Gujarat High Court
Ramandeep Palvindersingh Oberoi vs Palvindersingh Sampuransingh Oberoi & on 7 July, 2015
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.RA/671/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 671 of
2014
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS JUSTICE SONIA GOKANI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
RAMANDEEP PALVINDERSINGH OBEROI....Applicant(s)
Versus
PALVINDERSINGH SAMPURANSINGH OBEROI & 1....Respondent(s)
==========================================================
Appearance:
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1
MR JA ADESHRA, ADVOCATE for the Respondent(s) No. 1
MRS HANSA PUNANI, ADDL.PUBLIC PROSECUTOR for Respondent No.2
==========================================================
CORAMHONOURABLE MS JUSTICE SONIA
: GOKANI
Date : 07/07/2015
CAV JUDGMENT
Page 1 of 36
HC-NIC Page 1 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT
1. By way of present Revision Application preferred by the applicantwife under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the CrPC'), the applicant challenges the legality and validity of the judgment and order dated August 13, 2014, passed by the learned Presiding Officer, Family Court, Ahmedabad in Criminal Miscellaneous Application No.2495 of 2013, whereby the learned Judge granted amount of maintenance of Rs.30,000/ per mensem to the applicantwife under section 125 of the the CrPC.
2. The brief facts, if put in a nutshell, are as under :
2.1 The marriage of the applicantwife was solemnised on June 22, 2003 with the respondent No.1husband, as per the tradition and customs of Shikh Community. For both the spouses i.e. the applicant and the respondent No.1husband, this was their second marriage. The respondent No.1 had already one daughter out of his earlier wedlock. Soon the applicantwife Page 2 of 36 HC-NIC Page 2 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT realised that the second marriage with the applicant was only for getting a male child to be delivered by her. It is the say of the applicant that she was steadily given physical and mental harassment.
2.2 After her marriage, the applicantwife used to stay with the respondent No.1husband at Ambala in the State of Haryana. The applicant has made various allegations, one of which is the demand of dowry to the tune of Rs.40 lakh.
She has also alleged that she had to undergo In Vitro Fertilisation (I.V.F.) treatment and a number of times attempts were made to get the male child and the same did not work out, surrogacy was attempted, however, the lady who became the surrogate was a married lady, with whom the respondent No.1 had illicit relationship.
2.3 In April, 2009, when she had overheard his telephonic talks, in anger the respondent No.1 attempted to throttle her and thereafter, as a result of kick blows, she fell down from the Page 3 of 36 HC-NIC Page 3 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT staircase. Various serious allegations are made against the respondent No.1, which do not require further elaboration. Suffice it to note that on realising the continuous cruelty perpetrated on her, she had lodged a first information report and also intimated her parents. She was brought to Ahmedabad on February 07, 2013 and continued to be under treatment for physical ailment.
2.4 The first information report came to be lodged against the respondent No.1 and others under sections 498A, 323, 325, 504, 506(2) and 114 of the Indian Penal Code and sections 3 and 7 of the Dowry Prohibition Act.
2.5 The respondent No.1 moved an application for quashing being Criminal Miscellaneous Application No.9529 of 2013 before this Court. However, this Court vide order dated February 07, 2014, dismissed the petition on the ground that the allegations in the first information report are very serious in nature.
Page 4 of 36 HC-NIC Page 4 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT 2.6 The respondent No.1husband preferred Special Leave Petition before the Apex Court being SLP No.6954 of 2014, which also came to be dismissed by the Apex Court on January 19, 2015.
2.7 Before the Family Court, an application under section 125 of the CrPC being Criminal Miscellaneous Application No.2495 of 2013, was moved, whereby she had claimed an amount of Rs.5,00,000/ per mensem, however, the Family Court has granted Rs.30,000/ per mensem towards maintenance. Vide its impugned order, the Court directed such sum of Rs.30,000/ (Rupees Thirty Thousand only) to be adjusted against other orders of maintenance, etc. Amongst various grounds raised in the application, she has challenged the legality and validity of such an order and also sought for enhancement of maintenance in this Revision Application.
