Jyoti and Anr v. Satender Singh

HARPREET SINGH BRAR, J. (ORAL)

¶1This order of mine shall dispose of both the aforementioned criminal revision petitions as they are version and cross version and challenge to impugned judgment dated 22.01.2020 has been made in both the petitions. For the sake of brevity, facts are borrowed from CRR(F)-237-2020 titled as Jyoti and another vs. Satender Singh.

¶2The present petition has been preferred against the impugned judgment dated 22.01.2020 passed by the learned Family Court, Sonipat under Section 125 of the Cr.P.C., vide which, the maintenance of Rs.5,000/- per month each has been awarded to the petitioners, wife and son of the CRR(F)-237-2020 2

¶3The marriage between petitioner No.1 and respondent was solemnised on 29.04.2017 in accordance with Hindu rites and rituals at Sonipat. Out of the wedlock, one male child (petitioner No.2 herein) was born. However, matrimonial dispute ensued between the couple and the petitioners filed a petition under Section 125 Cr.P.C. seeking maintenance. The respondent filed a reply and contested the claim made by the petitioners. The learned Family Court vide judgment dated 22.01.2020 granted maintenance allowance of Rs.5,000/- per month each in favour of the petitioners. Aggrieved by the same, the petitioners and respondent have approached this Court by filing the present petitions.

¶4Learned counsel for the petitioners submits that learned Family Court has fallen into error by awarding meagre amount of maintenance to the petitioners. Learned counsel further submits that petitioner No.1 is a household lady and has no source of income to earn her livelihood and to maintain her minor child i.e. petitioner No.2. Learned counsel further submits that respondent is working as LDC, BRO at Leh Ladakh and earning Rs.45,000/- per month and is having rental income of Rs.20,000/- per month.

¶5Per contra, learned counsel for the respondent submits that the respondent is serving in the army and is currently posted in remote area. As such, he is not in a position to file the requisite affidavit, as directed by this Court vide order dated 14.09.2021 passed by this Court in CRR(F)-300-2021, however, he has filed his salary certificate (Annexure P-2) in CRM-1553 of 2022 in CRR(F)-300-2021. Learned counsel further submits that petitioner No.1 along with minor child has left the company of the respondent without any justifiable cause. Furthermore, petitioner No.1 is a qualified lady and earning Rs.25,000/- per month by doing tuition work. As such, the amount of CRR(F)-237-2020 3

maintenance awarded by learned Family Court is not in consonance with the income of the respondent.

¶6Having heard the learned counsel for the parties and after perusing the record with their able assistance, this Court finds no ground in the arguments advanced by learned counsel for the petitioner(s) in both petitions. Perusal of the record indicates that the respondent is earning net salary of Rs.30,875/- and as per the ratio of law laid down by the Hon'ble Supreme Court in Kalyan Dey Chowdhary vs. Rita Dey Chowdhary Nee Nandy AIR 2017 SC 2383 has held that awarding 25% of the husband's salary as maintenance to the wife would be just and proper.

¶7Pertinently, the object and purpose behind granting maintenance is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of failure of marriage. At the same time, a just and careful balance must be struck to ensure that this provision does not degenerate into a weapon to punish the other spouse. The Courts are required to conduct the maintenance proceedings while being alive to the legislative intent behind the provision under Section 125 Cr.P.C in its true spirit, which is to provide speedy assistance and social justice to women, children and infirm parents. The provisions of Section 125 Cr.P.C. were enacted as a measure to further social justice and protect dependent women, children and parents, which also falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.

¶8A Three-Judge Bench of the Hon'ble Supreme Court in Vimala (K.) v. Veeraswamy (K.)(1991) 2 SCC 375, speaking through Justice Fatima Beevi, opined that as follows: CRR(F)-237-2020 4

"3. Section 125 of the Code of Criminal Procedure 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." A two-Judge Bench of the Hon'ble Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479, speaking through Justice Faizan Uddin, opined as follows: "15. ... While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation."

