Calcutta High Court (Appellete Side)
Sourav Chakraborty vs The State Of West Bengal & Anr on 20 November, 2024
20.11.2024
Sl. No.: 17
Court No.30
BM
CRR 2533 of 2022
Sourav Chakraborty
Vs.
The State of West Bengal & Anr.
Mr. Debjyoti Deb
Mr. Abhishek Roy Chowdhury
Mr. Chandan Mondal
Ms. Soumdyuti Parekh
... for the petitioner
1. Affidavit of service filed shows that due service was
effected on the opposite party no.2. In spite of service,
there is no appearance on behalf of the opposite party
no.2.
2. The present revisional application has been preferred
against an order dated 27th April, 2022 passed by the
learned Additional Sessions Judge, Fast Track Court at
Kalyani, Nadia in Criminal Revision No.10 of 2020 arising
out of Misc. Case No.110 of 2018 under Section 125 of the
Code of Criminal Procedure.
3. The judgement under revision has been passed by the
learned Additional Session Judge, Fast Track court,
Kalyani, Nadia in criminal revision no.10 of 2022 wherein
the learned court has been pleased to affirm the order of
the learned Magistrate.
4. Being aggrieved the present revisional application has
been preferred.
5. It is submitted by the learned counsel for the petitioner
that, guidelines were issued by the Hon'ble Apex Court in
2
Rajnesh vs. Neha & Anr. (2021) 2 SCC 324 on 4th
November, 2020. The order of the learned Session Judge
is dated 27th April, 2022.
6. It is submitted that in spite of guidelines of the
Hon'ble Supreme Court being in force, the court did
not follow the said guidelines and without following
the said guidelines just affirmed the order of the
learned Magistrate without application of mind.
7. On perusal of the said order under revision it appears that
the grievance of the petitioner and the submission of the
learned counsel for the petitioner has substance and
admittedly the learned appellant court did not apply the
guidelines of the Hon'ble Supreme Court in Rajnesh vs.
Neha & Anr. (Supra), thus prima facie causing prejudice
to the petitioner before the Sessions Court.
8. While disposing of the application under Section 125
Cr.P.C. finally, the Learned Magistrate can now follow the
guidelines as laid down by the Supreme Court in Rajnesh
Vs Neha & Anr. (Supra).
9. The said Judgment raises the issue of maintenance as a
whole. All the Acts providing the said benefit has been
considered discussed and guidelines laid down. The final
Direction there in is as follows:-
"VI Final Directions
In view of the foregoing discussion as contained in
Part B - I to V of this judgment, we deem it
appropriate to pass the following directions in
exercise of our powers under Article 142 of the
Constitution of India : (a) Issue of overlapping
jurisdiction
To overcome the issue of overlapping jurisdiction,
and avoid conflicting orders being passed in
3
different proceedings, it has become necessary to
issue directions in this regard, so that there is
uniformity in the practice followed by the Family
Courts/District Courts/Magistrate Courts
throughout the country. We direct that:
(i) where successive claims for maintenance
are made by a party under different statutes, the
Court would consider an adjustment or setoff, of
the amount awarded in the previous
proceeding/s, while determining whether any
further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to
disclose the previous proceeding and the orders
passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous
proceeding/s requires any modification or
variation, it would be required to be done in the
same proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and
Liabilities annexed as Enclosures I, II and III of
this judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings,
including pending proceedings before the
concerned Family Court / District Court /
Magistrates Court, as the case may be,
throughout the country.
(c) Criteria for determining the quantum of
maintenance
For determining the quantum of maintenance
payable to an applicant, the Court shall take into
account the criteria enumerated in Part B - III of
the judgment.
The aforesaid factors are however not exhaustive,
and the concerned Court may exercise its
discretion to consider any other factor/s which
may be necessary or of relevance in the facts and
circumstances of a case.
(d) Date from which maintenance is to be
awarded
We make it clear that maintenance in all cases
will be awarded from the date of filing the
application for maintenance, as held in Part B - IV
above.
