Madhya Pradesh High Court
Smt. Farjana vs Rashid on 26 April, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
Criminal Revision No.1414/2019
Smt. Farjana and another Vs. Rashid
Gwalior, Dated:26/04/2022
Shri H.K. Shukla, Advocate for applicants.
Shri Sanjeev Tiwari, Advocate for respondent.
This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 18/2/2019 passed by the Principal Judge, Family Court Gwalior in case No.135/2014, by which the application filed by the applicant no.1 under Section 125 of Cr.P.C. has been rejected, whereas the application filed by the applicant no.2 under Section 125 of Cr.P.C. has been allowed and maintenance amount of Rs.2,000/- per month has been awarded to applicant no.2. This revision has been filed for grant of maintenance to applicant no.1 as well as for enhancement of maintenance amount granted in favour of applicant no.2.
2. It is submitted by the counsel for the applicants that the applicants had filed an application under Section 125 of Cr.P.C. on the ground that the applicant no.1 got married to respondent on 21/3/2011 as per Muslim rites and rituals. Applicant no.2 was born out of the wedlock. After the birth of the baby girl, the harassment of the in-laws towards the applicant no.1 escalated and they started making demand of Rs.2,00,000/- and on account of non-fulfillment of said demand, they started harassing her physically as well as mentally. The applicant no.1 and her parents tried to pursue the respondent and his family members by informing that the father of the applicant no.1 does not have the financial capacity to pay 2 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid Rs.2,00,000/-, but the respondent and her in-laws got annoyed and continued to beat the applicant no.1. Even food was not given to the applicant no.1 for number of days. However, with hope and belief that the behaviour of the in-laws of the applicant no.1 would improve, she continued to bear the atrocities, but in the month of July, 2013 she was ousted from her matrimonial house. Thereafter, her in-laws came to the parental house and also assaulted her and quarreled with the brother, sister and mother of the applicant no.1. Since the applicant no.1 was of the view that the situation may improve, accordingly, she did not lodge the report. The respondent is an able-bodied person and is working on the post of Sales Manager and is earning monthly salary of Rs.30,000/-, whereas the applicant no.1 has no source of livelihood. She is the legally wedded wife of respondent and, therefore, he has the legal responsibility to maintain his wife and child and accordingly, an application under Section 125 of Cr.P.C. claiming Rs.10,000/- per month and Rs.5,000/- per month by way of maintenance for applicants no.1 and 2 respectively was filed. It was further pleaded that the applicant no.1 has also lodged an FIR against respondent and his family members, which has been registered as Crime No.198/2014.
3. The respondent filed reply to the application under Section 125 of Cr.P.C. and refuted all the allegations. He also denied that he is working as a Sales Officer in a private company and is earning Rs.30,000/- per month. In special pleadings, he submitted that in fact 3 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid it is the applicant no.1 who is not interested in residing with the respondent and is in the habit of making false allegations. The applicant no.1 is a highly educated lady having passed Post Graduation Examination and she herself is capable of maintaining herself as well as applicant no.2, whereas the respondent is less meritorious and, therefore, the applicant no.1 has deserted him. The applicant no.1 is earning Rs.3,000/- per month by way of giving tuition to the children. The respondent is working on daily wages in A.K. Grill Works Shop. His monthly income is Rs.3,500-4,000/-. It was further alleged that with an intention to harass the respondent, the applicant no.1 has also instigated her parents and they too have demanded maintenance from their sons and accordingly, an order for payment of maintenance amount of Rs.1,000/- per month each has been passed in favour of his parents and accordingly, after deducting Rs.2,000/-, the respondent is able to save only Rs.1,500-2,000/- per month. It is further submitted that the allegations of harassment after the birth of the girl child is false because her Devrani is also blessed with a girl child and is residing along with her husband. It was further alleged that the family members of the applicant no.1 had assaulted the respondent, as a result, FIR No.197/2014 has been lodged in Police Station Janakganj, District Gwalior and by way of counterblast the FIR in Crime No.198/2014 has been lodged by the applicant no.1 in Police Station Janakganj, District Gwalior. The evidence of the parties were recorded.
