Himachal Pradesh High Court
Dinesh Mohan vs Kavita Alias Kamleshrt on 28 September, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Civil Revision No.75 of 2015.
Judgment reserved on :24.09.2015.
Date of Decision: September 28th, 2015.
Dinesh Mohan .....Petitioner.
of
Versus
Kavita alias Kamleshrt .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Mr.Ramakant Sharma, Senior Advocate with Mr. Basant Thakur, Advocate.
For the Respondent : Ms.Anjali Soni Verma, Advocate, legal aid counsel.
Tarlok Singh Chauhan, Judge.
This revision petition under Section 115 of the Code of Civil Procedure is directed against the order passed by the learned Additional District Judge-I, Solan, on 23.04.2015 whereby he awarded maintenance pendente lite at the rate of `7,000/- per month alongwith litigation expenses at `10,000/- to the respondent.
2. The relationship between the parties is not disputed and the petitioner has only questioned the basis upon which the learned Court below awarded the maintenance.
3. It is vehemently contended by Shri Ramakant Sharma, Senior Advocate assisted by Shri Basant Thakur, Advocate that before Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 2 passing the impugned order, it was incumbent upon the Court below to have taken into consideration the pleadings and other material placed .
on record and only after weighing the same, passed the impugned order.
4. In support of his submissions, reliance has been placed upon the judgment passed by the Bombay High Court in Smt.Gangu of Pundlik Waghmare versus Pundlik Maroti Waghmare and another AIR 1979 Bombay 264 and judgment of the Madhya Pradesh High rt Court in Nishan Singh versus Bhupendra Kaur 1985 (2) HLR 321.
5. I do not think that there could be any quarrel with the submissions made by learned counsel for the petitioner and the proposition of law as contained in the aforesaid judgments. The order of grant of maintenance cannot obviously be passed mechanically and has to be passed only after evaluating the pleadings and other material available on record.
6. The applicant (respondent herein) in her application has averred that she is doing temporary work in 'MNREGA' Scheme which is available only for 90 days in a year and her total income is less than `1,500/- per month which is too meagre to sustain her. That apart, the daughter of the parties is also residing with her and is studying in 4th standard in a Public School. Her admission fee alone is `4,000/- per annum and besides that `650/- per month is being paid as regular fee.
That apart, there are other expenses also which are required to be incurred for the purchase of school uniform including shoes, school bags, books etc. It is also averred that the petitioner was earning `50,000/- per month and is having a flourishing business/shop at Main Bus-Stand, Chandi, Tehsil Kasauli and besides this has also kept two ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 3 goods carrying vehicles and, therefore, his income from all sources was more than `50,000/- per month.
.
7. The petitioner in reply to the application chose only to deny most of these averments and it was claimed that he had provided to the respondent two rooms space in the ancestral house. Further, the respondent had been managing entire share of agricultural land in the of ancestral property by employing labourers and was deriving `10,000/-
per month from the same. That apart, she is also selling grass. Lastly, rt it was contended that the petitioner is providing all the expenses to his daughter in the school. It was also averred that the respondent is employed in the school from where she is earning `5,000/- per month and as such the income of the respondent from all sources is more than `15,000/-.
8. In the matter of making an order of interim maintenance, the Court is to be guided by the criteria provided in the Section itself namely the means of the parties and also after taking into account incidental and other relevant factors like social status, the background from which the parties come from and the economical dependence of the wife/child upon the husband/father. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the Court may not be necessary. But, at the same time, the Court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.
9. A duty is fastened upon the Court to award maintenance pendente lite in such a manner so that spouse and the child can live with dignity according to their social status. Factors which can be ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 4 culled out as required to be kept in mind while awarding interim maintenance are as under:-
.
(i) Status of the parties;
(ii) Reasonable wants of the claimant;
(iii) The income and property of the claimant;
(iv) Number of persons to be maintained by the husband;
(v) Liabilities, if any, of the husband;
of
(vi) The amount required by the wife to live a similar life-style
as she enjoyed in the matrimonial home keeping in view rt food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife.
10. The learned Court below accorded the following reasons for awarding the maintenance and litigation expenses.
"5. Respondent-wife has stated that she has no independent source of income. However, she has stated that she is employed in MNREGA and getting less than `1,500/- per month. She has school going minor child with her, who is studying in 4th standard. She is unable to support herself and her child due to this meagre income, which she is earning being employed under MNREGA. Petitioner-husband is stated to have shop at Main Bazar, Chandi and having goods carrying vehicles. This means apparently that husband has sufficient income.
6. Thus, having regard to the facts and circumstances of the case, coupled with the discussion aforesaid, it is deemed just and fit to award maintenance pendente lite to respondent-wife @ `7,000/- per month along with litigation expenses i.e. `10,000/-. Accordingly, the petition stands disposed of. Any observations made hereinabove are without prejudice to the merits of the case. The file, after due completion, be tagged with the main file."
