Sawinder Kaur & Ors Vs. Tarun Bhagirath 1 Date of decision:03.10.

2019

IN THE COURT OF AMIT BAKSHI, PCS,

JUDICIAL MAGISTRATE 1ST CLASS, SAS Nagar, Mohali
UID NO.PB0469

CNR No. PBSA03000586-2019

CIS No.MNT-22-2019
Comp. No. 05 dated 02.03.2019
Date of decision:-03.10.2019

1. Sawinder Kaur aged 44 years w/o Tarun Bhagirath d/o Gurbachan Singh.
2. Hitender s/o Tarun Bhagirath minor through his mother Sawinder Kaur.
3. Naman d/o Tarun Bhagirath minor through her mother Sawinder Kaur.
All r/o H.No.385, Phase-1, SAS Nagar, Mohali Teh. & Distt. Mohali,
now r/o HL -58, Phase-7, SAS Nagar, Mohali.
….Petitioners

Versus

Tarun Bhagirath s/o Sh. Late K.K.Bhagirath r/o H.No.385, Phase-1, SAS
Nagar, Mohali Teh. & Distt. Mohali.
----Respondent.
Application under Section 125 Cr.P.C. for
grant of monthly maintenance to the tune
of Rs.25000/- per month for each of the
applicant i.e. Rs.75000/- per month for all
the applicants.

**********

Present: Sh. G.S.Khattra, Adv. Counsel for the petitioners.

Respondent exparte.

ORDER:-

1. This petition u/s 125 Cr.P.C. was filed by petitioners claiming

maintenance from the respondent.

2. It is the case of the petitioner that marriage between petitioner

No.1 and respondent was solemnized on 01.12.2001 at Mohali as per the

Sikh rites and ceremonies in the presence of relatives of both sides by way

of Anand Karaj of Sikh customs. The marriage was consummated between

Amit Bakshi
JMIC/Mohali
UID No.PB0469
Sawinder Kaur & Ors Vs. Tarun Bhagirath 2 Date of decision:03.10.2019

the parties and out of the wedlock of the parties one male child namely

Hitender ie. petitioner No.2 as born on 25.11.2002 and one female child

namely Naman i.e. petitioner No.3 was born on 05.10.2008. The marriage

between the parties as solemnized with efforts of fathers of the parties as

father of the petitioner No.1 and respondent were colleague in Punjab

School Education Board, Mohali. It is further submitted that after the

marriage the relation between the parties remained cordial. The respondent

used to say the petitioner No.1 that he wants to live luxury life. He wants to

earn in the amount of crores and crores of rupees by hook or crook as he has

great ambitions for living a king sized life. But the petitioner No.1 always

insisted that she is satisfied with the present prestige they were already

living and wanted to live a simple and sober life. It is further submitted that

the respondent got job in the Punjab School Education Board after the death

of his father before the marriage. The life of the matrimonial pair was

running smoothly and peacefully as the petitioner No.1 was also doing job in

the Punjab School Education Board and was getting handsome salaries

respectively. But on the blind belief of the petitioner No.1, respondent due to

withdraw all the amount of petitioner No.1’s salary every month from the

account of the petitioner No.1 as all the documents i.e. ATM cards, Bank

passbooks and cheque books of all the accounts were remained all the time

in the possession of the respondent. The respondent wants to live a luxurious

life; use to spend all his salary and including the salary of the petitioner No.1

as well on his lavish habits. The respondent neither use to give any

justification to the petitioner No.1 regarding over expenses made by him nor

ever he shared the information of his other source of income with the

petitioner No.1. Whenever the petitioner No.1 used to give advice to the

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JMIC/Mohali
UID No.PB0469
Sawinder Kaur & Ors Vs. Tarun Bhagirath 3 Date of decision:03.10.2019

