IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CRM-M-19214-2016
Date of decision: 03.11.2017

Rajesh Goyal …Petitioner

Versus

Dimple …Respondent

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Mahir Sood, Advocate
for the petitioner.

Ms. Dimple, respondent in person.

********

JAISHREE THAKUR, J.

1. The instant petition has been filed under Section 482 Cr.P.C

seeking to challenge orders dated 29.01.2016 (Annexure P-10) whereby the

petitioner has been directed to make payment of arrears of interim

maintenance @ of Rs. 20,000/- per month in terms of order dated 30.10.2014

and also to challenge order dated 25.03.2016 (Annexure P-12) passed by the

Additional Sessions Judge, Bathinda whereby the revision petition filed

against the said order has been dismissed.

2. To understand the controversy involved herein, it would be

necessary to delineate upon the facts of the case. The petitioner Rajesh

Goyal married the respondent Dimple Goyal as per Hindu rites and

ceremonies on 19.10.2012. On account of matrimonial dispute between the

parties, bitter litigation commenced. The respondent got an FIR No. 54 dated

25.09.2013 registered under Sections 498-A and 406 of the Indian Penal

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Code at Police Station Women Cell, District Bathinda. She also filed a

petition for divorce on the grounds of cruelty, which petition was decreed

ex-parte by judgment and decree dated 04.02.2015. The respondent also

instituted an application under Section 125 Cr.P.C. for grant of interim

maintenance on 02.11.2013. Since the petitioner did not appear, he was

proceeded ex-parte by an order dated 17.12.2013 which order was

challenged and the ex-parte proceedings were set aside by an order dated

14.08.2014. Thereafter, the JMIC, seized of the matter, directed the

petitioner to make a payment of Rs. 20,000/- per month as interim

maintenance from the date of application by an order dated 30.10.2014. This

order, directing payment of interim maintenance, was challenged by the

petitioner by filing a criminal revision before the Additional Sessions Judge

which revision was dismissed as withdrawn by an order dated 11.03.2015,

since the main application under Section 125 Cr.P.C. had been allowed by

the JMIC on 30.01.2015. As the order dated 30.01.2015 was an ex-parte

order directing the petitioner to pay a sum of Rs. 25,000/- per month to the

respondent from the date of application as also litigation expenses to the tune

of Rs. 15,000/-, the same was challenged in a Revision Petition No. 14 dated

24.03.2015 before the Additional Sessions Judge, Bathinda. The Additional

Sessions Judge by an order dated 24.11.2015 set-aside the impugned order

and directed the parties to appear before the trial Court giving one effective

opportunity to the petitioner (respondent revisionist) to contest the

application under Section 125 Cr.P.C. Since there was non-compliance of

the order dated 30.10.2014, which had allowed interim maintenance @ of

Rs. 20,000/- per month, to be paid to the complainant wife, an application

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dated 15.12.2015 under Section 128 Cr.P.C. for recovery of arrears of

maintenance was preferred. Reply was filed to the said application in which

inter alia a specific plea had been taken that the respondent wife would not

be entitled to maintenance as she had already received a sum of Rs. 10 Lakh

before the Supreme Court. This application was contested and by an order

dated 29.01.2016, a direction was issued to pay the arrears of maintenance.

This order was again challenged by the petitioner; however, the revision

petition was dismissed on 25.03.2016 by the Additional Sessions Judge,

Bathinda (Annexure P-12). Aggrieved against the order directing the

petitioner to pay arrears of interim maintenance @ of Rs. 20,000/- per

month, and dismissal of the revision petition, the instant petition has been

filed.

3. Learned counsel for the petitioner urges that the respondent

wife is not entitled to grant of any interim maintenance as has been assessed

by the JMIC, Bathinda. It is contended that the petitioner herein has already

paid a sum of Rs. 10 Lakhs to the respondent under the orders of the

Supreme Court, which amount has been withdrawn by her. It is argued that

without taking into consideration the facts of the case or assessing the

income of the petitioner, who is not holding a job, interim maintenance

should not have been assessed at Rs. 20,000/- per month. It is also submitted

that the marriage subsisted for a very short period and it is the respondent

herself who left the matrimonial home and obtained a decree of divorce and,

therefore, having left the matrimonial home herself, she would not be

entitled to any maintenance. It is also argued that maintenance is to be

awarded under Section 125 Cr.P.C in a given situation, if the complainant is

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not in a position to maintain herself, and after having received a sum of

Rs. 10 Lakhs, it could not be said that she is destitute. It is also argued that

the respondent herein is a qualified teacher and has a job of Rs. 30,000/- per

month, whereas the petitioner is jobless and does not have any landed

property in his name.

