(Per: Pritinker Diwaker, J) Sri C B Pandey, learned counsel for the revisionist, Sri Prachish Pandey, learned counsel for the State and Ms Mahima Pahwa, learned counsel for respondent no.2.
2. Challenge in the present revision is to the order dated 6.4.2019 passed by the Additional Sessions Judge, Court No.1, Lucknow in Criminal Appeal No.0000092 of 2016, whereby the appellate Court has dismissed the appeal, affirming the order dated 9.3.2016 passed by Additional Chief Judicial Magistrate, Vth, Lucknow in a Complaint No.3016 of 2015, granting interim maintenance of Rs.55,000/- per month in favour of respondent no.2 and her minor son, aged about five years.
3. Brief facts of the present case are that the marriage of revisionist and respondent no.2 was solemnized on 17.11.2010 at Noida and out of the wedlock, one son Master Anand was born on 22.2.2014. After marriage, initially couple lived at Noida for few days and thereafter, they shifted to USA where they lived together for about two years. As the revisionist was admitted in Indian School of Business for doing his Masters degree, the couple returned back to Hyderabad and after completion of the said course at Hyderabad, they started living at New Delhi.
4. According to respondent no.2, she was subjected to physical and mental torture by the revisionist and under compelling circumstances, she started living with her parents. On 17.8.2015, respondent no.2 filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short 'the Act of 2005') against her husband and his other family members. She also filed an application under Section 23 read with Section 20 of the said Act, claiming interim order of grant of maintenance to the tune of Rs.1 lakh per month. In this application, it has been contended by the wife that her husband is a well qualified person having two Masters Degree, is earning approximately Rs.45 lakhs per annum and, therefore, she be awarded suitable maintenance. She has also submitted that earlier she was working and was getting Rs.20,000/- per month, but presently, she is not working as she has to take care of her minor son. In the application, various instances of cruelty meted out to her have been quoted by respondent no.2 and for brevity, at this stage, this Court is not referring to all those pleadings.
5. Counsel for the revisionist submits:
(i) that learned Magistrate has erred in law in granting interim maintenance to respondent no.2 and likewise, the order passed by the appellate court is also not in accordance with law wherein the order of learned Magistrate has been affirmed without appreciating the correct facts;
(ii) that respondent no.2 had never lived at Lucknow and as such Lucknow Court has no jurisdiction to hear the case filed by her under the provisions of the Act of 2005. In her entire pleadings, nowhere it has been stated that as to how respondent no.2 came to Lucknow and filed the case at Lucknow;
(iii) that the pleadings as made by the revisionist have been completely ignored by the two courts below;
(iv) that the income of the revisionist, while he was serving in USA, has nothing to do with his salary in India and the said income cannot be considered, at all, for determination of interim maintenance to respondent no.2;
(v) respondent no.2 is living separately of her own without there being any justification or sufficient cause;
(vi) that even as on date, the revisionist is willing to keep respondent no.2 with him and his minor son aged about 5 years;
(vii) that respondent no.2 has done her Post Graduation in Advertisement and Marketing and as such, she is in a position to maintain herself;
(viii) that personal allegations levelled against the revisionist, including consuming of liquor with his friends, are not correct.
(ix) that the interim maintenance awarded in favour of respondent no.2 is on the higher side and, under no stretch of imagination, such amount can be awarded as interim maintenance; and
(x) that twice the revisionist has made efforts for mediation and amicable settlement between the parties, but on account of non-cooperation of respondent no.2, the same failed.
6. Supporting the impugned order passed by learned Magistrate dated 9.3.2016 and that of appellate court dated 6.4.2017, it has been argued on behalf of respondent no.2:
(i) that application under the Act of 2005 has been rightly filed at Lucknow because, at the relevant time, respondent no.2 was living at Lucknow, on the given address, along with her parent, as after retirement, her father and mother were residing in the said house at Lucknow. Learned counsel submits that in the affidavit filed in support of main application, residential address of Lucknow has been categorically mentioned by respondent no.2, and even if she has not mentioned in the memo of application as to how the cause of action arose at Lucknow, this would not make any difference in the case. It has been argued that pleadings can be substantiated and proved at the time of evidence.