respondent to not to do over expenses then respondent always used to say to

the petitioner No.1 that it is none of her business and she should not interfere

in his way of life. It is further submitted that in the year 2003 a FIR No.475

dated 20.11.2003 under Section 420, 467, 468, 472 IPC PS Phase -8 SAS

Nagar Mohali was registered against the respondent on the allegation that he

has forged educational certificates in the concerned branch of the PSEB. The

respondent got anticipatory bail in this FIR. The respondent has sold entire

gold articles of the petitioner No.1 to arrange funds for contesting case

registered against him. The petitioner No.1 feels ashamed in the society due

to this illegal act of the respondent. Even the petitioner No.1 was unable to

face her colleagues in the department. When the petitioner No.1 questioned

the respondent regarding these illegal acts alleged to be committed by him

then he tried to justify the petitioner No.1 that he is innocent and has been

implicated falsely with ulterior motive. He further tried to convince the

petitioner No.1 that he will get justice from the Court and will be acquitted.

Than on the assurance of the respondent, the petitioner No.1 gets satisfied

that he might be implicated falsely by anyone in the department and

petitioner No.1 should have given one chance to the respondent to prove him

innocent. It is further submitted that with the hope that respondent will

acquitted from the charges framed against him as per assurance given by the

respondent, started leading her normal life with the respondent in her in laws

family. Even after the registration of FIR in year 2003 after getting bail in

that case, the respondent was continue with his bad habits under the garb of

lavish life and whenever the petitioner No.1 tried to make him understand

then he used to abuse the petitioner No.1 that she should not interfere in his

way of life. During this period, both the children of the party were grown up.

Amit Bakshi
JMIC/Mohali
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Sawinder Kaur & Ors Vs. Tarun Bhagirath 4 Date of decision:03.10.2019

The attitude and behaviour of the respondent had started changing day by

day towards his family. The respondent started ignoring his family as he

used to busy in his own life without having any concern with his family. Bad

habits and attitude of the respondent started creating suspicion in the mind of

the petitioner N.1 that he must be indulged in the activities which are known

to law. It is further submitted that suspicion of the petitioner No.1 turned into

reality when the respondent was again arrested by the police of police station

Phase-8, Mohali in the scam of embezzlement of lacs of rupees in the PSEB

in FIR No.113 dated 19.07.2014 under Section 409, 120-B IPC PS Phase-8,

SAS Nagar, Mohali. The allegations were leveled against the respondent that

he used to make fake entries in the salary accounts of PSEB and used to

credit the same in his account illegally and malafidedly and by doing so, he

has caused undue financial loss to the department and has caused undue gain

to himself. The respondent was arrested again in the month of July, 2014 and

was released on bail thereafter after several months. It is further submitted

that petitioner No.1 was also harassed and humiliated by the police under the

pretext of investigation of the offence committed by the respondent. During

the investigation, the petitioner No.1 came to know that even the respondent

used to make false entries in the account of petitioner No.1 and used to

withdraw the same without the knowledge of the petitioner No.1. By doing

so the respondent has spoiled the life of the petitioner No.1. Due to these

illegal activities and criminal nature/mind of the respondent, earlier the

service of the petitioner No.1 was suspended in November, 2014 and

thereafter she has been dismissed from service in the year 2018. The appeal

of which has also been dismissed. It is further submitted that after the

registration of second FIR against the respondent, the petitioner No.1

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JMIC/Mohali
UID No.PB0469
Sawinder Kaur & Ors Vs. Tarun Bhagirath 5 Date of decision:03.10.2019

