CRMMO/4016/2013 on 30 December 2014

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA. Cr.MMO No.4016/2013

Reserved on: 11.12.2013 Decided on: 30.12. 2013 _____________________________________________________ Sushil Kumar

..…Petitioner

Versus

Seema Sharma and anr.

..…Respondents

_______________________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge.

Whether approved for reporting?1 Yes

For the petitioner: Mr. Amrinder Singh Rana, Advocate.

For the respondents: Mr. Rajiv Rai, Advocate.

______________________________________________________________

Per Rajiv Sharma, Judge

This petition is directed against the order rendered by learned Additional Sessions Judge (Fast Track Court) Shimla in Cr. Revision No.10-S/10 of 2011, dated 18.3.2013.

2. “Key facts” necessary for the adjudication of this petition are that the marriage between Sushil Kumar (hereinafter referred to as the “petitioner for the sake of convenience) and Seema Sharma (hereinafter referred to as respondent No.1 for the sake of convenience) was solemnized on 27.11.2003. Relations between the petitioner and respondent No.1 remained cordial for a few months after the marriage. Thereafter, petitioner started maltreating and torturing respondent No.1. Parents of the petitioner also started accusing parents of respondent No.1 for bringing insufficient dowry. She was physically and mentally tortured.

1 Whether reporters of the local papers may be allowed to see the judgment? Yes

Respondent No.1 was forced to leave her matrimonial house on 26.2.2004. An FIR was registered under Section 498-A of the Indian Penal Code. She was pressurized to withdraw the same. A compromise was arrived at with a hope that the situation would improve. She lived separately with the petitioner in a rented accommodation. However, behaviour of the petitioner towards respondent No.1 did not change. She gave birth to respondent No.2. Entire expenditure was borne by her parents. According to respondent No.1, petitioner is running a shop at New Shimla. He has also landed property at his native place and also plots at Shimla Town.

Petitioner denied allegations in the application preferred by respondent No.1 under Section 125 Cr.P.C.. According to him, he was not running a daily need shop. His case is that he was working as helper. Respondent No.1 never wanted to live with him. He had provided all necessities of life to respondents.

Learned Judicial Magistrate, 1st Class, allowed the application. Respondent No.1 was held entitled to maintenance to the tune of Rs.3000/- per month, while respondent No.2 was held entitled to maintenance to the tune of Rs.2000/- per month, till he attained majority from the date of the order, i.e. 28.10.2010.

Petitioner feeling aggrieved by the order dated 28.10.2010 preferred a revision petition before the learned

Additional Sessions Judge (Fast Track Court). He dismissed the same on 18.3.2013. Hence, this petition.

I have heard learned counsel for the parties and gone through the impugned order and pleadings carefully.

Respondent No.1, Seema Sharma, appeared as PW1. According to her, she was harassed by petitioner and his parents for bringing insufficient dowry. She was pressurized to give divorce to petitioner and leave his house by the parents of the petitioner. Petitioner had picked up quarrel with respondent on 2.7.2004. She was administered beatings by the petitioner in the month of December 2004. She was constrained to lodge complaint under Section 498-A of the Indian Penal Code against petitioner and his family members. She was never paid any maintenance. She was forced to live with her parents. According to her, when respondent No.2 was borne, entire expenditure was borne by her parents.

PW2, Harbans Singh, has testified that licence of daily need shop was in the name of the petitioner.

PW3, Desh Raj Thakur, an official from the State Bank of India, has proved on record that petitioner was having CC Account along with his father in State Bank of India.

PW4 Dalip Kaul, C.T.O.(B), Punjab National Bank, New Shimla, has placed on record statement of accounts of M/s S.P. Sharma Daily Needs Corner, Sector 3, New Shimla.

What emerges from the statements of PW1 Seema Sharma, PW2 Harbans Singh, PW3 Des Raj Thakur and PW4

Dalip Kaul is that petitioner had independent source of income. His version that he was working as helper in his father’s shop cannot be believed. It has come on record that respondent No.1 had been harassed by petitioner and his family members, which led to filing of an FIR under Section 498-A of the Indian Penal Code against them. She was physically and mentally tortured for bringing insufficient dowry. She was forced to leave matrimonial house. She had no alternative, but to live with her parents. Petitioner had not looked after respondent No.1 at the time of delivery. RW3, Rattan Chand, father of petitioner, has also admitted that licence of shop was in the name of his son.