3. The applicantwife has filed her affidavits and also enlisted the income of the respondent No.1 Page 5 of 36 HC-NIC Page 5 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT husband and his various business sources. According to her, as averred in the affidavit, his annual total income is Rs.1,80,20,000/. It is urged that the respondent No.1 is an extremely rich person and has a luxurious lifestyle. He has only one daughter, who is married and there is no other liability on him of his family or of others. She has also produced some of the photographs to substantiate her version of cruelty. She was treated at the hospital and medical case papers of V.S. Hospital are also brought on record, to corroborate her pleadings. She has also provided the documentary details of the properties of the respondent No.1 and values thereof to state that the properties worth Rs.337.19 crores are owned by the respondent No.1.
4. In reply to the same, the respondent No.1husband denied all the contentions raised and allegations levelled in the memorandum of the application as well as the affidavits. According to him, this exercise is undertaken only with a view to extort money from the respondent No.1. He contended that Page 6 of 36 HC-NIC Page 6 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT she had filed the first information report being IC.R. No.12 of 2013 before the Mahila Police Station on March 01, 2013 against the respondent No.1 and his daughter. The transit anticipatory bail was obtained by him from Punjab and Haryana High Court and thereafter, he was granted anticipatory bail by the Court at Ahmedabad. She has also filed a case under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the DV Act') being Application No.79 of 2013 before the Court of Metropolitan Magistrate, Ahmedabad against the respondent No.1 and his other family members, whereby she has claimed a separate accommodation and maintenance of Rs.3 lakh per mensem and also compensation of Rs.1 crore for physical and mental torture, so also interim maintenance of Rs.1.50 lakh per mensem.
5. The Court had ordered the payment of Rs.10,000/ per mensem towards rent and further sum of Rs.15,000/ towards interim maintenance to the applicantwife. The respondent No.1 also has deposited the total amount, which comes to the Page 7 of 36 HC-NIC Page 7 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT tune of Rs.5.50 lakh. According to him, the applicant has claimed an amount of Rs.5 lakh per month and 50% share in the moveable and immoveable properties of the respondent No.1. Even the sum of Rs.30,000/ awarded by the Family Court, according to the respondent No.1, is on higher side. All the allegations of beating and cruelty have been denied. It is his say that the applicant is staying with her parents, who are well to do and she herself is holding the degrees of B.A. and B.Ed. and had done her fashion designing course from the NIFT. She is capable of earning herself and the object of section 125 of the CrPC is to see that the basic needs of the wife are satisfied and these provisions are not meant to be windfall for the wives. It is also his say that he had treated her with care and love. She never used to attend any household chores and used to pick up the quarrels with her servants and family members, including the aged mother of the respondent No.1, who died in October, 2010. The applicant, as alleged, is aggressive and quarrelsome.
Page 8 of 36 HC-NIC Page 8 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT :: SUBMISSIONS ::
6. Shri K.M. Paul, learned counsel, used to appear on behalf of the applicantwife. Unfortunately, he passed away during the pendency of the present proceedings. Therefore, this Court had made the applicant aware of her right to get free legal aid, to which she denied. Therefore, an order came to be made on June 12, 2015, directing the Committee to examine the request of the Partyin Person to appear and represent her own case as the applicant had desired with the assistance of her father.
6.1 The applicant has been permitted by the Committee vide its order dated June 17, 2015 and, therefore, she argued her matter at length. She has urged that her plight is very miserable and her father is also a retired employee. She has no house of her own and her parents are also residing with her brother. She has urged that she had been exposed to various treatments of IVF and the action on the part of Page 9 of 36 HC-NIC Page 9 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT the respondent No.1 has made her physically and mentally very weak. Huge amount is spent on her medical expenses and the entire sequence of events has led to her mental depression and other severe physical ailments.
