ORDER
1. This is a revision petition filed under Section 115 of the CPC from the judgment and order dated 13-3-1995 delivered by the Principal Civil Judge, Bagalkot, in Final Decree Proceedings Case No. 2 of 1991 directing the respondents to pay a sum of Rs. 200/- per month to the petitioner for her maintenance from 1-1-1994 till possession of the schedule properties are given to her in view of the order towards her subsistence allowance made on I.A. 4.
2. The facts of the case in nutshell are that, the petitioner had filed a partition suit which had been decreed in her favour. But she had not been given her share’s possession. It consists of almost 95 acres of agricultural land. Under preliminary decree the applicant had been held to be entitled to half share in the total land. As the proceedings were delayed and she was not having enough income or money for maintaining herself, the applicant moved an application for subsistence allowance or for her maintenance and sought a direction from the Court. The Court below passed an order directing the respondents to pay Rs. 200/-per month to the petitioner for her maintenance from 1-1-1994. Looking to the insufficiency of the amount which had been directed to be paid at the rate of Rs. 200/- per month, the petitioner has come up before this Court by way of a revision under Section 115.
3. I have heard Sri C.M. Desai, learned Counsel for the applicant.
4. Learned Counsel submitted that the amount of Rs. 200/- per month cannot be said to be subsistence allowance to make the body and soul of the applicant live together even if she is living on the footpath. The Court below should have applied the basic social norms and should have taken into consideration the basic needs of human life particularly of the lady in question, looking to her status on one hand, on the other hand the extent of property involved in the suit and atleast the extent of land she has been entitled to get. Learned Counsel contended as the Court has arbitrarily fixed Rs. 200/- without applying its mind to this basic principles of law regarding maintenance and subsistence, the Court below acted illegally in awarding a too meagre sum of Rs. 200/- not sufficient for her subsistence.
5. I have applied my mind to the contentions made by the learned Counsel for the applicant.
Revision under Section 115 of the CPC is maintainable and the Court can interfere with the order if it is shown that the order impugned suffers from jurisdictional error coming under any of the clauses (a), (b) or (c). Sri Desai submitted that here really the Court below has acted illegally and with material irregularity when it did not apply its mind to the basic principles of law and it did not apply its mind and consideration to the interest of justice as well because powers under Section 151 are to be utilised in the interest of justice in the manner and with object of justice to be fulfilled. Learned Counsel for the petitioner contended that this is not only a question of quantum being fixed, but it is a case of Court’s failure to apply its mind to the basic principles of maintenance and to the fact that the property is in the possession of the respondents which the plaintiff is entitled to get.
6. There appears much force in the contention of Mr. Desai. Prom a perusal of the order, it appears that the Court below has failed to apply its mind to the basic principles of law. For her maintenance if a sum is to be awarded, in the interest of justice the Court has to consider what was necessary atleast to the minimum extent possible for her subsistence and in the context of principles relating thereto in provision of Section 127(3) of the Cr. P.C. i.e., basic principles laid down in the context of social obligation. It will be appropriate at this stage to refer to certain observations made by the Hon’ble Supreme Court in the context of Section 127. But what is relevant for the purpose of consideration in such matters dealing with Section 127(3)(b) of the Cr. P.C. and the amount of mehar fixed to the tune of Rs. 500/-, their Lordships in the case of Fuzlunbi v K. Khader Vali and Another, have observed,
“No one in his senses can contend that the mehr of Rs. 500/- will yield income sufficient to maintain a woman even if she were to live on city pavements! What is the intendment of Section 127(3)(b) ? What is the scheme of relief for driftwood and destitute wives and divorcees discarded by heartless husbands? What is the purpose of providing absolution from the obligation to pay continued maintenance by lump sum liquidation? What, in short is the text and texture of the provision, if read in the light of the mischief to be avoided, the justice to be advanced? The conscience of social justice, the cornerstone of our Constitution will be violated and the soul of the scheme of Chapter IX of the Code, a secular safeguard of British Indian vintage against the outrage of jetsam women and floatsam children, will be defiled if judicial interpretation sabotages the true meaning and reduces a benign protection into a damp squib”.
His Lordship V.R. Krishna Iyer further observed,
“Judges are expected to act like an architect thinking of the structure as a whole building for society, a system of law which is strong, durable and just. It is on his work that civilised society itself depends”.
It is further observed,
“The purpose of payment ‘under any customary or personal law’ must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of Section 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum so paid and is potential as provision for maintenance”.