(ii) that concerned Protection Officer, in its report, had verified about the factum of living of respondent no.2 at Lucknow and the contents of the applications made by respondent no.2. Learned counsel further submits that before the first Court, respondent no.2 had submitted her Bank Passbook of a Nationalized Bank and in the said passbook also address of Lucknow is being mentioned. It has been further argued that point of jurisdiction at Lucknow has been duly considered by learned Magistrate in its order dated 9.3.2016;
(iii) that the revisionist had filed a case at Tis Hazari Court, New Delhi for restitution of conjugal rights, matter travelled upto the Supreme Court where on an application filed by respondent no.2, the Apex Court has transferred the case from Delhi to Lucknow and at that time, no objection whatsoever was raised by the revisionist regarding jurisdiction of the present case at Lucknow;
(iv) that the revisionist has not approached this Court with clean hands, despite the fact that learned Magistrate has passed the order on 9.3.2016 granting interim maintenance of Rs.55,000/- per month to respondent no.2, but till date this order has not been honoured by him and the full maintenance amount has not been paid. Of his own, the revisionist has made certain submissions before this Court and had deposited meager amount (Rs.11,00,000/-, i.e. Rs.1 lakh, Rs.2 lakhs, Rs.3 lakhs and Rs.5 lakhs pursuant to orders passed by this Court and Rs.30,000/- per month is being paid from December 2018 till date). Learned counsel submits that there was no order from this Court, modifying the amount of interim maintenance but yet by adopting delay tactics, to harass respondent no.2, entire amount has not been deposited by the revisionist. According to respondent no.2, as on date, the revisionist is required to deposit Rs.8.60 lakhs towards arrears of interim maintenance;
(v) that respondent no.2 is somehow surviving along with her son aged about 5 years, though financial capacity of her father is not as such where he can afford the expenses of respondent no.2, but anyhow he too is just managing and supporting respondent no.2 and her son;
(vi) that learned Magistrate has assessed the interim maintenance of Rs.75,000/- per month in favour of respondent no.2, but erred in law in deducting Rs.20,000/- per month from interim maintenance after holding that respondent no.2 is capable of earning Rs.20,000/- per month. Learned counsel submits that though this part has not been challenged by respondent no.2, but the same may also be considered by this Court;
(vii) that even if the income of the revisionist in USA is ignored, from his own pleadings it is apparent that he is earning Rs.1.70 lakhs per month and is spending Rs.50,000/- on himself. Learned counsel submits that if the revisionist is enjoying luxury car, which was purchased by him on loan, and Rs.35,000/- per month is being paid as its EMI, respondent no.2 cannot be blamed for that and if the revisionist has any financial constraint, he can definitely go for a cheaper car. Pleading of the revisionist about expenditure of Rs.45,000/- towards parental/domestic support is required to be ignored and rejected because his father is a retired public servant and is getting pension, whereas once respondent no.2 is living separately along with her son, question of spending any amount towards parental/domestic support does not arise at all;
(viii) that on two occasions mediation has failed because offer made by the revisionist to pay Rs.85 lakhs along with an accommodation to respondent no.2, was later denied by him whereas, in second mediation proceeding, the revisionist had stopped appearing. Learned counsel submits that respondent no.2 is not a maid servant of the revisionist where she can be ill treated or ousted at his whims and fancies;
(ix) that under the provisions of the Act of 2005 itself, affidavits of the parties are required to be considered and respondent no.2 in her affidavit has categorically stated about the manner in which she was ill treated, the fact that she is not in a position to maintain herself along with her son aged about 5 years and that she was residing at Lucknow. Likewise, respondent no.2 has given salary details of the revisionist which has not been denied in specific manner and, therefore, the pleadings made by respondent no.2 are required to be accepted as it is;
(x) that once the revisionist has admitted the fact that he is earning Rs.1.70 lakhs per month, then interim maintenance has to be calculated on the basis of said admission and the living standard of the parties;
(xi) that since August 2015, respondent no.2 is fighting for interim maintenance which has not been paid to her fully even after the expiry of four years; and
(xii) that interim maintenance of Rs.55,000/- per month, at the first instance, may look at the higher side, but present is a case where the revisionist is a well qualified person, earning handsomely and enjoying much better standard in the Society, therefore, he is equally liable to see the welfare of his wife and children.
7. Before adverting to the facts of the case, it would be appropriate to refer to certain case laws decided by the Apex Court. In the case of Krishna Bhattacharjee v Sarathi Choudhury and Anr.1, the Apex Court held as under:
"3. Regard being had to the nature of the legislation, a more sensitive approach is expected from the courts where under the 2005 Act no relief can be granted, it should never be conceived of but, before throwing a petition at the threshold on the ground of maintainability, there has to be an apposite discussion and thorough deliberation on the issues raised. It should be borne in mind that helpless and hapless "aggrieved person" under the 2005 Act approaches the court under the compelling circumstances. It is the duty of the court to scrutinise the facts from all angles whether a plea advanced by the respondent to nullify the grievance of the aggrieved person is really legally sound and correct. The principle "justice to the cause is equivalent to the salt of ocean" should be kept in mind. The court of law is bound to uphold the truth which sparkles when justice is done. Before throwing a petition at the threshold, it is obligatory to see that the person aggrieved under such a legislation is not faced with a situation of non-adjudication, for the 2005 Act as we have stated is a beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence.