6.2 The applicant has urged that she had made a request under the Right to Information Act, 2005 and sought for Incometax Returns of the respondent No.1 for the period from 201011, 201112, 201213, 201314 and 201415. The Incometax Department vide its order dated June 19, 2015, under section 7 of the Right to Information Act, on overruling the objection of the respondent No.1 of not to supply all the information on the ground of this being personal information, chose to furnish the details. While so doing, the Department relied upon the decision rendered on January 14, 2014, by the Delhi High Court in the case of Kusum Sharma v. Mohinder Kumar Sharma, whereby the Court has held that the I.T. Returns, annual returns of assets, investments, etc. though were declared as private or personal or Page 10 of 36 HC-NIC Page 10 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT third party information, however, as far as spouses are concerned, they are not private, personal or third party informations, particularly in the context of matrimonial disputes, especially for maintenance purpose. Such request, according to Delhi High Court, cannot be rejected by the PIOs if filed by the spouses on the ground of section 8(1)(j) of the RTI Act saying it is personal information, because the protection of privacy is overridden by the huge public interest in maintaining wives, as provided in the proviso to exception 8(1)(j) of the RTI Act. She has, therefore, urged that these details need to be taken into account while considering her case. The learned Presiding Officer of the Family Court made an error in restricting the amount to Rs.30,000/ when she used to have a particular way of living and when it is proved that she has no means for maintaining such standards. 6.3 In support of her submissions, she has relied on the decision of this Court rendered on September 08, 2014 in the case of Page 11 of 36 HC-NIC Page 11 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT Tanumatiben Mukesh Kumar Parikh v. State of Gujarat while dealing with Criminal Revision Application (for maintenance) No.606 of 2013, whereby the Court has considered as to what percentage income of the husband would be construed as a proper amount of maintenance to the wife under section 125 of the CrPC and 1/3rd income is held to be proper. She has also relied on the decision of the Patna High Court in the case of Rashid Nazfi alias Rashid Najfi v. Shahin Gulab, reported in 2005 Cr.L.J. 4290, on the quantum of maintenance amount, whereby it has also held that the amount of 1/3rd of the basic pay should be the maintenance amount for the wife.
7. A contrario sensu, Shri J.A. Adeshra, learned counsel appearing for the respondent No.1 husband, has strenuously and fervently objected to the grant of any further amount. According to him, the order passed by the Court in the proceedings under the DV Act have never been revealed while pursuing this remedy under section 125 of the CrPC and, therefore, on the ground of Page 12 of 36 HC-NIC Page 12 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT suppression itself, the present Revision Application deserves to be rejected. It is urged that the order impugned has been passed in absence of the husband, however, he has admitted that the respondent No.1 has neither appeared nor has he challenged the impugned order of maintenance. The respondent No.1 is in the business undoubtedly, but, the reckless allegations of cruelty are false and according to him, the properties of the respondent No.1 and his income are shown quite on higher side. He urged that the very purpose and object of section 125 is to prevent vagrancy and destitution. It is not the means to exploit the husband. The wife though is capable of looking after herself, rather than doing anything to get herself financially independent, she has chosen to continue to extract money from her husband. He urged, therefore, that with costs this Revision Application deserves to be rejected. 7.1 In support of his submissions, he has relied upon the following decisions :
Page 13 of 36
HC-NIC Page 13 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT
(i) Bhagwan Dutt v. Smt.Kamla Devi and another, reported in AIR 1975 SC 83.
(ii) K. Vimala v. K. Veeraswamy, reported in 1991(1) GLH 380.
(iii) Decision of the Madhya Pradesh (Indore Bench) rendered on March 24, 2000, in the case of Smt.Mamta Jaiswal v. Rajesh Jaiswal while dealing with Civil Revision No.1290 of 1999.
:: FINDINGS ::
8. Upon thus hearing both the sides and on careful consideration of the material on record, so also the impugned decision of the Family Court, this Court is of the opinion that the application deserves to be partly allowed by enhancing the amount of maintenance, of course, not to the extent that the applicantwife has claimed. 8.1 At that outset, the law on the subject deserves some consideration.
