emerging from record, it is clear that Family
Court has no jurisdiction whatsoever to award
lump sum amount towards provision for residential
accommodation when claim is under Section 127 of
the Code of Criminal Procedure (‘the Code’, for
short) for increasing the amount of maintenance
already awarded u/s.125 of the Code, though the
Family Court may have similar jurisdiction in
case of appropriate application under any other
enactment viz. Protection of Women from Domestic
Violence Act, 2005 and Hindu Adoption and
Maintenance Act, 1956 etc. Therefore, by all
means, there is reason to interfere with the
impugned order and to quash and set-aside the
impugned order so far as it is directing the
applicant – husband to pay the lump sum amount of
Rs.3 Lacs towards provision for residential
accommodation.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 505 of 2015
KETAN PRAFULBHAI VYAS
V
STATE OF GUJARAT
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 03/08/2016
Citation: 2017 CRLJ(NOC) 104 Guj
1. Heard learned advocate Mr.Asit B.Joshi for
the applicant, learned advocates Ms.Garima
Malhotra with Mr.Bhash H.Mankad for respondents
No.2 and 3 and learned APP Mr.K.P. Raval for
respondent No.1 – State being formal party.
2. The applicant – husband has challenged the
order dated 5.8.2015 by the Principal Judge,
Family Court, Rajkot in Criminal Misc.Application
No.61 of 2011. By such impugned order, Principal
Judge, Family Court, Rajkot has awarded an amount
of Rs.7,000/- to Rs.10,000/- for different period
between 25.1.2011 being date of application till
date of order and period thereafter. By same
impugned order, an amount between Rs.3,500/- to
Rs.5,000/- is also awarded towards maintenance of
minor son of the spouse. Thereby, from 1.1.2015,
the total liability of the applicant – husband is
to pay Rs.10,000/- as maintenance to the wife and
Rs.5,000/- to their minor son i.e. total
Rs.15,000/-. In addition to such amount of
maintenance, the Family Court has also directed
the husband to pay a lump sum amount of Rs.3 Lacs
for the provision of residential accommodation. I
have heard both the sides and perused the
available record, which includes oral evidence of
both the sides so also reply and affidavit-inrejoinder
before this Court.
3. However, irrespective of factual details
emerging from record, it is clear that Family
Court has no jurisdiction whatsoever to award
lump sum amount towards provision for residential
accommodation when claim is under Section 127 of
the Code of Criminal Procedure (‘the Code’, for
short) for increasing the amount of maintenance
already awarded u/s.125 of the Code, though the
Family Court may have similar jurisdiction in
case of appropriate application under any other
enactment viz. Protection of Women from Domestic
Violence Act, 2005 and Hindu Adoption and
Maintenance Act, 1956 etc. Therefore, by all
means, there is reason to interfere with the
impugned order and to quash and set-aside the
impugned order so far as it is directing the
applicant – husband to pay the lump sum amount of
Rs.3 Lacs towards provision for residential
accommodation.
4. Therefore, so far as additional amount of
Rs.3,00,000/- towards provision of residence is
concerned, it is clear that the Family Court has
misinterpreted the decision in the case of
Komalam 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.
5. It is a settled legal position that the word
'maintenance' has no limited consideration,
meaning thereby though the word 'maintenance'
includes all benefits towards for food, lodging,
boarding, medicines, clothes, transportation,
entertainment etc., in other words, it includes
all the facilities that may be made available to
the wife in her house with her husband, but in
any case, the word 'maintenance' does not include
the provision or a right to seek lump sum amount
for residential accommodation.
6. For the purpose, reference of Section 125 of
the Code of Criminal Procedure is material which
speaks about the right of the person to get
maintenance and though the word 'maintenance' is
nowhere defined, it is clear and obvious that
'maintenance' means monthly amount to be paid by
the husband or the concerned person to the wife
or parents or children as the case may be; where
the material part of Section 125 of the Code of
Criminal Procedure reads as under :-
Section : 125. Order for maintenance of
wives, children and parents :-
(1) xxxx xxxx xxxx
(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) xxxx xxxx xxxx
(d) xxxx xxxx xxxx
A Magistrate of the first class, may,
upon proof of such neglect or refusal,
order such person to make a monthly
allowance for the maintenance of his wife
or such child, father or mother, at such
monthly rate 1[***], as such Magistrate
thinks fit, and to pay to such person as
the Magistrate may from time to time
direct:
7. Therefore, a bare reading of the relevant
provisions of Section 125 of Code of Criminal
Procedure makes it clear that under such Section,
right of the wife or the concerned person is to
get the monthly allowance on such monthly rate
that the Magistrate may think fit from time to
time. Thus, in any case, the learned Family Court
has no right or jurisdiction whatsoever, to
direct the present applicant to provide lump sum
amount to the wife for residential accommodation.