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THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid
4. The applicant no.1 (AW-1) in her examination in chief repeated the same allegations, however, she admitted that she has passed MA in Urdu subject, but that examination was passed prior to her marriage. She further denied that she is not willing to stay with her husband. She further admitted that she gave birth to her girl child in her matrimonial house itself and her first birthday was also celebrated which was joined by her in-laws as well as her parents. She denied that she was never harassed. She denied that she was never denied food. She further denied that she was voluntarily residing with her parents. She further denied that she is earning Rs.4,000/- per moth by teaching in a Madarsa. She denied that she had given a false information that her husband was working as a Sales Manager in Argas Company and was earning Rs.30,000/- per month. She further denied that her husband is working in A.K.Grill Works and his monthly income is Rs.3,500-4,000/-. She further admitted that in compliance of an order of maintenance, the respondent is making payment of Rs.1,500/- (it is not out of place to mention here that by order dated 3/2/2015 interim maintenance of Rs.1,000/- was awarded to applicant no.1 and interim maintenance of Rs.5,00/- was awarded to applicant no.2).
5. Rabia (AW-2) was also examined in support of the application filed under Section 125 of Cr.P.C.
6. The respondent examined himself and claimed that the applicant no.1 had voluntarily left her matrimonial house and on 5 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid 9/3/2014 when he went to her house to take her back, then he was assaulted by her brother-Khalid and a head injury was caused by iron rod and accordingly, Crime No.197/2014 was registered at Police Station Jangakganj, District Gwalior. It was further alleged that the applicant no.1 is in the habit of making complaints which causes mental harassment to him. Due to repeated complaints, police regularly visits his house, which has defamed him in the society. He further submitted that he is working on daily wages in A.K. Grill Works and is earning Rs.4,000/-. Since he is also required to attend the Court cases, therefore, he can work only for 15-20 days in a month. It was further alleged that he is also making payment of monthly maintenance amount of Rs.1,500/- to the applicant no.1. It was further alleged that by suppressing the maintenance amount which is being paid by the respondent, the applicant no.1 has also obtained an order of interim maintenance of Rs.1,000/- per month in an application under Section 12 of the Domestic Violence Act. He has the responsibility to look after his parents and under the orders of the Court, he is also required to pay Rs.1,000/- per month each to his parents and thus in all he is required to pay Rs.4,500/- by way of maintenance to the applicants as well as his parents and since he is having a meager income, therefore, he is not in a position to fully comply the maintenance order. It is further admitted that after the marriage, the applicant no.1 was working as a teacher in Siddhant Convent School and is also taking tuition classes, as a result, she is 6 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid earning Rs.4,000/- per month. The salary slip issued by A.K. Grill Works is Ex.D/1 and orders issued against him for payment of maintenance amount to his father is Ex.D/2. Similarly, order passed in favour of his mother for payment of maintenance amount is Ex.D/3. The receipt which was given by Madarsa Yadgaren Hussain to the applicant no.1 in lieu of her services rendered as a teacher is Ex.D/4 and salary slips are Ex.D/5 and Ex.D/6. Experience certificate was also issued by Siddhanth Convent School in favour of applicant no.1, which is Ex.D/7 and the attendance register is Ex.D/8. The applicant no.1 has also filed a complaint under Section 406 of IPC and the certified copy of her statement recorded in the said complaint is Ex.D/11 and the report submitted by the Project Officer and Protection Officer is Ex.D/12 and the application filed under Section 12 of the Protection of Women from Domestic Violence Act is Ex.D/13 and order dated 12/8/2013 passed by the Court is Ex.D/14. The reply filed by the respondent in the proceeding under Section 12 of the Protection of Women from Domestic Violence Act is Ex.D/15. In cross-examination he denied that a Hero Honda motorcycle was given in the marriage. He denied that entire household articles were given on marriage. He claimed that after six months of the marriage, the behaviour of the applicant no.1 became cruel towards him. He further admitted that he never made any complaint of the cruel attitude of applicant no.1. He further admitted that the marriage was a settled marriage and she has stayed for 2 ½ years, however, denied 7 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid that her behaviour towards him and his in-laws was good. He further stated that only for this reason his parents have separated him, but could not explain that on which date he was separated by his parents. He further stated that he had spent money to enable the applicant no.1 to appear in the recruitment