Himachal Pradesh High Court
Ram Pal Verma vs Of on 13 October, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 89 of 2015 .
Judgment Reserved on: 8.10.2015
Date of Decision: October 13, 2015
Ram Pal Verma. ...Petitioner
Versus
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Shobha Kumari . ...Respondent
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 For the Petitioner: Ms. Megha Kapur Gautam, Advocate.
For the Respondent: Mr. Suneet Goel, Advocate.
Tarlok Singh Chauhan J. (oral).
This Revision Petition takes exception to the judgment passed by the learned Additional Sessions Judge, whereby he modified the judgment passed by the learned Magistrate and directed the petitioner to pay maintenance of `3,000/- per month and also provide a shared house hold or pay `1,000/- per month to the respondent in proceedings initiated by the respondent under the Protection of Women from Domestic Violence Act, 2005 (for short the "Act").
2. The relationship inter se the parties as husband and wife is not denied and therefore, the short question which arises Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 2 for consideration only relates to the quantum of maintenance and grant of share house hold or `1,000/- per month in favour of .
the respondent.
I have heard the learned counsel for the parties and have gone through the records of the case.
3. Ms.Megha Kapoor Gautam, learned counsel for the of petitioner has strenuously argued that the learned Additional Sessions Judge while awarding maintenance has failed to take rt in to consideration the fact that the petitioner apart from himself, has to support his two minor children and mother, who is aged about 90 years, that too with a meager income of `60-70/-
per day. She further argued that as per the law settled by the Hon'ble Supreme Court, the Courts while awarding maintenance are not only required to see the financial condition of the opposite party, but are also required to see the income and property of the person upon whom the liability of maintenance is sought to be fastened. She has placed reliance on the following observations from the judgment of Hon'ble Supreme Court in Jasbir Kaur Sehgal Vs. District Judge, Dehradun (1997) 7 SCC 7:
"8. The wife has no fixed abode of residence She say she is living in Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to him. Wife has not claimed and litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has, in very nature of ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 3 things, to depend on the facts and circumstance of each case. Some scope for leverage can, however, be always there. Court has to consider the status of the parties, their respective needs, .
capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. 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 of 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. In the circumstances rt of the present case we fix maintenance pendente lite at the rate of Rs. 5,000/- per month payable by respondent-husband to the appellant-wife."
4. Support is also sought to be drawn from the judgment rendered by Hon'ble Supreme Court in Vinny Parmvir Parmar Vs. Parmvir Parmar (2011) 13 SCC 112, wherein the Hon'ble Supreme Court held as follows:-
"12 As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 4 amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her .
husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony".
5. She has further placed reliance upon the following of observations made by this Court in Civil Revision No. 75 of 2015 in case titled as Dinesh Mohan Vs. Kavita alias Kamlesh, decided rt on 28.9.2015:-
"9. A duty is fastened upon the Court to award maintenance pendente lite in such a manner so that spouse and the child can live with dignity according to their social status. Factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under:-
(i) Status of the parties;
(ii) Reasonable wants of the claimant;
(iii) The income and property of the claimant;
(iv) Number of persons to be maintained by the husband;
(v) Liabilities, if any, of the husband;
(vi) The amount required by the wife to live a similar life-
style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife."
6. There can be no quarrel with the proposition as canvassed by Ms.Megha Kapoor Gautam, learned counsel for the petitioner, because even as per the observations of Hon'ble Supreme Court in the afore-cited cases, it would be clear that it has been specifically emphasized that the Courts while awarding ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 5 maintenance are also required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can .
live in reasonable comfort considering her status and mode of life she was used to when she lived with her husband.
7. In so far as the question of income is concerned, the learned Additional Sessions Judge on the basis of the evidence has of come to a categoric conclusion that the income of the petitioner may not be less than `1500/- per day.
rt That apart, even if it is assumed that the petitioner is earning slightly less, then what has been assessed by the learned Courts below, even then there can be no denial of the fact that the petitioner is an able bodied young man capable of earning sufficient money and therefore, cannot simply deny his legal obligation to maintain his wife. This issue has been elaborately dealt with by the Hon'ble Supreme Court in Shamima Farooqui Vs. Shahid Khan JT 2015 (3) SC 576, wherein it was held as follows:-
"15. .........Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an 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 ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 6 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.
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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 of cannot be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a rt 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 position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [JT 2005 (3) SC 164]".
16.1. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
17. In this context, we may profitably quote a passage from the 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:-
::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 7"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."
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8. It has to be remembered that when the woman leaves the matrimonial home, the situation is quite different. She is deprived rt 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.
9. Now coming to the question as to whether grant of maintenance @ `3,000/- per month coupled with the order providing suitable portion of accommodation in the residence or pay `1,000/-
per month as rent, I do not find any illegality even with this part of the order. The aforesaid maintenance during the current time cannot be termed to be excessive. Similar question has already been considered by this Court in Dinesh Mohan's case (supra) and it was held:-
"8. In the matter of making an order of interim maintenance, the Court is to be guided by the criteria provided in the Section itself ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 8 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 of in the statute.
9. A duty is fastened upon the Court to award maintenance rt pendente lite in such a manner so that spouse and the child can live with dignity according to their social status. Factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under:-
(i) Status of the parties;
(ii) Reasonable wants of the claimant;
(iii) The income and property of the claimant;
(iv) Number of persons to be maintained by the husband;
(v) Liabilities, if any, of the husband;
(vi) The amount required by the wife to live a similar life-
style as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife.
12. That apart, the Court cannot also be oblivious to the fact that apart from sustenance, the respondent and her child would be incurring some other expenses for their upkeep, purchase clothes, shoes, utensils etc. etc. Once the minor child is school going, then there would be additional expenses to be incurred towards admission fees, tuition fees, school uniform etc. and, therefore, the additional amount of `1,000/- per month i.e. roughly `33/- per day for two persons can by no stretch of imagination in the present day cost of living, growing inflation and purchasing 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 ::: Downloaded on - 15/04/2017 19:11:26 :::HCHP 9 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."
10. The petitioner in the present day cost of living, growing of inflation and ever declining purchasing power of rupee, cannot be permitted to contend that the grant of `3,000/- per month as rt maintenance is a luxury. The maintenance granted by the Court has to be sufficient enough to maintain the wife so as to prevent vagrancy. Maintenance of `100/- per day, by no stretch of imagination can be said to be on the higher side, rather the same would hardly be sufficient enough only for the sustenance of the respondent and nothing beyond that. On the same analogy and reasoning, no exception can be taken to the order of providing shared house hold on payment of `1,000/- per month in lieu thereof.
11. The cumulative effect of the discussion above is that the order passed by the learned Additional District Judge is legal and proper one. No illegality, irregularity or perversity can be found in the said order. Consequently, the present petition being devoid of any merit is dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan),
October 13, 2015 Judge.
(KRS)
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