Mr. Amrinder Singh Rana, learned Advocate, has vehemently argued that respondent No.1 was working in the Bank. It has come on record that respondent No.1 had only worked in Axis Bank w.e.f May 2009 to November 2009. It has also come in statement of RW3 Rattan Chand that entire expenditure of the family is borne from income from the shop. There is no merit in the contention of Mr. Amrinder Singh Rana, learned Advocate, that respondent No1. had left job to harass the petitioner. It is not believable that respondent No.1 would leave job only to harass petitioner when she was facing so much insecurity due to constrained relations with petitioner and his family members. According to the petitioner, efforts were made to settle the matter in the presence of Rajeshwar and Rajinder. However, petitioner did not examine them as witnesses.

In Kandaswami Moopan vs. Angammal, AIR 1960 Madras 348, learned Single Judge of Madras High Court has held that the possession of property is not at all the criterion for awarding maintenance. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife. Learned Single Judge has held as under:- “(6) Then it is argued that the husband is not in flourishing circumstances and that the income got by him would not justify maintenance given by the learned Magistrate. I must first of all point out that it is the settled practice of this High Court not to interfere in revision with the quantum of maintenance which is awarded by Magistrates unless it is so manifestly perverse that it requires interference without any further argument on the subject. Besides, the possession of property is not at all the criterion for awarding maintenance under Sec. 488. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife. Therefore, our Courts have gone to the extent of laying down that, notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu or a monk, he must support his wife, so long as he is able-bodied and can eke out his livelihood and support his wife. In fact, in one case which was argued before the Bombay High Court, when a man pleaded that he entered the holy orders the Bombay High Court said that in such a case he should doff off his orange robes and get employed and earn money in order to support his wife and children. The case-law on the subject will be found in Dhani Ram v. Mst. Ram Dei, , Prabhulal v. Parvatibai, AIR 1952 Madh Bha 96: 1952 Cri LJ 868; Abdul Wahab v. Mt. Sugrabi 37

Cri LJ 86: 159 Ind Cas 120 (Nag); in re, Kandaswami Chetty, AIR 1926 Mad. 346: 27 Cr LJ 350; Kantivijayaji v. Emperor, AIR 1932 Bom 285: 33 Cri LJ 625, and Mohomed Hussein Abdul Kadar v. Emperor, AIR 1940 Bom. 344: 42 Cr. LJ 101. Therefore, we need not make a meticulous inventory of the assets of this husband in order to calculate the exact maintenance which has got to be awarded. In fact, even under the Hindu law, the obligation to support the wife is a personal obligation which attaches from the moment of marriage. It is independent of possession of property (see Mayne's Hindu Law, 11th edition, page 818). In this case, I have already set out the maintenance awarded by the Magistrate, and in these days of high cost of living it is certainly not unconscionable that an amount of Rs. 20/- per month should be awarded to the wife and Rs. 5/- to each of the two children of this petitioner.”

In Chander Parkash Bodh Raj vs. Shila Rani Chander Parkash, AIR 1968 Delhi 174, learned Single Judge of Delhi High Court has held that an able bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. Learned Single Judge has held as under:- “(7) But this apart, as submitted by Shri Bhandari, an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond

his control, to earn enough to discharge his legal obligation of maintaining his wife and child. In the present case, as the husband has not frankly disclosed to the Court, as he ought, his allowances which he admittedly gets, the presumption would be easily permissible against him.

In Ashish vs. D.C. Tewari, AIR 1970 Delhi 98, learned Single Judge of Delhi High Court has held that the fact that minor child is living with his mother is not a sufficient cogent ground by itself for refusing him relief by way of maintenance. Learned Single Judge has held as under:- “6. It is proper at this stage to reproduce Section 488, Cr.P.C. "488. Order for maintenance of wives and children - (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made; Provided that, if such person offers to maintain his wife on conditions of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal sated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him: Provided, further that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favor an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent the Magistrate shall cancel the order.