examination of Contract Teacher, Grade-I, however, he could not produce any document to justify the said statement. He on his own stated that he had paid Rs.700/- for filling up the online form. He also admitted that whenever any amount is deposited, then the receipt is given, but admitted that he has not filed any receipt. He denied the allegations of harassment or depriving the applicant no.1 from her food. He admitted that the experience certificate issued by Siddhant Convent School was obtained by himself by approaching the school. He further admitted that the application for supply of the said experience certificate has not been placed on record. He admitted that no application under Right to Information Act was made for obtaining experience certificate from Siddhant Convent School. However, he denied that he has obtained the forged experience certificate from the school. He further admitted that in the experience certificate, registration number of the institute is not mentioned. He further admitted that in the experience certificate, Ex.D/7, it is not mentioned that how much salary is being paid to applicant no.1. He admitted that at present he is residing with his parents, but said that he is residing in a separate room. He denied that in connivance with his parents, he had obtained 8 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid false orders of maintenance in favour of his parents. He claimed that he is having four brothers. He admitted that in the proceedings, which were initiated by his parents, he has not disclosed his income, however, admitted that the maintenance amount of Rs.1,000/- has been directed against him, whereas his brothers have been saddled with the responsibility of making payment of Rs.400/- per month.
7. The Trial Court after considering the evidence as well as the submissions made by the counsel for the parties, rejected the application of the applicant no.1 mainly on the following grounds:-
i- The applicant no.1 has not denied that she had given the examination of Contract Teacher, Grade-I. ii- Earlier the applicant no.1 was teaching in Siddhant Convent School, but thereafter she submitted her resignation Ex.P/4.
iii- It was further held that merely because she had tendered her resignation, does not mean that she is not able to maintain herself or she cannot obtain service in future.
iv- Where the wife is more meritorious and qualified then her husband, then she can also do job and it cannot be presumed that she has to depend upon the income of her husband only. Thus, it was held that the applicant no.1 is able to maintain herself.
v- According to the applicant no.1, she got married on 21/3/2011 and came back to her parental home in the month of July, 2013 and during the period of her stay in the matrimonial house, she never made any complaint about demand of dowry and harassment 9 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid and even after coming back to her parental home she did not make any complaint about the harassment.
vi- After the applicant no.1 was ousted from her matrimonial house, there was no apprehension in the mind of applicant no.1 and then, she should have lodged the report immediately and since the allegations have been made after eight months of coming back to her parental home, therefore, it appears that the allegations of harassment are afterthought.
vii- So far as harassment on account of giving birth to a baby child is concerned, it was opined that since the brother-in-law is blessed with two baby girl children and his wife is residing with her brother-in-law, therefore, the allegation of harassment on account of birth of baby child is false.
viii- The first birthday of the baby child was celebrated jointly by her parents and her in-laws, which indicates that the allegations of harassment on account of giving birth to a baby child is false.
ix- The applicant no.1 lodged various cases like under Sections 498-A of IPC, under Section 12 of Protection of Women from Domestic Violence Act and under Section 406 of IPC and has also admitted that all those cases which a girl can lodge against her in-laws have been instituted by her.
x- On 14.11.2014 when the matter was placed for reconciliation proceedings, then it was insisted by the applicant no. 1 10 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid that her husband should reside separately from his family members, only then she would agree for compromise, but the stand of the respondent was that he can live in a separate room in the same house as he is not in a position to take any house on rent. Thus, a conclusion was drawn that the applicant no.1 is residing separately without any reasonable reason and, accordingly, it was held that she is not entitled for maintenance amount.
8. Considered the submissions made by the counsel for the applicant as well as reasoning assigned by the Court below.
9. So far as the opinion of the Trial Court that since the applicant no. 1 is literate and more competent than her husband, therefore, she can earn her livelihood is concerned, the same is contrary to the law laid down by the Supreme Court in the case of Shailja and another Vs. Khobbanna reported in (2018) 12 SCC 199 and Sunita Kachwaha and others Vs. Anil Kachwaha reported in (2014) 16 SCC 715.
