SHRIMATI PRITAM KAUR Vs. S. SUNDER SINGH

JUDGEMENT

(1.) IN this revision on November, 1963 I came to the conclusion that Smt. Pritam Kaur's petition under section 488, Criminal Procedure Code, had been erroneously dismissed by the Courts below. On this conclusion, the amount of maintenance had to the determined. I accordingly directed the learned Magistrate to submit his report on the question of quantum of maintenance on the evidence on the record. The report was to be returned to this Court by the Magistrate within six weeks from 27th November, 1963. The report sent by the learned Magistrate in pursuance of that order was dated 2nd January, 1964 but the case was set down for hearing before me as late as 3rd August, 1994 when 1 found that the learned Magistrate had given no judicial reasons in support of this conclusion that Rs. 43/ - per mensem as maintenance should be paid to Smt. Pritam Kaur. I sent the case back to the learned Magistrate for a fresh report supported by his reasons in the same way in which the Court writes a judgment after hearing the parties. The report was to be submitted to this Court before the end of August, 1964. I have before me now the learned Magistrate's report dated 25th August, 1964. It has been stated in the order that Shri Sunder Singh's salary per mensem is Rs. 400/ - and he gets a sum of Rs. 70/ - per mensem on account of dearness allowance. The learned Magistrate has considered a sum of Rs. 40/ - per mensem to be a fair amount of maintenance which should be allowed to Smt. Pritam Kaur. The learned Magistrate has observed in his order that according to the respondent Shri Sunder Singh, he had three children from his first wife and two from the second wife. It appears that reference to the second wife is intended to mean the wife who is at present living with the respondent. The learned Magistrate has accordingly observed in his order that the respondent has thus five children and another living wife with him. His liability has thus been observed to be considerable. The applicant, to use the words of the learned Magistrate, "is a single soul, has no other liability excepting herself. She has no child to rear and she is almost past middle age. She is also residing at a rural place." For these reasons, the sum of Rs. 40/ - per mensem has under the circumstances been considered to be sufficient amount to make her both ends meet. This amount, according to the learned Magistrate's report should be paid to her from the date of the application i.e. 13th March, 1959. Smt. Pritam Kaur has filed an affidavit in this Court in which she has stated that she wanted to lead evidence to show that the circumstances of the respondent have changed as he has been promoted as Executive Engineer and the prices of necessities of life having shot up, she deserves a fair maintenance allowance commensurate with the status of her husband. The Magistrate, according to her, has not allowed any fresh evidence to be led on these points. It has further been averred in the affidavit that Shri Sunder Singh is now posted as an Executive Engineer at Jullundur drawing a salary of over Rs. 1,200/ - per mensem; he is insured for about Rs. 50,000/ - has accumulated Government Provident Fund to the tune of about Rs. 25,000/ - and has a bank balance of some thing between two lacs and three lacs of rupees in the Punjab National Bank, Post Office Savings Bank and National Savings Certificates. He also owns a kothi (No. 600, Park Road) in Model Town, Jullundur City; which is valued at about Rs. 50,000/ -. He further owns landed property and has a big residential house in village Ranipur (near Phagwara) purchased before 1947 and also owns about 32 standard acres of land in village Bahane (near Phagwara) which has since been developed into a modern farm fitted with a tube -well, He is further stated to own about 33 standard acres of land in village Khaire (Railway Station Cheheroo) near Phagwara. Lastly, she has sworn that some of the property mentioned by her has been got mutated by her husband Shri Sunder Singh in the names of his sons. This affidavit is dated 4th March, 1964. In answer to this affidavit, Shri Sunder Singh has sworn that the learned Magistrate did not allow further evidence to be led because this Court had directed the question to be determined on the evidence already recorded. He has denied that he is drawing Rs. 1200/ -. He has further deposed that his substantive rank is that of a Sub -Divisional Officer and his pay in that rank is Rs. 550/ -. He is only officiating as Executive Engineer for which he is only getting Rs. 155/ - as additional pay plus Rs. 85/ - as dearness allowance. He is likely to be reverted to his substantive post at any moment or as soon as the emergency is withdrawn. Out of the total emoluments, there are large deductions made every month amounting to Rs. 150/ - on account of income -tax, surcharge -tax professional tax, water tax and house rent etc. He is not insured at all. He has, however, admitted that he was insured for a sum of Rs. 8000/ - but those policies were got paid up before 1947. After getting them paid up, he got two more policies amounting to Rs. 7,000/ - but the same were also got paid up in 1957 and 1958. The constitutions to the General Provident Fund were also stopped from March, 1962. The total bank balance has been stated to be less than Rs. 6,000/ - He has denied that he owns any house in Model Town; he has also denied that he owns any landed property or any residential house in village Ranipur or to have purchased any house in 1947. He does not own any land in village Bahane. He admits to own only one acre barani land in village Khaire. He has also denied the averment by Smt. Pritam Kaur that some of the property has been got mutated by him in the names of his sons. He has lastly deposed that he is to attain the age of 55 years in December, 1964 and is nearing retirement. He has no other source of income and he asserts that he has five children to maintain besides an aged mother who is exclusively dependent upon him. It may be pointed out that he has not stated anything as to why he is not entitled to the benefit of the rule raising the normal age of retirement to 58 years.

(2.) BEFORE me, the learned counsel for the petitioner, Smt. Pritam Kaur, has very strongly argued that the learned Magistrate is wrong in taking into consideration that maintenance of the three of the respondent's children from his first wife are his (their father's) liability which has to be met out of his salary. According to the counsel, one of the respondent's sons is in America and is earning a substantial amount. The respondent's second son is a Lieutenant in the Army. His daughter from the first wife is also married in a village near Phagwara with two children and her husband is also in the Army, probably a Lieutenant. The amount of maintenance has been fixed on the basis of the evidence which was led before 9th May, 1962, the date of the original order of the learned Magistrate dismissing Smt. Pritam Kaur's application under section 488, Criminal Procedure Code. It has been admitted before me by Shri Ram Rang that out of the two children which the respondent has from the wife, who is at present living with him, one is aged 14 years and the other 16. Mr. Ram Rang is, however, not in a position to controvert the assertion made by Shri Hoshiarpuri who has made his statement after consulting his client who is present in Court.

(3.) IN my opinion, on the existing record it is perfectly safe to hold that the three children from Sunder Singh's first wife must be fairly grown up.