SUPREME COURT OF INDIA

Before:-B.P. Singh and S.B. Sinha, JJ.

Criminal Appeal NO.400-401/2005 (Arising out of SLP (Crl.) NO.1049-1050/2004) D/d. 10.3.2005.

Ashwani Kumar - Appellant

Versus

State of Uttaranchal and others - Respondents

Hindu Adoptions and Maintenance Act, 1956 Sections 18 to 23 Maintenance - Order challenged by husband - High Court reduced the amount of maintenance from 150000/- to Rs 8000/- to wife and daughters - Matter required deeper consideration having regard to material on record - Matter remitted to family court - Appellant to continue to pay Rs. 4000/- p.m by way of maintenance till disposal of application by Family Court.

[Paras 7 to 9]

JUDGMENT

1. Special Leave granted.

2. We have heard Counsel for the parties.

3. One of the grievances of the Appellant - (husband) is that he is a handicapped person and in view of his disabilities he is not able to climb steps. On account of his heart condition a pace maker has been installed in him.

4. When the matter was to be heard by the learned Magistrate on 27th June, 2002, the Appellant was unable to go to the Court since it was not possible for him to climb the steps and reach the third floor. He moved two applications before the Court praying for time to engage a lawyer as also time for filing his written statement. The Family Court was informed that the Appellant was present in the Court premises but unable to reach the Court room.

5. Thereafter under the impression that the Appellant was trying to avoid his appearance in Court, the Court proceeded to make an order awarding a sum of Rs. 5,000/- each per month by way of maintenance to the applicants who happen to be Appellant's wife and two daughters.

6. The matter went up in revision before a Division Bench of the High Court and the High Court modified the order of the Family Court and reduced the maintenance awarded by the Family Court to Rs. 3,000/- for the wife and Rs. 2,500/- each for the daughters.

7. Counsel for the Appellant submitted before us that having regard to the salary earned by him and having regard to the deductions made therefrom, including deductions made against the Housing Loan Account, very little is left in his hands and it is impossible for him to pay the maintenance awarded by the High Court. He further submitted that the house for which the loan was taken is occupied by the Respondents and therefore, keeping in view all these circumstances, the amount awarded by way of maintenance should be reduced. It appears to us that the matter requires deeper consideration having regard to the material on record. We feel that in the interest of justice the matter should be re-heard by the Family Court. In the circumstances we pass the following Order:

8. The matter is remitted to the Family Court for its decision afresh in accordance with law. The Appellant is permitted to file his reply to the application for grant of maintenance and thereafter the Family Court will proceed in accordance with law to pass a fresh order. We set aside the order passed by the Family Court and the order passed by the High Court in Revision, but we direct the Appellant to continue to pay a sum of Rs. 4,000/- per month by way of maintenance to the Respondents till the disposal of the application by the Family Court.

9. Having regard to the nature of the dispute and the urgency of the matter, we request the Family Court to dispose of the matter within a period of six weeks from the date on which a copy of this Court's Order is either received by the Family Court or produced before it by any of the parties.

10. We further request the Family Court to keep in view the fact that the Appellant is unable to climb up to the third floor of the Court building. In view of the disabilities of the Appellant, if such an Application is made, the Appellant may be examined on commission unless it is possible for the Court to sit in one of the Court rooms on the ground floor to dispose of the matter.

11. The Appeals are disposed of accordingly.

.