10. The Supreme Court in the case of Shailja and another Vs. Khobbanna reported in (2018) 12 SCC 199, has held as under:-
5. That apart, we find that the High Court has proceeded on the basis that Appellant 1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court.
Whether Appellant 1 is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant 1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.
11. The Supreme Court in the case of Sunita Kachwaha and 11 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid others Vs. Anil Kachwaha reported in (2014) 16 SCC 715, has held as under:-
7. Inability to maintain herself is the precondition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband's economic condition is quite good, the wife would be entitled to maintenance.
12. Therefore, merely because the applicant no.1 is an literate lady and is more qualified than the respondent, therefore, merely on the said ground, it cannot be expected that the wife must earn her livelihood because it is the primary duty of her husband to maintain her.
13. So far as the findings recorded by the Trial Court with regard to the fact that the younger brother-in-law of the applicant no.1 is also blessed with two daughters, but his wife is residing with him is concerned, the same cannot be stated to be a legally sound reasoning. The tolerance level differs from person to person. Merely because wife of younger brother-in-law of the applicant no.1 is residing with her husband does not mean that she must be living happily. Respondent has not examined the wife of his brother to show that she is living happily in her matrimonial house. Furthermore, if the brother of the respondent is keeping his wife in a descent manner, 12 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid then that does not mean that the respondent would also behave in the same manner. Thus, merely because the wife of the younger brother- in-law of the applicant no.1 is residing in her matrimonial house does not mean that it was the applicant no.1 who was not interested in residing in her matrimonial house.
14. So far as the findings recorded by the Trial Court that that all permissible cases were instituted by applicant no.1 against her husband is concerned, that is misconceived. No Court can issue any injunction order against a party, thereby restraining him from pursuing any legally permissible legal remedy. If law permits a wife to avail remedy under any special statute, then the wife cannot be non-suited only on the ground that she has availed all the legally permissible remedies available to her. Furthermore, in paragraph 40 of the judgment, it has been mentioned that the applicant no.1 has lodged an FIR for offence under Section 498-A of IPC. She has also instituted the proceedings under Section 12 of the Domestic Violence Act and she has also filed a case for offence under Section 406 of IPC, apart from the present case under Section 125 of Cr.P.C. All these four cases have their own individual and separate ingredients. If a lady is being harassed and humiliated by her in-laws, then she can always make a complaint for harassment for cruelty which is punishable under Section 498-A of IPC. The various reliefs sought by a lady under different provisions of the Protection of Women from Domestic Violence Act operates in different fields. The Supreme 13 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid court in the case of Rajnesh Vs. Neha and another reported in (2021) 2 SCC 324 has held that if the applications have been filed under different status, then while calculating the amount of compensation, the Court can always adjust and take into consideration the maintenance amount awarded under different Act. Therefore, merely because the applicant no.1 has also instituted cases under other provisions of law, it cannot be said to be a cruel act on her part.
15. So far as the complaint for offence under Section 406 of IPC is concerned, admittedly the articles given to a girl at the time of her marriage will form Stridhan. If her in-laws have not returned the Stridhan of their daughter-in-law, then the daughter-in-law is well within her rights to institute a case under Section 406 of IPC. As already pointed out, no Court can restrain a person from filing the legally permissible remedies, therefore, the observations made by the Trial Court in paragraph 40 of the order is misconceived and unwarranted.
16. It is next contended by the counsel for the respondent that it is clear that the applicant no.1 was earlier working as a teacher, but with a solitary intention to take maintenance amount from the respondent, she has tendered her resignation.
17. Considered the submissions made by the counsel for the respondent.
18. The applicant no.2 at the time of filing of application under 14 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid Section 125 of Cr.P.C. was aged about two years. A minor child requires constant attention of her/his mother. Even the mother is entitled for maternity leave as well as child care leave. Even assuming that the applicant no.1 had tendered her resignation from the job, but that does not mean that it was done with a solitary intention to take maintenance amount from the respondent. Being the mother of a minor child aged about 2 years, it is her primary responsibility to look after her child and in case if she feels difficulty in discharging her both the responsibilities simultaneously and if she decided to leave the job with a solitary intention to look after her child, then by no stretch of imagination, it can be said that tendering of resignation was with a malafide intention.
