Gagan Kumar v. Sapna Devi and Another

HARPREET SINGH BRAR, J. (ORAL) CRM-19888-2024

¶1Present application has been filed under Section 5 of the Limitation Act for condonation of delay of 65 days in filing the revision petition.

¶2In view of the averments made in the application, same is allowed and delay of 65 days in filing the revision petition is condoned. CRR(F)-649-2024

¶3The present revision petition has been preferred against the impugned judgment dated 28.11.2023 passed by learned Principal Judge, Family Court, Faridabad, vide which application filed under Section 125 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') was allowed and maintenance of total Rs.7,000/- per month was awarded to be paid to respondents i.e. Rs.5,000/- per month to respondent No.1 and Rs.2,000/- to respondent No.2.

¶4The marriage between the petitioner and respondent No.1 was solemnized on 02.03.2014 according to Hindu rites and rituals. Out of this wedlock, one female child i.e. respondent No.2 was born. However, matrimonial dispute ensued between the couple and the respondents filed an application under Section 125 Cr.P.C. seeking maintenance of Rs.15,000/- per month. The petitioner filed a reply and contested the claim made by the respondents. Learned Family Court, vide judgment dated 28.11.2023, granted maintenance allowance of Rs.5,000/- per month in favour of respondent No.1 and Rs.2,000/- per month in favour of respondent No.2. Aggrieved by the same, the petitioner has approached this Court by filing the present petition.

¶5Learned counsel for the petitioner, inter alia, contends that respondent No.1-wife left the company of the petitioner without any justifiable cause and she did not make any efforts to get the divorce annulled, which shows that she did not want to live with the petitioner. Moreover, respondent No.1-wife is not residing at Faridabad and she is living in Bihar with her parents and learned Family Court fell into grave error, while determining the quantum of maintenance, as no cogent reason has been given, on what basis, the amount of maintenance has been assessed.

¶6Having heard learned counsel for the petitioner and after perusing the record with his able assistance, this Court finds no force in the arguments advanced on behalf of the petitioner.

¶7The object and purpose behind granting maintenance is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of failure of marriage. At the same time, a just and careful balance must be struck to ensure that this provision does not degenerate into a weapon to punish the other spouse. The Courts are required to conduct the maintenance proceedings, while being alive to the legislative intent behind the provision under Section 125 Cr.P.C in its true spirit, which is to provide speedy assistance and social justice to women, children and infirm parents. The provisions of Section 125 Cr.P.C. were enacted as a measure to further social justice and protect dependent women, children and parents, which also fall within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.

¶8A three-Judge Bench of the Hon'ble Supreme Court in Vimala (K.) Vs. Veeraswamy (K.) (1991) 2 SCC 375, speaking through Justice Fatima Beevi, opined as follows: "3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife."

¶9Further, a two-Judge Bench of the Hon'ble Supreme Court in Kirtikant D. Vadodaria Vs. State of Gujarat (1996) 4 SCC 479, speaking through Justice Faizan Uddin, opined as follows: "15.... While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation."

¶10Another objective the legislature has sought to achieve by this provision is to provide maintenance pendente lite to the applicant spouse during proceedings emerging out of matrimonial disputes so that she/he can maintain herself/himself, have sufficient funds to pursue the litigation, and not suffer at the instance of the affluent spouse.

¶11There is a general tendency on the part of the wife to amplify her needs and the husband to conceal his actual income, making it difficult to determine the earning capacity of the rival claimants with exactitude. The rival claimants must scrupulously bring on record their actual respective earning capacities in order for the Court to arrive at quantum of maintenance which is just and fair in terms of principle of equistatus. The quantum of maintenance must be justifiable and realistic to provide succour to the dependent spouse and also to avoid occurrence of the two extremes of the maintenance being either paltry or extravagant, ensuring that neither of the two is reduced to a life of penury. The adequacy of the maintenance allowance has to be determined by the yardstick of the dependent spouse being able to lead a life of reasonable comfort.

¶12While dealing with the issue of maintenance in extenso, a two Judge bench of the Hon'ble Supreme Court in Rajnesh Vs. Neha and another, (2021) 2 SCC 324 laid down the criteria for determining quantum of maintenance and issued the following directions: "III Criteria for determining quantum of maintenance

(i) The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

¶82The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun and others (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v. Paramvir Parmar (2011) 13 SCC 112.

¶83In Manish Jain v. Akanksha Jain (2017) 15 SCC 801, this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

¶84On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. Reema Salkan v. Sumer Singh Salkan (2019) 12 SCC 303.

(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. Chaturbhuj v. Sita Bai (2008) 2 SCC

316.

¶85The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration: (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.

(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

(v) The Delhi High Court in Bharat Hedge v. Smt. Saroj Hegde 40 (2007) DLT 16 laid down the following factors to be considered for determining maintenance: "1. Status of the parties.

¶2Reasonable wants of the claimant.

¶3The independent income and property of the claimant.

¶4The number of persons, the non-applicant has to maintain.

¶5The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

¶6Non-applicant's liabilities, if any.

¶7Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

¶8Payment capacity of the non-applicant.

¶9Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

¶10The non-applicant to defray the cost of litigation.

¶11The amount awarded under section 125 Cr.PC is adjustable against the amount awarded u/s 24 of the Act."

(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable." xxx xxx xxx VI Final Directions

¶130In view of the foregoing discussion as contained in Part B -1 to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India:

(a) Issue of overlapping jurisdiction

¶131To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding:

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding

(b) Payment of Interim Maintenance

¶132The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

(c) Criteria for determining the quantum of maintenance

¶133For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B III of the judgment.

¶134The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

¶135We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B-IV above.

(e) Enforcement/Execution of orders of maintenance

¶136For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C may be applicable. The arder of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC more particularly Sections 51, 55, 58, 60 r.w. Order XXI."

¶13No force has been found in the arguments raised by learned counsel for the petitioner that respondent No.1-wife has left the company of the petitioner without justifiable cause. In fact, it is the petitioner, who filed the divorce petition against respondent No.1, and he is an able bodied person and even if he is engaged in labour work, he has potential to earn at least Rs.15,000/- per month. Further, perusal of the impugned order passed by the learned Family Court makes it evident that the Court below has duly considered the material placed before it for determining the quantum of maintenance. A careful and just balance has been drawn, keeping in view the spiralling inflation rates and high cost of living corresponding to the reasonable needs of the respondents. Learned counsel for the petitioner has not been able to indicate any perversity in the impugned order, which warrants interference by this Court. Accordingly, the present petition is dismissed being bereft of any merit.

¶14All the pending miscellaneous application(s), if any, shall also stand disposed of. [ HARPREET SINGH BRAR ]

24.05.2024 JUDGE

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR(F)-649-2024 (O&M) Date of decision: 24.05.2024 Gagan Kumar ... Petitioner Vs. Sapna Kumari and another ... Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Karan Sachdeva, Advocate for the petitioner. *******