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2015 DIGILAW 1209 (PNJ)

Ashish Bhateja v. Priyanka

2015-07-06

PARAMJEET SINGH

body2015
Paramjeet Singh, J. 1. Instant petition has been filed under Section 482 of the code of Criminal Procedure (in short, 'the Code') assailing the order dated 21.01.2015 (Annexure P-5) passed by the Chief Judicial Magistrate, Fazilka whereby respondent-wife has been awarded interim maintenance @ Rs.6,000/- per month from the date of filing the application and the order dated 06.06.2015 passed by the Additional Sessions Judge, Fazilka whereby revision filed by the petitioner-husband against the order dated 21.01.2015 has been dismissed. 2. Brief facts relevant for disposal of the present petition are to the effect that parties fell in love and marriage between them was solemnized on 16.01.2013 by way of Anand Karj at Ram Palace, Fazilka. The relations between the parties became strained as a result of which the respondent herein i.e. wife filed petition under Section 125 of the Code claiming maintenance from the petitioner-husband with the averments that he has neglected to maintain her and treated her with cruelty and she was turned out of the matrimonial home by the petitioner-husband in the end of May 2013. Along with the petition under Section 125 of the Code, the respondent herein filed an application seeking interim maintenance from the petitioner-husband. Vide impugned order dated 21.01.2015, the Chief Judicial Magistrate, Fazilka allowed the application for interim maintenance and awarded Rs.6,000/- per month to the respondent-wife from the date of filing the application. Feeling aggrieved, the petitioner-husband filed revision which was dismissed by the Additional Sessions Judge, Fazilka, vide impugned order dated 06.06.2015. Hence, this petition. 3. I have heard learned counsel for the petitioner and perused the record. 4. Learned counsel for the petitioner vehemently contended that no dowry article was given in the marriage as the same was outcome of love affair between the parties. He further contended that both the courts below have wrongly assessed the monthly income of the petitioner and also ignored the factum of resignation given by the petitioner-husband. He further contended that the respondent-wife is a qualified educated lady and cannot claim maintenance as she is having capacity to earn her living, therefore, she is not entitled for any maintenance. On the other hand, the petitioner is unemployed at present. No document showing the earning of petitioner-husband has been placed on record by the respondent. The impugned orders are illegal, null and void and liable to be set aside. On the other hand, the petitioner is unemployed at present. No document showing the earning of petitioner-husband has been placed on record by the respondent. The impugned orders are illegal, null and void and liable to be set aside. In support of his contentions, learned counsel relied upon Mamta vs. Rajesh 2001 (1) R.C.R. (Civil) 588 and Sanjay Bhardwaj and others vs. State & Another, 2010 (7) R.C.R (Criminal) 1287. 5. I have considered the contentions of learned counsel for the petitioner. 6. Both the courts below have considered the prima facie averments brought on record. It is admitted fact that the petitioner married the respondent. The concept of maintenance in India is covered under Section 125 of the Code as well as under personal laws. The maintenance includes entitlement to food, clothing and shelter to the wife, children and parents. This is provided as a measure of social justice and natural duty of a husband to maintain his wife and children when they are unable to maintain themselves. The object behind this provision is to prevent vagrancy by compelling the husband to pay maintenance to the wife and children who are unable to support themselves. Although, there is no specific provision in the Code with regard to interim maintenance, however, the Hon'ble Apex Court and various High Courts in catena of judgments have held that since finalization of maintenance petition takes time, interim maintenance can be awarded by the Court as an interim measure. 7. In Gaurav Sondhi v. Diya Sondhi, 120 (2005) DLT 426, the Hon'ble Delhi High Court has laid down the following guidelines while granting interim maintenance: "4. The matrimonial courts should follow the following procedure while granting interim maintenance: (i) Whenever maintenance/interim maintenance is ordered, the Court will direct that it will be paid on or before 10th day of every month unless the Court finds that the nature of the employment of the husband and his manner of income makes such monthly payments impractical. In such a situation appropriate orders may be passed which shall take into account the circumstances of the husband which warrant departure from the time bound monthly payment directions contained in this order. (ii) Whenever the wife has a bank account and indicates it, such payment may directly be deposited in such bank account every month before the 10th day of the month. (ii) Whenever the wife has a bank account and indicates it, such payment may directly be deposited in such bank account every month before the 10th day of the month. (iii) The