decided to leave the matrimonial house along with children and to break up

all the ties with the respondent because due to illegal activities of the

respondent. But as there was no body in the matrimonial house to take care

of old mother in law, the petitioner No.1 decided not to leave the

matrimonial house but to reside with her mother in law. It is further

submitted that thereafter in the month of October, 2014 the respondent was

convicted by the Court of CJM, Mohali. The decision of conviction of the

respondent by the ld. Court has proved that respondent is a person of

criminal nature. All the hopes of the petitioner No.1 that respondent is

innocent person as make assured by the respondent to the petitioner No.1

have been ruined. After the conviction the respondent was sent to jail. This

decision of convicting the respondent had totally spoiled the entire prospects

of life of the petitioner No.1 and her children and it becomes stigma on the

life of petitioner No.1 and her children. It also becomes impossible to face

the people in the society and in the public at large. The petitioner 1 was left

with no other option but the leave the matrimonial house along with children

as the petitioner No.1 did not want that her children may grow up in the

environment which would leads them to society of criminal. But here again

the petitioner No.1 started thinking about his old mother in law and then she

finally decided that till the time respondent could not release on bail she will

do take care of her old mother in law. Thereafter on 1 st June 2015, the

respondent got bail. Even after getting bail, the attitude of the respondent

was not cordial but too cruel towards the petitioner No.1 and her children. It

is further submitted that due this illegal and conduct and cruel behaviour on

the part of the respondent, the petitioner No.1 was left with no other option

but the leave the matrimonial house along with children. Then on 3 rd June,

Amit Bakshi
JMIC/Mohali
UID No.PB0469
Sawinder Kaur & Ors Vs. Tarun Bhagirath 6 Date of decision:03.10.2019

2015 the petitioner No.1 has left the matrimonial house along with children.

It is further submitted that since then the petitioner No.1 is residing with her

parents. The parents of the petitioner No.1 are maintaining her and her minor

children in all the aspects. Thereafter the petitioner No.1 has filed petition

under Section 13 of HM Act for taking divorce from the respondent and the

ld. ADJ Court, Mohali was pleased to allow the petition of the petitioner

No.1 vide its order dated 01.02.2019. The applicants have requested number

of time to the respondent o provide the basic amenities to the applicants for

their better livelihood, but the respondent flatly refused to maintain the

applicants. The applicant No.1 with the help of her parents and relatives has

also made her best efforts but the respondent refused to maintain the

applicants. It is further submitted that although the petitioner No.1 has

taken divorce from the respondent but she is still legally entitled to claim

maintenance from the respondent and it is the primary duty of the

respondent to maintain the petitioner No.2 and 3. Respondent has neglected

the applicants without any just and reasonable cause and excuse and refused

to maintain the applicants. Even the acts of cruelty have duly been proved in

the divorce petition. It is further submitted that the respondent is able bodied

person, he is also Civil Engineer but at present he is doing private job as

auditor with various multinational companies and is earning Rs.2,00,000/-

per month. Apart from, he owned movable and immovable property in SAS

Nagar, Mohali. On the other hand, the petitioner No.1 does not have any

bank balance as she lost her job due to illegal act and conduct of the

respondent. The petitioner No.1 does not have any other source of income

and is dependent entirely on her parents. The petitioner No.1 is paying

Rs.26000/- approximately per quarter as school fee of both the minor

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JMIC/Mohali
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 Sawinder Kaur & Ors Vs. Tarun Bhagirath 7 Date of decision:03.10.2019

children. Apart form this the petitioner No.1 has also paid Rs.75000/- p.a. as

tuition fee of the petitioner Hitender.

3. Upon notice, initially respondent appeared in person but later on

he failed to appear before the Court and he was proceeded against exparte

vide order dated 18.04.2019.

4. In support of their case, petitioners produced following

evidence:-

Oral Evidence Documentary Evidence

CW-1 Sawinder Kaur Copy of judgment dated 17.10.2014. Ex.CW1/A

copy of FIR Ex.CW1/B
order dated 01.02.2019 of ld. Court Ex.CW1/C
of ADJ, Mohali

Thereafter petitioner tendered into evidence documents i.e.

copy of school fees receipts Ex.C1 to Ex.C4 and closed the ex-parte

evidence.

