Home > CrPC 125, IPC, Judgments > Gujarat HC-CrPC 125 only allows Monthly, no lumpsum payments for Residence

Gujarat HC-CrPC 125 only allows Monthly, no lumpsum payments for Residence




NO. 350 of  2016








MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1

MR ASHISH M DAGLI, ADVOCATE for the Respondent(s) No. 1 – 2


Date : 04/07/2016

1. Rule. Learned advocate Mr. Ashish M. Dagli waives service of notice of rule on behalf of respondent Nos. 1 and 2.

  1. Heard learned advocate Mr. Devendra Pandya for the applicant and learned advocate Mr. Ashish Dagli for respondents. Perused the record.
  2. Petitioner herein is husband, whereas respondent No.1 is wife and respondent No.2 is their minor son. The petitioner has challenged the judgment and order dated 24.02.2016 in Criminal Misc. Application No.205 of 2013 by the Family Court, Rajkot. By such impugned judgment, the Family Court has awarded an amount of Rs.5000/- towards maintenance of wife and Rs.3000/- towards maintenance of minor son with cost of Rs.10,000/- The Family Court has awarded an amount of Rs.2,00,000/- as lumpsum amount for the purpose of provision for residence.
  3. The petitioner has challenged such order on several grounds. However, if we peruse the impugned judgment, it becomes clear that present petitioner has defended the claim of maintenance before the Family Court. The petitioner has adduced his own evidence, so also examined two witnesses and produced relevant documentary evidence either to prove his income so also income of the wife. However, the fact remains that so far as income of the wife is concerned, the land in question is not owned by her and, therefore, at the most, she may get some labour charges as agricultural laborer, if at all she is able to do agricultural work. Whereas it is the case of the petitioner husband that wife is working in Beauty Parlour and earning Rs.10,000/-. However, there is no supporting or corroborating evidence to that effect except pleadings and statement by the petitioner.
  4. As against that, petitioner is also owning 11 hectares of agriculture land though it is stated that some of the plots of land owned by his sister. It has also come on record, that his sister is unmarried and she is also serving as a teacher and earning Rs.15,000/- per month. Even evidence of the petitioner husband has confirmed such situation and, therefore, there is reason to believe that husband is having reasonable income and thereby he can certainly maintain his wife and son.
  5. Considering the rival submissions, when petitioner has not disclosed his correct income or relevant evidence for consideration of his income, the Family Court has relied upon the legal provisions regarding adverse inference and held that petitioner must be earning Rs.15,000/- for awarding compensation to his wife and minor child. Therefore, considering overall facts and circumstances so also requirement of wife to stay with dignity, the Court has awarded such amount as maintenance for two living persons and, therefore, I do not see any reason to reduce the same.
  6. However, so far as additional amount of Rs.2,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Lomalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
  7. Therefore, though amount of monthly maintenance may not be disturbed, so far as lump sum amount for residential accommodation is concerned, the same needs to be quashed and set aside. Otherwise also it is quite clear and obvious that an amount of Rs.2,00,000/- would not be sufficient for residential accommodation in a city like Rajkot where wife is residing. In such circumstances, practically while considering quantum of maintenance to be paid to the wife, the Court can consider the proper amount of residential accommodation. In the present case, when Court has awarded total Rs.8,000/- towards maintenance of both applicants from the total income of Rs.15,000/-, it is made clear that this amount includes the provisions for rental accommodation and considering all such aspects, such amount is not reduced to any extent.
  8. For arriving at such conclusion, I am placing reliance on the following decisions: (1) Minati Binati Nayak vs. Govranga Charan Nayak reported in 1995 Cri.L.J. 3569. (2) Vardappa Naidu vs. Thayarammal reported in 1990 (3) Crimes (HC) 706.  (3) Chaturbhuj vs. Sita Bai reported in AIR 2008 SC 530
  9. In view of above facts and circumstances, revision is partly allowed. Thereby impugned order so far as lump sum amount of Rs.2,00,000/- for the purpose of residence is quashed and set aside. Rest of the order regarding maintenance would remain in force. Interim relief shall stand vacated. Rule is made absolute accordingly.

(S.G.SHAH, J.)

Categories: CrPC 125, IPC, Judgments
  1. adarsh jain
    July 24, 2016 at 3:11 pm

    pls help to save my family from agreeing to the illicit demands of 75 lakhs from my in laws. please help to expose such people making misuse of indian judicial system by taking illegal help from the ministers and politicians undue influence.

    my story-
    I got married via arrange marriage as per hindu marriage to shipra jain in sonepat d/o prem raj jain neice of rajpal jain who owns fims hospital in sonepat. i reside in singapore. this is not my real name and fb profile because i am scared of the unscrupulous people trying to frame me in false charges.
    after staying with me for 4 months in singapore shipra returned voluntarily to sonepat. while in singapore shipra used to mentally physically and emotionally torture me and my family in india by asking us for inr 50 lakhs as her father is in debts. when we could not meet her illicil demands she ran back to sonepat. then she and her family put false case of domestice violence against my parents and myself. when we appeared in court this month, we gave all the proofs that prove that shipra filed a false case against us. the courts, police agreed to the facts we presented. But then, shipras tau mr rajpal jain had contacts with mrs kavita jain the welfare minister and mp from sonepat who is pressurizing the entire police force to arrest my parents in the false case. what kind of injustice is this where should we go ?
    they are threatening our family to pay up 75 lakhs in order to save from arrest. we cannot arrange such a big amount of money sir and need to publish this devilish act and expose shipra and her family to the world

    is there any way you can help us or guide us please?
    URGENT HELP needed please

    • 498agladiator
      August 4, 2016 at 10:53 am

      Where are you from??? Which place in India. Pls call the HELPLINE No in your or near by location. We have 0ur chapters across India.
      Pls find the ALL INDIA HELPLINE No. 9880141531

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