IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No. M- 28087 of 2010 ( O&M) Date of decision: 12.10.2010 Uttam Kumar Bhattacharajee ......Petitioner Vs. Renu and others ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.Robin Dutt, Advocate, for the petitioner. **** ORDER The present petition under Section 482 Cr.P.C. has been filed by the petitioner-husband for quashing of order dated 31.7.2009 passed by Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri vide which maintenance allowance @ Rs.6000/- per month was granted to each respondents and order dated 26.7.2010 passed by Additional Sessions Judge, Yamuna Nagar at Jagadhri vide which the revision filed by the petitioner was dismissed. Learned counsel for the petitioner submits that respondent No.1 left the house of the petitioner without any sufficient reason and petitioner is still ready to take her back. The amount of maintenance allowance has been increased @ Rs.6000/- per month to each respondent from Rs.1300/-, which is on the excessive side and at the most, it could be from the date of order and not from the date of application. The impugned order has been passed without assessing Crl.Misc. No. M- 28087 of 2010 [2] the income of the petitioner whereas in the case of respondent No.3 the maintenance has been granted even in the absence of any application under Section 127 Cr.P.C., which is not maintainable. As per Section 127 Cr.P.C., only provision is to enhance the amount in case, there is a proof of change in the circumstances of the person who is receiving the maintenance but in the present case, no such circumstances have been mentioned by the respondents and no documents whatsoever have been placed on record in this regard. The impugned order is also contrary to the provisions of law and violative of Section 354 Cr.P.C. I have heard the arguments of learned counsel for the petitioner and have also gone through the orders passed by the Judicial Magistrate Ist Class as well as Addl. Sessions Judge, Yamuna Nagar at Jagadhri . In the present case, an application for grant of maintenance was moved by wife Smt.Renu on her behalf as well as on behalf of her minor son Suraj on 25.10.1996 which was finally decided on 30th October, 2002 and the respondents herein were granted maintenance allowance at the rate of Rs.1300/- per month each by the Court of JMIC, Jagadhri. Subsequently, respondent No.1 moved an application under Section 127 Cr.P.C. for alteration in the maintenance allowance and the same was increased from Rs.1300/- to Rs.6000/- per month for each respondent vide order dated 31.7.2009. Against the order dated 31.7.2009, the petitioner filed a revision which was dismissed vide order dated 26.7.2010 and Crl.Misc. No. M- 28087 of 2010 [3] order of JMIC, Yamuna Nagar at Jagadhri was upheld. The present petition has been filed against the order dated 31.7.2009 and order dated 26.7.2010 passed by Addl. Sessions Judge, Yamuna Nagar at Jagadhri on the ground that the amount of maintenance granted by both the Courts is on the excessive side whereas there are no changed circumstances and no such application was made on behalf of respondent No.3 Deepak. It is also the contention of the learned counsel for the petitioner that the maintenance has been ordered to be granted from the date of the application and not from the date of order. Admittedly, the petitioner had been drawing salary of Rs.39,000/- per month and was paying annual income-tax of Rs.53,372/- and there is no evidence on record that he is maintaining his parents. Petitioner is the only person who is using the salary for himself and an amount Rs.21,000/- is left with the petitioner which is more than 1/3rd of the total income. Rather, approximately 50% of the income is being retained by the petitioner alone and 50% of the remaining income would be spent upon the three respondents. Even in case the mother is being maintained, after spending 1/3rd of the total salary for himself, still an amount of Rs. 8000/- is left which can be paid to the mother also. Even after deduction of income-tax, which is about Rs. 53,372/- annually, the petitioner is having sufficient amount for himself. Keeping in view the rise in prices, expenses for education and other expenses of the children at this age group, an Crl.Misc. No. M- 28087 of 2010 [4] amount of Rs.6000/- is not on the excessive side. Learned counsel for the petitioner has not been able to show anything that only the respondent-wife who left the petitioner's house without any sufficient reason. Even there is no illegality in granting maintenance amount from the date of application as it has been held by Hon'ble the Supreme Court in S.S.N.Niphande v. N.S.Niphande 1995(4) (Supplementary) SCC 243 that it is the discretion of the Magistrate to grant maintenance either from the date of order or from the date