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2022 DIGILAW 350 (HP)

Chanchal Kumar S/O Swarn Singh v. Saroj Rani W/o Shri Chanchal Kumar

2022-06-28

SANDEEP SHARMA

body2022
ORDER : 2. By way of instant petition filed under S. 397 read with S.401 CrPC, challenge has been laid to judgment dated 3.9.2020 passed by learned Additional Sessions Judge, Court No.II, Una, Himachal Pradesh in Cr. Appeal No. 77 of 2019, affirming/modifying order dated 21.10.2019 passed by learned Judicial Magistrate First Class, Court No (III), Una, District Una, Himachal Pradesh in Complaint No.CNR HPUN02-000643-2012 (Domestic Violence Act No. 167-2013) titled Saroj Rani v. Chanchal Kumar, whereby learned trial Court, while allowing application under S.12 of Protection of Women from Domestic Violence Act (hereinafter, ‘Act’), filed by the respondents, held them entitled to maintenance to the tune of Rs. 4,000/- each, per month. 3. Precisely, the facts of the case, as emerge from the record, are that the respondents, who happen to be wife and son of the petitioner, instituted a complaint under S. 12 of the Act in the competent court of law, alleging therein that the marriage inter se petitioner and respondent No.1 was solemnized on 5.11.2017 at village Jalgran Tabba, Una, Himachal Pradesh, as per Hindu rites and customs and out of their wedlock, respondent No.2 was born on 27.9.2010. Respondents alleged in the complaint that after some time of marriage, petitioner and other family members, started harassing and torturing her. Respondent No.1 also alleged that she was repeatedly meted with cruelty and taunted for not bringing sufficient dowry, as a consequence of which, she was compelled to leave the matrimonial house and since March, 2008, since she is living with her parents without any support. She alleged that the petitioner is a mason by profession and he earns Rs. 15,000/- per month as such, necessary directions be issued to the petitioner to provide adequate maintenance to them. 4. Aforesaid prayer came to be resisted by the petitioner, who in his reply stated that at no point of time, respondent No.1 was compelled to leave the matrimonial house rather she of her own volition and without there being any reason, left the company of the petitioner and started living with her parents. Petitioner disputed the fact that he earns Rs. 15,000/- per month. Though the petitioner has averred that he is a mason by profession but claimed that he hardly earns Rs. 3,000/- per month. Petitioner disputed the fact that he earns Rs. 15,000/- per month. Though the petitioner has averred that he is a mason by profession but claimed that he hardly earns Rs. 3,000/- per month. Learned trial Court, on the basis of pleadings adduced on record by the parties, allowed the complaint and held the respondents entitled to Rs. 4,000/- each per month as maintenance from the date of passing of order dated 23.10.2019. 5. Being aggrieved and dissatisfied with order dated 23.10.2019 passed by learned trial Court, respondents and petitioner filed separate Cr. Appeals before learned Additional Sessions Judge-II, Una, Himachal Pradesh. Petitioner by way of Cr. Appeal No. 77 of 2019, prayed to set aside order awarding maintenance whereas, respondents, by way of Cr. Appeal No. 19 of 2020, laid challenge to order passed by learned trial Court on the ground that they are entitled to award of maintenance from the date of filing of application and not from the date of passing of order. 6. Learned Additional Sessions Judge-II disposed of both the Cr. Appeals vide judgment dated 3.9.2020 (Annexure R-2), whereby appeal having been filed by respondents came to be allowed inasmuch as petitioner herein has been directed to pay the amount of maintenance awarded by learned trial Court, from the date of filing of the complaint/application whereas, criminal Appeal having been filed by the petitioner came to be dismissed, as a consequence of which, order passed by learned court below granting maintenance of Rs. 4,000/- came to be upheld and modified to the extent that the petitioner has been directed to pay the maintenance as awarded by learned trial Court from the date of filing of the application/complaint. 7. In the aforesaid background petitioner has approached this court in the instant proceedings, praying therein for setting aside the judgment dated 3.9.2020 passed by learned Additional Sessions Judge-II, Una, in Cr. Appeal No. 77 of 2019 and order dated 21.10.2019 passed by learned Judicial Magistrate First Class Court No. III, Una, Himachal Pradesh in DV Act No. 167/2013. 8. Having heard learned counsel for the parties and perused material available on record, this court finds that there is no dispute inter se parties that respondents No. 1 and 2 are wife and son respectively of the petitioner. 8. Having heard learned counsel for the parties and perused material available on record, this court finds that there is no dispute inter se parties that respondents No. 1 and 2 are wife and son respectively of the petitioner. It is also not in dispute that on account of certain difference inter se petitioner and respondent No.1, she started residing at her parental house and she has no independent source of income. It is also not in dispute that the petitioner is a mason by profession but his claim is that his monthly income is not Rs. 15,000/- rather the same is Rs. 3,000/- per month, as such maintenance awarded in favour of respondents at the rate of Rs. 4,000/- each, per month is on higher side. 9. Learned counsel for the petitioner vehemently argued that once the respondents failed to prove by leading cogent and convincing evidence, that the monthly income of the petitioner is Rs. 15,000/-, there was no occasion for the learned courts below to award maintenance of Rs.4,000/- each in favour of the respondents. 