8.2 Section 125 of the CrPC profitably requires to be reproduced at this stage, which reads as under :
Page 14 of 36
HC-NIC Page 14 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT "125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and 10 pay the same to such person as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a minor female child referred to Page 15 of 36 HC-NIC Page 15 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct :
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or Page 16 of 36 HC-NIC Page 16 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.Page 17 of 36
HC-NIC Page 17 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
8.3 As the present Revision Application concerns the wife, the discussion that follows hereinafter should have reference of the applicantwife. The wife would be entitled to get the maintenance if the husband despite having means has neglected to maintain her. She would be disentitled to maintenance as provided in section 125(4) of the CrPC, if she chooses to leave her husband without sufficient cause and otherwise if she is found to be indulging Page 18 of 36 HC-NIC Page 18 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT in adultery. There is no allegation of such nature.
8.4 The learned Presiding Officer of the Family Court after bi partiate hearing had concluded that the wife has no means and she was deserted by the respondent No.1husband and her husband since had neglected and refused to maintain her, her entitlement was found under section 125 of the CrPC.
8.5 At this stage it is also to be mentioned that in the wake of no challenge to the amount of maintenance granted from the respondent No.1husband by this respondent, the only aspect to consider is the request of enhancement. Undoubtedly, the provision of section 125 of the CrPC is in the realm of social justice to prevent the malice of vagrancy and destitution by providing expeditious remedy to the wife, children and parents. At the same time, to say that the grant of amount of maintenance under section 125 of the CrPC should be restricted only on Page 19 of 36 HC-NIC Page 19 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT considering its initial inclusion in the CrPC, despite the removal of the cap of sum of Rs.500/ would amount to disregarding the very purpose for which this ceiling has been removed. It needs to be noted that even when this ceiling was not removed, the Courts have time and again emphasised that the grant of maintenance does not mean providing of food and clothing only nor is it prescribing to animal living. It would mean a dignified life which the wife is entitled to and to award her the same which would entitle her to lead the life she was used to prior to matrimonial discords. It is not only mere survival which is contemplated under the law. It would surely mean living a life with dignity. It also means to allow the wife a reasonable comfort bearing in mind her status and the kind of life she was used to while with the husband.
8.6 At this juncture, the decision of the Apex Court rendered in the case of Bhuwan Mohan Singh v. Meena and others, reported in AIR 2014 SC 2875, requires a reference, wherein Page 20 of 36 HC-NIC Page 20 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT the Apex Court has held and observed that giving maintenance is not for animal living. It would be profitable to quote the relevant findings of the said decision, which read as under :
"2. The two issues that pronouncedly emanate in this appeal by special leave are whether the Family Court while deciding an application under Section 7 of the Family Court Act, 1984 (for brevity, "the Act") which includes determination of grant of maintenance to the persons as entitled under that provision, should allow adjournments in an extremely liberal manner remaining oblivious of objects and reasons of the Act and also keeping the windows of wisdom closed and the sense of judicial responsiveness suspended to the manifest perceptibility of vagrancy, destitution, impecuniosity, struggle for survival and the emotional fracture, a wife likely to face under these circumstances and further exhibiting absolute insensitivity to her condition, who, after loosing support of the husband who has failed to husband the marital status denies the wife to have maintenance for almost nine years as that much time is consumed to decide the lis and, Page 21 of 36 HC-NIC Page 21 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT in addition, to restrict the grant of maintenance to the date of order on some kind of individual notion. Both the approaches, as we perceive, not only defeat the command of the legislature but also frustrate the hope of wife and children who are deprived of adequate livelihood and whose aspirations perish like mushroom and possibly the brief candle of sustenance joins the marathon race of extinction. This delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual."
8.7 An unfortunate event must not make her plight miserable and send her from pillar to post arranging for her sustenance. The Apex Court in a decision rendered in the case of Shamima Farooqui v. Shahid Khan, reported in (2015) 5 SCC 705, has at length considered the plight of the women asking for maintenance under the distress. It would be profitable to reproduce some of the relevant findings and observations of the said decision, which read as under :
Page 22 of 36
HC-NIC Page 22 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT "14. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654/.
15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/ per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled Page 23 of 36 HC-NIC Page 23 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar.
There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. 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 absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. has held as follows: Page 24 of 36 HC-NIC Page 24 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT "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 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 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, 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 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 Page 25 of 36 HC-NIC Page 25 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to 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." 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 judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash wherein it has been opined thus: "An ablebodied 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 ablebodies 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 Page 26 of 36 HC-NIC Page 26 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT 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."
18. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance." 8.8 Shri J.A. Adeshra, learned counsel appearing for the respondenthusband, has placed much reliance on the decision of the Madhya Pradesh High Court rendered in the case of Smt.Mamta Jaiswal (supra), wherein the Court has also insisted on the wife, otherwise who is Page 27 of 36 HC-NIC Page 27 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT educationally qualified, to earn her living. In the wake of decisions discussed hereinabove of the Apex Court and the findings and observations followed thereafter, this decision does not require consideration of this Court. 8.9 Going straight to the question of maintenance, it is an undisputed fact that the respondenthusband belongs to the upper strata of the society having huge earnings. His lifestyle, status and strata get apparent from various documents and the affidavits of the parties. It can, thus, be noted that in the matter on hand, although the trial Court has granted a sum of Rs.30,000/ per mensem, as also the applicantwife is granted an amount of Rs.15,000/ towards maintenance and Rs.10,000/ towards rent, in view of the proceedings under the Domestic Violence Act, the question is whether the applicant is entitled to get any enhanced amount of maintenance or the court below committed any error apparent on the face of it, particularly in the wake of the Income tax Returns received by the applicantwife Page 28 of 36 HC-NIC Page 28 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT pursuant to the application made under the RTI Act, the claim of the applicantwife for enhancement of maintenance gets fortified. 8.10 The Incometax Returns of the respondent No.1husband of the assessment years 201213 and 201415 are produced by the applicantwife before this Court.
8.11 The applicantwife had made a request for the details of the income of the respondent No.1husband and had specifically sought for Incometax Returns, however, they were not at any point of time adduced before the trial Court by the respondent No.1husband. By preferring an application under the RTI Act, such returns were requested for. The respondent No.1 could have produced these documents before the trial Court. They were well within his knowledge and he would have also possessed the copies thereof. This being a special knowledge under section 106 of the India Evidence Act, 1872, the least he could have done was to come before the Court with clean hands. These are Page 29 of 36 HC-NIC Page 29 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT his own documents produced before the tax authorities. He, on the contrary, ought to have done on his own, instead he chose not to part with the same and, hence, the wife who otherwise was pleading orally such aspects needed to take a longer route.
8.12 There is no separate income of the wife except the amount given to her under the Domestic Violence Act towards maintenance, that, of course, requires to be considered while deciding the total amount of maintenance. This Court does not agree with the contention raised by the learned counsel Shri Adeshra appearing for the respondent No.1husband that even in absence of ceiling of amount of maintenance under section 125 of the CrPC, beyond a point the amount of maintenance cannot be granted. In the opinion of this Court, once the ceiling is removed by the legislature, acceding such interpretation would amount to disregarding the very reason for such removal. It is also contrary to well settled principle of law on the subject where the Apex Court has Page 30 of 36 HC-NIC Page 30 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT held and observed time and again that the amount of maintenance must provide for descent and dignified living for which the wife is used to while at her matrimonial home. Status and strata of the husband would have a decisive role while determining such sum. The lady who is used to certain living standards would surely be in the state of misery if she is not provided the amount that enables her to live a descent life. That is the only 'soothing legal balm' the law can offer to allow her the same decency and comforts. As mentioned hereinabove, it is not a mere survival nor animalistic living that law contemplates. Considering the stature and status of the respondent No.1 husband, where his gross income is running into crores of rupees every year and his total yearly income after all permissible adjustments and deductions comes to nearly Rs.90 to 95 lakh. The wife surely is required to be granted the amount which matches with the life she is used to before this discord. It is to be noted that though she has done her graduation and a Page 31 of 36 HC-NIC Page 31 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT special course from NIFT, the fact is hardly in dispute that she is not earning any sum presently. Her educational qualifications even if can make her potential person to sustain herself, what is vital to be seen is whether she is having any means to maintain herself and once the answer is in negation, the theoretical debate of her capabilities may not deny her the maintenance. Moreover, as can be seen from record, her medical condition has prevented her from earning any amount. There is nothing remotely even to suggest that she has any income of her own. She resides at her brother's house with her parents and thus, not only she has no income, she hardly can be said to have a shelter which is permanent. The Court of learned Chief Judicial Magistrate has granted the applicantwife an amount of Rs.10,000/ towards rent. In a Metropolitan City like Ahmedabad, this amount would be grossly insufficient for a lady to have a descent living.
