Himachal Pradesh High Court
Sanjay Kumar Gangania vs Rita Sharma & Another on 8 October, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 109 of 2015 Date of decision: 8.10.2015 .
Sanjay Kumar Gangania ...Petitioner
Versus
Rita Sharma & Another. ...Respondents
Coram
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No.
For the Petitioner:
rt Ms. Komal
Advocate.
Chaudhary,
For the Respondents: Mr. Neeraj Gupta, Advocate.
Tarlok Singh Chauhan J. (oral).
This petition under Section 482 of the Code of Criminal Procedure is directed against the order passed by the learned Additional Sessions Judge, Mandi, whereby he affirmed the order of maintenance passed by the learned trial Magistrate in favour of the respondents in proceedings under Section 125 Cr.P.C.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 2
2. The learned trial Magistrate granted interim maintenance in the sum of `4,000/- jointly in favour of the respondents along with `7,000/- as litigation charges, which findings were affirmed by the .
learned Additional Sessions Judge and now assailed before this Court.
3. The only question which arises for consideration in this of petition is as to whether the interim maintenance as awarded by the learned Magistrate and affirmed by the leaned Additional rt Sessions Judge is in any manner excessive, as has been vehemently canvassed by the learned counsel for the petitioner.
I have heard the learned counsel for the parties and have gone through the records of the case.
3. 4. The relationship inter se the parties are not disputed.
The learned trial Magistrate has recorded the following reasons for awarding the interim maintenance:
"So far as the facts and circumstances of the present application are concerned, the factum of marriage between applicant No. 1 and respondent is not disputed. It is also not disputed that one son has born out of their wedlock who resides with applicant no. 1 in her father's home. Although at this stage, there is no cogent proof qua the earning of respondent but since he is an able bodied man therefore, it can be presumed that he can do labour work and ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 3 earn money for his own as well as his family's subsistence. Moreover, respondent is having one flat in Mumbai except his personal house. The respondent is legally as well as morally bound to provide maintenance to his wife and son. The rival contentions .
of parties will be decided at the time of final hearing of the application but at the present stage, keeping in view the above said discussions, the present application is allowed in the interest of justice and respondent is directed to pay interim maintenance in a sum of Rs.4,000/- to the applicants and Rs.7,000/- as litigation of expenses. The above said amount shall be shared by the applicants in equal share. Application accordingly, disposed off. Be tagged with the main case file after doing the needful."
5. rt The learned Additional Sessions Judge while affirming these findings has recorded separate reasons for affirming the order and the same reads thus:-
"8. The copy of order passed by the Ld. Trial Court is placed on record which shows that the maintenance of `4000/- and litigation expenses of Rs.7000/- were granted to the petitioner. Though it has been mentioned that maintenance of `4000/- per month as interim maintenance has been granted to the petitioner, but it can be gathered from the order and the prayer made in the application that the maintenance has been sought per month and this interim maintenance of `4000/- was granted per month from the respondent. It is no where the case of the respondent that the petitioner have their independent source of income and they are having property. Any decision made by the Ld. Magistrate on the subject of alimony must necessarily depend upon the circumstances of each case. The making of order is a ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 4 matter of discretion with the Court. The Court has power to make the order in favour of the wife or the son as the case may be, where it is shown that such wife and son have no independent income sufficient for them or their support and for the necessary .
expenses of the proceedings. However, this discretion should be judicious. The petitioners are residing at Sundernagar and as discussed above it is no where the case of the respondent that petitioner have their own sources of income, therefore, the petitioners cannot be left on the road. It is legal duty of the of respondent to pay the interim maintenance to the petitioner during pendency of the application. Admittedly, the other litigations are going on between the parties like divorce proceedings, proceedings under Protection of Women from rt Domestic Violence Act, but no any interim maintenance has been granted in those proceedings as admitted by the parties before the Court."
6. The learned counsel for the petitioner has vehemently argued that since it was respondent No. 1 herself who deserted the company of the petitioner without any reasonable cause, therefore, she is not entitled to any maintenance. It is further argued that even the interim maintenance of `4,000/- is highly excessive and therefore, findings rendered by both the learned Courts below cannot be sustained and therefore, should be set aside.
::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 57. In so far as the contention regarding desertion is concerned, suffice it to say, that this fact can be considered only after the parties have lead evidence in the main application under .
Section 125 Cr.P.C. and not at this stage.
