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2010 Supreme(J&K) 42
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Gh. Hasnain Massodi, J.
Vikram Jamwal - Appellant
Versus
Geetanjali Rajput & Anr. - Respondent
561-A Cr.P.C. No.77/2007
Decided On : 10 February, 2010
Advocate For Appellant: R.S. Thakur
Advocate For Respondent: L.K. Sharma
The duty to maintain a minor child primarily lies with the father under Section 488 Cr.P.C., and the mother's financial resources do not absolve the father of this responsibility.
Headnote:
Maintenance - Duty of Father and Mother - Section 488 Cr.P.C., Section 20 Hindu Adoption and Maintenance Act - 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31
Fact of the Case:
The petitioner, an unemployed Ph.D. student, sought to avoid paying interim maintenance to his minor son, arguing that the child's mother, a government employee, should be responsible for maintenance. The trial court ordered the petitioner to pay interim maintenance, which was upheld by the sessions court. The petitioner then filed a petition seeking to quash the orders.
Finding of the Court:
The court held that the duty to maintain a minor child under Section 488 Cr.P.C. rests primarily on the father, regardless of the mother's financial resources. It emphasized that the obligation to maintain a child cannot be shifted to the mother, and the father cannot evade this duty by claiming unemployment or pursuing higher studies.
Issues: Whether an unemployed father can avoid paying maintenance to his minor child based on the mother's earnings, and whether the interim maintenance order was justified.
Ratio Decidendi: The duty to maintain a minor child under Section 488 Cr.P.C. primarily lies with the father, and the mother's financial resources do not absolve the father of this responsibility. The court emphasized that the obligation to maintain a child cannot be shifted to the mother, and a father cannot evade this duty by claiming unemployment or pursuing higher studies. The court also highlighted the temporary nature of the interim maintenance order and the need for evidence to determine the parties' financial status.
Final Decision: The petition was dismissed as meritless, and the court upheld the interim maintenance order, emphasizing the father's duty to maintain his minor child.
2. The petitioner is keen to wriggle out of his obligation to pay interim maintenance to his minor son, Master Anirudh Singh, only on the ground that the mother of the minor, with whom the minor is presently living, is a Government employee getting about Rs.10,000/- salary per month, whereas the petitioner is unemployed, pursuing his Ph.D. in Information Technology.
3. The background facts are as under:-
Ms. Geetanjali Rajput-Respondent No.1 herein, on 06.10.2005 filed an application on her behalf and on behalf of her minor son Anirudh Singh against the petitioner, under Section 488 Criminal Procedure Code, in the Court of Judicial Magistrate, Ist Class (Passenger Tax, Magistrate) Jammu. The respondents case before the Trial Magistrate was that the petitioner immediately after his marriage with the respondent No.1 solemnized on 18th February, 1999 went to Mumbai to work as a Junior Research Scientist in the National Centre for Science and Technology and has ever since refused and neglected to maintain respondent No.1 as also respondent No. 2 born out of the wedlock, on 18th September, 2000.
4. According to the respondent No. 1, she incurred huge expenses at the time of birth of respondent No. 2 and also on account of fee and other expenses on admission of respondent No. 2 in Little Blue Bells Nursery and K. G. Preparatory School Rani Talab, Jammu. It was pleaded that the petitioner was getting salary of more than Rs.18,000 per month and was, thus, possessed of sufficient means to maintain the respondents.
5. The respondents alongside the application under Section 488 Cr.P.C. also filed an application for grant of interim maintenance pending disposal of the main application.
6. The petitioner resisted the main application as also the interim application on the grounds that the respondent No. 1 had withdrawn from petitioners association and left the marital home on her own and was, thus, disentitled from claiming any maintenance from the petitioner. The petitioner blaming respondent No. 1 for turbulence in the marital life insisted that the respondent No.1 was working as a Lecturer in Government Gandhi Memorial Science College, Jammu and getting a salary of Rs.8,000/- per month. It was averred that the petitioner was jobless and still pursuing his higher studies and thus, not in a position to pay any allowance to the respondents.
7. Learned Trial Magistrate vide Order dated 22nd November, 2006 allowed the application for grant of interim maintenance and directed the petitioner to pay an amount of Rs.1,500/- per month to the respondent No.2. The application for grant of interim maintenance as regards the respondent No.1 was deferred, to be disposed of after the parties led their evidence.
8. The petitioner aggrieved of the order of Learned Trial Magistrate filed a Revision before Learned Sessions Judge, Jammu. The order was impugned before Revision Court on almost the same grounds as are set out in the present petition. Learned Sessions Judge, Jammu not impressed by the grounds urged in the Revision Petition held that the order impugned did not suffer from any illegality or impropriety, so as to warrant interference under Section 435(4-a). The Revision Petition was dismissed and the order of Learned Trial Magistrate upheld.
9. The petitioner through the medium of instant petition under Section 561-A Code of Criminal Procedure, seeks to invoke inherent powers of this Court to ask for quashment of the order of Learned Sessions Judge dated 3rd May, 2007 and also the order of Trial Magistrate dated 22nd November, 2006.
10. The weft and warp of the petitioners case is that in the changing scenario, an earning mother is equally saddled with the respon