19. Further, the respondent himself has admitted that he is residing with his parents, but at the same time he has filed order dated 8/10/2014 passed by the Principal Judge, Family Court in favour of his father and mother, according to which, the respondent had agreed upon to pay Rs.1,000/- per month to his father as well as Rs.1,000/- per month to his mother, whereas his siblings had agreed to pay Rs.400/- per month. The said orders were obtained on the basis of compromise. The respondent has also admitted that in the said proceeding instituted by his parents, he had not disclosed his income. Although the applicant has claimed that he is working as daily wagers in A.K. Grill Works and is earning Rs.3,500-4,000/- per month, but he did not examine the Proprietor of A.K. Grill Works to 15 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid justify the said claim made by the respondent.
20. So far as the findings given by the Trial Court with regard to the delay in lodging the FIR is concerned, it is well established principle of law that every woman would not rush to the police station immediately, thereby putting her married life at stake. If the wife has shown her patience in order to save her married life, then it cannot be taken to her discredit. Under these circumstances, this Court is of the considered opinion that the Trial Court committed material illegality by rejecting the application filed by the applicant no.1 on the ground that she is residing separately without any reasonable reason.
21. Accordingly, the application filed by the applicant no.1 for grant of maintenance under Section 125 of Cr.P.C. is hereby allowed.
22. So far as the question of maintenance amount is concerned, the Supreme Court in the case of Rajnesh (supra) has laid down the following guidelines:-
III. Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure that the dependent 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.
78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent 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 16 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid 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. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 :
(2012) 3 SCC (Civ) 290]
79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] 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.
80. On the other hand, 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 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. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]
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. [Chaturbhuj v. Sita Bai, (2008) 2 17 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] 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 the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of the 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. Section 20(2) of the DV 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.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde [Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622 : (2007) 140 DLT 16] laid down the following factors to be considered for determining maintenance : (SCC OnLine Del para 8) "1. Status of the parties.
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 guesswork is not ruled out while estimating the income of the non-applicant when all the 18 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is adjustable against the amount awarded under Section 24 of the Act."
85. 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
86. 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 retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break of several years.
(b) Right to residence
87. Section 17 of the DV 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 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.
88. 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 Ahuja [Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, by a Bench comprising of Hon'ble Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ.] held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved 19 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid 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 DV 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.
89. Section 19(1)(f) of the DV 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
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 v. Khobbanna [Shailja v. Khobba nna, (2018) 12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848 : 2016 Cri LJ 4794 (Kar)] , 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. [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 :
(2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252 : 2015 Cri LJ 3451] 20 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid 90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] 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 [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 : (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589] , 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 Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 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.
90.5. This Court in Shamima Farooqui v. Shahid Khan [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 : (2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785] cited the judgment in Chander Parkash [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
23. The Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan reported in (2015) 5 SCC 705 has held that if the 21 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1414/2019 Smt. Farjana and another Vs. Rashid husband is an able-bodied person, then he cannot run away from the liability of making payment of maintenance amount only on the ground that he has a meager salary.
24. Considering the guidelines laid down by the Supreme Court in the case of Rajnesh (supra) as well as the price index, the requirement of a minor child as well as the price of goods of daily needs, it is held that the applicant no.1 is entitled for maintenance of Rs.5,000/- per month and the applicant no.2 is entitled for maintenance amount of Rs.3,000/- per month.
25. Although the respondent had claimed in his evidence that he is paying Rs.1,000/- in Domestic Violence proceedings, but no order has been placed on record.
26. In the light of the judgment passed by the Supreme Court in the case of Rajnesh (Supra), it is directed that the maintenance amount shall be payable from the date of application, i.e. 21/3/2014.
27. With aforesaid observations, the application is allowed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.05.02 17:50:59 +05'30'