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2019 DIGILAW 451 (UTT)

Neha Sahni v. State of Uttarakhand

2019-08-18

SHARAD KUMAR SHARMA

body2019
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. These Revisions arise out of a common judgment dated 26th March, 2019, as rendered by the Family Court, Vikas Nagar, Dehradun in Misc. Criminal Case No. 157 of 2017, Smt. Neha Sahni and others Vs. Shri Tarun Sahni. By virtue of the impugned judgment under challenge, there are two Revisions preferred before this Court. The first one being Criminal Revision No. 210 of 2019, Smt. Neha Sahani and others Vs. State of Uttarakhand and another, it is with the relief for enhancement of the maintenance as granted by the Family Court, Vikas Nagar. On the other hand, the connected Revision No. 281 of 2019, has been filed by Mr. Tarun Sahani, it is yet against the same judgment dated 26.03.2019, wherein, he has challenged the very propriety of the grant of maintenance by the Family Court, while exercising its powers under Section 125 of Cr.P.C. by the impugned judgment dated 26th March, 2019. 2. Since in both the Revisions, the judgment under scrutiny before the revisional court happens to be the same, hence, this common judgment is being rendered in both the revisions. 3. When the proceedings were initiated against the judgment dated 26.03.2019, by virtue of the present Revisions, the Court in order to make an attempt for mediation tried to settle their dispute amicably because the basic interest and the care which the Court has to take was in relation to the two minor children, who are the two daughters and who are residing with the mother. Taking that fact into consideration, the parties were called upon to appear in person on 18th August, 2019 (Sunday) by virtue of the order dated 29th July, 2019. The parties and their counsel consented for the date, consequently, they are present in person. They have been duly identified by their respective counsel, who too, are present. 4. After a prolonged interaction with the parties and making efforts to make the husband understand that he owes a responsibility towards the daughters, but on account of certain physical discrepancies, which he contends that he is suffering from, he contends that on the basis of the will, which was executed by his late father Mr. 4. After a prolonged interaction with the parties and making efforts to make the husband understand that he owes a responsibility towards the daughters, but on account of certain physical discrepancies, which he contends that he is suffering from, he contends that on the basis of the will, which was executed by his late father Mr. Bal Krishna Sahani, most of the rights in relation to the business and the assets belonging to him has been vested and kept under the management and control of his younger brother and he has got no independent source of earning and on account of the physical disability, which he contends, he is suffering from, he is unable to profitably engage himself and thus, he is not in a position to bear with the maintenance, which has been awarded by the Family Court by the impugned judgment dated 26th March, 2019, impugned in the revision. 5. What is important to be considered over here is that the fact of relationship of husband and wife, the fact of revisionist No. 2 and 3, being the daughters of respondent No. 2 is not denied by the parties to the proceedings. There have been several allegations and counter allegation, against one another, but those are not of much concern and bearing as far as deciding of this present Revision is concerned. 6. It is an admitted fact by respondent/husband that the respondent No. 2 is engaged in a business along with his brother in a partnership firm called as M/s Khandchand Attarchand Ardhati Businesses, which is run and managed by the partnership firm, in which respondent No. 2 is a partner, holding 50% of interest in the aforesaid partnership firm. It is also the case of the revisionist of Revision No. 210 of 2019, Smt. Neha Sahni and others Vs. State of Uttarakhand and another that apart from the income accruing to respondent No. 2 from the business in terms of the will, which was executed by late Mr. Bal Krishna Sahni in favour of the two sons, there are certain considerable assets, which were devolved upon respondent No. 2 and he owns the immovable property in his name. State of Uttarakhand and another that apart from the income accruing to respondent No. 2 from the business in terms of the will, which was executed by late Mr. Bal Krishna Sahni in favour of the two sons, there are certain considerable assets, which were devolved upon respondent No. 2 and he owns the immovable property in his name. Whereas on the other hand, it is the case of the respondent No. 2 that whatsoever benefit had accrued to him in the assets of late father in pursuance to the will of late Bal Krishna Sahni, the respondent No. 2 contends that he has purchased a plot, which is valued approximately 30 lacs, this property was purchased in a joint name of the revisionist No. 1 and respondent No. 2 and the title deed of the said property still stands to be in the custody of revisionist No. 1. 7. It is yet again an admitted fact, which has been admitted by the parties to the proceedings, it is to the effect that the revisionist still continues to reside with the two daughters in the same premises of her matrimonial home and she is occupying a room and a common room for all family members. 8. On account of the fact that the respondent No. 2 has not agreed to settle the score by unanimously settling the claim with his family members, i.e. revisionists, herein, this Court has got no option except to decide the Revisions on its own merit. 9. As per the records, which has been placed before this Court, the theory of respondent No. 2 to the effect that he is not having any source of earning, this cannot be accepted by this Court for the reasons that the fact of having devolved upon the assets in pursuance to the will of the late father of respondent No. 2 is a fact which is not denied by the respondent No. 2. Even as per the evidence, which was placed on record before the Family Court, Vikas Nagar, it has been shown by respondent No. 2, that he is having his independent income accruing to him and he has been assessed for the income tax and for the assessment year 2018, his income was projected to be Rs. Even as per the evidence, which was placed on record before the Family Court, Vikas Nagar, it has been shown by respondent No. 2, that he is having his independent income accruing to him and he has been assessed for the income tax and for the assessment year 2018, his income was projected to be Rs. 4,19,005/- and thus on its simple computation, monthly income which would be determined to be accruing to respondent No. 2 would be approximately of about Rs. 32,000/- per month. 