10. Learned counsel for the respondents while supporting the judgment and order passed by learned courts below, contended that since there is admission on the part of the petitioner that he is a mason, by no stretch of imagination, it can be presumed that his monthly income is Rs. 3,000/-. He further argued the respondent No.1 besides maintaining herself, has liability to maintain respondent No. 2, who is school going child and as such, maintenance awarded by learned courts below cannot be said to be on higher side. 11. Careful perusal of record reveals that though in the case at hand respondents claimed that the petitioner is a mason by profession and earns Rs. 15,000/- per month but such plea never came to be proved in accordance with law, because at no point of time, receipt of salary or other document suggestive of monthly income of the petitioner ever came to be placed on record. But this court finds force in the submission of Mr. Divya Raj Singh, Advocate, that once there is admission on the part of petitioner that he is a mason, it is highly unbelievable that income of the petitioner is Rs.3,000/- per month. He argued that nowadays, daily wages of mason range between Rs. But this court finds force in the submission of Mr. Divya Raj Singh, Advocate, that once there is admission on the part of petitioner that he is a mason, it is highly unbelievable that income of the petitioner is Rs.3,000/- per month. He argued that nowadays, daily wages of mason range between Rs. 500-600/- per day, meaning thereby monthly income of a professional mason cannot be less than Rs. 15,000/- per month, however, having taken note of the fact that the petitioner, apart from maintaining respondents, is also liable to maintain his old aged mother, it may be difficult for him to pay Rs. 8,000/- per month to his wife and son. 12. No doubt, being husband and father of respondents Nos.1 and 2, it is the duty of the petitioner to maintain them but he can maintain them within the income/resources he has. Hon'ble Court in Rajnesh v. Neha, (2021)2 SCC 324 has held that the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance and dependent family members, whom he is obliged to maintain under law, liabilities, if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. No doubt, the onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. Since there is no dispute that the petitioner is an able-bodied person and works as a mason, it is highly difficult to accept the contention of learned counsel for the petitioner that the petitioner is earning Rs. 3,000/- per month. Since in the case at hand, there is no dispute that the monthly income of the petitioner is Rs. 15,000/- and he has to support respondents and his own mother, by no stretch of imagination, order granting maintenance to the tune of Rs. 4,000/- each, per month, can be held to be justifiable. Hon'ble Apex Court in Rajnesh supra, has held as under: “80. 15,000/- and he has to support respondents and his own mother, by no stretch of imagination, order granting maintenance to the tune of Rs. 4,000/- each, per month, can be held to be justifiable. Hon'ble Apex Court in Rajnesh supra, has held as under: “80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.36 The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort. 82. Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source. 83. 83. Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home. Where wife is earning some income 90. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments. 90.1 In Shailja & Anr. v Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival. 90.2 In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. 90.3 The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. 90.4 An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander v. Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court. 90.5 This Court in Shamima Farooqui v Shahid Khan cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.” 13. Consequently in view of detailed discussion made above, though this court finds no illegality and infirmity in judgment dated 3.9.2020 passed by learned Additional Sessions Judge, Court No.II, Una, Himachal Pradesh in Cr. Appeal No. 77 of 2019 and order dated 21.10.2019 passed by learned Judicial Magistrate First Class, Court No (III), Una, District Una, Himachal Pradesh in Complaint No. CNR HPUN02-000643-2012 (Domestic Violence Act No. 167-2013) titled Saroj Rani v. Chanchal Kumar, granting maintenance, but the maintenance awarded to the tune of Rs.8,000, appears to be on higher side and same is modified by holding that the petitioner shall pay Rs. 3,000/- each per month to the respondents, from the date of institution of application under S.12 of the Act. Petition stands disposed of in the afore terms, alongwith all pending applications. Interim directions, if any, stated vacated. 14. Records of learned Courts below be sent back forthwith. Since matter is hanging fire since 2019, this court hopes and trusts that the learned executing Court shall make all out efforts to conclude the execution proceedings, expeditiously, preferably within three months from today. Registry to send a copy of this order to learned Courts below. 15. Downloaded copy of this order shall suffice for the learned Courts below to comply with the directions contained therein and in case of any doubt authenticity of this order can be verified from the official website of this court.