Page 32 of 36 HC-NIC Page 32 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT 8.13 The amount of maintenance granted by the Court below is to the tune of Rs.30,000/ which has been adjusted with the income of maintenance provided under section 18 of the Act, plus amount of rent respectively [Rs.15,000/ + Rs.10,000/], being total Rs.25,000/ and, therefore, the only addition made is of Rs.5,000/. In the opinion of this Court, this is a gross and manifest error which requires correction.
8.14 As could be noticed from the compilation of computation of total income submitted to the Incometax Department by the respondenthusband for assessment year 201213, long term investment in quoted Government Securities to the tune of Rs.43,67,275/ has been made, which even otherwise would qualify for exemption under the provisions of the Incometax Act, and therefore, for a particular assessment year 201213, his gross income was Rs.1.04 crore (rounded off). Whereas, from the computation of total income for the assessment year 201415, such long term investment in unquoted Page 33 of 36 HC-NIC Page 33 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT Government Securities is made to the tune of Rs.66,18,375/, which would qualify for exemption, and therefore, for the said period, his gross income works out to be Rs.1.2 crore (rounded off). If the mean is taken, the gross income ranges between Rs.90 lakh to Rs.95 lakh per annum.
8.15 The applicant has been able to prove before the Court below that her husband has no responsibility as his motherinlaw owns her own properties and income; and his daughter has already married. As mentioned hereinabove, his immovable properties, as per incometax returns, are worth crores of rupees. Of course, it is for the wife to take appropriate recourse in that regard under the law.
8.16 As far as the amount of maintenance is concerned, the applicantwife would be entitled to at least 1/3rd of his income. With an income of Rs.90 lakh to Rs.95 lakh per annum of the respondent No.1husband, her entitlement could be much more, however, appropriate would be to Page 34 of 36 HC-NIC Page 34 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT grant her additional Rs.45,000/ per mensem, over and above the amount of maintenance of Rs.30,000/ granted by the Family Court. 8.17 Thus, in the wake of discussion made hereinabove, bearing in mind the present condition of the applicant and absence of accommodation of her own, and her long term treatment, mental and physical, over and above the amount granted under the Domestic Violence Act being the sum of Rs.15,000/ and the amount of Rs.30,000/ granted by the trial Court under section 125 of the CrPC, additional sum of Rs.45,000/ is required to be granted to the applicant, and accordingly, the order impugned is required to be modified enhancing the same to Rs.75,000/, which will not be adjusted against the amount which has been granted under the provisions of the Domestic Violence Act.
9. For the foregoing reasons, the present Revision Application succeeds and is, accordingly, partly allowed. The judgment and order dated August 13, 2014, passed by the learned Presiding Officer, Page 35 of 36 HC-NIC Page 35 of 36 Created On Sat Aug 22 01:46:12 IST 2015 R/CR.RA/671/2014 CAV JUDGMENT Family Court, Ahmedabad in Criminal Miscellaneous Application No.2495 of 2013, is hereby modified and enhanced to total Rs.75,000/ towards maintenance (i.e. Rs.30,000/ granted earlier + Rs.45,000/ granted by this order), which will not be adjusted against the amount of Rs.15,000/ which has been granted under the provisions of the Domestic Violence Act.
9.1 The respondent No.1husband is directed to pay the amount of arrears to the applicantwife from the date of application under section 125 of the CrPC within a period of eight weeks from the date of receipt of this order.
Revision Application stands disposed of accordingly. Rule is made absolute accordingly.
(MS SONIA GOKANI, J.) Aakar Page 36 of 36 HC-NIC Page 36 of 36 Created On Sat Aug 22 01:46:12 IST 2015