Himachal Pradesh High Court
Shanta Devi vs Hitender Gautam on 16 September, 2024
Neutral Citation No. ( 2024:HHC:8555 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 436 of 2023
.
Reserved on: 28.8.2024
Date of Decision: 16.9.2024.
Shanta Devi ...Petitioner
Versus
Hitender Gautam
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Dheeraj Kumar Verma,
Advocate.
For the Respondent : Mr. Nitin Thakur, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition against
the order dated 27.5.2023, passed by learned Principal Judge
(Family Court), Shimla (learned Trial Court), vide which the
maintenance of ₹2,000/- was awarded to the petitioner
(applicant before the learned Trial Court). (Parties shall
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:8555 )
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present
petition are that the applicant filed an application under Section
125 of Cr.P.C. for seeking maintenance of ₹10,000/- per month.
It was asserted that the applicant is the mother of the
respondent. She has two sons, namely, Hitender and Nitin. The
respondent is the elder son of the applicant. Applicant's
husband died during his service. The applicant was residing with
the respondent for several years. He started maltreating the
applicant after his marriage. The applicant was forced to leave
the respondent's house. The applicant is residing in a rented
accommodation with her younger son who is working as a
bonded labour. The applicant is receiving a pension of her
husband, which is not sufficient to maintain her. The
respondent neglected to maintain the applicant without any
reasonable cause. He is working in the HRTC Petrol Pump and is
earning ₹33,000/- per month. His wife is working in IGMC,
Shimla and is earning ₹30,000/- per month. The applicant
requires ₹10,000/- per month to maintain herself; hence the
application seeking maintenance.
Neutral Citation No. ( 2024:HHC:8555 )
3. The application was opposed by filing a reply taking
preliminary submissions regarding the applicant being estopped
.
from filing the application due to her act, conduct, omission
commission etc. and the application having been filed to harass
the respondent. The contents of the application were denied on
merits; however, the relationship between the parties was not
disputed. It was asserted that the respondent resided with his
maternal grandparents who brought him up. The applicant
resided with her younger son in Shimla with her husband. The
younger son of the applicant owns the taxi and he is earning
₹40,000/- per month. The applicant is also receiving a pension.
The respondent is drawing a net salary of ₹21,000/- per month.
He has to maintain his wife and younger daughter who is
suffering from heart ailment. The application has been filed to
harass the respondent. Therefore, it was prayed that the present
application be dismissed.
4. A rejoinder denying the contents of the reply and
affirming those of the application was filed.
Neutral Citation No. ( 2024:HHC:8555 )
5. The parties were called upon to produce the evidence
and the applicant examined herself (PW1). The respondent
.
examined himself (RW1).
6. Learned Trial Court held that the relationship
between the parties was not disputed. She was residing with the
respondent before his marriage and she was forced to reside
separately with her younger son. The applicant was getting a
family pension of ₹11,000/- per month. She was paying
₹6,000/- per month as rent for the accommodation where she
was residing. The respondent has not placed any record to show
the income of his younger brother. The respondent was getting
₹30,000/- per month. He was duty-bound to maintain his
mother. Therefore, the application was allowed and the
maintenance of ₹2,000/- per month was awarded to the
applicant from the respondent.
7. Being aggrieved from the order passed by the learned
Trial Court, the applicant has filed the present revision asserting
that the learned Trial Court overlooked the pleadings of the
parties. The respondent has not disclosed the income of his wife
in the affidavit of assets filed by him. He admitted that his wife
Neutral Citation No. ( 2024:HHC:8555 )
was working in IGMC, Shimla and she was contributing to the
family income. The respondent can easily spare a sum of
.
₹10,000/- towards the applicant's maintenance. The income of
the respondent was more than ₹32,000/- per month. Learned
Trial Court awarded a meagre amount of ₹2,000/-. Therefore, it
was prayed that the present petition be allowed and the
maintenance awarded to the applicant be enhanced.
8. I have heard Mr. Dheeraj Kumar Verma, learned
counsel for the petitioner and Mr. Nitin Thakur, learned counsel
for the respondent.
9. Mr. Dheeraj Kumar Verma, learned counsel for the
petitioner submitted that the applicant is an old person who
requires money for her medical expenses. Learned Trial Court
had only awarded a meagre amount of ₹2,000/- to the applicant
which is not sufficient to maintain her. Therefore, he prayed
that the present petition be allowed and the maintenance
awarded by the learned Trial Court be enhanced.
10. Mr. Nitin Thakur, learned counsel for the respondent
supported the order passed by the learned Trial Court and
submitted that the applicant is residing with her younger son.
