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2018 DIGILAW 359 (JHR)

Ajay Kumar Nayak v. Padma Devi

2018-02-12

RAJESH SHANKAR

body2018
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 6th February, 2016 passed by the learned Principal Judge, Family Court, Bokaro, Camp Court, Bermo at Tenughat in Original Maintenance Case No. 94 of 2015 (Annexure-4 to the writ petition), whereby the learned court below has passed the order of interim maintenance of Rs. 1,000/- each to the respondents, in total Rs. 3,000/- per month, with effect from the date of the order. Learned counsel for the petitioner submits that the learned Principal Judge, Family Court, Bokaro has committed serious error in directing the petitioner to pay interim maintenance of Rs. 1,000/- each to the respondents, in total Rs. 3,000/- per month, without ascertaining the real income of the petitioner and, thus, the same is not tenable in law. It is further submitted that the respondent No. 1 (wife of the petitioner) has lodged a criminal case against the petitioner, being Mahuatand P.S. Case No. 18 of 2013, under Sections 498A, 323, 506 and 34 of the Indian Penal Code and Sections 3/4 of Dowry Prohibition Act. During the period the petitioner was in judicial custody in connection with the aforesaid criminal case, he executed a power of attorney in favour of respondent No. 1 for running the firm, namely, M/s. Sandhya Enterprises. The respondent No. 1-Padma Devi @ Gudia is a teacher, having income of Rs. 30,000/- per month, whereas the petitioner, at present, has no source of income, as he is sitting idle. Under the aforesaid circumstance, the impugned order passed by the learned Principal Judge, Family Court, directing the petitioner to pay interim maintenance to the respondent No. 1 (wife of the petitioner) as well as respondent Nos. 2 and 3 (sons of the petitioner), amounting to Rs. 1,000/- each, in total Rs. 3,000/- per month, is wholly illegal. 2. Under the aforesaid circumstance, the impugned order passed by the learned Principal Judge, Family Court, directing the petitioner to pay interim maintenance to the respondent No. 1 (wife of the petitioner) as well as respondent Nos. 2 and 3 (sons of the petitioner), amounting to Rs. 1,000/- each, in total Rs. 3,000/- per month, is wholly illegal. 2. Having learned counsel for the petitioner and on going through the contents of the writ petition and the impugned order dated 6th February, 2016 passed by the learned Principal Judge, Family Court, Bokaro, it appears that the learned court below, while granting interim maintenance to the respondents, has appreciated the fact that though the petitioner pleaded in his reply that the respondent No. 1 is a teacher in a English medium school at Village-Khetko and she is also engaged in a morning school, namely, Rajendra High School, Jarangdih, P.S.-Bokaro Thermal, District-Bokaro, yet he has not produced any document in support of the said averment. It has further been held by the learned Principal Judge, Family Court that the petitioner has accepted in his show cause reply that he is owner of M/s. Sandhya Enterprises at Lalpania and is also a contractor having monthly income of more than Rs. 50,000/-. Learned Principal Judge, Family Court has further held that the final order of maintenance under Section 125 Cr.P.C. is yet to be passed and, thus, it was thought proper to direct the petitioner for making payment of interim maintenance of Rs. 1,000/- each to the respondents being wife and sons of the petitioner, respectively. 3. The Hon'ble Supreme Court in the case of Savitri vs. Govind Singh Rawat, repotted in (1985) 4 SCC 337 , in Paragraph No. 6, has held as under:-- "6............It is quite common that applications made under Section 125 of the Code 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......." 4. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective......." 4. The Hon'ble Supreme Court further in the case of Shamina Farooqui vs. Shahid Khan, reported in (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. 2,000. 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. 2,000 per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC 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 CrPC, 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 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC 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 CrPC, unless disqualified, is an absolute right. 15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal vs. 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 vs. 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 vs. 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. Ramesh Chander Kaushal vs. 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 vs. 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 vs. Shila Rani Chander Prakash wherein it has been opined thus: (SCC Online Del para 7) 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. 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." 5. Thus, it is a settled law that the financial constraint of the husband is no ground to avoid payment of maintenance to the wife and children. If the wife and children are staying away, they cannot be deprived of their basic need and it is the solemn duty of a man to at least provide means of subsistence to them. The basic concept of grant of maintenance/interim maintenance to the wife and children has been perceived as a measure of social justice to the estranged wife and children. 6. Under the aforesaid facts and circumstances of the case, I see no reason to interfere with the order dated 6th February, 2016 passed by the learned Principal Judge, Family Court, Bokaro, Camp Court, Bermo at Tenughat in Original Maintenance Case No. 94 of 2015 (Annexure-4 to the writ petition). Moreover, an order for grant of final maintenance under Section 125 Cr.P.C. is yet to be passed by the learned Principal Judge, Family Court after considering the evidences' led by the parties. This writ petition being devoid of any 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.