Crl. Misc. No.M-928 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-928 of 2009 Date of Decision : 14.03.2011 Kishore Kumar .....Petitioner Versus Sunita Saini and others ....Respondents Crl. Misc. No.M-33132 of 2008 Kishore Kumar ....Petitioner Versus Sunita Saini and others ...Respondents Crl. Misc. No.M-21421 of 2009 Sunita Saini and others .....Petitioners Versus Kishore Kumar ....Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Ashwani Chopra, Sr. Advocate ` with Mr. Rajneesh Chauhan, Advocate for the petitioner. (for respondent in Crl. Misc. No.M-21421 of 2009) Mr. R.S. Chauhan, Advocate for the respondents. (for petitioners in Crl. Misc. No.M-21421 of 2009) ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. Crl. Misc. No.M-928 of 2009, Crl. Misc. No.M-33132 of 2008 Crl. Misc. No.M-928 of 2009 2 and Crl. Misc. No.21421 of 2009 shall stand disposed of vide this common order as the parties, in all the cases, are same. Facts of the case are that the petitioner filed petition for decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (here-in-after referred to as “the Act”) and also filed petition for seeking the custody of the minor children. Both the petitions were dismissed. The appeal against the order, vide which, the custody of the minor children was declined, was also dismissed, whereas, the appeal against the dismissal of the application for decree of divorce is pending in this Court for final adjudication. The respondent had filed an application under Section 24 of the Act for grant of maintenance pendente lite and litigation expenses before the Additional District Judge, who, vide order dated 12.12.2000, granted maintenance to the respondent @ ` 450/- per month and ` 300/- p.m. each to both the minor children from the date of application and litigation expenses to the tune of ` 1500/- Against the said order, the respondent-wife filed Civil Revision No.865/2003 before this Court for enhancement of maintenance amount awarded by the Additional District Judge. This Court, vide order dated 22.04.2003, enhanced the amount of maintenance pendente lite to ` 3,000/- per month for the respondent-wife and children with effect from the date of application before the trial Court. It was further ordered that the maintenance being paid under Section 125 Cr.P.C., proceedings would be adjusted in ` 3,000/-. The amount of litigation expenses was also enhanced to ` 3,000/-. The respondent-wife also filed an application under Section 125 of the Cr.P.C in the Court of Judicial Magistrate First Class, Pathankot, for grant of maintenance. The Judicial Magistrate First Class, vide order dated 06.12.2007, granted maintenance of ` 2,000/- each to the respondent and two children (i.e. Rs.6,000/- per month) from the date of application and awarded litigation expenses of ` 3,000/-. It was directed by the Judicial Crl. Misc. No.M-928 of 2009 3 Magistrate First Class that the maintenance allowance already paid by the petitioner be adjusted at the time of payment of maintenance to the respondent. The respondent-wife filed revision petition for enhancement before the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur. The Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, vide order dated 01.10.2008 has allowed the revision petition of the respondent and enhanced the maintenance to ` 3,000/- per month to the respondent and ` 3,500/- per month to each children from the date of the order i.e from 01.10.2008 and further directed the petitioner to pay maintenance upto September 30,2008, as well as, litigation expenses as ordered by the trial Court, subject to adjustment of payment already made by the petitioner, whereas, the revision petition filed by the petitioner was dismissed vide same order i.e 01.10.2008. Accordingly, the petitioner has filed the present petition challenging the order of the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, vide which, the revision filed by the respondent- wife was allowed and the maintenance was enhanced from ` 2,000/- per month to ` 3,000/- per month to the respondent-wife and ` 3,500/- per month to each children from the date of the order dated 01.10.2008, whereas, the revision filed by the petitioner was dismissed, by raising following arguments :- “ (a) that it has been proved on record that the carry home salary of the petitioner, who is working as a Development Officer in Life Insurance Corporation, is Rs.7,470/- per month after compulsory deductions. The petitioner is working on the same post at which he was working at the time of passing of the order dated 22.04.2003 by this Court. (b) that it is well established that the respondent Crl. Misc. No.M-928 of 2009 4 has independent income sufficient for her support, maintenance of the minor children and incurring the necessary expenses of the proceedings. It is also established on record that the