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2018 DIGILAW 285 (JHR)

Prasoon Kumar v. Chetna Kumar

2018-02-02

RAJESH SHANKAR

body2018
JUDGMENT : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 10.07.2017 passed by the learned Additional Principal Judge, Additional Family Court, Ranchi in Original Maintenance Case No. 89/2015 (Annexure-5 to the writ petition) whereby, the petitioner has been directed to pay Rs. 15,000/- per month as interim maintenance under Section 125 of the Cr.P.C. to the respondent from the date of filing of the application. Learned counsel for the petitioner submits that the marriage between the petitioner (husband) and the respondent (wife) was solemnized on 27.06.1985 at Patna. Out of the said wedlock, the first daughter was born on 31.05.1986. In the month of September, 1987, the respondent compelled the petitioner to leave his parents' house and to shift to another house. Thereafter, the second daughter was born on 18.10.1991 at Saudi Arabia. In the month of January, 1997, the petitioner retuned back to India from Saudi Arabia. Since the petitioner was literally deserted by the respondent, he filed a divorce petition being Matrimonial Case No. 953/2015 in the Court of the Principal Judge, Family Court, Patna which was subsequently transferred to the Court of the Principal Judge, Family Court, Ranchi and numbered as Matrimonial Case No. 198/2017 which his still pending. In the meantime, the respondent filed a petition under Section 125 of the Cr.P.C. on 29.04.2015 in the Court of the Principal Judge, Family Court, Ranchi for grant of maintenance, which was registered as Original Maintenance Case No. 89/2015. The learned Additional Principal Judge, Additional Family Court, Ranchi vide the impugned order dated 10.07.2017, directed the petitioner to pay Rs. 15,000/- per month as interim maintenance to the respondent from the date of filing of the application. It is further submitted that though the petitioner is a doctor by profession, yet he is having limited private practice and has also to look after his ailing old father. Further, he has the burden of outstanding loan of Rs. 46 Lacs taken for the marriage of the elder daughter and education of the younger one. The petitioner hardly earns Rs. 17,000/- per month whereas, the respondent herself is a teacher and earns Rs. 30,000/- per month. The income tax returns filed by the petitioner would sufficiently indicate that he is not in a position to pay the interim maintenance of Rs. 15,000/-, as directed by the learned Additional Family Court, Ranchi. The petitioner hardly earns Rs. 17,000/- per month whereas, the respondent herself is a teacher and earns Rs. 30,000/- per month. The income tax returns filed by the petitioner would sufficiently indicate that he is not in a position to pay the interim maintenance of Rs. 15,000/-, as directed by the learned Additional Family Court, Ranchi. The said amount is exorbitant and has been assessed by the learned Additional Family Court, Ranchi without making any factual determination. 2. Per-contra, learned counsel for the respondent submits that the interim maintenance of Rs. 15,000/- per month assessed by the learned Additional Family Court, Ranchi is justified and the same needs no interference by this Court. Though the respondent belongs to a decent family and is well educated, yet she was subjected to immense physical and mental torture at the hands of the petitioner. However, anticipating that the relationship would improve and her matrimonial life would attain normalcy, she maintained silence for a long period in the interest of her children. The petitioner is a doctor by profession and he has handsome income. Initially for some time, the respondent had worked as the Head Mistress in Cambrian Public school, Ranchi, but due to her ill health, she could not continue with the said job and presently she has no independent source of income. The petitioner and the respondent are living separately. Earlier, the petitioner used to maintain the respondent and also incurred the expenses for pursuing her MB A course, but subsequently he stopped taking care and presently she has no means of livelihood. She lives in rental premise son monthly rental of Rs. 6,720/- per month. 3. Having heard learned counsel for the parties and on going through the relevant documents place don record including the impugned order dated 10.07.2017, it appears that after due consideration of the submissions made on behalf of the parties, the learned Additional Family Court, Ranchi reached a conclusion that the respondent is presently living separately from the petitioner at Ranchi and is facing financial hardships to maintain herself. The learned Additional Family Court, Ranchi has also taken into consideration that the petitioner could not substantiate his contention by producing any such document that the respondent has her own earning, rather he has admitted that he is a doctor by profession, though he gets less time for private practice. The learned Additional Family Court, Ranchi has also taken into consideration that the petitioner could not substantiate his contention by producing any such document that the respondent has her own earning, rather he has admitted that he is a doctor by profession, though he gets less time for private practice. Accordingly, the learned Additional Family Court, Ranchi vide the impugned order dated 10.07.2017, directed the petitioner to pay Rs. 15,000/- per month as interim maintenance to the respondent from the date of filing of the application. The case is presently pending for evidence. In my considered view, the interim maintenance of Rs. 15,000/- per month assessed by the learned Additional Family Court, Ranchi does not appear to be exorbitant or unjustified. Since the matter is at the stage of evidence, the final order under Section 125 of the Cr.P.C. will be passed after considering the evidences adduced by the parties. 4. The Hon'ble Supreme Court in the case of Savitri v. Govind Singh Rawat, (1985) 4 SCC 337 , has held that it is quite common that applications made under Section 125 of the Cr.P.C. also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. 5. The Hon'ble Supreme Court in the case of Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 has held as under: "14. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs. 17,654. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2000. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs. 2000 per month. It has come on record that the husband was getting a monthly salary of Rs. 17,654. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs. 2000. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs. 2000 per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed, to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right. 15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun has held as follows: (SCC p. 12, para 8) "8. ... The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate." 16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, it has been ruled that: (SCC p. 320, para 6) "6. ... Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It 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. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat." 17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 18. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat." 17. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash wherein it has been opined thus 7. ... an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him. 19. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance." 6. Thus, it is a settled law that the financial constraint of the husband is no ground to avoid payment of maintenance to the wife. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance." 6. Thus, it is a settled law that the financial constraint of the husband is no ground to avoid payment of maintenance to the wife. If the wife is staying away, she cannot be deprived of the basic needs and it is the solemn duty of the husband to provide such maintenance amount so that the wife can live in reasonable comfort considering the mode of life she had while staying with the husband. The basic concept of grant of maintenance/interim maintenance to the wife has been perceived as a means of social justice to the estranged wife. 7. In view of the aforesaid discussion, I see no reason to interfere with the impugned order dated 10.07.2017 passed by the learned Additional Principal Judge, Family Court, Ranchi in Original Maintenance Case No. 89/2015. 8. The present writ petition being devoid of merit is, accordingly, dismissed. However, it is made clear that the observation made hereinabove shall not prejudice the case of the parties while passing the final order of maintenance by the learned Court below.