(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases; Provided that if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.”

In Bhure vs. Gomatibai, 1981 Cri.L.J. 789, learned Single Judge of Madhya Pradesh High Court has held that imprisonment order can be passed without first issuing distress warrant of levying the amount. Learned Single Judge has held as under:- “4. I have considered the arguments pressed before me. On perusal of Sub-section (3) of Section 125 of the Code, it is clear that two remedies are available for the enforcement of the Order:

(1) the issue of a warrant for the levy of the fine under Section 421,.Cr. P.C. by attachment and sale of any movable property of the offender and/or a warrant to the Collector empowering him to realise the amount as arrear of land revenue from the movable or immovable property, or both, of the defaulter; and

(2) sentencing the defaulter for the whole or any part of each month's allowance remaining unpaid, to imprisonment for a term extending to one month or until payment if sooner made. Imprisonment is a means of enforcement of payment, and an Order for imprisonment can be passed, only after there has been negligence to pay the maintenance. The material question to be considered is whether such an Order of imprisonment can be passed without, at first, issuing the warrant for levying the amount due. It is, no doubt, true that the normal rule is, at first, to try to seek enforcement of the Order by issuing the distress warrant in the manner provided in the Code for levying fines; but, this rule, in my opinion, is not mandatory, that is, to be necessarily followed in each and every case without considering the attending circumstances of the particular case. In the instant case, it is noticed that despite the passing of the maintenance Order as long back as January, 1976, not a single penny has been paid by the applicant husband to the wife. The Order-sheets of the case equally show that the applicant husband avoided appearance in the Court continuously on several dates of hearing, so much so, that his presence had to be procured, at first by issuing bailable warrant and then, finally by issuing non-bailable warrant against him. The applicant husband had equally resisted the payment of arrears of maintenance amount by levelling flagrant charges of immorality against the non-applicant wife for the particular period before the passing of the maintenance Order. All this was of no avail, since, the learned Magistrate put his foot down on the dilly-dallying tactics of the applicant husband, and rejected his application in the matter of such frivolous allegations. It is equally pertinent to observe that the applicant husband, finally on 30-9-77, refused point blank to make any payment to the wife in the matter of the huge arrears of maintenance amount. Section 125 of the Code has been enacted with the obiect of enabling the helpless and deserted wife and. children to secure the much needed relief. It has a special social purpose behind it to subserve tihe interest of the weaker sections of society 1.e. the women class. The husband, once the maintenance Order is passed against him, cannot be allowed to play hide and seek by adopting delaying tactics and thus, make the life of 'his deserted wife, miserable and reckless for want of necessary amount to feed herself and her children, if any. The law must subserve the social purpose and the subtle technicalities of law cannot be allowed to stand in the way of help and succour which the wife is entitled to receive by speedy means through the agency of the Court. On scrutiny of the record of the present case, it is noticed that the applicant husband has himself stated that he had no agricultural lands of his own and that he had no other property and that he earned his living only by making bidis. In these circumstances, no useful purposes would have been served by issuing the distress warrant for recovery of the arrears of maintenance amount against him. Issue of such warrant, even if it had been issued, would have been infructuous and would have simply prolonged the agony of the non-applicant wife who is found to just struggling hard to recover the arrears of maintenance for which she has already paid process in the Court from time to time,-- but with no concrete result so far. In these circumstances, the present case, in my opinion, is one where issue of distress warrant was uncalled for and was unnecessary; and as such, the learned Magistrate was right in ordering the imprisonment of the applicant-accused for his default of payment of the particular arrears of maintenance amount. In the particular circumstances of the case, no interference is called for in the revision preferred by such a husband who is callous and heartless and who has been attempting all along, to thwart and flout the Court's Order of maintenance.”

