1. Sri Surya Mani Pandey, learned counsel for the revisionists, Dr. Gyan Singh, learned counsel for the State and Sri Bhanu Pratap Singh, learned counsel for respondent no.2.
2. Challenge in the present revision is to the order dated 25.9.2017 passed by the Additional Principal Judge, Family Court, Lucknow in Criminal Misc. Case No.403 of 2013, whereby the court below has awarded maintenance amount of Rs.6,000/- per month to revisionist no.1 (wife of respondent no.2) and Rs.3,000/- per month to revisionist no.2 (son of respondent no.2).
3. Brief facts of the case are that marriage of revisionist no.1 was solemnized with respondent no.2 on 23.2.2012 and out of the wedlock, they have a son, namely Shivansh. As revisionist no.1 was subjected to cruelty and harassment for demand of dowry, under the compelling circumstance, she left the house of her husband and started living separately. On 17.5.2013, the revisionists filed an application under Section 125 of Cr.P.C. claiming maintenance of Rs.10,000/- each from respondent no.2. In the application, it has been contended by the revisionists that respondent no.2 is working as Income Tax Inspector and his salary is about Rs.40,000/- per month. He has other source of income as well. In her examination, revisionist no.1 has stated that the salary of respondent no.2 is now 50,000/- per month whereas he has other source of income and therefore, suitable maintenance be awarded to the revisionists. Contentions of revisionist no. 1 have been denied by the respondent no.2 and according to him, revisionist no. 1 is a qualified lady, has done her Postgraduate Diploma and was earlier working in a private firm and therefore, she is not entitled for any maintenance. It has been further pleaded by the respondent no.2 that after deduction, his salary is about Rs.33,000/- and he has taken a loan from Life Insurance Corporation. Vide order dated 19.12.2016, the Family Court below has declined the claim of revisionist no.1 and has awarded Rs.3000/- per month as maintenance amount to revisionist no.2. The court below has declined the claim of revisionist no.1 on the ground that she has sufficient qualification. This order of the Family Court was assailed by the revisionists before this Court in Criminal Revision No. 13 of 2017 and after setting aside the order dated 19.12.2016, matter was remanded back to the court below for reconsideration and decision afresh. Pursuant to the order passed by this Court, the Family Court below passed the impugned order dated 25.9.2017 granting maintenance of Rs.6000/- per month to revisionist no.1 and Rs.3000/- per month to revisionist no.2. It is this order which has been challenged by the revisionists before this Court.
4. Counsel for the revisionists submits:
(i) that as the order impugned has not been assailed by the respondent no.2, it is to be presumed that he is admitting all the facts as narrated by the revisionists.
(ii) that salary of respondent no.2, as on date, is Rs.66,000/- and considering the status of respondent no.2, a suitable maintenance amount be awarded in favour of the revisionists.
(iii) that revisionist no.2 has been admitted in City Montessori School, Lucknow where the revisionist no.1 is required to pay about Rs.5000/- per month as fee. That apart, she has to pay Rs.2200/- for the conveyance of revisionist no.2. For performing other activities also, a lot of amount is required to be spent for revisionist no.2 and considering all these aspects of the case, maintenance amount be suitably enhanced.
(iv) that on the one hand, respondent no. 2 is living a lavish life where he is having luxury car and three dogs with him and on the other hand, he is not maintaining the revisionists.
(v) In support of revisionist no. 1, it has been argued that amount of Rs.3000/- per month is a meager amount and it is literally impossible for a married lady to maintain herself on this meager amount.
5. On the other hand, denying the contentions of revisionists, counsel for respondent no.2 submits:
(i) that after all the deductions, from his meager salary, he has to pay EMI to the tune of Rs.27,000/- per month for the house and it is incorrect to say that he is having three dogs. He submits that post of respondent no. 2 may be of Income Tax Inspector but considering his salary, he is just hand to mouth.
(ii) that number of litigations are pending between the parties in various courts and for that also, respondent no.2 is required to spend huge amount.
(iii) that under the provisions of Domestic Violence Act, revisionist no. 1 is getting Rs.1500/- per month where as revisionist no. 2 is getting Rs.750/- per month and if the total amount of maintenance is calculated, as on date, revisionist no. 1 is getting Rs.7500/- per month whereas revisionist no.2 is getting Rs.3750/- per month.
6. I have heard the parties and perused the documents.
7. Undisputedly, respondent no.2 is working as Inspector in the Income Tax Department and his salary is more than Rs.65,000/- per month. Ignoring his other source of income, suffice to say that income of respondent no.2 is sufficient where he can maintain his wife and son in a dignified manner. There is no substance in the argument of respondent no.2 that as the revisionist is a qualified lady, she is not entitled for maintenance. Mere fact that she is having MBA and Post Graduate Diploma does not mean that she is not entitled for maintenance specially when she is not working anywhere. Difficulty of revisionist no. 1 is required to be appreciated where she is taking care of a child, who has started his schooling and if while maintaining her child she is not working, she cannot be blamed.
8. 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 Shamima Farooqui v Shahid Khan1, 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 Salkan2, 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. In the case of Jaiminiben Hirenbhai Vyas & anr. vs. Hirenbhai Remeshchandra Vyas & anr. (2015) 2 SCC 385, after considering the definition of Section 125 of Cr.P.C., it has been held by the Apex Court in paragraphs 4, 5, 6 & 7 as under:
5. Section 125 Cr.P.C., therefore, impliedly requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the Court may choose either date. It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354 (6) Cr.P.C., the Court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.
6. In Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632, paras 39-41: (2008) 3 SCC (Cri) 839, this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumar Devi, this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such order. Thus, such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary.
7. In the case before us, the High Court has not given any reason for not granting maintenance from the date of the application. We are of the view that the circumstances eminently justified grant of maintenance with effect from the date of the application in view of the finding that the appellant had worked before marriage and had not done so during her marriage. There was no evidence of her income during the period the parties lived as man and wife. We, therefore reverse the order of the High Court in this regard and direct that the respondent shall pay the amount of maintenance found payable from the date of the application for maintenance. As far as maintenance granted under Section 24 of the HM Act by the courts below is concerned, it shall remain unaltered."
11. 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, they cannot be left at the mercy of the husband. If wife and children are not in a position to maintain themselves, it is the 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.
12. Considering the position of law laid down in the aforesaid cases and also considering the status of respondent no.2, it is directed that revisionist no. 1 would be entitled to receive Rs.10,000/- per month as maintenance amount from respondent no.2 and likewise revisionist no. 2 would also be entitled to receive Rs.10,000/- per month. The revisionists shall be entitled for this amount excluding the amount of Rs.1500/- and Rs.750/- per month respectively awarded in their favour by the Magistrate under the Domestic Violence Act. The revisionists shall also be entitled cost of this litigation, which is determined as Rs.10,000/-.
13. The revision succeeds and is allowed.
Order Date :- 25.7.2019 RK