1. Heard Sri Ajay Kumar Chaurasia, learned counsel for the revisionist, Sri Praveen Kumar Srivastava, learned counsel for the opposite party no.2 and Sri Ashwini Prakash Tripathi, learned AGA for the State and perused the record. As per the office report dated 21.08.2017, the lower court records which were summoned are tagged with the present revision, which have also been perused.
2. The present revision has been preferred against the judgment and order dated 20.05.2016 passed by the Family Court, Gorakhpur in Case No. 62 of 2005 (Smt. Sarika Vs. Shri Praveen Srivastava) by which the wife of the revisionist has been directed to be paid Rs. 10,000/- and Kumari Bhumika Srivastava, the daughter of the revisionist and the opposite party no.2 has been directed to be paid Rs. 5,000/- from the date of the order which will be effective from May, 2016 as maintenance.
3. Learned counsel for the revisionist argued that the order impugned is bad in law as the opposite party no.2 was living in adultery and the child born from her is not from his contact and the paternity of the said child is seriously disputed. It is further argued that the marriage of the revisionist with the opposite party no.2 took place on 16.05.2003 and the gavna (second marriage) took place on 17.05.2003 and the girl child was born on 28.01.2004 in a normal delivery which is after 8 months and 11 days of marriage and as such is evident that the said child is not born out of the wedlock of the revisionist and the opposite party no.2. Learned counsel has then argued vehemently that the quantum of maintenance as awarded being Rs. 10,000/- per month to the wife and Rs. 5,000/- per month to the daughter is quite excessive looking to the facts and circumstances of the case, specially the fact that the revisionist is drawing a salary of Rs. 15,000/- per month only. Learned counsel confines his argument primarily to the quantum of maintenance as awarded to the wife and the daughter and then argues that looking to the fact that the wife was living in adultery and the girl child was not born out of his wedlock, the same be reduced.
4. Per contra, learned counsel for the opposite party no.2 has opposed the arguments of the learned counsel for the revisionist and argued that the order impugned is an order passed after considering the entire evidence on record. It is argued that the question of the wife living in adultery and paternity of the girl child being disputed by the revisionist has been dealt with elaborately by the court concerned in the impugned judgment and after meticulously dealing with the same, a specific finding has been returned by the court concerned that the girl child has been born out of the wedlock of the revisionist and the opposite party no.2. Learned counsel has further argued that in so far as the quantum of the maintenance as awarded is concerned, the statement of the revisionist that he was getting a salary of Rs. 15,000/- per month, is negated from the salary slip filed before the Court below which was of the year 2016, in which, he was shown to be getting a salary of Rs. 42,814/- out of which Rs. 2,628/- were the necessary deductions and then he was getting a salary of Rs. 40,186/-. It is argued that the court below as on the question of salary also given a specific finding that the evidence on record being the documents and the statements as recorded before it clearly show that the revisionist has tried to conceal the same and has spoken a lie.
5. The Apex Court in the case of Bhuwan Mohan Singh Vs. Meena and others : (2015) 6 SCC 353 has held that wife is also entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. It is further held that the husband cannot deprive her of the benefit of living with dignity. Para 2 of the judgment is as follows:
"2. 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 whereunder 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 able bodied. 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."
6. Further, in the case of Rajnesh Vs. Neha and another : Criminal Appeal No. 730 of 2020 (Arising out of SLP (Crl.) 9503 of 2018) decided on November 4, 2020 : 2020 SCC Online SC 903 the Apex Court has discussed about the determinants of maintenance allowance payable to wife and children. In the said judgment it has been observed as follows:-
"III Criteria for determining quantum of maintenance:
(i) The objective of granting interim / permanent alimony is to ensure that the dependant 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.
The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant 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. [Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7, refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.] In Manish Jain v Akanksha Jain : (2017) 15 SCC 801 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.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant 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 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. [Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303]
(ii) 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. [Chaturbhuj v Sita Bai (2008) 2 SCC 316] 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.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of 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.
(iv) Section 20(2) of the D.V. 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.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde : (2007) 140 DLT 16 laid down the following factors to be considered for determining maintenance:
"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 guess work 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 u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17."
(vi) 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:
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 re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.
(b) Right to residence:
Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.
The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja : Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020 (supra) held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.
Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income:
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.
In Shailja & Anr. v Khobbanna : (2018) 12 SCC 199 [See also decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794] 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. [Chaturbhuj Vs. Sita Bai : (2008) 2 SCC 316] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252] In Sunita Kachwaha & Ors. v Anil Kachwaha : (2014) 16 SCC 715 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.
The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale : 2020 SCC OnLine Bom 694 while relying upon the judgment in Sunita Kachwaha (supra), 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.
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 Prakash Bodhraj v Shila Rani Chander Prakash : AIR 1968 Delhi 174. 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.
This Court in Shamima Farooqui v Shahid Khan : (2015) 5 SCC 705 cited the judgment in Chander Prakash (supra) 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:
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 extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed. 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:
Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance."
7. The fact that the revisionist is employed and working in the Indian Railways and is a government servant and is getting a salary after the necessary deductions which is Rs. 40,186/- in the year 2016 is a fact for which a specific finding has been returned by the court below based on evidence on record and documents.
8. As of now, the fact of rise in inflation, rise of cost of living and also taking into account that the girl child was born in the year 2004 and as of now is about 16 years of age and is of the age of a school going child and also taking into consideration the salary of the revisionist which keeps on increasing every year by means of dearness allowance, increment etc. cannot be ignored.
9. Having taken into consideration, the relevant factors for determining the quantum of maintenance in the light of the legal principles laid by the Apex Court and the facts of the present case, this Court is of the view that the amount of maintenance as awarded is appropriate and there is no irregularity and illegality in the order impugned.
10. The present revision is thus dismissed.
11. Since the present revision has been dismissed, hence the interim order dated 29.08.2016 passed in the matter by this Court stands discharged.
12. The lower court records be sent back to the concerned court forthwith.
13. The party(ies) shall file computer generated copy of such judgment downloaded from the official website of High Court Allahabad before the concerned Court/Authority/Official.
14. The computer generated copy of such judgment shall be self-attested by the counsel(s) of the party(ies) concerned.
15. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the judgment from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 10.02.2021 M. ARIF (Samit Gopal,J.)