In Raibari Behera vs. Mangaraj Behera, 1983 Crl.L.J. 125, learned Single Judge of Orissa High Court has held that the object of the provision being to prevent vagrancy and destitution, in determining the reasonable quantum of maintenance, it has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. Learned Single Judge has explained the words “Having sufficient means”. It does not singly only means like estate or definite employment, but also includes capacity to earn money. Learned Single Judge has held as under:- “10. The next question for consideration is as to what would be the reasonable quantum of maintenance to be paid by the opposite party and from which date. What is to be kept in mind while fixing the quantum of maintenance has been laid down by this Court in Basanta Kumari Mohanty v. Sarat Kumar Mohanty (1982) 53 Cut LT 53 : 1982 Cri LJ 485 and the same view has been adopted in the case of Smt. Choti Dei v. Hemanta Kumar

Sahu (1982) 54 Cut LT 36 : 1982 Cri LJ NOC 173. The object of the provision being to prevent vagrancy and destitution, it has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for a moderate Jiving, the earnings of the husband and his capacity to earn and his commitments are relevant factors while determining the quantum of maintenance. In the instant case, the evidence from the side of the petitioner was that the opposite party was possessed of about seven acres of landed properly and had sufficient means to maintain the petitioner, while the opposite party, by the evidence from his side and on the basis of Ext. A the record of rights wanted to establish that there had been partition between him and his two brothers of the 4.81 acres of land recorded in Ext. A and that he had been in possession of about one and a half acres of land. The opposite party was certainly an able-bodied person capable of maintaining the petitioner. The word "means" does not signify only means like estate or definite employment, but also includes capacity to earn money. If a man is healthy and able-bodied, he must be taken to have means to support his wife and children and he cannot take the plea of not having sufficient means. A person has sufficient means if he has capacity to earn. Notwithstanding the fad that a husband is an insolvent or a professional beggar or a minor or a monk, he must support his wife so long he is able-bodied and can eke out his livelihood (See the case of Basanla Kumari Mohanty v. Sarat Kumar Mohanty 1982 Cri LJ 485 (supra) ). The word "means" does not imply only visible means. It includes a capacity . to earn. A person who is lit to earn his livelihood cannot be relieved of his liability under the section even if he is young and unemployed, as has been laid down by this Court in Smt. B. Veragam v. Manoranjan Samanta Kumar ILR (1963) Cut 415 : (1963) 29 Cut LT 584. Judicial decisions are unanimous that the expression "means" occurring in Section 488 of the Code (old) (corresponding to Section 125 of the present Code) does not signify only visible means, such as, real property or definite employment and that if a man is healthy and able-bodied, he must be held to possess the means to support his wife and children and he cannot be relieved of his obligation on the ground that he is unemployed. The opposite party, having sufficient means, has neglected and refused to maintain the petitioner.”

In Durga Singh Lodhi vs. Prembai and ors., 1990 Cr.L.J. 2065, learned division bench of Madhya Pradesh High Court has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance. Learned division bench has also held that an able bodied healthy person capable of earning must be subjected to pay maintenance allowance. If such a person avoids to discharge that obligation despite issuance of distress warrant, he can be sentenced to imprisonment.

In Jupally Veeraswamy vs. Jupally Shantamma, 1996 Cri.L.J. 3209, learned Single Judge of Andhra Pradesh High Court has held that where a revision against an order deciding quantum of maintenance was dismissed, a petition under Section 482 Cr.P.C. would not be maintainable. Learned Single Judge has held as under:- “3. Aggrieved by the said order in the revision, this petition under S. 482, Cr.P.C. to quash the order of the lower Court is filed. The learned counsel appearing for the respondents herein submitted that by virtue of S. 399(3), Cr.P.C., no further proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other Court. Therefore, the petitioner herein having failed in the revision before the Sessions Judge cannot file this proceeding under S. 482, Cr.P.C.

5. I see considerable force in the submission of the learned counsel for the respondents. The petitioner herein had failed in the revision filed by him before the Sessions Court. Ordinarily, no further proceedings are maintainable by virtue of the above mentioned judgments. However, learned counsel for the petitioner brought to my notice a judgment of my learned brother justice V. Rajagopala Reddy reported in D. Lakshmana Rao. v. E. Kamala Bai (1996) 1 Andh LT (Cri) 29. In this case he considered the scope of the judgment of the Supreme Court in Ganesh Narayan Hegde v. S. Bangarappa . In that case the Supreme Court held (at p. 2938 of Cri LJ) :- "While it is true that availing of the remedy of the revision to the Sessions Judge under S. 399 does not bar a person from invoking the power of the High Court under S. 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges."