10. This Court cannot be oblivious of the fact that the children at the time when the Revision was filed were about 17 and 12 years of age respectively. They are growing up children and obviously in their studies and other daily necessity which is to be met with by the revisionist No. 1, she has had to have some financial assistance from the respondent No. 2, so that they may spent a life with the same statue, as that of the husband, which otherwise, they were liable to enjoy had the matrimony between them subsisted under the normal conditions. 11. The determination of the maintenance under Section 125 of the Cr.P.C. it has to be determined keeping in mind that it should be proportionately calculated in a fashion that the maintenance should be in consonance to the status or the standard of living, which otherwise the revisionist and the daughters would have enjoyed, if there was no matrimonial dispute. As far as the determination, which has been made by the Family Court by directing to pay the maintenance @ 6,000/- p.m. to the wife revisionist No. 1 and Rs.4,000/- each to the two daughter, i.e. total amount of Rs.14,000/- has been determined as a maintenance payable to revisionist No. 1 by the respondent. 12. This determination of maintenance, this Court is of the view that as per the statement, even which has been recorded by respondent No. 2 before this Court, he himself has admitted with regard to the devolvement of assets and with regard to the assessment of the income tax, which has been submitted to the Income Tax Department by him. 12. This determination of maintenance, this Court is of the view that as per the statement, even which has been recorded by respondent No. 2 before this Court, he himself has admitted with regard to the devolvement of assets and with regard to the assessment of the income tax, which has been submitted to the Income Tax Department by him. Income in a business, which he himself has admitted to be a very viable business, which the brothers are discharging by way of partnership firm, the income accruing to respondent No. 2, the husband of 2018, would be presumed to be always be having an increasing trend and simultaneously, even the expenditure of revisionist No. 2 and 3 would be also ever increasing as gradually the children grew up and they engage themselves in pursuing the higher studies. Though Legislature has itself protected the modalities to be adopted for re-determination of the maintenance under the changed circumstances with which this Court at this stage is not dealing with because it would always be the prerogative of the revisionist No. 1 to do so as per modalities as permissible under law for re-determination of the maintenance, which has been awarded by the Family Court in the proceedings under Section 125 of the Cr.P.C. or in the revision, which is being decided today in continuity to initial proceedings under Section 125 of Cr.P.C.. 13. This Court is of the view that as far as Revision No. 210 of 2019, Smt. Neha Sahni and others Vs. State of Uttarakhand and another is concerned, considering the income of husband respondent No. 2,, which has already been discussed above, this Court is of the view that with the passage of time since the filing of the initial application under Section 125 of the Cr.P.C., sufficient water has flown and quite obviously, the expenditure towards the family must have increased and there must have been a simultaneous growth in the income trend of respondent No. 2, which is a factor required to considered in the Revision of wife seeking an enhancement of maintenance. 14. 14. In such a circumstances, this Court taking into consideration the income, which is being accrued to the respondent No. 2, this Court considers that the maintenance as payable in pursuance to the impugned order dated 26th March, 2019, deserves to be enhanced and the same is accordingly enhanced to Rs.8,000/- as far as revisionist No. 1 is concerned and Rs.5,000/- each to revisionist Nos. 2 and 3, i.e. a total amount of enhanced amount of Rs.18,000/- is directed to be paid as maintenance by respondent No. 2 to the revisionist, it is directed that respondent No. 2 will ensure its assured remittance by 10th of each month. 15. Accordingly, the Revision No. 210 of 2019, Smt. Neha Sahni and others Vs. State of Uttarakhand and another partly succeeds. The amount of maintenance is enhanced as directed above. 16. The respondent No. 2 would ensure the payment of the aforesaid amount as determined by this Court by 10th of each month. 17. As far as Revision No. 281 of 2019, Tarun Sahani Vs. State of Uttarakhand and others is concerned, which has been preferred by the husband challenging the impugned order dated 26th March, 2019, for the purposes of declining to grant the interim maintenance under Section 125 of the Cr.P.C., the same is dismissed because there is no material, which has been brought by the revisionist to show that the opposite party of Revision No. 281 of 2019, Tarun Sahani Vs. State of Uttarakhand and others had got any independent source of earning and once the relationship of husband and wife and the relationship of being the father of the opposite party Nos. 3 and 4 of Revision No. 281 of 2019, Tarun Sahani Vs. State of Uttarakhand others is admitted. The revisionist of Revision No. 281 of 2019, Tarun Sahani Vs. State of Uttarakhand otherwise also owes a social responsibility to maintain them and hence, the enhancement, which has been made in Revision No. 210 of 2019, Neha Sahni and others Vs. State of Uttarakhand and another, with regard to the maintenance payable by the husband/respondent No. 2 in Revision No. 210 of 2019, Neha Sahni and others Vs. State of Uttarakhand and another is directed to make the aforesaid payment at the enhanced rate from today. 18. State of Uttarakhand and another, with regard to the maintenance payable by the husband/respondent No. 2 in Revision No. 210 of 2019, Neha Sahni and others Vs. State of Uttarakhand and another is directed to make the aforesaid payment at the enhanced rate from today. 18. In the proceedings before the Court below in order to deny the claim raised by the revisionist of Revision No. 210 of 2019, Neha Sahni and others Vs. State of Uttarakhand and another, the respondent No. 2 has come out with the case that the amount of determination of maintenance by the Family Court is too excessive from the view point that it is he who is bearing the expenditure of education of revisionist Nos. 2 and 3 of Revision No. 210 of 2019, Neha Sahni and others Vs. State of Uttarakhand and another even as of now. The re-determination of maintenance as has been done by this Court by today's judgment will not be inferred by respondent No. 2 that it will have any bearing as far as his stand is concerned towards meeting the liability of education of revisionist Nos. 2 and 3 or the entitlement of the revisionist to reside in the accommodation, in which, she is residing with two daughters, said right of residence is preserved with the revisionist of Revision No. 210 of 2019. 19. Subject to the above directions, the Revision stands closed.