petitioner was and is still ready to take the custody of the children. As such, the question of grant of any maintenance under Section 125 Cr.P.C did not arise.” Learned counsel for the respondent-wife, on the other hand, argued that the respondent-wife has no source of income to sustain her livelihood, whereas, the petitioner is enjoying a position of Senior Development Officer in the Life Insurance Corporation of India and is enjoying a high standard of life and that there was sufficient evidence to prove that the income of the petitioner was ` 40,000/- per month. In fact, respondent-wife also filed Crl. Misc. No.M-21421 of 2009 praying for further enhancement while stating therein that the salary of the petitioner has been calculated by the Additional Sessions Judge as ` 30,000/- plus allowances. As such, the same should have been divided into four units as there are four members in the family. Therefore, she is entitled to ` 6,000/- per month and the children are entitled to at least ` 8,000/- each per month. More so, because education of the children is very expensive and the petitioner is in a position to bear the burden of quality education for his kids, especially when, the petitioner is rather earning more than ` 40,000/- per month apart from hefty incentives and bonus. It was further contended that Rajiv Kumar Dhir, Assistant Branch Manager, LIC, Batala appeared in the witness box and proved the salary certificate of the respondent and also proved documents Ex.A-1 to A-5, which clearly established that the petitioner was earning more than ` 40,000/- per month apart from hefty incentives and bonus. Further, from the testimony of said Assistant Branch Manager and various documents Crl. Misc. No.M-928 of 2009 5 exhibited on record including the salary certificate i.e. Ex.A1 to Ex.A6, it was clearly established that the monthly income of the petitioner was more than ` 40,000/- per month plus other allowances, which the petitioner miserably failed to controvert. Heard. It is not disputed that the petitioner-husband in Crl. Misc. No.928 of 2009 is posted as Development Officer in LIC Branch at Batala since 1993. The petitioner has not even been able to dispute the situation that he got incentive of ` 1,35,400/- during financial year 2004-05, ` 2,39,204.00/- during financial year 2005-06 and ` 78,941/- during financial year 2006-07. It shows that he got incentive to the tune of ` 4,53,545/- for the period 2004 to 2007. Thus, his income is almost ` 30,000/- besides conveyance allowance. Moreover, the said salary and the incentives have been calculated by the trial Court and the Additional Sessions Judge between the period from 2004 to 2007. Today it is 2011. It is a common knowledge that the education is expensive. Besides daily need of clothes, tuition, transport, food, shelter, medical expenses also have to be incurred and the respondent-wife also needs to take care of the increasing demands of growing children. It goes without saying that needs today are much more expensive. Thus, no fault can be found with the order dated 01.10.2008 passed by Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, vide which, the maintenance was granted ` 3,000/- per month to the respondent-wife and ` 3,500/- per month to each children from the date of the order i.e 01.10.2008. As such, the petitions i.e. Crl. Misc. No.M-928 of 2009 and Crl. Misc. No.M-33132 of 2008 filed by the petitioner-husband, are dismissed being without merit. On the other hand, Crl. Misc. No.M-21421 of 2009 filed by the Crl. Misc. No.M-928 of 2009 6 petitioner-wife for enhancement is also devoid of merit as it is second revision. Second revision is not maintainable. The present petition is nothing but a second revision under the garb of Section 482 Cr.P.C. It is a well settled proposition of law that petition under Section 482 Cr.P.C can be entertained only in case of miscarriage of justice or misuse of process of law. Learned counsel for the petitioner-wife has not been able to show as to how the order dated 01.10.2008 passed by the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur is unjust or arbitrary or how the same has caused injustice. In fact, the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur enhanced the amount of maintenance. Taking into account the income of the husband as ` 30,000/- as assessed by two Courts below, the amount of ` 3,000/- per month to petitioner-wife and ` 3,500/- per month to each of the two children is fair and no case to enhance the same further is made out. No interference is called for in the order dated 01.10.2008 passed by the Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur and accordingly the present petition filed by the petitioner-wife is also dismissed. A photocopy of this order be placed on the files of other connected cases. (NIRMALJIT KAUR) 14.03.2011 JUDGE gurpreet