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Tripura High Court · body

2019 DIGILAW 48 (TRI)

Sheuli Begam, W/o Md. Kanu Miah v. Md. Kanu Miah S/o Md. Ahad Miah

2019-09-05

ARINDAM LODH

body2019
JUDGMENT : Heard Mr. Samarjit Bhattachajee, learned counsel appearing for the petitioners. Though, notice upon the respondent was properly served, he has not appeared before this Court today. Since the matter relates to determination of quantum of maintenance allowance, on the basis of the materials available in the records, I have proceeded to dispose of the case. 2. The brief facts are that, the petitioner-wife being tortured and deserted by her husband, namely, Md. Kanu Miah was compelled to take shelter at her parental house. Since the respondent-husband did not take any interest to take the petitioner-wife back to his house, she had filed petition claiming appropriate maintenance for herself and their only son commensurate to the living standard and income of the respondent. 3. Mr. Bhattacharjee, learned counsel has submitted that the petitioner-wife also had filed a case against her husband Md. Kanu Miah under Section 498A of the IPC. In the maintenance case, learned Family Judge had recorded evidence of the petitioner-wife and after perusal of the orders, learned Judge found that the statements of the witnesses deposing on behalf of the petitioner were consistent to each other. Despite reasonable opportunities being afforded, the husband-respondent did not adduce any evidence. 4. It is proved by way of documentary evidence that the husband-respondent is an under-graduate teacher and has been serving as a primary school teacher under the State-Government. The undisputed gross salary of the husband-respondent is Rs.46,175/- as on 31st November, 2018. Initially a sum of Rs.4,000/- was granted by the learned Family Judge as maintenance vide order dated 03.02.2016. Subsequently, another application was pressed before the learned Family Judge for enhancement of said maintenance allowance keeping in mind the income of the respondent. But, the learned Judge, Family Court only enhanced the said maintenance allowance only by Rs.1,000/- (Rupees one thousand) only which according to her is very meager compared to the income of the respondent. Hence, being aggrieved, she has filed the present criminal revision petition to award appropriate maintenance to enable herself and the son to lead a dignified life. 5. Mr. Bhattacharjee, learned counsel addressing this Court has submitted that the petitioner is the legally married wife of the respondent and that the petitioner indisputably has no source of income, other than the maintenance allowance and she along with her grown up son has been staying at a rented house. 5. Mr. Bhattacharjee, learned counsel addressing this Court has submitted that the petitioner is the legally married wife of the respondent and that the petitioner indisputably has no source of income, other than the maintenance allowance and she along with her grown up son has been staying at a rented house. The only son, namely, Riyaz Choudhury was born out of their wedlock has just attained the age of majority. The son is prosecuting his study in Automobile Engineering course in the Industrial Training Institute (in short, ITI), Tripura. It has become absurdly impossible to maintain themselves with the additional expenditure she needs to incur for the study of her son. Recently, the petitioner had to spend a sum of Rs.64,000/- and odds for her treatment and for that purpose she had to take loan which also she has to repay. It is further submitted that the respondent, apart from his income as a teacher, undertakes private tuition and possesses huge farming land where he cultivates paddy and seasonal crops and generates more income. 6. In the present petition, before this Court, it is the grievance of the petitioner that learned Family judge after hearing the parties only enhanced the amount by Rs.1,000/- and at present, the petitioners are getting maintenance allowance @ Rs.5,000/- per month. But the amount being meager in the present days and when his son is prosecuting his studies in engineering course, the petitioner-wife has to incur more expenditure and for this she prays for enhancement of the maintenance allowance. 7. In T. Vimala and ors. Vs. Ramakrishnan Crl.R.C. (MD) No.180 of 2014 decided on 24 June 2016, the learned Judge of the Madras High Court has held that every father is bound to provide good education to his children and such obligation to meet educational expenses of his children cannot be excluded from the components of maintenance. At paragraphs 16 to 18, the learned Single Judge has observed thus:- “16. Nowhere in Cr.P.C., what ‘maintenance’ means has been stated. What its contents has been, what its ‘components’ has been stated. But it does not mean that we cannot state, what it means. It is our duty to interpret the law. We (Court) cannot simply blame the law makers that they have poorly enacted, drafted the law. It must be interpreted in such a way that the purpose for which the law has been enacted. But it does not mean that we cannot state, what it means. It is our duty to interpret the law. We (Court) cannot simply blame the law makers that they have poorly enacted, drafted the law. It must be interpreted in such a way that the purpose for which the law has been enacted. Otherwise, it will be frustrated. 