Dismissed

Shanta Devi v. Hitender Gautam

Himachal Pradesh HC16 Sept 2024CR.R/436/2023

Case brief

AI extract

What is this about?

A mother sought enhancement of ₹2,000 monthly maintenance from her elder son under Section 125 Cr.P.C. The High Court held she received a family pension and bank interest sufficient for her needs and her younger son was equally liable to maintain her. Revision dismissed.

What the court decided

AI extract

Shanta Devi Vs Hitender Gautam — Maintenance and Alimony | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8555 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 436 of 2023 Reserved on: 28.8.2024 Date of Decision: 16.9.2024.

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Shanta Devi ...Petitioner Versus Hitender Gautam ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

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For the Petitioner	: Mr. Dheeraj Advocate.	Kumar Verma,
For the Respondent	: Mr. Nitin Thakur,	Advocate.

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Rakesh Kainthla, Judge

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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

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:8555 )

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hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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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 sufÏcient 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.

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Neutral Citation No. ( 2024:HHC:8555 )

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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.

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A rejoinder denying the contents of the reply and afÏrming those of the application was filed.

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Neutral Citation No. ( 2024:HHC:8555 )

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The parties were called upon to produce the evidence and the applicant examined herself (PW1). The respondent examined himself (RW1).

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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.

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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 afÏdavit of assets filed by him. He admitted that his wife

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Neutral Citation No. ( 2024:HHC:8555 )

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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.

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I have heard Mr. Dheeraj Kumar Verma, learned counsel for the petitioner and Mr. Nitin Thakur, learned counsel for the respondent.

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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 sufÏcient to maintain her. Therefore, he prayed that the present petition be allowed and the maintenance awarded by the learned Trial Court be enhanced.

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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.

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Neutral Citation No. ( 2024:HHC:8555 )

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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.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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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:

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“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.”

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This position was reiterated in Amit Kapoor v. Ramesh

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Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986: 2012 SCC OnLine SC 724 wherein it was observed:

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Neutral Citation No. ( 2024:HHC:8555 )

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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 object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a wellfounded 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.

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The applicant admitted in her cross-examination

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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.

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A perusal of the afÏdavit 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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Neutral Citation No. ( 2024:HHC:8555 )

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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.

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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.

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Neutral Citation No. ( 2024:HHC:8555 )

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The applicant claimed her monthly expenditure in column no.9 as ₹15,000/- to ₹18,000/-. She was getting the 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 sufÏcient to maintain her as per her afÏdavit.

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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.

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Hence, the plea of the applicant that she is entitled to further maintenance from the respondent cannot be accepted.

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Neutral Citation No. ( 2024:HHC:8555 )

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No other point was urged.

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Consequently, the present petition fails and the same

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is dismissed. Records of the learned Courts below be sent back

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forthwith.

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( Rakesh Kainthla) Judge

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16^th September, 2024

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(Chander)

Shanta Devi v. Hitender Gautam

Case brief

What is this about?

What the court decided

Shanta Devi v. Hitender Gautam

Case brief

What is this about?

What the court decided

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