Vikas Dhuper v. Hena Dhuper and Ors

HARPREET SINGH BRAR, J. (ORAL)

¶1The present revision petition has been preferred against the impugned order dated 16.04.2014 passed by learned District Judge, Family Court, Gurgaon, vide which the petition filed under Section 125 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') was allowed and maintenance of Rs.10,000/- per month each was awarded to be paid to the

¶2The marriage between the petitioner and respondent No.1 was solemnized on 12.11.2002 according to Hindu rites and rituals. Out of this wedlock, two children i.e. respondents No.2 & 3 were born. However, matrimonial dispute ensued between the couple and the respondents filed a petition under Section 125 Cr.P.C. seeking maintenance. The petitioner filed a reply and contested the claim made by the respondents. Learned Family Court, vide order dated 16.04.2014, granted maintenance allowance of Rs.10,000/- per month each in favour of the respondents. Aggrieved by the same, the petitioner has approached this Court by filing the present petition.

¶3Learned counsel for the petitioner, inter alia, contends that the amount of maintenance awarded in favour of the respondents by learned Family Court is on higher side, which is not in consonance with actual income of the petitioner, as he is working with Indraprastha Automobile Pvt. Ltd., New Delhi and is drawing the salary of Rs.24,750/- per month and he is not in a position to pay such a huge amount. Respondent No.1 is an education lady and she is capable of earning livelihood for herself and her minor children. As such, he prays for setting aside the impugned order.

¶4Learned counsel for the respondents submits that respondent No.1 is having no source of income and she is taking care of her minor children. Therefore, learned Family Court, after correct appreciation of the material brought on record, has awarded the maintenance of Rs.10,000/- per month each in favour of the respondents.

¶5Having heard learned counsel for the parties and after perusing the record of the case with their able assistance, this Court finds no force in the arguments advanced by learned counsel for the petitioner.

¶6The 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.

¶7A 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."

¶8Further, 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."

¶9Another 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.

¶10There 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.

¶11While 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: "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."

¶12A perusal of the record indicates that the petitioner and his family are in the business of shares and stock broking and he is doing the said business with his brother. The salary slip Ex.R6, Mark R-1 to Mark-6 and the income tax return Ex.R7 had been prepared just to evade the tax and to misled the Court in order to avoid his responsibility to maintain the respondents. The petitioner is an able bodied person and it is his moral and legal duty to maintain his wife and children. Respondent No.1 is having no source of income and the respondents are living with parents of respondent No.1 and are fully dependent upon them for their food, clothing and shelter and also for education of respondents No.2 & 3. Further perusal of the impugned order passed by 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.

¶13All the pending miscellaneous application(s), if any, shall stand disposed of. [ HARPREET SINGH BRAR ]

07.08.2024 JUDGE

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR(F)-91-2014 (O&M) Reserved on: 06.08.2024 Pronounced on: 07.08.2024 Vikas Dhuper ... Petitioner Vs. Hena Dhuper and others ... Respondents CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Manish Soni, Advocate for the petitioner. Ms. Digantika Rao, Advocate for Mr. Aman Pal, Advocate for the respondents. *******