Neutral Citation No. ( 2024:HHC:8555 )
She has not sought any maintenance from him. She cannot
single out the respondent for getting the maintenance.
.
Therefore, he prayed that the present petition be dismissed.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. It was laid down by the Hon'ble Supreme Court in
Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330: (2010) 1
SCC (Cri) 1015: 2009 SCC OnLine SC 1214 that the Court exercising
revisional jurisdiction cannot reappreciate the facts unless there
is some perversity. It was observed:
"9. So far as Issue 1 is concerned i.e. as to whether the
appellant got married to Smt Ranju Sarma, is a pure
question of fact. All three courts below have given
concurrent findings regarding the factum of marriage
and its validity. It has been held to be a valid marriage. It
is a settled legal proposition that if the courts below have
recorded the finding of fact, the question of
reappreciation of evidence by the third court does not
arise unless it is found to be totally perverse. The higher
court does not sit as a regular court of appeal. Its function
is to ensure that law is being properly administered. Such
a court cannot embark upon the fruitless task of
determining the issues by reappreciating the evidence."
13. This position was reiterated in Amit Kapoor v. Ramesh
Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687 : (2013) 1 SCC
(Cri) 986: 2012 SCC OnLine SC 724 wherein it was observed:
Neutral Citation No. ( 2024:HHC:8555 )
12. Section 397 of the Code vests the court with the power
to call for and examine the records of an inferior court for
the purposes of satisfying itself as to the legality and
regularity of any proceedings or order made in a case. The
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object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-
founded error and it may not be appropriate for the court
to scrutinise the orders, which upon the face of it bear a
token of careful consideration and appear to be in
accordance with the law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes but are merely indicative. Each
case would have to be determined on its own merits.
14. The applicant admitted in her cross-examination
that she is getting the family pension of her husband. She
admitted that she had purchased 04 Biswas of land in her name
in the year 2011 with the income generated by sewing clothes
and the money left by her husband. Her younger son was plying
a taxi which was purchased by him after taking a loan from the
bank. She admitted that she had not filed any application for
maintenance against her younger son.
15. A perusal of the affidavit of assets filed by the
applicant shows that she was getting interest on the bank
deposit and FDRs of approximately ₹20,000/- per month. She
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was also getting a family pension of ₹8,540/- which was revised
to ₹11,790/- per month. She stated her expenses towards
.
monthly rent as ₹6,000/-groceries as ₹5,000/-, water bill as
₹500/-, electricity as ₹500/- to ₹600/-, gas as ₹1,000/- after
two months, telephone as ₹250/- per month, TV Cable Set Top
Box as ₹350/- per month.
16. The applicant has admittedly two sons. She is
residing with her younger son and has filed the application for
maintenance against the present respondent. It is not disputed
that the younger son is major. The applicant admitted that he
was plying taxi. She claimed that the taxi was taken on loan but
the fact remains that the younger son of the applicant is major
and capable of earning the money. Even if the younger son is
treated to be unemployed he is an able-bodied person and
capable of earning the income. Thus, he is also liable to
contribute to the maintenance of the applicant. He has the same
legal and moral obligation to maintain the applicant as the
respondent and the applicant can pick up one son over another
for claiming maintenance.
Neutral Citation No. ( 2024:HHC:8555 )
17. The applicant claimed her monthly expenditure in
column no.9 as ₹15,000/- to ₹18,000/-. She was getting the
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family pension of ₹11,790/- and interest on the bank deposit
amounting to ₹20,000/- per month or ₹1667/- per month. Thus
she was getting an amount of ₹13,457/-. Learned Trial Court had
awarded maintenance of ₹2,000/-, which means that she would
be getting ₹15,457/- and if she claims the same amount from
her younger son, she would be getting ₹17,457/- which would be
sufficient to maintain her as per her affidavit.
18. The applicant claimed a sum of ₹10,000/- per month
from the respondent without showing the need for it. As already
stated, she is getting an amount of ₹13,457/- on her own. She
claimed her expenses to be ₹15,000/- to ₹18,000/-, which
means that she would require about ₹4500/- towards her
maximum expenses. Learned Trial Court had awarded
maintenance of ₹2,000/- from the respondent which cannot be
said to be less if the liability of the younger son of the applicant
is also taken into consideration.
19. Hence, the plea of the applicant that she is entitled to
further maintenance from the respondent cannot be accepted.
Neutral Citation No. ( 2024:HHC:8555 )
20. No other point was urged.
21. Consequently, the present petition fails and the same
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is dismissed. Records of the learned Courts below be sent back
forthwith.
(Rakesh Kainthla)
Judge
16th September, 2024
(Chander)
