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2021 DIGILAW 652 (RAJ)

Akhil Sarda v. Rajmani Sarda

2021-03-19

MANOJ KUMAR GARG

body2021
JUDGMENT 1. Instant misc. petition has been filed by the petitioner against the order 30.08.2019 passed by learned Judge, Family Court No.2, Bikaner in Criminal Misc Case No. 398/2018 whereby, the learned Judge while allowing the application for interim maintenance ordered the petitioner to pay Rs. 10,000/- per month for respondents no.1 and Rs.20,000/- per month each for respondent no.2 & 3 thus, in total Rs.50,000/- per month. Apart from this, the learned Family Court directed the petitioner to pay a sum of Rs.5,00,000/- as subsistence allowance for the period 20.02.2018 to 31.07.2019. 2. Learned counsel for the petitioner argued that the learned trial court has failed to appreciate as to whether wife is unable to maintain herself and husband has sufficient means of income. It is argued that petitioner is having monthly income of Rs. 12,500/-only which is evident from the income tax return filed by him. On the contrary, respondent no.1 is working and drawing handsome salary and she is also receiving monthly rent @ Rs.18000/- from her flat in Noida, but documents filed by the petitioner have not at all been considered by the Family Court while allowing the application for interim maintenance and therefore, the amount of maintenance awarded to the respondents is not justified and hence, the order impugned is liable to be quashed and set aside. 3. On the contrary, counsel for the respondent argued that the court below has awarded interim maintenance in favour of respondents after considering all the documents and in the light of provisions of Cr.P.C and there is no illegality in the impugned order. 4. I have gone through the orders impugned and perused the material available on record. 5. Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. 6. In fixing the quantum of maintenance, standard of living consistent with the status of the family must be taken into consideration. Neither income nor poverty is an answer to an application seeking interim maintenance filed along with an application under Section 125 Cr.P.C. 7. 6. In fixing the quantum of maintenance, standard of living consistent with the status of the family must be taken into consideration. Neither income nor poverty is an answer to an application seeking interim maintenance filed along with an application under Section 125 Cr.P.C. 7. While considering the application for award of interim maintenance, the relevant consideration is the inability of the spouse to maintain himself or herself for want of independent income or inadequacy of the income to maintain at the level of social status of other spouse. 8. Hon'ble Apex Court in the case of Reema Salkan vs. Sumer Singh Salkan reported in (2019) 12 SCC 303 relying upon its earlier decision in Bhuwan Mohan Singh vs. Meena reported in (2015) 6 SCC 353 , while dealing with the question with regard to determination of the amount of maintenance in proceedings under Section 125 of Criminal Procedure Code, observed that 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. The Court observed that the wife is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. The Court further observed that in proceedings of such a nature, the husband cannot take subterfuges to deprive the wife the benefit of living with dignity. 9. In Neeta Rakesh Jain vs. Rakesh Jeetmal Jain: 2010 AIR SCW 441, Hon'ble Supreme Court observed: "8. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute." 10. Adverting to the facts of the present case, it is noticed that the petitioner in his application filed before the Principal Judge, Rohini, Delhi under Section 5 & 25 of the Guardian and Wards Act has mentioned that he has taken his children namely, respondents No.2 & 3 on foreign leisure tours and he has also mentioned that respondent no.1 Smt. Rajmani is a housewife having no independent source of income. Be that as it may, on the facts and in the circumstances of the case and taking into consideration the assessment of the income made by the Family Court in proceedings under Section 125 Cr.P.C, the impugned order passed by the Family Court cannot be said to be capricious or perverse. There was absolutely no material placed on record to establish that the respondent no.1 is having any regular independent source of income. 11. In view of the above, the learned court below has not committed any error in awarding interim maintenance to the respondent wife and her children as per Section 125 of Cr.P.C. Hence, this misc petition is hereby dismissed. However, the trial court is directed to decide the main application after taking into consideration all the documents and material aspect of the matter as well as statements so recorded before it, within a period of one year from the date of receipt of certified copy of this order. 12. Stay petition is also decided accordingly.