Delhi High Court
Smt. Mumtaz Begum & Ors. vs Shri Sabir Hussain on 3 May, 2011
Author: A. K. Pathak
IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL. M.C. No. 1440/2007
% Judgment decided on: 3rd May, 2011
SMT. MUMTAZ BEGUM & ORS. ....PETITIONERS
Through: Mr. P.K. Puri, Proxy
Counsel for the petitioners
along with petitioner no. 1
in person.
Versus
SHRI SABIR HUSSAIN .......RESPONDENT
Through: Mr. M. Rais Farooqui and
Mohd. Aslam Khan, Advs.
for the respondent.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
A.K. PATHAK, J. (Oral)
1. Petitioner nos. 2 to 4 are children born from the
wedlock of petitioner no. 1 and respondent. Petitioner no. 2
is presently studying in class XII in Vivekanand School,
Anand Vihar, Delhi; while petitioner no. 3 is studying in
class X and petitioner no. 4 in class VI. Both petitioner nos.
3 and 4 are studying in Arwachin Bharti Bhawan Sr. Sec.
School, C-Block, Vivek Vihar, New Delhi.
2. Petitioners have filed a petition under Section 125 of
the Code of Criminal Procedure before the Metropolitan
Magistrate, Delhi seeking maintenance, which is since
pending for final disposal. Vide order dated 24 th July, 2006,
Metropolitan Magistrate had awarded interim maintenance
@ `500/- per month each to petitioner nos. 2 and 3 with
effect from January, 2006. Petitioners filed a Criminal
Revision Petition No. 203/06 before the Additional Sessions
Judge (ASJ) against the order of Metropolitan Magistrate
which has been disposed of by the order impugned in this
petition. That is how petitioners are before this Court by
way of present petition under Section 482 Cr.P.C.
3. Learned ASJ has held that the Trial Court was right in
awarding maintenance to petitioner nos. 2 and 3 @ `500/-
per month each. However, it was not right in not awarding
the maintenance to petitioner no. 4. Respondent was
directed to pay interim maintenance @ `500/- per month to
petitioner no. 4 as well.
4. Admittedly, petitioner no. 1 and respondent are
gainfully employed. Their salaries are more or less same.
They admitted before the ASJ that they were earning about
`15,000/- per month. During the pendency of this petition,
it has been admitted that after revision in their salary, in
view of Sixth Pay Commission Report, they are getting more
than `30,000/- per month with effect from 1st July, 2006. It
may be noted here that 'Interim maintenance' has been
awarded by the courts below with effect from January, 2006.
Keeping in mind the income of respondent, in my view, Trial
Court as well as ASJ has committed a patent illegality in
awarding a meager amount of `500/- to each child.
5. Even though respondent has claimed that he has
divorced the petitioner no.1 but the respondent cannot shirk
away his responsibilities of sharing expenses incurred in
upbringing of petitioner nos. 2 to 4. He cannot disown his
responsibility to maintain his children. In fact, the parties
have already undergone one round of civil litigation with
regard to their marital status. Suit of petitioner no. 1 has
been dismissed while suit of the respondent was decreed to
the effect that respondent had divorced the petitioner no. 1
according to Shiya Muslim Law by the Civil JSCC/Additional
Senior Civil Judge/Guardian Judge (NE), Delhi on 7 th
October, 2010. An appeal against this order is stated to be
pending before the Additional Sessions Judge (NE), Delhi.
However, this fact is inconsequential so far as question of
grant of interim maintenance to the children is concerned.
6. Learned counsel for the respondent submits that
respondent has re-married and has been blessed with one
child out of this marriage. Respondent is looking after them
also. Petitioner is earning sufficient amount to maintain her
children. In this scenario, maintenance awarded by the
Trial Court is just and appropriate.
7. I do not find much force in the contentions of learned
counsel for the respondent. It is legal and moral
responsibility of each parent to look after their children.
Future of the children cannot be put in jeopardy on account
of matrimonial acrimony between the husband and wife.
Petitioner nos. 2 to 4 are supposed to be provided education
and maintain standard as per the joint income of their
parents. Presently, they are studying in private schools.
Their mother is single handedly taking their care. Father
cannot absolve himself from his responsibility to provide
financial assistance to petitioner nos. 2 to 4 to meet their
needs and education etc. He is liable to share expenses
incurred on their education and upbringing so as to ensure
that their education is not disturbed and they are able to
stand on their feet. Presently, expenses incurred by
petitioner no. 1 on each child are about `5,000/- per month
towards their school fee, transportation, uniform etc. That
apart, petitioner no. 1 would also be incurring expenses for
meeting their day to day needs, that is, food, clothing,
pocket money etc.
8. For the foregoing reasons, in my view, the amount
awarded by the Courts below cannot be termed as just and
reasonable by any standard. In the overall facts and
circumstances of the case, in my view, a sum of `2,500/- for
each child would be just and appropriate. Accordingly,
impugned order is set aside. It is directed that respondent
shall pay a sum of `2,500/- per month to each child i.e.
petitioner nos. 2 to 4 with effect from January, 2006.
Respondent is also saddled with cost of `10,000/- which
shall be paid to petitioner nos. 2 to 4 through petitioner
no.1.
9. Petition is disposed of in the above terms. Copy of this
order be sent to Trial Court.
Crl. M.A. No. 5022/2007 (Stay)
Disposed of as infructuous.
A.K. PATHAK, J.
May 03, 2011
ga