8. In our prefatory note, we have stated about the need of sensitive approach to these kinds of cases. There can be erroneous perception of law, but as we find, neither the learned Magistrate nor the appellate court nor the High Court has made any effort to understand and appreciate the stand of the appellant. Such type of cases and at such stage should not travel to this Court. We are compelled to say so as we are of the considered opinion that had the appellate court and the High Court been more vigilant, in all possibility, there could have been adjudication on merits. Be that as it may.
13. Having scanned the anatomy of the 2005 Act, we may now refer to a few decisions of this Courts that have dealt with the provisions of the 2005 Act. In V. D. Bhanot v. Savita Bhanot, (2012) 3 SCC 183 the question arose whether the provisions of the 2005 Act can be made applicable in relation to an incident that had occurred prior to the coming into force of the said Act. Be it noted, the High Court had rejected the stand of the respondent therein that the provisions of the 2005 Act cannot be invoked if the occurrence had taken place prior to the coming into force of the 2005 Act. This Court while dealing with the same referred to the decision rendered in the High Court which after considering the constitutional safeguards under Article 21 of the Constitution vis-a-vis the provisions of Sections 31 and 33 of the 2005 Act and after examining the Statement of Objects and Reasons for the enactment of the 2005 Act, had held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of the Constitution that Parliament enacted the 2005 Act in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them and further that a petition under the provisions of the 2005 Act is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. After analyzing the verdict of the High Court, the Court concurred with the view expressed by the High Court by stating thus: (V D Bhanot case, pp. 186-87, para 12) "12. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005."
14. In Saraswathy v. Babu, (2014) 3 SCC 712, a two-Judge Bench, after referring to the decision in V.D. Bhanot (supra), reiterated the principle. It has been held therein: (Saraswathy case, SCC p.720, para 24) "24. We are of the view that the act of the respondent husband squarely comes within the ambit of Section 3 of the DVA, 2005, which defines "domestic violence" in wide terms. The High Court made an apparent error in holding that the conduct of the parties prior to the coming into force of the DVA, 2005 cannot be taken into consideration while passing an order. This is a case where the respondent husband has not complied with the order and direction passed by the trial court and the appellate court. He also misleads the Court by giving wrong statement before the High Court in the contempt petition filed by the appellant wife. The appellant wife having being harassed since 2000 is entitled for protection order and residence order under Sections 18 and 19 of the DVA, 2005 along with the maintenance as allowed by the trial court under Section 20(1) (d) of the DVA, 2005. Apart from these reliefs, she is also entitled for compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by the respondent husband. Therefore, in addition to the reliefs granted by the courts below, we are of the view that the appellant wife should be compensated by the respondent husband. Hence, the respondent is hereby directed to pay compensation and damages to the extent of Rs5,00,000 in favour of the appellant wife."
8. In the case of Shamima Farooqui v Shahid Khan2, it has been held by the Apex Court:
13. When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the Courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the Court. As regards the second facet, it is the duty of the Court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands "still" on some unknown bank of the river. It cannot allow it to sing the song of the brook. "Men may come and men may go, but I go on for ever." This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a proactive approach in this regard and the said approach should be instilled in the Family Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more.
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/-. 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 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 Cr PC, 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 Cr PC 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 Cr PC, unless disqualified, is an absolute right.
15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, has held as follows: (SCC p.12 para 8) "8. ... 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, (2008) 2 SCC 316, it has been ruled that: (SCC p. 320, para 6) "6. ... Section 125 Cr PC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. 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, (2005) 3 SCC 636."
17. 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.
18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash, 1968 SCC OnLine Del 52, wherein it has been opined thus: (SCC OnLine Del para 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."
19. 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.
20. In the instant case, as is seen, the High Court has reduced the amount of maintenance from Rs.4,000/- to Rs.2,000/-. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is a sanctuary of errors. In fact, when the order is based on proper appreciation of evidence on record, no revisional court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses cannot be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non-application of mind and, therefore, we are unable to sustain the said order."