4. Per contra, the respondent, who appears in person, argues that

the petitioner herein is liable to pay the interim maintenance as has been

awarded by the JMIC in its order dated 30.10.2014. It is argued that the

petitioner herein is a man of means as would be reflected in the matrimonial

advertisement issued. It is also argued that the petitioner, while giving a

statement in proceedings initiated against him, had submitted that he along

with his brothers were joint in residence and in business. It is argued that the

petitioner herein has a share in a petrol station and, therefore, is a man of

substantial means. The respondent also relies upon an affidavit filed by the

petitioner before the JMIC, Bathinda, in proceedings initiated under Sections

498-A and 406 of the IPC, in which the petitioner himself, in support of his

bail application, has averred that he, being a man of means, will not abscond.

The respondent argues that the sum of Rs. 10 Lakhs, received by her, were

pursuant to the orders passed by the Supreme Court in SLP No. 4577 – 4578

of 2014 arising out of a judgment and order dated 29.05.2014 passed by this

High Court which had been filed seeking anticipatory bail since there had

been no recovery of gold/dowry articles.

5. I have heard the counsel for the parties and have also perused

the pleadings in this case.

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6. The short question before this Court is whether the petitioner

herein is liable to pay interim maintenance as assessed by the JMIC,

Bathinda by its order dated 30.10.2014 ?

7. Section 125 of the Criminal Procedure Code, 1973 has been

enacted in a form of a beneficial legislation which provides an effective

remedy to protect women, children and parents when they are not in a

position to maintain themselves. The term ‘wife’ also includes a divorced

wife and, therefore, the respondent herein is entitled to seek maintenance, if

it can be established that she is unable to maintain herself. In Chanmuniya

vs. Virender Kumar Singh Kushwaha and another, 2011 (1) SCC 141,

Hon’ble Supreme Court held as under:

23. Again, in Vimala v. Veeraswamy [(1991) 2 SCC 375], a
three-Judge Bench of this Court held that Section 125 of the
Code of 1973 is meant to achieve a social purpose and the
object is to prevent vagrancy and destitution. Explaining the
meaning of the word `wife’ the Court held:

“3…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. When an attempt is made
by the husband to negative the claim of the neglected wife
depicting her as a kept-mistress on the specious plea that
he was already married, the court would insist on strict
proof of the earlier marriage. The term `wife’ in Section
125 of the Code of Criminal Procedure, includes a
woman who has been divorced by a husband or who has
obtained a divorce from her husband and has not
remarried. The woman not having the legal status of a
wife is thus brought within the inclusive definition of the
term `wife’ consistent with the objective… ”

8. The argument raised by the counsel for the petitioner that the

respondent has received a sum of Rs. 10 Lakhs in terms of the SLP order

and, therefore, cannot claim maintenance, is not sustainable. The amount as

received under the orders of the Supreme Court was in order to secure

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anticipatory bail. In fact, the petitioner herein had applied for grant of

anticipatory bail in proceedings initiated under the FIR registered under

section 406/498A IPC. After bail was rejected by this Court, he appeared

before the Supreme Court and it is only thereafter that the respondent herein

was given a sum of Rs. 10 Lakhs.

9. The JMIC, Bathinda has awarded a sum of Rs. 20,000/- to be

paid as interim maintenance under Section 125 Cr.P.C. The contention of

the petitioner that the respondent was an educated lady having a Bachelor

Degree, a Degree in Education, Diploma in Tourism was noted and

thereafter it was held that having a good qualification does not mean that she

is capable of maintaining herself. The plea of the petitioner that he didn’t

have a bungalow or plot or was running any petrol pump was not taken into

account while determining the liability of the petitioner to make a payment

of Rs. 20,000/- per month from the date of application. Undeniably, the

petitioner herein has a moral obligation and responsibility to maintain the

respondent even though she is his divorced wife. The plea that she left her

matrimonial home of her own accord, and thus would not be entitled to

claim maintenance, cannot be taken into account since there were adequate

reasons for her to leave her matrimonial home. The petitioner in his wisdom

did not deem it fit to contest the divorce petition filed alleging cruelty.

