Jharkhand High Court
Gunjan Atwal Gandhi @ Gunjan Atwal vs State Of Jharkhand on 22 June, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 464 of 2021
1. Gunjan Atwal Gandhi @ Gunjan Atwal, aged about 34 years,
wife of Siddharth Gandhi
2. Aditya Gandhi, minor son aged about three years, represented
through his mother Gunjan Atwal Gandhi @ Gunjan Atwal
Both permanent resident of E-602, La Lagune Apartments, Golf
Course Road, Sector 54, Gurugram, Haryana
Both at present residing at K3-144, Cross Road No.17, Telco
Colony, Post Office and Police Station-Telco, Town Jamshedpur,
Dist.-Singhbhum East
.... Petitioners
Versus
1. State of Jharkhand
2. Siddharth Gandhi, son of Sri Surender Kumar Gandhi, resident
of E-602, La Lagune, Apartment, Golf Course Road, Sector 54,
Gurugram, P.O. & P.S.-Sector 54, Dist.-Gurugram, State-Haryana
.... Respondents
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Praveen Shankar Dayal, Advocate For the State : Mrs. Vandana Singh, Sr. SC III : Ms. Neha Pandey, AC to Sr. SC III For Respondent No.2 : Mr. Kripa Shankar Nanda, Advocate .....
By the Court:-
1. Heard the parties.
2. This writ petition has been filed under Article 226 of the Constitution of India with a prayer to set aside the order dated 11.10.2021, passed in O.M. Case No. 46 of 2020 passed by the Family Court, Jamshedpur whereby and where under, the Family W.P. (Cr.) No.464 of 2021 1 Court, Jamshedpur rejected the prayer for interim maintenance and only allowed litigation expenses of Rs.1,000/- per day to the petitioner no.1 whenever she appeared physically in court and Rs.500/- per day when she does not physically appear or appears through video conferencing and further directed to pay Rs.10,000/- to her son- who is the petitioner no.2; by the 10th day of each succeeding month.
3. Learned counsel for the petitioners submits that the petitioner no.1 filed application under Section 125 (1) of Code of Criminal Procedure for grant of interim maintenance of Rs.50,000/- per month for herself and Rs.25,000/- per month for her minor son. It is then submitted by the learned counsel for the petitioners that the undisputed fact is that the petitioners are living separately from the respondent no.2 since 26.11.2019. It is next submitted by the learned counsel for the petitioners that the undisputed fact remains that the petitioners are residing at Jamshedpur now in a rented premises paying monthly rent of Rs.16,000/- and the respondent no.2 has sought for divorce by filing a petition under Section 13 (1) (ia) and (iii) of the Hindu Marriage Act in the Family Court at Gurugram, Haryana. It is further submitted by the learned counsel for the petitioners that the respondent no.2 is working as Senior Director, HCL Technology since the year 2022 and getting salary of Rs.65,00,000/- per annum and the petitioner no.1 is working from home due to Covid situation. It is then submitted by the learned counsel for the petitioners that the Family Court, Jamshedpur rejected the prayer of the petitioner W.P. (Cr.) No.464 of 2021 2 no.1 only on the ground that she is employed and earning. It is next submitted by the learned counsel for the petitioners that merely because the petitioner no.1 is employed, she cannot be denied her right of maintenance or interim maintenance. Learned counsel for the petitioners relied upon the judgment of Hon'ble Supreme Court of India in the case of Rajnesh vs. Neha & Anr.
reported in (2021) 2 SCC 324, paragraph nos. 72.3, 78 and 79 of which reads as under:-
"72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings [Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915] . On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record;
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 W.P. (Cr.) No.464 of 2021 3 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." and submits that though both the parties were directed by the Family Court to file the assets and liability including the I.T.R. but in compliance thereof, the respondent no.2 did not file his I.T.R. of the last year but the petitioner no.1 has filed the I.T.R. of the financial year 2019-2020.
4. It is further submitted by the learned counsel for the petitioners that the Family Court, Jamshedpur has committed a grave illegality by accepting the income on the lower side claimed by the respondent no.2 even though the respondent no.2 failed to comply the order of the Family Court, Jamshedpur to file I.T.R. and because of the same, the learned Family Court, Jamshedpur failed to take into account the huge difference in the income of the W.P. (Cr.) No.464 of 2021 4 petitioner no.1 and the respondent no.2 as the respondent no.2 earns much then what is earned by the petitioner no.1. It is further submitted by the learned counsel for the petitioners that the Family Court, Jamshedpur failed to consider the factors which would weigh with the court being inter alia the status of the parties and thus, the family court failed to consider whether the applicant has any independent source of income and whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home. Hence, it is submitted that the impugned order being not sustainable in law be quashed and set aside.
5. Learned counsel for the respondent no.2 on the other hand opposes the prayer made by the writ petitioner. It is submitted by the learned counsel for the respondent no.2 that the observation made by the trial court that the interim maintenance is not meant for equalizing the income of wife with that of the husband is not erroneous. It is then submitted by the learned counsel for the respondent no.2 that the learned Family Court, Jamshedpur has also considered that the total annual income of the petitioner no.1 is Rs.17,13,311/-. It is next submitted by the learned counsel for the respondent no.2 that the present income of the petitioner no.1 is Rs.45,00,000/- per annum. It is lastly submitted by the learned counsel for the respondent no.2 that as there is no illegality in the order passed by the Family Court, Jamshedpur hence, it is submitted that this writ petition being without any merit be dismissed.
W.P. (Cr.) No.464 of 2021 5
6. Learned counsel for the State submits that the State has nothing to say in the matter.
7. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the procedure to be adopted by a court in a petition under Section 125 of Code of Criminal Procedure has been laid down by the Hon'ble Supreme Court of India in the case of Rajnesh vs. Neha & Anr. (supra). It is also pertinent to mention here that the undisputed fact remains that the respondent no.2 failed to file his income tax return of the last year in violation of the direction made by the Family Court, Jamshedpur though the petitioner no.1 complied the same and filed her income tax return which shows her income to be Rs.17,13,311/-.
8. It is a settled principle of law that the quantum of maintenance has to be determined keeping in view the question whether the income of the petitioner is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home which obviously could be gathered from the income earned by the spouse.
9. Now in this case, as there is no finding by the Family Court, Jamshedpur as to what was the income of the respondent no.2, this Court is of the considered view that the Family Court, Jamshedpur has committed a gross illegality by rejecting the prayer of interim maintenance of the petitioner no.1 though the respondent no.2 in defiance of the order of the Family Court, Jamshedpur did not file the income tax return of the last year W.P. (Cr.) No.464 of 2021 6 before passing the order. Hence, the portion of the order dated 11.10.2021, passed in O.M. Case No. 46 of 2020 passed by the Family Court, Jamshedpur is not sustainable in law; so far as it relates to the rejection of interim maintenance of the petitioner no.1 is concerned. As the interim maintenance granted to the petitioner no. 2, is not under challenge the said portion of the said order do not warrant interference.
10. Accordingly, the portion of the order dated 11.10.2021, passed in O.M. Case No. 46 of 2020 passed by the Family Court, Jamshedpur so far as it relates to the rejection of interim maintenance of the petitioner no.1 is concerned, is quashed and set aside.
11. The Family Court, Jamshedpur is directed to pass a fresh order in accordance with law after giving fresh opportunity of being heard to the parties in the matter; in respect of the claim of interim maintenance of the petitioner no.1.
12. In the result, this writ petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 22nd June, 2024 AFR/Sonu-Gunjan/-
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