9. Further, in the case of Reema Salkan v Sumer Singh Salkan3, the Apex Court held as under:
9. As aforesaid, the sole question is about the quantum of monthly maintenance amount payable by the respondent to the appellant. In that, the Family Court has unambiguously held that the respondent neglected to maintain the appellant, for the elaborate reasons recorded in its judgment dated 28th January 2015. That finding of fact has been upheld by the High Court vide the impugned judgment. The Family Court has also found as a fact that the appellant was unemployed, though she is an MA in English and holds a Post-graduate Diploma in Journalism and Mass Communication and is also a Law Graduate enrolled with the Bar Council of Delhi. The High Court has not disturbed that finding recorded by the Family Court. Resultantly, both the Courts have concurrently found that, in law, the respondent was obliged to maintain the appellant.
13. Be that as it may, the High Court took into account all the relevant aspects and justly rejected the plea of the respondent about inability to pay maintenance amount to the appellant on the finding that he was well educated and an able bodied person. Therefore, it was not open to the respondent to extricate from his liability to maintain his wife. It would be apposite to advert to the relevant portion of the impugned judgment which reads thus:
"79. The respondent during the cross examination has admitted that he too is B.Com, M.A.(Eco.) and MBA from Kentucky University, USA; the respondent is a Canadian citizen working with Sprint Canada and is earning Canadian $(CAD) 29,306.59 as net Annual Salary. However, he has claimed that he has resigned from Sprint Canada on 23.11.2010 and the same has been accepted on 27.11.2010 and the respondent since then is unemployed and has got no source of income to maintain himself and his family.
80. In the instant case, the petitioner has filed the case under Section 125 Cr.P.C., 1973 for grant of maintenance as she does not know any skill and specialised work to earn her livelihood i.e. in paragraph 26 of maintenance petition against her husband. However, the respondent husband who is well educated and comes from extremely respectable family simply denies the same. The respondent husband in his written statement does not plead that he is not an able bodied person nor he is able to prove sufficient earning or income of the petitioner.
81. It is an admitted fact emerging on record that both the parties got married as per Hindu Rights and Customs on 24.03.2002 and since then the petitioner was living with her parents from 10.08.2002 onwards, and the parents are under no legal obligation to maintain a married daughter whose husband is living in Canada and having Canadian citizenship. The plea of the respondent that he does not have any source of income and he could not maintain the wife is no answer as he is mature and an able bodied person having good health and physique and he can earn enough on the basis of him being able bodied to meet the expenses of his wife. In this context, the observation made in Chander Prakash v. Shrimati Shila Rani, AIR 1968 Del 174 by this Court is relevant and reproduced as under:
"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 position to earn enough to be able to maintain them according to the family standard. It is for such ablebodied 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."
82. The husband being an ablebodied person is duty bound to maintain his wife who is unable to maintain herself under the personal law arising out of the marital status and is not under contractual obligation. The following observation of the Apex Court in Bhuwan Mohan Singh v. Meena, AIR 2014 SC 2875, is relevant:
"3.....Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is ablebodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.
(emphasis applied)
83. The respondent's mere plea that he does not possess any source of income ipso facto does not absolve himself of his moral duty to maintain his wife in presence of good physique along with educational qualification."
The view so taken by the High Court is unassailable. Indeed, the respondent has raised a plea to question the correctness of the said view, in the reply affidavit filed in this appeal, but in our opinion, the finding recorded by the High Court is unexceptionable.
15. The principle invoked by the High Court for determination of monthly maintenance amount payable to the appellant on the basis of notional minimum income of the respondent as per the current minimum wages in Delhi, in our opinion, is untenable. We are of the considered opinion that regard must be had to the living standard of the respondent and his family, his past conduct in successfully protracting the disposal of the maintenance petition filed in the year 2003, until 2015; coupled with the fact that a specious and unsubstantiated plea has been taken by him that he is unemployed from 2010, despite the fact that he is highly qualified and an ablebodied person; his monthly income while working in Canada in the year 2010 was over Rs.1,77,364/ and that this Court in Criminal Appeal Nos.23472349/ 2014 has prima facie found that the cause of justice would be subserved if the appellant is granted an interim maintenance of Rs.20,000/per month commencing from November 1, 2014. At this distance of time, keeping in mind the spiraling inflation rate and high cost of living index today, to do complete justice between the parties, we are inclined to direct that the respondent shall pay a sum of Rs.20,000/per month to the appellant towards the maintenance amount with effect from January 2010 and at the rate of Rs.25,000/per month with effect from 1st June, 2018 until further orders. We order accordingly."
10. From the above principles of law laid down by the Apex Court, it is quite apparent that husband while paying interim maintenance does not do any charity and it is his abandon duty to take care of his family and wife and children cannot be left at the mercy of the husband. If wife and children are not in a position to maintain themselves, it is legal duty of the husband to maintain them irrespective of the fact whether he is earning more or less. In the case of sufficient income on the part of the husband, he has to pay interim maintenance to his wife and children as per standard of living and to ensure that they meet all the necessary requirements for their dignified survival.