¶9However, there is a general tendency on the part of the wife to amplify her needs and the husband to conceal his actual income, making it difficult to determine the earning capacity of the rival claimants with exactitude. The rival claimants must scrupulously bring on record their actual respective earning capacities in order for the Court to arrive at quantum of maintenance which is just and fair in terms of principle of equistatus. The quantum of maintenance must be justifiable and realistic to provide succour to the dependent spouse and also to avoid occurrence of the two extremes of the maintenance being either paltry or extravagant, ensuring that neither of the two MANISHA is reduced to a life of penury. The adequacy of the maintenance allowance has CRR(F)-237-2020 5

to be determined by the yardstick of the dependent spouse being able to lead a life of reasonable comfort.

¶10While dealing with the issue of maintenance in extenso, a two Judge bench of the Hon'ble Supreme Court in Rajnesh v. Neha and another

(2021) 2 SCC 324, laid down the criteria for determining quantum of maintenance and issued the following directions: "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.

¶82The 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. Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun and others

(1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v. Paramvir Parmar (2011) 13 SCC 112.

¶83In 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 CRR(F)-237-2020 6

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.

¶84On 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.

¶85The 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-CRR(F)-237-2020 7

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 40

(2007) DLT 16 laid down the following factors to be considered for determining maintenance : "1. Status of the parties.

¶2Reasonable wants of the claimant.

¶3The independent income and property of the claimant.

¶4The number of persons, the non-applicant has to maintain.

¶5The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

¶6Non-applicant's liabilities, if any.

¶7Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

¶8Payment capacity of the non-applicant.

¶9Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

¶10The non-applicant to defray the cost of litigation.

¶11The amount awarded under section 125 Cr.PC is adjustable against the amount awarded u/24 of the Act. 17." CRR(F)-237-2020 8

(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable." xxx xxxxxx VI Final Directions

¶130In view of the foregoing discussion as contained in Part B -1 to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India:

(a) Issue of overlapping jurisdiction

¶131To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding:

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding

(b) Payment of Interim Maintenance

¶132The 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 concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

(c) Criteria for determining the quantum of maintenance CRR(F)-237-2020 9

¶133For 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.

¶134The aforesaid factors are however not exhaustive, and the concerned Court 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

¶135We 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

¶136For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C may be applicable. The arder of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC more particularly Sections 51, 55, 58, 60 r.w. Order XXI."

¶11A perusal of the impugned judgment passed by the learned Family Court makes it evident that the Court below has duly considered the material placed before it for determining the quantum of maintenance. Learned Court below has observed that the respondent is serving in army and earning handsomely. It is trite law that an able-bodied husband is legally and morally bound to maintain his wife. A careful and just balance has been drawn, keeping in view the spiralling inflation rates and high cost of living corresponding to the reasonable needs of the petitioners, the conduct of the respondent-husband and the fact that petitioner No.2 minor son is residing with petitioner no.1 and also attending a private school. Learned counsel for the respective petitioner(s) in both the cases have not been able to indicate any perversity in the impugned CRR(F)-237-2020 10

judgment which warrants interference by this Court. Accordingly, both the petitions are dismissed being bereft of any merit.

¶12Pending miscellaneous application(s), if any, also stand(s) disposed of. (HARPREET SINGH BRAR) November 29, 2024 JUDGE manisha

(i) Whether speaking/reasoned Yes/No

(ii) Whether reportable Yes/No

217-1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 29.11.2024 1. CRR(F)-237-2020 JYOTI AND ANOTHER ...PETITIONERS V/S SATENDER SINGH ...RESPONDENT 2. CRR(F)-300-2021 (O & M) SATENDER SINGH ...PETITIONER V/S JYOTI AND ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Abhishek Chha, Advocate for Ms. Sharmila Sharma, Advocate for the petitioners in CRR(F)-237-2020 & for the respondents in CRR(F)-300-2021. Mr. R.S. Malik, Advocate for the petitioner in CRR(F)-300-2021 & for the respondent in CRR(F)-237-2020. 0000