11. No doubt, the findings recorded by the learned Court below are not happily worded, but, this Court cannot ignore the fact that the award of maintenance is not solely for the benefit of the respondent ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 5 herein, but is also for the benefit of the minor child, who admittedly is studying in a Public School. Even if, the maintenance of `100/- per day .
is considered as sufficient for the purpose of sustenance alone, even then the maintenance for two persons would work out to `6,000/- per month.
12. That apart, the Court cannot also be oblivious to the fact of that apart from sustenance, the respondent and her child would be incurring some other expenses for their upkeep, purchase clothes, rt shoes, utensils etc. etc. Once the minor child is school going, then there would be additional expenses to be incurred towards admission fees, tuition fees, school uniform etc. and, therefore, the additional amount of `1,000/- per month i.e. roughly `33/- per day for two persons can by no stretch of imagination in the present day cost of living, growing inflation and purchasing power of rupee, be termed to be a luxury. The interim maintenance not only includes educational expenses of the child, but it is also required to ensure that the child is brought up keeping in view the status and life-style of the parents.
13. After-all, the object of providing maintenance is to prevent vagrancy by compelling the husband to support his wife and child unable to support themselves. These provisions are not penal in nature, but are only intended for enforcement of the duty, a default, which may lead to vagrancy. The further object underlying Section 24 is that neither party may suffer by his/her inability to conduct the proceedings for want of money or expenses.
14. It is not in dispute that the petitioner is an able-bodied young man and is, therefore, presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 6 child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard.
.
It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable for reasons beyond his control to earn enough to discharge his legal obligation of maintaining his wife and child. This was so held by the Delhi High Court in Chander Parkash of Bodh Raj versus Smt. Shila Rani Chander Prakash AIR 1968 Delhi 174 which judgment in turn was upheld by the Hon'ble Supreme Court rt in Shamima Farooqui versus Shahid Khan (2015) 5 SCC 705.
15. This Court in Cr.MMO No.26 of 2015 titled Vipul Lakhanpal versus Smt. Pooja Sharma, decided on 01.06.2015 noticed both the aforesaid judgments, while dealing with a case relating to payment of maintenance under The Protection of Women from Domestic Violence Act, 2005. Both the aforesaid judgments were noticed in the following terms:-
"18. The next question, which arises for consideration is as to whether employed wife can be refused maintenance only on the ground that the husband is unemployed.
19. It can never be forgotten that inherent and fundamental principle behind section 12 of the Act 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 that there has to be some acceptable arrangements so that she can sustain herself. Sustenance does not mean and can never allow to mean a mere survival.
20. A woman, who is constrained to leave the matrimonial 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 to lead a life in the similar manner as she would have lived in the house of her husband. She cannot be compelled to become a destitute or a beggar.::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 7
21. Now, I deal with the plea advanced by the husband that he does not have the job and his survival is on the little pension .
that his father is getting. Similar question came up before the Hon'ble Supreme Court in Shamima Farooqui vs. Shahid Khan JT 2015 (3) SC 576, wherein it has been held as follows:-
"15. .........Sometimes, a plea is advanced by the husband of 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. rt 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. [JT 1997 (7) SC 531: 1997 (7) SCC 7] has held as follows:-
"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the 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 [JT 2008 (1) SC 78 : 2008 (2) SCC 316], it has been ruled that:-
"Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal [1978 (4) SCC 70] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 8 position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [JT 2005 (3) SC 164]".
.
16.1. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
17. In this context, we may profitably quote a passage from of the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash [AIR 1968 Delhi 174] wherein it has been opined thus:-
rt "An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
22. From the aforesaid enunciation of law, it is absolutely clear that once the husband is an able -bodied young man capable of earning sufficient money, he cannot simply deny his legal obligation of maintaining his wife.
23. It has to be remembered that 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 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 which she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. [Ref: Shamima Farooqui vs. Shahid Khan (supra)]."
16. At this stage, it may be observed that the proceedings for grant of interim maintenance are summary in nature for compelling a man to maintain his wife and/or children. It provides cheap and speedy ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP 9 remedy for securing a limited degree maintenance for the deserted wife and children. This Court in revision would ordinarily interfere with such .
orders only if the Court below has failed to exercise its jurisdiction judicially and if substantial justice has not been done.
17. The cumulative effect of the discussion above is that the order passed by the learned Additional District Judge-I is legal and of proper one. No illegality, irregularity or perversity can be found in the said order. Consequently, the present petition being devoid of any rt merit is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge.
September 28th, 2015.
(krt) ::: Downloaded on - 15/04/2017 19:01:12 :::HCHP