8. Now in so far as the question regarding grant of maintenance of `4,000/- being on the excessive is concerned, it has of to be remembered that this maintenance is not only for the wife, but also for the minor child, who is residing with the mother.
rt Admittedly, the petitioner is an able bodied man and is in a position to support himself and is under a legal obligation to support his wife and children and the wife has a right to receive maintenance under Section 125 Cr.P.C. Unless disqualified, this right is an absolute right. This issue has been elaborately dealt with by the Hon'ble Supreme Court in Shamima Farooqui vs. Shahid Khan JT 2015 (3) SC 576, wherein it was held as follows:-
"15. .........Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 6 absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. [JT 1997 (7) SC 531: 1997 (7) SCC 7] has held as follows:-
.
"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the of wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and rt also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai [JT 2008 (1) SC 78 : 2008 (2) SCC 316], it has been ruled that:-
"Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal [1978 (4) SCC 70] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 7 maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [JT 2005 (3) SC 164]".
.
16.1. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
17. In this context, we may profitably quote a passage from the of judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash [AIR 1968 Delhi 174] wherein it has been opined thus:-
rt "An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
9. That apart, can the maintenance of `4,000/- per month for two persons during the current times be termed to be excessive?
Similar question has been considered by this Court in Civil Revision No. 75 of 2015 in case titled as Dinesh Mohan Vs. Kavita alias Kamlesh, decided on 28.9.2015, wherein the maintenance of ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 8 `7,000/- per month to the wife and the daughter was upheld and it was held:-
"8. In the matter of making an order of interim maintenance, .
the Court is to be guided by the criteria provided in the Section itself namely the means of the parties and also after taking into account incidental and other relevant factors like social status, the background from which the parties come from and the economical dependence of the wife/child upon the of husband/father. 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 rt 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.
9. A duty is fastened upon the Court to award maintenance pendente lite in such a manner so that spouse and the child can live with dignity according to their social status. Factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under:-
(i) Status of the parties;
(ii) Reasonable wants of the claimant;
(iii) The income and property of the claimant;
(iv) Number of persons to be maintained by the husband;
(v) Liabilities, if any, of the husband;
(vi) The amount required by the wife to live a similar life-
style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife.
::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 912. That apart, the Court cannot also be oblivious to the fact that apart from sustenance, the respondent and her child would be incurring some other expenses for their upkeep, purchase clothes, shoes, utensils etc. etc. Once the minor child is school .
going, then there would be additional expenses to be incurred towards admission fees, tuition fees, school uniform etc. and, therefore, the additional amount of `1,000/- per month i.e. roughly `33/- per day for two persons can by no stretch of imagination in the present day cost of living, growing inflation and purchasing of power of rupee, be termed to be a luxury. The interim maintenance not only includes educational expenses of the child, but it is also required to ensure that the child is brought up keeping in view the status and life-style of the parents.
rt
13. After-all, the object of providing maintenance is to prevent vagrancy by compelling the husband to support his wife and child unable to support themselves. These provisions are not penal in nature, but are only intended for enforcement of the duty, a default, which may lead to vagrancy."
10. The petitioner in the present day cost of living, growing inflation and ever declining purchasing power of rupee, cannot be permitted to contend that the grant of `4,000/- per month in favour of two persons to be a luxury. The interim maintenance granted by the Court has to be sufficient enough, so as to ensure that the child is brought up keeping in view the status and life style of the parents and is further sufficient enough to maintain the wife so as to prevent vagrancy. Maintenance of `66/- per day, by no stretch of ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP 10 imagination can be said to be on the higher side rather the same would hardly be sufficient for the sustenance of the respondents.
11. At this stage, it may be observed that the proceedings .
for grant of interim maintenance are summary in nature for compelling a man to maintain his wife and/or children. It provides cheap and speedy remedy for securing a limited degree of maintenance for the deserted wife and children. This Court in revision would ordinarily interfere with such orders only if the Court rt below has failed to exercise its jurisdiction judicially and if substantial justice has not been done.
12. The cumulative effect of the discussion above is that the order passed by the learned Additional District Judge-I is legal and proper one. No illegality, irregularity or perversity can be found in the said order. Consequently, the present petition being devoid of any merit is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge.
8th October, 2015 (KRS) ::: Downloaded on - 15/04/2017 19:10:08 :::HCHP