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2015 DIGILAW 1446 (JHR)

Awinash Kumar v. Garima Kumari

2015-11-21

AMITAV K.GUPTA

body2015
Order : This criminal revision has been directed against the order dated 23.07.2015, passed by the learned Principal Judge, Family Court, Deoghar, in Criminal Misc. Case no. 35 of 2012 whereby the petitioner/husband was directed to pay maintenance @ 10, 000/- per month to the opposite party/wife and had given the liberty to the petitioner to pay the arrear amount of maintenance allowance in one installment or to pay Rs. 5000/- per month along with the ordered maintenance amount. 2. The main thrust of the argument of the learned counsel for the petitioner while assailing the impugned order is that the learned Family Judge, has failed to appreciate the fact that the petitioner had purchased a flat at Gaziabad, Delhi, in the joint name of the petitioner and opposite party at Rs. 31,75,000/- in the year 2008, and he is still paying a sum of Rs. 30,000/- per month, as EMI to the bank, for repayment of the loan amount of Rs. 27,00,000/- sanctioned by HDFC bank. It is submitted that if the EMI of Rs 30,000/- is split into two equal parts, then the opposite party is also responsible for paying half of the amount i.e. Rs. 15,000/- per month, as part of the EMI. If that is added to the maintenance allowance of Rs. 10,000/- as ordered by the court then the gross maintenance allowance to be paid by the petitioner amounts to Rs. 25,000/- which is excessive and exorbitant, considering the fact that the petitioner has to provide for the maintenance of his family as he has remarried after the divorce granted by the Family Court, Pune, as per Annexure-1. Learned counsel has argued that the learned Family Judge should have considered this aspect of the matter that at present the petitioner has to bear the expenses to maintain his present wife and child. Admittedly, the petitioner has paid Rs. 4,00,000/- to the O.P. for the purpose of registration of the flat and for purchasing other household articles. It is argued that the petitioner has never shirked from his responsibility from providing the maintenance. However, the aforesaid ordered amount is exorbitant and it should be reduced to Rs.5,000/- per month taking into account the above facts. It is submitted that since the impugned order has been passed without appreciating the material facts hence it is fit to be set aside. 3. However, the aforesaid ordered amount is exorbitant and it should be reduced to Rs.5,000/- per month taking into account the above facts. It is submitted that since the impugned order has been passed without appreciating the material facts hence it is fit to be set aside. 3. Learned counsel appearing on behalf of the opposite party has submitted that the learned Family Judge, has appreciated all the aspects of the argument advanced by the learned counsel for the petitioner which has been discussed in paragraph no. 12 of the impugned judgment. It is contended that it would be evident that the petitioner had obtained ex-parte divorce at Pune and the opposite party on getting knowledge of the divorce of ex-parte decree, she filed a restoration petition for setting aside the ex-parte decree of divorce. It is urged that filing of the divorce suit in the Family Court, Pune, is reflective of the unfair conduct of the petitioner as it would be evident that in the divorce suit filed in the Family court at Pune, the address of O.P. has been mentioned as Prativa Nivas, Deoghar, and there is no mention of lane or locality of Deoghar and at the same time in the address it is mentioned, presently residing with him at Pune, whereas in fact at that point of time the opposite party was ousted from her matrimonial home and was residing at Deoghar. Learned counsel has urged that the divorced wife is entitled to the maintenance in terms of Section 125 Cr.P.C., untill and unless she re-marries. It is argued that just because the flat has been registered in the name of the opposite party and the petitioner, this does not mean that the opposite party has sufficient means of income to maintain herself. It is submitted that the petitioner has claimed that he is not shirking from his responsibility to pay the maintenance but at the same time, he has not paid even a single farthing, as maintenance, since, 2012 to the opposite party. It is submitted that in fact, the court below adopted a lenient approach by awarding only Rs. 10,000/- per month as maintenance considering the fact that the petitioner is drawing a handsome salary of around Rs. 70,000/- per month, whereas the opposite party does not have any independent income and she is dependent on her parents. It is submitted that in fact, the court below adopted a lenient approach by awarding only Rs. 10,000/- per month as maintenance considering the fact that the petitioner is drawing a handsome salary of around Rs. 70,000/- per month, whereas the opposite party does not have any independent income and she is dependent on her parents. It is urged that the impugned order does not require any interference by this court. 4. Heard and perused the impugned order. It is evident that the learned Principal Judge, has considered the documentary evidence adduced by the petitioner namely, pay-slip, and the statement of the account of HDFC Housing Development Finance Corporation. It is not disputed that the petitioner is paying the EMI for the loan taken to purchase the flat in the joint name of the petitioner and opposite party. However, it is well settled that the provisions of Section 125 Cr.P.C. has been incorporated as a measure of social justice to ensure that the dependent wife, children or parents are to be provided maintenance by a person who is capable and has sufficient means of income to provide for the maintenance to the dependent. The dominant and primary object of Section 125 Cr.P.C., is to ensure that the dependents are not forced to live a life of starvation, destitution or beggary. Section 125 Cr.P.C. is not meant for punishing a person for the past neglect rather it is enacted to compel the person to fulfill moral and social obligation and to discharge his legal duty to provide for the maintenance of the dependent wife or children or parents who are unable to maintain themselves. Maintenance includes within its fold shelter, clothing, food and living with dignity. The wife is entitled to enjoy the comforts and status which she would have enjoyed while living with her husband as per his status. Admittedly, the petitioner was drawing a handsome salary of Rs. 70,000/- per month in 2012 and over the past years there has been escalation in the cost of living, due to inflation and rise of prices and there must have been corresponding increment in the salary of the petitioner. The opposite party has to travel to and fro, to pursue the case filed by the petitioner at Pune. She is entitled to live the life of dignity and status which she could have been enjoying while residing with the petitioner. The opposite party has to travel to and fro, to pursue the case filed by the petitioner at Pune. She is entitled to live the life of dignity and status which she could have been enjoying while residing with the petitioner. Therefore, in the facts and circumstances, the impugned order does not suffer from any illegality or impropriety meriting any interference by this court. 5. In the result the revision is hereby dismissed. 6. The petitioner is directed to pay the maintenance amount and arrears of the maintenance in terms of the order passed by the learned Principal Judge, Family Court, Deoghar, in Criminal Misc. Case no. 35 of 2012, within three months from the date of this order.