10. However, while determining interim maintenance, the Court has

necessarily to arrive at a determination about the earning capacity of the

person from whom it is claimed. It is also true that an exact determination

cannot be made, even then interim maintenance cannot be fixed capriciously.

These proceedings are summary in nature and the matter has to be decided

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on the basis of some averments/pleadings/documents supported by the

parties. In the matter of Bharat Hegde vs. Smt. Saroj Hegde, 140 (2007)

DLT 60, a thumb rule was laid out for the Courts to follow where the parties

do not come forward with their exact income. It was held that while

determining interim maintenance/maintenance, the status of the parties,

reasonable needs of the claimant, the independent income and property of

the claimant, the number of persons, the non-applicant has to maintain, the

amount of aid that should be given to an applicant-claimant to live in a

similar life style as he/she enjoyed in the matrimonial home, non-applicant’s

liabilities, payment capacity of the non-applicant and the amount awarded

are to be taken into consideration.

11. Recently, a similar matter came up before the Supreme Court In

Manish Jain Vs. Akanksha Jain, Civil Appeal No. 4615 of 2017 arising

out of SLP (C) No.7670 of 2014 reported as 2017 (2) R.C.R. (Civil) 682. A

matrimonial dispute arose between the parties and the wife filed a divorce

petition along with an application seeking interim maintenance in

proceedings under section 24 of the Hindu Marriage Act 1955. The wife

claimed a sum of rupees Rs.4,00,000/- per month and also a sum of

Rs.80,000/- to meet litigation expenses during the pendency of the divorce

petition, on the ground that she did not have any source of income to

maintain herself and that she is dependent upon others for her day to day

needs and requirements. The husband contested the application while

submitting that his wife was well educated and that the family business had

suffered a severe setback. Eventually the High Court fixed interim

maintenance at Rs. 60,000/- per month which was challenged by the

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husband. The Supreme Court reduced the interim maintenance awarded by

the High Court to Rs. 25,000/- per month while holding as under:

“11. The Court exercises a wide discretion in the matter of
granting alimony pendente lite but the discretion is judicial
and neither arbitrary nor capricious. It is to be guided, on
sound principles of matrimonial law and to be exercised
within the ambit of the provisions of the Act and having
regard to the object of the Act. The Court would not be in a
position to judge the merits of the rival contentions of the
parties when deciding an application for interim alimony and
would not allow its discretion to be fettered by the nature of
the allegations made by them and would not examine the
merits of the case. Section 24 of the HM Act lays down that in
arriving at the quantum of interim maintenance to be paid by
one spouse to another, the Court must have regard to the
appellant’s own income and the income of the respondent.”

12. In the instant case, a perusal of the order dated 30.10.2014 does not

reflect a judicious approach of the Court below while determining the

interim maintenance to be paid. Other than noting contentions, there are no

adequate reasons forthcoming as to what is the basis of determination of

interim maintenance at Rs. 20,000/- per month. The plea taken that the

petitioner had sold his property to pay a sum of Rs. 10 Lakhs to the

respondent has also not been taken into consideration. Therefore, this Court

is of the considered opinion that the interim maintenance as assessed is on

the higher side.

13. The petitioner has specifically pleaded that he is not holding a

regular job, does not own any land or property and is residing separately

with his widowed mother. On the contrary, the respondent wife pleads that

he is a man of substantial means, she relies upon an affidavit furnished by

the petitioner himself while seeking bail which states that he has land and

will not abscond, statement given by the petitioner that he is in a joint family

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and the matrimonial advertisement saying that he is a businessman, to claim

maintenance. None of these factors can be looked into at the present

moment by this court, as evidence is still being led. However, without there

being any sustainable proof, this Court finds that the interim maintenance

awarded is excessive.

14. In view of above, the instant petition is partly allowed. The

impugned orders dated 30.10.2014 29.01.2016 are modified to the extent

that the interim maintenance payable would be assessed @ Rs. 10,000/- per

month from the date of the application. The appellant-husband is directed to

pay the arrears within eight weeks from today.

15. However, while disposing of this petition, it is made clear that

the petition under Section 125 Cr.P.C is to be decided by taking all

parameters into account as discussed above and the JMIC is not to be

influenced by the order of this Court determining interim maintenance @

Rs. 10,000/- per month. In case the final maintenance is determined to be

lesser than Rs. 10,000/- per month, excess payment made same shall be

adjusted against future payments.

Let a copy of this order be dispatched to the respondent at her

given address.

November 03, 2017 (JAISHREE THAKUR)
Ansari JUDGE

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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