Delhi High Court
Dinesh Kumar Rathore vs Babita & Ors on 6 March, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.03.2012
+ CRL.M.C. 841/2012 with Crl. M.A.2942-2943/2012
DINESH KUMAR RATHORE ..... Petitioner
Through: Ms. Monica Kapoor, Advocate.
Versus
BABITA & ORS ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition assails order dated 26th February, 2012 passed by Judge,
Family Court, Rohini Courts, Delhi in CC No. 68/2010 titled as "Smt. Babita
Rathore Vs. Dinesh Kumar Rathore".
2. After going through the prayers of the petition, it is found that there is
not much substance in the petition. I have heard learned counsel for the
petitioner finally and propose to dispose of the same even without notice to the
respondents.
3. The petitioner is husband of respondent No. 1 Smt. Babita Rathore.
The couple has two children namely Rashmee Rathore @ Reshma Rathore and
Mater Abhishek Rathore. They are stated to be aged about 21 years and 17
years respectively. Both the children are unmarried and staying with their
mother Babita.
4. A petition was filed by Babita along with her two children against the
petitioner under section 125 Cr. P.C. claiming maintenance @ Rs.4,500/- per
month. Vide the impugned judgment the learned Judge, Family Court, has
awarded maintenance @ Rs. 1,000/- per month to respondent No. 1 Babita and
Rs.1,500/- per month to each of the two children. It was ordered that Babita
would be entitled to maintenance till her lifetime or till her re-marriage,
whereas the children would be entitled to the maintenance till their marriage.
The said order was passed after assessing the income of the petitioner to be
Rs.9,000/- per month from his tea vending shop and electrical repair work.
5. The said order has been assailed by the petitioner herein on the ground
that the petitioner was an unemployed poor person having no income and thus
unable to give any maintenance to his wife and children. It was submitted that
the learned Trial Judge has assessed his income to be Rs. 3,000/- per month
from his electrical work and Rs. 6,000/- per month from his tea vending shop
based on conjectures and surmises. He submitted that his wife Babita had
regular income from her employment and was capable of maintaining herself
and the children. It was also submitted that the Trial Judge also erred in
recording that both the children are unmarried daughters, whereas one of them
i.e. Master Abhishek Rathore was their son and was about the age of majority
and capable of maintaining himself.
6. With regard to the plea that both the children were not daughters, but
„Abhishek‟ was their son and was aged about 17 years, the same is not in
dispute. It appears, it has been inadvertently recorded by the Trial Judge about
both the children to be daughters.
7. So far as daughter „Rashmee‟ is concerned, there is no dispute that,
though, she has attained the age of majority, she was entitled to maintenance
till her marriage. So far as son „Abhishek‟ is concerned, it is settled law that as
per Clause (C) of Section 125(1) Cr.P.C. a minor son is entitled to maintenance
till the time he gets majority unless his case was to be that of physical or mental
abnormality or of injury making him unable to maintain himself. The case of
Abhishek does not fall in clause „C‟ and so, he would be entitled for
maintenance from the petitioner only till the time he attains majority at the age
of 18 years.
8. With regard to the entitlement of maintenance of Babita, the Family
Judge has awarded maintenance of Rs. 1,000/- per month only till her life time
or till she re-marries. As per the averments set out in the petition for
maintenance, the income of the petitioner was alleged to be Rs.45,000/- per
month. The same having not been proved and there being no documentary
evidence on record as regards the income of the petitioner, the family Judge
depended upon the oral testimony of the parties to assessee the income of the
petitioner. From the oral evidence, that was led, it was recorded as a finding of
fact that the petitioner was doing repair work of electrical appliances and that
in the year 1998 he was earning about Rs.50/- to Rs.60/-per day from this
business. It was also the admitted case of the petitioner that he alone was doing
work at his tea vending shop. From his testimony, it was established that he
was the owner of the tea shop. Though he did not disclose his income from the
tea shop and had tried to set up a case of less income from this trade, the
learned Family Judge from the evidence that was led, recorded that the
petitioner might be selling about 125 to 150 cups of tea per day and therefore
by this way he might be earning an income of Rs.250/- to Rs. 450/- per day. In
the absence of there being any specific evidence regarding the income of the
petitioner, the same was to be estimated based on experience and some guess
work and that was done by the Family Judge. I do not find any illegality or
infirmity in making assessment of the income of the petitioner in such
circumstances. Though, Babita was found to have her own separate income,
but, in the given facts and circumstances she cannot bear out the responsibility
of maintaining herself and her children and the education of the children etc.
Nominal maintenance of Rs.1,000/- per month awarded to her by the trial
Judge could not be said to be unreasonable or unjust. I do not find any
illegality or impropriety in this part of the order of the Family Judge.
9. In view of the above, the impugned judgment is modified to the extent
that the Respondent No. 1 Babita would be entitled to the maintenance of
Rs.1,000/- per month till her life time or till her re-marriage. Respondent No. 2
Rashmee would be entitled to the maintenance of Rs.1500/- per month till her
marriage and Master Abhishek, respondent No. 3, would be entitled to the
maintenance of Rs.1500/- per month till he attains the age of majority. With
these modifications, the impugned order is maintained.
10. The petition is disposed of accordingly at the stage of admission itself.
M.L. MEHTA, J
MARCH 06, 2012
awanish