8. In the case on hand, both the Courts considered the quantum to be granted. They have given certain amounts to the respondent. The present revision is certainly an attempt to convert this Court as a Secondary Revisional Court. Such attempt cannot be allowed to fructify. There is no abuse of process of Court. Therefore, this Court cannot interfere while exercising powers under S.482 of the Code of Criminal Procedure.

In Laxminarayan Patnaik vs. Saudamini Patnaik, 1993 Cri.L.J. 227, learned Single Judge has held that when the intention of legislature is apparent in the Criminal Procedure

Code that an order under Section 125, Cr.P.C. can only be revised once in a proceeding for revision and no second revision is provided, then a petition under Section 482 Cr.P.C. praying to revise the order passed by revisional Court is not maintainable. Learned Single Judge has held as under:- “7. The petitioner in this Criminal Misc. Case preferred under Section 482, Cr. P.C. has prayed to revise the impugned order passed by the learned Addl. Sessions Judge in Criminal Revision preferred against the order passed by the learned S.D. J.M. to meet the ends of justice. When the intention of the legislature, is apparent in the Criminal Procedure Code that an order under Section 125, Cr. P.C. can only be revised once in a proceeding for revision and no second revision is provided, such a petition under inherent power is not maintainable. While dismissing the instant case as not maintainable, I also indicate that the impugned order otherwise is not to be interfered with as devoid of any merit. Criminal Misc. case is dismissed but there shall be no order as to costs.”

In Kola Keshava Reddy vs. Kola Anantha Lakshmi, 1997 Cri.L.J. 933, learned Single Judge of Andhra Pradesh High Court has held that once the revision is dismissed by the learned Sessions Court, second petition under Section 482 Cr.P.C. was not maintainable. Learned Single Judge has held as under:-

8. In the case on hand, both the Courts considered the quantum to be granted. They have given certain amounts to the respondent. The present revision is certainly an attempt to convert this Court as a Secondary Revisional Court. Such attempt cannot be allowed to fructify. There is no abuse of process of Court. Therefore, this Court cannot interfere while exercising powers u/S. 482 of the Code of Criminal Procedure.

In Mast Ram vs. Shanti Devi, 2002 Cri.L.J. 1616, learned Single Judge of this Court has held that concurrent findings of trial court and revisional Court that wife does not possess means to maintain herself and that petitioner-husband is not maintaining her, merits of such findings cannot be gone into under Section 482 Cr.P.C. or under Article 227 of the Constitution of India, which has very narrow scope. Learned Single Judge has held as under:- “7. As is evident from the petition itself, the petitioner intends to invoke the jurisdiction of this Court under Section 482 of the Code and Article 227 of the Constitution of India with the aid of Sections 397 and 401 of the Code. The petitioner having already availed himself of the remedy of criminal revision under Sections 397/401 of the Code is debarred from preferring a second revision in view of the provisions of Sub-section (2) of Section 397 of the Code, therefore, the question arises whether there is anything in this petition which may render it maintainable under Section 482 of the Code and Article 227 of the Constitution ?

8. Be it stated that there are concurrent findings of two Courts below that the respondent does not possesses means maintain herself and that the petitioner is not maintaining her. Evidently, the merits of such findings cannot be gone into under the provisions of Section 482 of the Code and Article 227 of the Constitution which has a very narrow scope. The powers of this Court sought to be invoked, can be exercised only in the rarest of the rare cases where grave injustice is shown to have been caused and requires to be undone.

9. In fact there is nothing in the dispute and the impugned orders which may be called or termed as

illegality which was resulted in gross injustice to the petitioner or which may call for interference of this Court to prevent abuse of the process of the Court or to secure the ends of justice or to give effect to any order under the Code. Thus, there is no case to invoke the powers of this Court under Section 482 of the Code or/and Article 227 of the Constitution.