of application. The basic purpose of fixing maintenance under Section 125 Cr.P.C. is to prevent vagrancy and destitute. This view has been supported by the observations made by the Division Bench of this Court in Gurpartap Singh v. Smt.Satwant Kaur 1991 (1) R.C.r. (Crl.) 40, which are as under: “ However, we would like to mention here that by force of rule of jurisprudence every order had to be reasoned. Section 354 of the Code deals with contents of judgments and in clause (b) of sub- section (1) thereof it is clearly mentioned that a judgment shall contain the point or points for determination the decision thereof and the reasons for the decision. To that extent, the Court is required to support its decision on every point for determining with reasons and may give reasons in each of the two eventualities. Otherwise no special reasons are called for granting maintenance/ Crl.Misc. No. M- 28087 of 2010 [5] interim maintenance under Section 125 for the Code from the date of the application.” Chapter IX of the Code of Criminal Procedure deals with maintenance of wife, children and parents. These provisions were enacted with a special and specific object so that a person who is morally under obligation to maintain his wife, children or parents can be compelled to perform his moral duty by maintaining these relations. The purpose of Chapter IX is to give benefit to unprivileged who is neglected and is having no source of income to support himself or herself. Power under Section 482 is to be exercised sparingly, especially as second revision petition is barred under the Code of Criminal Procedure. Section 397(3) Cr.P.C. specifically lays down that if an application under this Section is either made to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. The present petition has been filed which is in the form of second revision petition, which has been specifically barred and in the garb of petition under Section 482 Cr.P.C., the same cannot be exercised as the petitioner has already availed the remedy of revision against the order of Magistrate and the same has been dismissed. The power under Section 482 Cr.P.C. can be exercised by the High Court in exercise of its inherent jurisdiction only when there is an abuse of process of Court or in the interest of justice but in the present case the counsel Crl.Misc. No. M- 28087 of 2010 [6] for the petitioner has not been able to show that there is an abuse of process of the Court or the same is not in the interest of justice. The petitioner is getting salary of Rs.39,000/- per month and wife and dependent children are having no source of income and moreover, to deprive children of their right of education at this age group would be injustice to them and their right of education would be deprived for ever. As mentioned above and in view of judgment in Gurpreet Singh's case (supra), it is not obligatory for the Magistrate to give special reasons for granting maintenance under Section 125 Cr.P.C. from the date of application as the same is purely his discretion. Moreover, the delay in disposal of the case for grant of maintenance is also factor and because of that the trial Court has granted maintenance with effect from the date of application, may be this factor in mind of the Magistrate. Hon'ble the Apex Court in case reported as Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (3) RCR (Criminal) 940 has observed as under: “As noted above, the powers possession by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the higher Court of a State should normally refrain from giving a Crl.Misc. No. M- 28087 of 2010 [7] prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factul or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. ( See: Janata Dal v. H.S.Chowdhary 1992(4) SCC 305, Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1 and Minu Kumari v. State of Bihar 2006 (3) R.C.R. (Criminal) 271. The present case appears to be one where the category 7 of the illustrations given in State of Haryana v. Bhajan Lal, 1991 (1) RCR (Crl.) 383 is clearly applicable.” The petitioner is getting handsome salary and the children may not get education because of strained relations between husband and wife and they would ultimately be sufferer which would not be in the interest of justice. There is no illegality in the judgment of trial Court as well as revisional Court as neither there is abuse of process of Court nor it is against the interest of the parties. Crl.Misc. No. M- 28087 of 2010 [8] In view of the position as explained above, there is no merit in the petition and the same is dismissed. However, it is made clear that since the second child namely Deepak was born on 27.1.2005 therefore, he would be entitled for maintenance with effect from 27.1.2005 and not from the date of application. (DAYA CHAUDHARY) JUDGE October 12, 2010. raghav