Allahabad High Court
Smt. Sitara Devi vs State Of U.P. And Another on 16 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2553
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 1 Case :- CRIMINAL REVISION No. - 510 of 2020 Revisionist :- Smt. Sitara Devi Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kanchan Chaudhary, C.L. Chaudhary Counsel for Opposite Party :- G.A.,Hakim Kumar Kushwaha, Rajesh Kumar Srivastava Hon'ble J.J. Munir,J.
1. This criminal revision is directed against an order of Mr. Dinesh Tiwari, Principal Judge, Family Court, Kaushambi dated 19.10.2019, partly allowing the revisionist's application for maintenance under Section 125 Cr.P.C. and directing the second opposite party to pay the revisionist maintenance in the sum of Rs.7000/- per month from the date of order. The revisionist seeks enhancement of the maintenance awarded, payable from the date of application.
2. Heard Mr. C.L. Chaudhary, learned Counsel for the revisionist and Mr. Hakim Kumar Kushwaha, learned Counsel appearing on behalf of opposite party No.2.
3. The revisionist, Smt. Sitara Devi and the second opposite party, Kamlesh Kumar, are an estranged couple. The parties were married, according to Hindu rites, on 17th April, 2009. There are allegations by the wife that she was subjected to cruelty, both mental and physical, in connection with demand of dowry. The details of those facts, that have been wholesomely set out in the Family Court's judgment, need not be recapitulated. The reason is that the Family Court, on the basis of evidence on record, has recorded a finding of fact that the wife is living apart from the husband for sufficient cause. It is the wife who has come up in revision, assailing the judgment and order passed by the Family Court, to the extent it denies the wife's claim to a maintenance in the sum of Rs. 15,000/- per month, from the date of application. The husband-opposite party no.2 has not challenged the order.
4. The learned Counsel for the revisionist-wife submits that the maintenance awarded is way below than that necessary to maintain the standard of living the wife has been accustomed to in her matrimonial home. Learned Counsel for the revisionist submitted, during the course of hearing, that the husband is employed as a Class-IV employee at the Indian Air Force Station, Bamhrauli, Prayagraj and earns a salary of Rs.50,000/- per month. The wife is not professionally trained or otherwise able to earn anything for herself. She is entirely dependent for her sustenance on her husband. There is also a case about the second opposite party being possessed of ancestral agricultural land, which yields a handsome income. His total monthly earnings from the salary and land put together is claimed to be a sum of Rs. 90,000/-.
5. It is further argued by Mr. Chaudhary, learned Counsel appearing for the revisionist that maintenance, apart from being grossly inadequate, judged on the standard parameters, is also awarded in error from the date of order, instead of the date of application.
6. The claim about the agricultural land has been denied by the husband in paragraph no.11 of the counter affidavit, that he has filed in opposition to the affidavit filed in support of the revision. It has also been asserted in paragraph no.9 of the counter affidavit that the second opposite party's income, evident from his payslip for the month of February, 2020, is Rs. 24,931/- per month and not Rs. 50,000/- as alleged.
7. This Court has keenly considered the submissions advanced by the learned Counsel for parties and perused the record, which has been summoned from the Family Court.
8. The Family Court, while awarding maintenance, has proceeded entirely on the basis of parole evidence of the husband, that he receives a monthly salary of Rs.22,000/-. The Family Court has not called upon or required the husband to produce documentary evidence about his monthly emoluments, which is easy to require production of, and would clinchingly show the husband's monthly income at least from his Government employment. Before the Family Court or this Court, the wife has not produced any evidence to show that the husband has inherited any kind of agricultural land, that yields him periodical income, in addition to what he earns in salary, received from the Indian Air Force. The husband/second opposite party has placed before the Court, through his counter affidavit, a photostat copy of his payslip for the month of February, 2020, as an annexure. The payslip shows a monthly gross salary of Rs.41,075/- and gross deduction of Rs.16,144/-, with a net pay of Rs. 24,931/-. The payslip further indicates the breakup of the gross deduction. It shows provident fund subscription to the tune of Rs.15,000/- per month, besides contribution to the Central Government Employees Group Insurance Scheme (CGEGIS) in the sum of Rs.9/- per month. It also shows deduction towards CGEGIS Saving in the sum of Rs.21/- per month and a sum of Rs.250/- per month deducted towards Central Government Health Scheme (CGHS). There is then a miscellaneous monthly deduction of Rs.864/-, the nature whereof is not clear from the payslip. It is the aggregate of these various deductions that go to make a gross of Rs.16,144/-.
9. To the understanding of this Court, the trivial and small sums of money deducted might be statutory and compulsory, but the provident fund subscription of Rs.15,000/- per month is a handsome elective. The statutory deduction of provident fund ex facie from a basic pay of Rs.29,300/- cannot be a figure of Rs.15,000/-.
10. During the hearing, this Court required Mr. Kushwaha to indicate the current emoluments of the second opposite party, including deductions. He has submitted to the Court a figure of Rs.42,272/- received in gross salary. The deduction of Rs.15,000/- towards provident fund, Rs.30/- towards Insurance, Rs.250/- towards CGHS, Rs.4832/- towards house rent and an LIC premium of Rs.3013/- per month has been verified. He has placed before Court an in-hand salary of Rs.23,125/- per month. Again, ex facie, the said figures cannot be accepted. The lavish contribution towards provident fund and the LIC premium cannot reckon towards compulsory deductions or not counted towards the second opposite party's income at all. Going by a rough and ready estimate, the second opposite party would have an easy in-hand salary of Rs.35,000/- per month.
11. In the opinion of this Court, the Family Court, therefore, has erred in proceeding to determine the second opposite party's income at a figure of Rs.22,000/- per month for his mere saying. Mr. Kushwaha has drawn the Court's attention to the fact that the second opposite party has to shoulder the responsibilities of his aged father, who is said to be aged 66 years and dependent on him, besides an unmarried sister. It was said about his unmarried sister that her marriage is scheduled on 26.04.2021. It is not known if that marriage has fructified. It is true that so far as the second opposite party's father is concerned, if he is unable to maintain himself, the second opposite party would have obligation under the law to maintain him. He would, on moral parameters, have to support his sister, until she is married or starts earning for herself. Thus, in working out the entitlement of the wife, the lawful liabilities of her husband towards other dependent family members have to be borne in mind vis-a-vis his monthly income. At the same time, it has to be ensured that the wife receives a maintenance a sum that is sufficient to maintain herself by the same standard that she would enjoy in her husband's household.
12. In Rajnesh v. Neha and another, (2021) 2 SCC 324, their Lordships of the Supreme Court have laid down the criteria for determining the quantum of maintenance. It has been said in Rajnesh thus:
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 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 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.
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 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.
13. In Rajnesh, it has been held that maintenance is to be awarded from the date of application made to the Family Court, bearing in mind the total in-hand monthly salary received by the husband on the one hand and his liabilities towards other dependent family members on the other. Going by the entitlement of the wife to maintain herself by the same standard of living that she would have enjoyed in her husband's household, it would meet the ends of justice to enhance the maintenance awarded from a sum of Rs.7000/- to Rs.9000/- per month, payable from the date of application.
14. In the result, this revision, succeeds and is allowed in part. The impugned judgment and order passed by the Principal Judge, Family Court, Kaushambi is modified to the extent that the revisionist is held entitled to receive in maintenance a sum of Rs.9000/- per month, payable by the second opposite party from the date of application.
15. Let this order be communicated to the Principal Judge, Family Court, Kaushambi by the Registrar (Compliance).
16. Let the lower court records be sent down at once.
Order Date :- 16.8.2021 Anoop