In an earlier case in Bai Tahira v Ali Hussain Fissalli Chothia and Another, dealing with Section 127 of the Cr. P.C., their Lordships of the Supreme Court observed as under:
“Nor can Section 127 rescue the respondent from his obligation. Payment of mehr money, as a customary discharge, is within the cognisance of that provision. But what was the amount of mehar? Rs. 5000/-, interest from which could not keep the woman’s body and soul together for a day, even in that city where 40% of the population are reported to live on pavements, unless she was ready to sell her body and give up her soul! The point must be clearly understood that the scheme of the complex of provisions in Chapter IX has a social purpose, Ill-used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates the amplitude of Section 127. Where the husband, by customary payment at the time of divorce, has adequately provided for the divorcee, a subsequent series of recurrent does is contra-indicated and the husband liberated. This is the teleological interpretation, the sociological decoding of the text of Section 127. The key-note thought is adequacy of payment which will take reasonable care of her maintenance”.
A reading of this decision gives an idea of what principles have to be kept in mind and have to be followed in determining and fixing subsistence it has to be kept in view that atleast the sum which is essential to maintain her life, body and soul and which will take reasonable care of her maintenance. It must be such that to provide her with subsistence and which may not lead her to material and moral dereliction to seek sanctuary in the streets. These are the basic principles to be kept in view while determining recording a finding regarding maintenance or quantum of maintenance amount.
7. In the present case, the Court also has not looked to the property which may be given to her share i.e., to which share she is entitled to in lieu of partition. Litigation is going on since 1987. Property is in possession of the respondents. She is not able to get the mesne profits. May be that in course of final decree proceedings she may get. But nobody knows when it may attain its final stage. Matters may go on and the properties remain in the hands of respondents and if the lady is not getting income of her share, how she will live? The purpose of law is to discharge the social obligations. In such circumstances, if the Court is called upon to direct the respondents to pay the subsistence allowance and maintenance allowance pending final decision, no doubt, the Court should have taken into consideration the principles which cover the granting of maintenance to a divorcee from the husband. The amount should be such that may keep her body and soul together, and that must be such that it may not lead her to frustration and prostitution. What is there in a sum of Rs. 200/- which is being awarded? Even in 1994, Rs. 200/- could not be said to be sufficient for the maintenance of a lady. No doubt, what income she would have derived from the land of her share had to be taken into consideration. The total land as mentioned in the judgment the Court below, is about 95 acres and when her half share is there, she will be entitled to the income of atleast of 47 acres of land. No doubt, extent of cultivation etc. have to be calculated and if the minimum income would have been taken after discharge of expenditure, it could not be less than Rs. 1,000/- per acre or atleast Rs. 800/- per acre. If Rs. 1,000/- income per acre and 1/3rd thereof has to be deducted towards expenditure, then at least something more than Rs. 60,000/- per year would be the income that may go to her share. Keeping that aspect of the matter and basic principles, the Court below should have directed the payment of adequate sum by the respondents. That would not have led it to direct if the ends of justice would have prevailed in the mind of Court, the payment of Rs. 200/- only. It would have been a higher sum. So I find here, while I exercising the powers under Section 151, the Court below has not kept in view the ends of justice. Ends of justice require that if her share is given, what she would be getting as income. Then the Court should have at least awarded a reasonable sum of income to her for maintenance and in such a case, in my opinion, a sum of Rs. 1,000/- p.m. could have been allowed and it would have been sufficient to maintain herself. As the Court below did not apply its mind to the basic principles referred to above and total area of land and area of land which could have been given to her share, the income from that land, and the Court below also failed to see that no injustice is done to the party, that the lady should not be led to any frustration which may lead her to prostitution. Thus, in my opinion, the Court below can be said to have acted illegally and with material irregularity in exercise of its jurisdiction. Keeping in view the cost of living, I think it is a fit case for interference and therefore, I exercise my powers under Sections 115 and 151 of the Code and modify that order, by enhancing the amount from Rs. 200/- to Rs. 1,000/- per month, and not Rs. 2,000/- per month as claimed by the petitioner.
8. Revision is allowed. Respondents are directed to pay a sum of Rs. 1,000/- per month for her maintenance to the revision petitioner from 1-1-1994 till the possession of her share or property of her share is given. No doubt, the sum of Rs. 1,000/- which may be paid will be accounted in the mesne profits earned from the land. Revision is thus allowed. Costs made easy.