- 1 - IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO 120 of 2002. Date of decision May 5, 2009. Nirmala Devi and others …Petitioners. Versus Jagdish Chand …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioners Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. For the respondent Mr. A.K.Sood, Advocate. Dev Darshan Sud, J. (Oral). This petition has been preferred by the wife and the minor children of respondent No. 1 against the order passed by the Sub Divisional Judicial Magistrate, Ani, District, Kullu allowing the petition under Section 5 of the Limitation Act condoning delay in preferring the appeal against the order passed by the Gram Panchayat awarding maintenance to the wife and children. 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - Vide Annexure P-1 order dated 7.5.2001, the Gram Panchayat, Arsu allowed the petition filed by the petitioners herein for grant of maintenance. The order records that on 7.5.2001, the case was taken up for proceedings pursuant to the adjournment granted on 7.4.2001 when both the parties, that is the petitioner and the respondent, had been informed that the case would be taken up on that day. Maintenance was granted to the extent of Rs.2000/- per month for life time. The respondent approached the Court of the Sub Divisional Judicial Magistrate, Ani in appeal against the order passed by the Panchayat praying therein that the delay in preferring may be condoned in the interest of justice. The application was allowed. Before proceeding with the matter further, I note that these are proceedings for maintenance which would not require a technical approach shackled by strict interpretation of law. By its order dated 10.1.2003, this Court noted that a sum of Rs.44,000/- was due and outstanding as arrears of maintenance and thereafter a sum of Rs.2000/- was payable to each of them. A direction was issued to - 3 - the District Education Officer, Kullu District to deduct a sum of Rs.2000/- every month from the salary of respondent Jagdish Chand and remit the same to the petitioners. Learned counsel for the petitioner submits that there has been non compliance of this order and the arrears have also not been paid. This aspect of the case will be considered before the legal objections taken are disposed of. Learned counsel for the petitioners submits that the provisions of Section 5 of the Limitation Act are not applicable to the proceedings under the Gram Panchayat Act. Learned counsel for the respondent submits that this point has already been decided by this Court in Subhash Chand v. Puran Chand and another, Latest HLJ 2003 (HP) 755. This submission is accordingly rejected. The second submission made by the learned counsel for the petitioner is that the respondent deliberately absented himself from the proceedings before the Gram Panchayat despite the fact that he knew about the date of hearing, therefore, there is no justification for condonation of delay, as it was a deliberate act on the part of the respondent and - 4 - he cannot invoke the technicalities of law to escape his liability. Order Annexure P-1 does record that on 7.4.2001, parties were directed to appear on 7.5.2001. There is no explanation coming forth as to why the respondent absented himself from this hearing. This was a point which should and ought to have been considered by the learned Court below. However, having decided the case on the material before it, I do not intend to interfere with the findings arrived at by the learned trial Court while condoning delay. At the same time, I am also aware about the fact that under Article 227 of the Constitution of India, I would enforcing equity and not technicalities. There is nothing on record to show that the petitioners herein who are the wife and the children of the respondent are disentitled from receiving maintenance. Rather, it is the religious, moral and legal duty of any person to maintain his wife and children. Technicalities and hyper technical approach to the law cannot be allowed to deprive them of their right to be maintained, nor can this Court be a party to a situation where they are driven to a state of penury - 5 - and have to stretch out their hands to their relatives, acquaintances or strangers for their sustenance. In this view of the matter, I do not find that the order passed by the Gram Panchayat requires any interference and hold that maintenance will be paid regularly by the respondent in terms of what has been ordered by this Court on 10.1.2003. The amount will be deducted regularly from the salary of the respondent and remitted regularly to the account of the petitioners. Learned counsel for the respondent submits that the order otherwise cannot be sustained as it grants maintenance for life and does not leave any room for variation or modification of the order. This petition is disposed of with the direction that it will be open to the respondent to establish before the Judicial Magistrate that with the passage of time, the parties are not entitled to receive maintenance in terms of Section 125 of the Code of Criminal Procedure. For this purpose, needless to say, both the petitioners and the respondent will be given adequate opportunity to represent their case(s). A further direction is issued that before any application / petition is - 6 - entertained by the Court, it shall be ensured that the arrears of maintenance granted by the Panchayat and as noticed by this Court in its order dated 10.1.2003 have been paid and are being paid regularly. The Court will insist upon proof of such payment before entertaining any application from the respondent. This petition is accordingly disposed of. There shall be no order as to costs. May 5, 2009 (PC). (Dev Darshan Sud), J.