8. However, learned advocate for the respondents
are relying upon following citations and
therefore, they need to be referred and
explained:-
8.1 In the matter between Chaturbhuj Vs. Sita
Bai reported in AIR 2007 SCW 7416. Learned
advocate has referred last few lines of paragraph
5, which reads that - “It is meant to achieve a
social purpose. The object is to prevent vagrancy
and destitution.”.
However, though this is a well-known citation
on this subject, it cannot be ignored that it
nowhere confirms that provision for shelter is to
be provided in lump sum, which is certainly not
in consonance with the provisions of statute
itself wherein words used are “a monthly
allowance for the maintenance”. Therefore, though
amount of maintenance may include amount for
shelter, it should be paid per month either as
rent or in any other manner, but not in lump sum
as awarded in the impugned order.
8.2 In the matter between Komalam Amma (supra),
which is relied upon by the respondents is
already discussed herein above.
8.3 Unreported judgment dated 19.4.2016 between
Sandip Pramodrai Jani Vs. State of Gujarat & Ors.
decided in Special Criminal Application No.1129
of 2016, the Single Judge of this Court has
relying upon the decision of Komalam Amma (supra)
and Mangat (dead) and Anr. vs. Punna Devi (Smt.)
(Dead) and Ors reported in (1995)6 SCC 88 held
that order of payment of lump sum amount towards
provision for residential accommodation is
provided and thereby, refused to quash such order
by dismissing the petition. However, judgment of
Komalam Amma (supra) is already discussed herein
above, which makes it clear that it does not
confirm that the Family Court or the Magistrate
has power to grant lump sum amount towards
provision for residential accommodation in favour
of wife, more particularly with reference to
Section 125 of the Code.
9. Therefore, none of above judgment makes it
clear that the trial Court has absolute and
uncontrolled jurisdiction to grant lump sum
amount towards residential accommodation also
though the phrase used in Section 125 of the Code
is quite clear that a Magistrate may order to
make a monthly allowance in maintenance. It is
also evident that in all such cited cases, the
Court has relied upon the provisions of Hindu
Adoption and Maintenance Act and not under the
provisions of Section 125 of the Code.
10. Whereas, so far as the amount of monthly
maintenance is concerned, Family Court has
rightly bifurcated the total amount in three
slabs by awarding Rs.10,500/- in aggregate for
both the respondents for the period between
January, 2011 to December, 2012 and again
Rs.12,000/- for two years from January, 2013 to
December, 2014 and Rs.15,000/- from January, 2015
onwards. So far as quantum is concerned, there is
specific documentary evidence on record regarding
income of the applicant – husband in the form of
his salary slips, which confirms that though his
salary was approximately Rs.18,000/- in the year
2008, the same has been increased to
approximately Rs.44,000/- from October, 2014 and
it must have been increased thereafter.
Therefore, when a person is earning Rs.44,000/-
in the month of February, 2015, when his evidence
was recorded, then, an amount of Rs.15,000/- i.e.
only 1/3rd of his earnings for two living persons
can never be said to be excessive in any manner
whatsoever. Therefore, so far as quantum of
maintenance is concerned, I do not see any reason
or substance to interfere with the impugned
order, more particularly considering the fact
that impugned order is passed in an application
u/s.127 of the Code by wife and minor for
enhancement of maintenance and thereby, so far as
their right to get maintenance and liability of
the applicant to pay maintenance is now not in
dispute.
11. In view of above facts and circumstances, the
present Criminal Revision Application is partly
allowed. Thereby, though order of monthly
maintenance is upheld and confirmed as per the
impugned order, the order regarding payment of
Rs.3 Lacs lump sum towards provision for
residential accommodation to be paid by the
husband to the wife is hereby quashed and setaside.
12. Interim relief, if any, shall stand vacated.
(S.G.SHAH, J.)
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