17. The learned Principal Session Judge, Dindigal preferred literal interpretation than purposeful interpretation. He read Section 125 Cr.P.C. couched in English language by referring to oxford English Dictionary, but he did not look into the heart off the matter. 18. The very purpose of Section 125 Cr.P.C. is also to protect the children from want of roof, food, clothing and necessities of life. Education is an important aspect in children’s life. Amounts need to be spent for it. Those expenses are educational expenses. Every father is bound to provide a good education to his children. No father is expected to produce a criminal or a disorderly person. Thus, he has to bear the educational expenses of his children. Children have to maintain their education by meeting the educational expenses. Even a man on the pavement will be dreaming of his children becoming a qualified person in life. Therefore, the obligation of a father to maintain, to meet the educational expenses of his children cannot excluded for the component of maintenance. Section 125 Cr.P.C is not only for food for life, it should also be for food for though. Otherwise, so far as the children are concerned, we will be doing violence to the very object of Section 125 Cr.P.C.” 8. In Chaturbhuj Vs. Sita Bai Manu/SC/8141/2007: (2008) 2 SCC 316 , the Hon’ble Supreme Court has held that the expression ‘ unable to maintain herself’ in Section 125 of Cr.P.C. is required to be interpreted in a realistic manner. In an illustrative case where the wife survived by begging, it would not amount to her ability to maintain herself. The Test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagawan Dutt v. Kamla Devi MANU/SC/0205/1974 : 1975(2) SCC 386 it was observed that the wife should be in a position to maintain a standard to living which is neither luxurious nor penurious but what is consistent with status of the family. In Bhagawan Dutt v. Kamla Devi MANU/SC/0205/1974 : 1975(2) SCC 386 it was observed that the wife should be in a position to maintain a standard to living which is neither luxurious nor penurious but what is consistent with status of the family. The expression ‘unable to maintain herself’ does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. 9. In Shamina Farooqui Vs. Shahid Khan MANU/SC/0380/2015 : (2015) 5 SCC 705 , the Hon’ble Supreme Court has held that inherent and fundamental principle behind Section 125 of Cr.P.C. is for the amelioration of the financial state of affairs as well as the 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. This principle of sustenance gets more heightened when the children are with her. Sustenance does not mean mere survival. A women who is constrained to leave matrimonial home, should not be allowed to feel that she has falled from grace and move hither and thither for arranging sustenance. As per law, she is entitled to lead a life in similar manner as she would have lived in the house of her husband. Maintenance under Section 125 of Cr.P.C. 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 begger. At Paragraph 19, the Hon’ble Supreme Court observed thus: “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 women 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 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 allowances”. 10. In Badshah Vs. Urmila Badshah Goshse and Anr. 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 allowances”. 10. In Badshah Vs. Urmila Badshah Goshse and Anr. MANU/SC/1084/2013 : (2014) 1 SCC 188 , the Hon’ble Supreme Court has commended purposive interpretation to the provisions of law which deal with maintenance. The purpose is to achieve ‘social justice’. In interpreting provisions relating to maintenance, the court is expected to bridge the gap between law and the society. Provisions relating to maintenance fall in category of legislation which is aimed at empowering the destitute and achieving the social justice, equality and dignity of the individual. In dealing with such cases there is necessity for drift from the ‘adversarial litigation’ to ‘social context adjudication’ which is the need of the hour. The Hon’ble Supreme Court has observed that law regulates relationship between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law to achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most case, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purpose of the law. 11. In Kulbhushan Kumar Vs. RajKumari reported in (1970) 3 SCC 129 , the Apex Court has held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. 