Jharkhand High Court
Neelam Kumari Aged About 34 Years vs State Of Jharkhand on 2 May, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 534 of 2019
Neelam Kumari aged about 34 years, W/o Dinesh Kumar, resident
of village Sundernagar, P.O., P.S. and District Koderma, at present
resident of D/o Ramlakhan Prasad, village Domchanch, Bazar
Road, P.O. & P.S. Domchanch, District Koderma
... ... Petitioner
Versus
1. State of Jharkhand.
2. Dinesh Kumar S/o Umashanker Prasad, resident of village
Sundernagar, Koderma ward No.05, P.O. and P.S. and District
Koderma ... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Ms. Shobha Gloria Lakra, Advocate : Ms. Mrinalini Adela Tete, Advocate For the Opp. Party No.2 : Mr. A.K. Sahani, Advocate
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08/02.05.2024 The learned counsels for the parties are present.
2. This criminal revision has been filed against the judgment dated 19.02.2019 passed in Original Maintenance Case No.127 of 2018 by the learned Principal Judge, Family Court, Koderma whereby the opposite party was directed to pay an amount of maintenance of Rs.8,000/- per month only from the date of the order although the prayer was made for payment of maintenance from the date of the application.
3. The learned counsel for the petitioner has submitted that the opposite party no.2 is an employee of Mahanadi Coalfields Limited and has monthly salary of more than Rs.70,000/- and there is no child born out of wedlock and therefore, the quantum of maintenance is shockingly disproportionate. The learned counsel has submitted that the impugned order is not sustainable in view of the judgment passed by the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324.
4. The learned counsel for the opposite party no.2 has submitted that the petitioner was unable to file any documentary evidence with regard to the salary of the opposite party no.2. Further an amount of Rs.2,10,245/- was taken by the petitioner as one time maintenance as back as on 18.06.2006 which was brought on record by way of exhibit before the learned Family court. The learned counsel submits that in spite of all this, an amount of Rs.8,000/- per month has been allowed as maintenance and therefore, the present case does not call for any interference. The learned counsel has also submitted that the petitioner is a graduate and has been earning an amount of Rs.3000/- per month.
5. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, the relationship between the parties as husband and wife is not in dispute.
6. In spite of order dated 23.02.2022 wherein the opposite party no.2 was directed to bring on record the current salary slip, the same has not been filed in the court.
7. This Court finds that there is a dispute with regard to the quantum of maintenance.
8. During the course of hearing, it is not in dispute that the opposite party no.2 is an employee of Mahanadi Coalfields Limited.
9. The petitioner had claimed before the learned Family court that the opposite party no.2 was having salary of Rs.70,000/- per month but no document could be produced by her to substantiate the same and ultimately only Rs.8,000/- has been given to the petitioner as monthly maintenance.
10. This Court finds that the complete disclosure of income, assets and liabilities has not been done by the parties in the matter of fixation of just amount of maintenance to the wife. This Court is of the considered view that the dispute regarding quantum of maintenance is required to be re-adjudicated by the learned Family court in accordance with the guidelines framed by the Hon'ble Supreme Court in the judgement reported in (2021) 2 SCC 324 (supra). Moreover, the impugned order directing payment of maintenance from the date of the judgment and not from the date of the application without citing any reasons cannot be sustained in the eyes of law.
11. In the aforesaid circumstances, the impugned order is perverse and calls for interference by this Court to meet the ends of justice.
212. Some of the important observations and directions issued by the Hon'ble Supreme Court in the case of Rajnesh v. Neha, (2021) 2 SCC 324 which are relevant for the present case are as under: -
72. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrate's Court concerned, as the case may be, throughout the country;
72.2. (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
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. 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;
72.4. (d) The above format may be modified by the court concerned, if the exigencies of a case require the same. It would be left to the judicial discretion of the court concerned to issue necessary directions in this regard.
72.5. (e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the court concerned may pass appropriate orders in respect thereof. 72.6. (f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the court to serve interrogatories, and seek production of relevant documents from the opposite party under Order 11 CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the Evidence Act, 1872, if it considers it necessary to do so. The income of one party is often not within the knowledge of the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.
72.7. (g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party 3 may submit an amended/supplementary affidavit, which would be considered by the court at the time of final determination. 72.8. (h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the court may consider initiation of proceeding under Section 340 CrPC, and for contempt of court. 72.9. (i) In case the parties belong to the economically weaker sections ("EWS"), or are living below the poverty line ("BPL"), or are casual labourers, the requirement of filing the affidavit would be dispensed with.
72.10. (j) The Family Court/District Court/Magistrate's Court concerned must make an endeavour to decide the IA for interim maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.
72.11. (k) A professional Marriage Counsellor must be made available in every Family Court.
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.
79. In Manish Jain v. Akanksha Jain 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 4 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.
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. 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.
82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Subsection (2) of Section 23 of the HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same,
(iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.
83. Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde 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."
85. Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties 5
86. In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break of several years.
(b) Right to residence
87. ..................................
(c) Where wife is earning some income
90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments:
90.1. In Shailja v. Khobbanna , this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
90.2. In Sunita Kachwaha v. Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur.
The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha , held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani . The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Parkash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife. (d) Maintenance of minor children 6
91. The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an overly extravagant amount which may be claimed.
92. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
93. Serious disability or ill health of a spouse, child/children from the marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.
117. Section 125(3) CrPC provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier.
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(b) Payment of Interim Maintenance
129. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the Family Court/District Court/Magistrates Court concerned, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
130. For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B -- III of the judgment. The aforesaid factors are however not exhaustive, and the court concerned may exercise its discretion to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
131. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B -- IV above.
(e) Enforcement/Execution of orders of maintenance ..................
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13. Under the aforesaid circumstances, the impugned order dated 19.02.2019 passed by the learned Principal Judge, Family court, Koderma is hereby set aside only to the extent it relates to the quantum of maintenance and also with regards to the date from which the maintenance has been allowed by the learned court.
714. The quantum of maintenance is required to be re-determined by the Family court in view of the aforesaid observations and for that purpose, the petitioner as well as opposite party no.2 are directed to appear before the court of learned Principal Judge, Family Court, Koderma on 27.05.2024 along with their respective affidavits of disclosure in terms of the observations and the format prescribed by the Hon'ble Supreme Court in the aforesaid judgment. The affidavit of disclosure should also disclose the changes in the income, assets and liabilities of the respective parties from time to time right from the date of filing the application till the date of filing the affidavits pursuant to this order.
15. The learned Family court is directed to pass a final judgment in accordance with law within a period of three months from 27.05.2024 after giving appropriate opportunities to the parties.
16. So far as the maintenance of Rs.8,000/- per month is concerned, the opposite party no.2 shall continue to credit the same in the account of the petitioner till the final disposal of the case by the learned Family court. Such payment would be subject to final result of the case. The amount of maintenance paid to the petitioner since February, 2019 pursuant to the order passed by the learned Family court shall be adjusted, if paid.
17. This criminal revision application is disposed of in the aforesaid terms.
18. Pending interlocutory application, if any, is closed.
19. Let this order be communicated to the learned court concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.) Saurav 8