(e) Enforcement / Execution of orders of
maintenance
For enforcement / execution of orders of
maintenance, it is directed that an order or decree
of maintenance may be enforced under Section
28A of the Hindu Marriage Act, 1956; Section
20(6) of the D.V. Act; and Section 128 of Cr.P.C.,
as may be applicable. The order of maintenance
may be enforced as a money decree of a civil court
4
as per the provisions of the CPC, more particularly
Sections 51, 55, 58, 60 r.w. Order XXI."
10. The criteria determining quantum of maintenance as
in Rajnesh Vs Neha & Anr. (Supra) is:-
"III Criteria for determining quantum of
maintenance
(i) The objective of granting interim /
permanent alimony is to ensure that the
dependant spouse is not reduced to
destitution or vagrancy on account of the
failure of the marriage, and not as a
punishment to the other spouse. There is no
straitjacket formula for fixing the quantum of
maintenance to be awarded.
The factors which would weigh with the
Court inter alia are the status of the parties;
reasonable needs of the wife and dependant
children; whether the applicant is educated
and professionally qualified; whether the
applicant has any independent source of
income; whether the income is sufficient to
enable her to maintain the same standard of
living as she was accustomed to in her
matrimonial home; whether the applicant was
employed prior to her marriage; whether she
was working during the subsistence of the
marriage; whether the wife was required to
sacrifice her employment opportunities for
nurturing the family, child rearing, and looking
after adult members of the family; reasonable
costs of litigation for a non-working wife.
In Manish Jain v Akanksha Jain
(2017) 15 SCC 801 this Court held that the
financial position of the parents of the
applicant-wife, would not be material while
determining the quantum of maintenance. An
order of interim maintenance is conditional on
the circumstance that the wife or husband
who makes a claim has no independent
income, sufficient for her or his support. It is
no answer to a claim of maintenance that the
wife is educated and could support herself.
The court must take into consideration the
status of the parties and the capacity of the
spouse to pay for her or his support.
Maintenance is dependent upon factual
situations; the Court should mould the claim
for maintenance based on various factors
brought before it.
On the other hand, the financial
capacity of the husband, his actual income,
reasonable expenses for his own
5
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.
(ii) 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.
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.
(iii) 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.
(iv) 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.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down the following factors to be considered for determining maintenance :
"1. Status of the parties.6
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non- applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non- applicant.
9. Some guess work is not ruled out while estimating the income of the non- applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17."
(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.
(b) Right to residence Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the 7 domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja38 (supra) held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.
Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income 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.
In Shailja & Anr. v Khobbanna, (2018) 12 SCC 199 this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce 8 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. 40 Sustenance does not mean, and cannot be allowed to mean mere survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha (2014) 16 SCC 715 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.
The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale 2020 SCC Online Bom 694 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.
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 Prakash, AIR 1968 Delhi 174. 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.
This Court in Shamima Farooqui v Shahid Khan, (2015) 5 SCC 705 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.
(d) Maintenance of minor children The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable 9 amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance."
11. Accordingly, considering the Materials on record, the order under revision being order dated 27th April, 2022 passed by the learned Additional Sessions Judge, Fast Track Court at Kalyani, Nadia in Criminal Revision No.10 of 2020 arising out of Misc. Case No.110 of 2018 under Section 125 of the Code of Criminal Procedure, is hereby set aside.
12. The Court of Additional Sessions Judge, Fast Track Court at Kalyani, Nadia, will decide the case finally as per the directions in this order and make all endeavour to dispose of the case finally as expeditiously as possible.
13. Till pendency of the revisional application, the petitioner shall continue paying maintenance @ Rs.4,000/- per month as directed by this Court till disposal of the revision by the learned Additional Sessions Judge, Fast Track Court at Kalyani, Nadia.
14. The said quantum of maintenance is subject to final adjudication by the learned Session Judge who shall dispose of the matter following the guidelines of the 10 Hon'ble Supreme Court in Rajnesh vs. Neha & Anr.
(Supra) without being influenced by the orders passed in the revisional application.
15. CRR No. 2533 of 2022 is thus dismissed.
16. All connected Application stand disposed of.
17. Interim order if any stands vacated.
18. There will be no order as to costs.
19. A copy of this order be sent to the learned Trial Court forthwith for necessary compliance.
20. Urgent certified website copy of this order, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.
( Shampa Dutt (Paul), J. )