11. In Kulbhushan Kumar Vs. RajKumari reported in (1970) 3 SCC 129 , the Apex Court has held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors. 12. In the case of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury NEE Nandy reported in (2017) 14 SCC 200 , the Apex Court was dealing with the case of maintenance and found that the net income of the husband was of Rs.95,000/- per month and following the case of Kulbhusan Kumar (Supra), the Supreme Court has awarded Rs.20,000/- per month as maintenance to the wife and son. 13. In the present case, the petitioner-wife has been leading her life in hardship along with her grown-up son who is studying automobile engineering in ITI. In my considered view, it is the paramount responsibility of the husband and as a father to look after his wife and children irrespective of the fact that they don’t share the same mess with him. Whether the wife and children stay with him or not, as a husband and a father, he is the custodian and sole bread-earner of the family. An obligation cast upon such husband to maintain and look after the upbringing of his son and assure his future in the spirit of our constitution that a person has a right to lead a dignified life. A father has the duty to facilitate all helps and attend all needs in the process of building his career. 14. That apart, as a husband he must have the responsibility to look after well-being of his wife unless and until she remarries being deserted by him. She deserves to lead a life in a dignified manner commensurate to the standard, her husband lives. 15. In the present, the petitioner was subjected to torture, forced by the respondent to stay separately along with the child who is now grown-up without any fault of them. They have been the victim of unconducive circumstances created by the respondent. She deserves to lead a life in a dignified manner commensurate to the standard, her husband lives. 15. In the present, the petitioner was subjected to torture, forced by the respondent to stay separately along with the child who is now grown-up without any fault of them. They have been the victim of unconducive circumstances created by the respondent. So, they have the right to lead a life in the same way they would have been lived in the house of the respondent. 16. I am further fortified by an observation of the Apex Court in Bhuwan Mohan Singh Vs. Meena and ors. reported in (2015) 6SCC 353, wherein the Apex Court dealing with the similar issue in paragraph 2, has held as under :- “2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an un person to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” 17. In the present case, I have seen the salary slip of the respondent wherein it is revealed that his net-salary after deduction is Rs. 30,817/- as on 31st November, 2018. It is also found that the respondent-husband has been contributing Rs. 15,000/- towards his GPF account and Rs. 150/- towards group insurance. Thus, Rs. 15,150/- is his savings and the learned counsel has submitted that at present the salary of the respondent-husband has been increased. 18. After conscious analysis of the aforesaid authorities of the Apex court, in my considered view, the petitioner along with her son are entitled in law to lead a life in the manner as they would have been lived in the house of the respondent. I have taken note of the net-salary of the respondent which is Rs.30,817/- and in my considered view, the maintenance allowance should not be less than Rs. 11,000/- per month for the maintenance of the wife-petitioner herself and considering the future career of her grown-up son. Thus, according to me, the enhancement of the maintenance allowance by Rs. 1,000/- only as held by the Judge, Family Court, West Tripura, Agartala is not acceptable in the context of the present case. 19. Consequently, I allow the petition in part declaring the entitlement of the petitioner-wife to get maintenance allowance to the tune of Rs. 11,000/- per month from the respondent-husband and direct the respondent-husband to pay the said maintenance allowance of Rs. 11,000/- per month to the wife-petitioner for maintenance herself and also for her grown-up son. I, further direct the DDO of the respondent, i.e., the Headmaster of N.C. Institution, Sonamura, to deduct the amount of Rs. 11,000/- per month from the respondent-husband and direct the respondent-husband to pay the said maintenance allowance of Rs. 11,000/- per month to the wife-petitioner for maintenance herself and also for her grown-up son. I, further direct the DDO of the respondent, i.e., the Headmaster of N.C. Institution, Sonamura, to deduct the amount of Rs. 11,000/-(Rupees eleven thousand) per month from the salary of the respondent as maintenance allowance and disburse the same in favour of the petitioner No.1 and to remit the said amount to the Savings Bank account of the petitioner-wife vide Savings Bank A/c no. 8017012100669 lying with the Tripura Gramin Bank, Badharghat Branch within the 10th day of every English calendar month. 20. This order determining the quantum of maintenance would come into force w.e.f. 01.09.2019. 21. Accordingly, the instant criminal revision petition is allowed, as indicated above.