5. I have heard Ld. Counsel for the petitioners and have gone

through the exparte evidence. The above discussed evidence of the petitioners

has been unrebutted and unchallenged and there is no reason to discard the

same. From the appreciation of evidence on the file, it is proved that petitioner

No.1 was lawfully wedded wife of respondent who is now divorced from her

husband and who has not remarried. and petitioners No.2 and 3 were born out

of that wedlock and are their legitimate minor children. It is also established

that petitioners are living separately from the respondent, who admittedly is not

providing any maintenance to the petitioners despite the fact that he is father of

petitioners No.2 and 3. The respondent has moral obligations to maintain them.

The petitioner No.1 has stated that she has lost her job due to the conduct of the

respondent and the petitioners do not have any independent income and it is
Amit Bakshi
JMIC/Mohali
UID No.PB0469
Sawinder Kaur & Ors Vs. Tarun Bhagirath 8 Date of decision:03.10.2019

also come in the evidence that petitioners are not being maintained by the

respondent. The respondent has failed to contest the allegations made by the

petitioners and for that adverse inference is drawn against him and in favour of

the petitioners that the claim of the petitioners has got merit and respondent has

got nothing to say in the matter.

Now coming to the quantum of maintenance to be granted to the

petitioners, it should be such so as to let the petitioners live in the society with

at least minimum human dignity and respect and so as to provide for their food,

clothing, shelter as well as medicine and educational expenses. It is also to be

kept in mind that petitioners No.2 and 3 are minor children with multifarious

needs for his proper development and they will not be made to suffer only on

account of a bitter relation between their parents. In spite of the fact the

petitioners have failed in proving the income of respondent to be Rs.2,00,000/-

per month as alleged by them in petition, still considering the fact that these

days even a labourer is earning an amount of about Rs.10,000/- per month on

an average basis. There is no documentary proof regarding income of the

respondent. In absence of any documentary evidence regarding the income

of respondent produced by petitioner, some guess work cannot be ruled out

for estimating the income of the respondent, as was held by Hon’ble Delhi

High Court in Surjit Kumar V. Vandana. As per the evidence of the petitioner

which has gone unrebutted and unchallenged the petitioner have alleged the

respondent is Civil Engineer and doing private job as Auditor hence for the

limited purpose of deciding the present application it can be safely inferred that

a Civil Engineer will be at least earning net salary Rs.40,000/- per month. T he

Hon’ble Apex Court in Kalyan Dey Chaudhary Vs. Rita Dey Choudhury

relying upon the other judgment of Hon’ble Apex Court in Dr. Kulbhushan

Kumar Vs. Raj Kumari & Ors. (1970)3 SCC 129 held that 25% of the
Amit Bakshi
JMIC/Mohali
UID No.PB0469
Sawinder Kaur & Ors Vs. Tarun Bhagirath 9 Date of decision:03.10.2019

husband’s net salary would be just and proper to be awarded as maintenance

to the wife.

In the view of the law laid down by the Hon’ble Apex Court in

Kalyan Dey (supra) after considering the facts and circumstance of the present

petition, 25 % of the net salary of the respondent would be just and proper

maintenance for the petitioners.

In the considered view of this Court, the interest of justice would

be served by directing the respondent to pay maintenance at the rate of

Rs.3,000/- per month to petitioner No.1 (till she remarries) and Rs.3,500/- per

month each to petitioner No.2 & 3 from the date of filing of petition (till the

age of majority).

It is made clear that the maintenance to be paid would be

adjustable against the amount awarded to the petitioners in any other

proceedings as per the law laid by Hon’ble Apex Court in Sudeep

Chaudhary Vs. Radha Chaudhary AIR 1999 SC 536. File be consigned to the

record room.

Announced in open
Court on:- 03.10.2019 (Amit Bakshi,PCS), PB0469,
Judicial Magistrate 1st Class,
SAS Nagar, Mohali
Parveen
Stenographer Grade-III

Note: Directly dictated on computer.

Amit Bakshi
JMIC/Mohali
UID No.PB0469