10. The present petition in fact is nothing more than a second revision-petition which is not maintainable in view of the pro-visions of Sub-section(2) of Section 397 of the Code.”

In Asit Baran Mukherjee vs.

Fuleswari Mukherjee, 2003 Cri. L.J. 1344, learned Single Judge of Calcutta High Court has held that provisions of Article 227 of the Constitution of India cannot be used as substitute to Section 397(2) or Section 482 Cr.P.C. to assail the proceedings under Section 125 Cr.P.C.. Learned Single Judge has held as under:- “5. At the very outset, the learned advocate appearing on behalf of the opposite party-wife before me has challenged the legal maintainability of this revisional application on the ground that the finding of fact by both the courts below being concurrent, there cannot be any scope for the petitioner to prefer any such second revisional application challenging the said concurrent findings of fact. This contention of Mr. Bhattacharjee can hardly be furnished aside. Under Section 397(2) of Cr. P. C. a second revision is not permissible particularly when both the courts below have pronounced the same findings of fact and the aggrieved petitioner has come to this court for the second time. A petition under Article 227 of the Constitution of India has a limited compass. Article 227 of the Constitution should not be taken as a universal panacea to be applied in cases where the revisional application under Section 397 Cr. P. C. is not tenable under the law. The conditions for applying this particular provision of the Constitution touching the power of general superintendence of this court over the performance of the inferior courts are settled by the Apex Court in a large variety of cases and the principles which have been enunciated are that the provisions of this Article can be attracted where there are errors apparent on the face of the record or where there are violation of principles of natural justice or there are errors which are so gross and flagrant that intervention of the court is called for or the impugned order suffers from perversity or the order is founded on a misreading of the evidence or on the basis of no material at all. In these limited number of situations the provisions of Article 227 of the Constitution of India can be attracted and it cannot be used as a substitute for Section 397 or Section 482 of the Criminal Procedure Code.

6. In the present case, as it will be clear enough, there is no such error apparent, on the face of the record or perversity in the matter of drawing of the conclusions by the court below or it is also not the case that the findings of the courts below were due to misreading of the evidence on record or they are founded on no material at all. That being the position, it will not be permissible for this court to scan the evidence just like an ordinary appellate or criminal court and to ascertain whether the courts below were justified in drawing the conclusions from the evidence. Therefore, I find sufficient substance in the contention advanced by the learned advocate for the opposite party that this application under Article 227 of the Constitution of India is not legally maintainable at all, the provisions of that Article being not attracted to such a situation.”

In Shail vs. Manoj Kumar and ors., (2004) 4 Supreme Court Cases 785, their Lordships of Hon’ble Supreme Court have held that if convinced of genuineness of case that a deserted person, repeatedly knocking at its doors, is on verge of destitution, High Court itself has jurisdiction to direct suitable amount of maintenance and to secure compliance with its direction if subordinate court has failed to grant or to enforce the same relief. Their Lordships have held as under:- “3. In Surya Dev Rai v. Ram Chander Rai and Ors. , this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or Tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or Tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. If convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance with its directions, if the same relief the subordinate Court has failed to grant or to enforce. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by impatience.”

Respondent No.1 has led sufficient evidence to prove that petitioner is not maintaining her and her son. She is legally wedded wife of petitioner. Respondent No.2 being son of the petitioner is also entitled to maintenance. Maintenance awarded by learned Judicial Magistrate, 1st Class to the respondents and upheld by the learned Additional Sessions Judge (Fast Track Court) is just, proper and reasonable. Respondent No.1 has to maintain herself and her son.

Mr. Rajiv Rai, learned Advocate, submits that the petitioner has not paid maintenance to the respondents till date. Learned trial court is duty bound to execute its order either by attaching the property of the petitioner or by ordering the petitioner to undergo imprisonment as per law. There is no perversity or any illegality in the impugned order dated 18.3.2013 passed by learned Additional Sessions Judge (Fast Track Court) Shimla.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. The pending application(s), if any, also stands dismissed. No costs.

(Rajiv Sharma),

Judge. 30th December, 2013 (pankaj)