred the present revision claiming enhancement of the quantum of maintenance, being dissatisfied with the order whereby the judge, family court, cuttack, has awarded maintenance @rs. 200/-and rs. 100/- per month in favour of petitioner nos. 1 and 2 respectively from the date of presentation of the petition under section 125 of the code of criminal procedure (in short 'the code') forming the subject matter of criminal proceeding no. 123 of 1992.2. the essential facts are :-the petitioner no. 1 had married the opposite party in june, 1985 in accordance with hindu rites. at the time of marriage, the opposite party had demanded rs. 8,000/-and the father of the petitioner no. 1 being poor could only pay rs. 5,000/-. after solemnisation of marriage, there was constant demand for the balance amount but as the same could not be paid, the opposite party assaulted the petitioner and neglected to maintain her. inspite of the strained relationship the petitioner no. 2 was born in their wedlock. ultimately she was driven away from the house of her husband. efforts by the village gentlemen to settle the disputes became an exercise in futility. away from the house of the husband, the petitioner no. 1 was compelled to take shelter in the house of her father. while the petitioner no. 1 was going through the mental torture and agony, the husband opposite party, married one chhabi das without caring for the legal consequences and burying the code of ethics in an abandoned graveyard. as the petitioners were not able to maintain themselves, she was constrained to institute the aforesaid proceeding against the opposite party who as stated by the petitioner, is working in paradeep phosphates limited in its bagging plant earning rs. 2,000/- per month. apart from the monthly salary the opposite party has four acres of cultivable land from which the opposite party gets approximately rs. 25,000/- per annum. with these averments, she claimed maintenance of rs. 600/- per month for herself and the minor child.3. the oppsite party resisted the claim of the petitioners contending, inter alia, that there was no demand of dowry and the allegation of torture was a myth. both parties adduced evidence and on cosideration of the evidence, the learned judge, family court, granted maintenance @ rs. 200/- per month in favour of petitioner no. 1 and @ rs. 100/- per month in favour of petitioner no. 2 with effect from 13.3.1992. being aggrieved by this order, the present petitioners are in revision.4. the learned counsel for the petitioners contended that once there is a finding that the opposite party is working as a permanent labourer in paradeep phosphates limited, the learned judge, family court, should have allowed the maintenance at the rate prayed for by the petitioners. it is also his submission that there has been no dispute with regard to owning of four acres of landed property, but only stand taken is that this property belongs to the father of opposite party and he has one brother and five sisters. it has been strenuously urged while fixing the quantum, the judge, family court has not given adequate reasons for such determination and that alone makes the order vulnerable.5. refuting the aforesaid submissions of the learned counsel for the petitioner, the learned counsel for the opposite party submits that he is a daily labourer and therefore, the fixation of maintenance, as has been made is appropriate. he has also submitted that he has complied with the interim directions of this court and in absence of any specific materials with regard to the salary of the opposite party, the determination made by the learned judge, family court is justified. the learned counsel has canvassed with vehemence that the financial condition of the opposite party is precarious and he sustains himself by daily labour, and therefore, any enhancement would substantially affect him and cause serious jeopardy.6. the sole controversy is with regard to the quantum. evidence is available on record that the opposite party is working as a permanent labourer in paradeep phosphates limited. possession of landed property has not been disputed. under these circumstances, the question remains whether the determination by the learned judge, family court is justified or not.7. once the statutory pre-conditions are satisfied, the husband is under legal obligation to maintain the wife. it is not open to the husband to take the plea that he does not have the sufficient means. even if he has no visible means he has to maintain his wife and the minor child. the obligation is not annihilated because of non-availability of actual pecuniary resources. it is settled in law that means as understood in the context of sections 125 of the code does not mean only perceptible means. a husband might not be having the property, as the term property connotes or he might not have defined employment but if he has a healthy body, he has to support his wife and children. this view finds support from the decisions rendered in the case of chander prakash bodh raj v. smt. shilla rani chander prakash, reported in a.i.r. 1968 delhi 174 and sri b. veragam v. manoranajan samanta kumar and anr., reported in 29(1963) c.l.t. 584.8. the main objection advanced by the opposite party having met its logical end what remains is to see whether the quantum should be enhanced or not. while considering the fixation of amount of maintenance, certain aspects are to be kept in mind. in this regard, i may profitably refer to the case of basanta kumari mohanty v. sarat kumar mohanty, 53(1982) c.l.i. 53. wherein r. c. patnaik, j. (as his lordship then was ) expressed thus :'the object of the provisions being to prevent vagrancy and destitution, has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious; but is modestly consitent with the status of the family. the needs and requirements of the wife, child or parents for a moderate living, the earnings of the husband, son or father or his capacity to earn and his commitments are relevant factors.'9. applying the aforesaid parameters to the case in hand, i am of the considered view that the amount of maintenance fixed by the judge, family court is not adequate. a 9-years old girl cannot be maintained with rs. 100/-per month. she may not lead a luxurious life but she must have an acceptable living. considering the property held by the opposite party and his income from salary, i enhance the maintenance of petitioner no. 2 by rs. 150/- and fix the same at rs. 250/- per month. with regard to the wife petitioner no. 1, i am of the firm view the same should be enhanced to rs. 300/- per month. all other directions contained in the order of the learned judge, family court, would remain as they are. the arrear shall be paid by the petitioner in four by-monthly instalments. any amount paid till today shall be calculated and adjusted towards arrears. the 1st instalment will commence from 1.9.1996.10. resultantly, the criminal revision is allowed.