payment shall be made to the wife/child and in case of any difficulty in receiving or tendering the payment, it should be made through counsel. The order of deposit in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court's registry. If for good reasons upon finding difficulty in payment to a wife and her Counsel the deposits in Court are made such deposits should be in the name of the wife by a draft/crossed cheques, which may be retained on the court file for retrieval by the wife without the time consuming process of deposit in the Court account and subsequent withdrawal by the recipient. (iv) In case there is first default for payment of maintenance, the Court may condone it. However, in case of second default without justification, it will be open to the Court to impose a penalty up to 25% of the amount of monthly maintenance awarded. (v) In case there is third or fourth default, the penalty may go up to 50% of the monthly amount of maintenance upon the court finding that the default was not condonable or contumacious in nature. (vi) The Court must ensure that the orders of maintenance are not a mere rhetoric and are meaningful and effective and give real sustenance and support to the destitute wife and/or the child. (vii) In case interim maintenance is being paid and adequate litigation expenses have been awarded to the wife, it should be ensured that the written statement/reply is filed within a reasonable time. (viii) However, in judging the nature of default the relative affluence of the husband and the regular nature of his occupation and income will be taken into account. Obviously husbands having irregular employment and/or daily wages or those having casual employment would be entitled to have their defaults viewed more liberally." 8. In Rajeev Preenja vs. Sarika and others, 159 (2009) DLT 616, the Hon'ble Delhi High Court has held as under: "19. Obviously husbands having irregular employment and/or daily wages or those having casual employment would be entitled to have their defaults viewed more liberally." 8. In Rajeev Preenja vs. Sarika and others, 159 (2009) DLT 616, the Hon'ble Delhi High Court has held as under: "19. Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it." 9. Both the courts below have rightly held that pleas of the petitioner-husband that no dowry article was given in the marriage, the petitioner-husband has no source of income and the respondent-wife is a qualified lady and having capacity to earn, are not helpful to the petitioner at this stage because at present only the question regarding the grant of interim maintenance has to be decided and such pleas are to be established during evidence only. The resignation of the petitioner from service is to be proved during evidence. Even if the petitioner has resigned from service, the said act is prima facie only a voluntarily act which may be aimed at getting a better job or for prosperous future. The pay slip of the petitioner prima facie shows that his monthly salary was around Rs.11,000/- or Rs.12,000/- per month. The petitioner has also not shown any other liability or the dependency of any person on his income. Moreover, it is the bounden duty of the petitioner-husband, who is an able-bodied man, capable of earning and has sufficient means, to maintain his wife and children. 10. Once the respondent-wife has made a specific averment with regard to capacity of the petitioner, then onus shifts upon the petitioner-husband to prove that he does not have sufficient means to provide maintenance. The petitioner has not rebutted the averments and this is a case of bare denial. 10. Once the respondent-wife has made a specific averment with regard to capacity of the petitioner, then onus shifts upon the petitioner-husband to prove that he does not have sufficient means to provide maintenance. The petitioner has not rebutted the averments and this is a case of bare denial. The contention of learned counsel for the petitioner is that respondent-wife is able to maintain herself and she is not entitled to maintenance. It is only if wife is unable to maintain herself, then maintenance can be provided. The said contention is not sustainable, as an estranged wife cannot be reduced to destitute before deciding a main petition seeking maintenance for herself. As an interim measure, interim maintenance has been awarded and if the Court comes to the finding that income of the petitioner-husband was lesser, the same can be adjusted towards final maintenance that may be awarded. There is no evidence on record that the respondent-wife has any independent source of income. The case law cited by learned counsel for the petitioner are not applicable to the facts and circumstances of the case. 11. In any event, I am of the opinion that the impugned order dated 21.01.2015 passed by the Chief Judicial Magistrate, Fazilka and the order dated 06.06.2015 passed by the Additional Sessions Judge, Fazilka are neither in excess of jurisdiction nor do the same suffer from any material irregularity. Consequently, the impugned orders do not call for any interference in this petition though filed under Section 482 of the Code but virtually it is second revision. Resultantly, the petition is dismissed.