- Court
- High Court of Punjab and Haryana
- Decided
- 12 September 2024
- Bench
- Harpreet Singh Brar
- Case no.
- CRR(F) 708/2022
Judgment
HARPREET SINGH BRAR, J. (ORAL) CRM-29972-2022
¶1For the reasons mentioned in the application, same is allowed.
2. Delay of 94 days in filing the criminal revision petition is condoned. MAIN CASE
1. The present petition has been preferred against order dated
18.08.2021 passed by learned Family Court, Yamuna Nagar, under Section 125 of the Cr.P.C., vide which, interim maintenance of Rs.15,000/- per month was awarded in favour of the petitioner Nos.1 and 4 (Rs.10,000/- to petitioner No.1 and Rs.5,000/- to petitioner No.4) wife and son of the respondent.
2. The marriage between petitioner No.1 and respondent was solemnised on 02.05.1992 in accordance with Hindu rites and ceremonies. Out of this wedlock, three children (02 female i.e. petitioner Nos.2 and 3 and 01 male i.e. petitioner No.4) were born. However, matrimonial dispute ensued between the couple and petitioners filed a petition under Section 125 Cr.P.C. CRM-29972-2022 in/and 2
seeking maintenance. The respondent filed a reply and contested the claim made by the petitioners. The learned Court below vide order dated 18.08.2021 granted interim maintenance Rs.15,000/- per month in favour of petitioner Nos.1 and 4. Aggrieved by the same, the petitioners have approached this Court by filing the present petition.
3. Learned counsel for the petitioners inter alia contends that petitioner Nos.1 and 4 have been awarded only an amount of Rs.10,000/- and Rs.5,000/- per month respectively as interim maintenance, which is too meagre to sustain them. It is admitted fact that respondent is serving as a Manager in State Bank of India and according to his salary slip of the month of July 2021, the total income of the respondent is Rs.1,16,618/- and his take home pay is Rs.68,259/-.The learned Court below has not considered the fact that only statutory deductions are to be excluded at the time of assessment of income of the respondent/husband. Moreover, petitioner Nos.2 and 3 are unmarried daughters of respondent and their claim for maintenance has wrongly been rejected by learned Family Court.
4. The office report indicates that respondent has been duly served, however, there is no representation on his behalf. As such, this Court is left with no other option but to decide the present case on its own merits.
5. Having heard the learned counsel for the petitioner and after perusing the record with his able assistance, this Court finds no force in the arguments advanced by learned counsel for the petitioners on behalf of petitioner Nos.2 and 3. With regard to grant of maintenance to the major children, the law is well settled and reliance in this regard can be placed upon a judgment passed by the Hon'ble Supreme Court passed in Abhilasha vs. Parkash in Criminal Appeal No. 615 of 2020 decided on 15.09.2020, wherein CRM-29972-2022 in/and 3
it has been categorically held that the husband is not liable to pay maintenance to the married children under Section 125 Cr.P.C., however, major children can invoke the remedy of Hindu Adoption and Maintenance Act, 1956 to seek maintenance from their father. As such, petitioner Nos.2 and 3 would be at liberty to institute appropriate petition to seek maintenance under the provisions of the afore-stated Act. As far as, the grant of maintenance to petitioner Nos.1 and 4 is concerned, the learned Court below has wrongly excluded the EMI of Rs.38,000/- per month for repayment of loan taken by the respondent. As per the settled law only statutory deductions are to be excluded from the actual income of the husband. Any EMI for the loans taken by him cannot be excluded for the purpose of assessing his actual income.
6. It is further significant to note that petitioner has liability towards repayment of loan is not material as per decision of our Hon'ble High Court in Mukesh Kumar vs. Rekha Rani and another, 2018(3) RCR (Criminal) 135 wherein, it was held that "a person cannot be permitted to wriggle out of his statutory liability by way of availing huge loans and reducing the substantial amount of salary for repayment of the same every month."
7. The object and purpose behind granting interim 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 CRM-29972-2022 in/and 4
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.
8. A three-Judge Bench of the Hon'ble Supreme Court in Vimala (K.) v. Veeraswamy (K.)(1991) 2 SCC 375, speaking through Justice Fatima Beevi, opined that 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." A two-Judge Bench of the Hon'ble Supreme Court in Kirtikant D. Vadodaria v. 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." CRM-29972-2022 in/and 5
9. Another objective the legislature has sought to achieve by this provision is to provide interim maintenance pendente lite to the applicant spouse during proceedings emerging out of matrimonial disputes so that the she/he can maintain herself/himself, have sufficient funds to pursue the litigation, and not suffer at the instance of the affluent spouse.
10. There 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 interim maintenance which is just and fair in terms of principle of equistatus. The quantum of interim maintenance must be justifiable and realistic to provide succour to the dependent spouse and also to avoid occurrence of the two extremes of the interim maintenance being either paltry or extravagant, ensuring that neither of the two is reduced to a life of penury. The adequacy of the interim maintenance allowance has to be determined by the yardstick of the dependent spouse being able to lead a life of reasonable comfort.
11. While dealing with the issue of maintenance in extenso, a two Judge bench of the Hon'ble Supreme Court in Rajnesh v. Neha and another
(2021) 2 SCC 324, laid down the criteria for determining quantum of maintenance and issued the following directions: VI Final Directions
130. In view of the foregoing discussion as contained in Part B - 1 to V of this judgment, we deem it appropriate to pass the CRM-29972-2022 in/and 6
following directions in exercise of our powers under Article 142 of the Constitution of India:
(a) Issue of overlapping jurisdiction
131. To 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
132. The 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 CRM-29972-2022 in/and 7
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
133. For 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.
134. The 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
135. We 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
136. For 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." CRM-29972-2022 in/and 8
12. In view of the above, present petition is disposed of with a direction to learned Principal Judge, Family Court, Yamuna Nagar at Jagadhri to consider the case of petitioner Nos.1 and 4 in the light of the judgment passed by our Hon'ble High Court in Mukesh Kumar (supra), and pass the final order in accordance with the said judgment.
13. Nothing observed hereinabove shall be construed to be an expression of opinion by this Court lest it may prejudice the trial. The learned Court below is directed to proceed with the trial on its own merits, strictly in accordance with law.
14. Pending miscellaneous application(s), if any, also stand(s) disposed of.
(HARPREET SINGH BRAR) September 12, 2024 JUDGE manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
Case details
Parties and counsel
214 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-29972-2022 in/and Date of decision: 12.09.2024 RAJ DULARI AND OTHERS ...PETITIONERS V/S BHAGWAT DAYAL ...RESPONDENT CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Kamal Singh, Advocate for the petitioners. 0000
Source: High Court of Punjab and Haryana, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.