11. Present is a case where, from the pleading of the parties, it is apparent that husband is, at least, earning Rs.1.70 lakhs per month and thus, even if I ignore his previous income which he was drawing in USA, it can be easily held that he is earning handsomely and can pay sufficient amount for survival of respondent no.2 and her son. Even the revisionist has admitted the fact that he is expending Rs.50,000/- on himself apart from Car loan of Rs.35,000/- per month being paid by him. The revisionist has also admitted the fact that he is spending Rs.45,000/- towards parental/domestic support. When his father is a retired government employee and getting sufficient pension, then the revisionist is obliged to give priority to his wife and son for maintaining them in a dignified manner.
12. I find no substance in the argument of the revisionist that the case filed by respondent no.2 in Lucknow Court is not maintainable. In the case of Rupali Devi v State of Uttar Pradesh4, it has been held by the Apex Court:
1. "Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members". This is the precise question that arises for determination in this group of appeals.
5. The above two views which the learned referring bench had considered while making the present reference, as already noticed, were founded on the peculiar facts of the two sets of cases before the Court. It may be possible to sustain both the views in the light of the facts of the cases in which such view was rendered by this court. What confronts the court in the present case is however different. Whether in a case where cruelty had been committed in a matrimonial home by the husband or the relatives of the husband and the wife leaves the matrimonial home and takes shelter in the parental home located at a different place, would the courts situated at the place of the parental home of the wife have jurisdiction to entertain the complaint under Section 498A. This is in a situation where no overt act of cruelty or harassment is alleged to have been committed by the husband at the parental home where the wife had taken shelter.
14. "Cruelty" which is the crux of the offence under Section 498A IPC is defined in Black's Law Dictionary to mean "The intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (Abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section 498A of the Indian Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatize the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress cause by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.
15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or wellbeing, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 Cr.P.C which would squarely be applicable to the present case as an answer to the question raised.
16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code."
13. In the present case, after retirement, father of respondent no.2 started living at Lucknow and if, at the relevant time, respondent no.2 was also living with her father, she is absolutely justified in filing the case at Lucknow. In the affidavit sworn in support of the application filed by respondent no2 before Lucknow Court, address of Lucknow has been given, likewise the Protection Officer had also verified the factum of living of respondent no.2 at Lucknow and even in the Bank Passbook, respondent no.2 had given the address of Lucknow. Furthermore, when the Apex Court had transferred another case to Lucknow, no objection was raised by the revisionist that Court sitting at Lucknow would not have any jurisdiction. Thus, the objection of the revisionist regarding jurisdiction at Lucknow Court, has no merit and is, accordingly, rejected.
14. I further find no force in the argument of the revisionist that the interim maintenance amount awarded in favour to respondent no.2 and her son is on the higher side. As already stated the revisionist is earning sufficient amount where he can pay interim maintenance of Rs.55,000/- per month to his wife and son. The revisionist cannot spend his entire earning on himself, but having married to respondent no.2, he has to take care of her and her son.
15. I further find no substance in the argument of the revisionist that once respondent no.2 has capacity to earn Rs.20,000/- per month, then she is not entitled for interim maintenance to the tune of Rs.55,000/- per month. When circumstances are not permitting respondent no.2 to work on account of the fact that she has to take care of her small son, she cannot be blamed for not earning any amount.
16. Yet another important question, which requires consideration, is that though the order impugned granting interim maintenance has been passed on 9.3.2016, till date the revisionist has not honoured the said order in its true spirit. By one way or the other, the revisionist is avoiding to pay the interim maintenance and even though the interim order has not been modified by this Court, the revisionist has not paid the full amount of interim maintenance. It seems that the revisionist is intentionally avoiding payment of interim maintenance.
17. Considering all the facts and circumstances of the case, I am of the considered view that the revision filed by the revisionist has no substance. The same is, accordingly, dismissed. The order passed by the learned Additional Chief Judicial Magistrate, which has been duly affirmed by the Additional Sessions Judge, cannot be faulted with, they are accordingly maintained. The revisionist is directed to pay Rs.25,000/- (Rupees Twenty Five Thousand Only) as costs of this litigation to respondent no.2.
18. As the revisionist has not paid full amount of interim maintenance to respondent no.2, he is directed to clear the entire dues, within two months from today. He is further directed to pay Rs.55,000/- (Rupees Fifty Five Thousand Only) per month, as interim maintenance regularly. He is obliged to deposit the said amount in the first week of every month.
Dated:30.7.2019 RKK/-
(Pritinker Diwaker, J)