Prakash Mishra vs Smt. Jaya Mishra on 15 May, 2017


Writ Petition No. 4087/2017
Shri Umesh Shrivastava, learned counsel for the
Shri Prahlad Choudhary, learned counsel for respondent.

With consent of learned counsel for the parties the matter
is heard finally.

Order dated 13th January 2017 passed by Principal Judge,
Family Court, on an application under Section 24 of Hindu
Marriage Act, 1955 is being questioned by the petitioner vide
this petition under Article 227 of the Constitution of India.

Suit at the instance of petitioner is for divorce under
Section 13 of 1955 Act. During pendency whereof respondent
wife filed an application for maintenance pendente lite and for
legal expenses; contending inter alia that she is dependent on
her parents for her livelihood and that the petitioner has a
definite source of income being a electrical petty contractor.
The Family Court while negativing the plea raised by the
petitioner that he being unemployed has no independent source
of income and that he is dependent on his uncle for his
livelihood, directed for payment of Rs.6000/- per month toward
maintenance pendente lite and Rs.5000/- lump sum to meet out
the legal expenses.

The order is criticized on the ground that without there

being any definite proof of the fact that petitioner is in
employment and have an independent source of income the
Family Court grossly erred in presuming that the petitioner
earns a regular income. It is borne out from the order that the
Trial Court has relied upon the decision of the Supreme Court in
Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others
(AIR 1978 SC 1807), Chaturbhuj v. Sitabai (AIR 2008 SC 530),
Shamima Farooqui v. Shahid Khan (AIR 2015 SC 2025), and
Shamima Farooqui v. Shahid Khan (AIR 2015 SC 2025), to arrive
at a conclusion that in case where husband does not come out
with true facts in respect of money he earns for his livelihood, it
is permissible for the concerned Court to do some guess work to
arrive at a probable income which a able body educated person
can earn.

In Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal
and others
(supra), it is held:

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4. The husband sought divorce through the civil court and
the wife claimed maintenance through the criminal Court. As
an interim measure, the District Court awarded maintenance
and the High Court fixed the rate at 400/- per mensem for the
spouse as a provisional figure. Meanwhile, the magistrate, on
the evidence before him, ordered ex-parte, monthly
maintenance at Rs. 1000/- for the mother and two children

6. Broadly stated and as an abstract proposition, it is valid to

assert, as Sri Desai did, that a final determination of a civil
right by a civil court must prevail against a like decision by a
criminal court. But here two factors make the principle
inapplicable. Firstly, the direction by the civil court is not a
final determination under the Hindu Adoptions and
Maintenance Act but an order pendente lite, Under Section 24
of the Hindu Marriage Act to pay the expenses of the
proceeding, and monthly during the proceeding such sum as,
having regard to the petitioner’s own income and the income
of the respondent, it may seem to the court to be reasonable.
Secondly, this amount does not include the claim for
maintenance of the children although the order does advert to
the fact that the respondent has their custody. This incidental
direction is no comprehensive adjudication.

7. Therefore, barring marginal relevance for the Magistrate it
does not bar his jurisdiction to award a higher maintenance.
We cannot, therefore, fault the Magistrate for giving Rs.
1000/- on this score.

In Chaturbhuj v. Sitabai (supra) it is held:
“5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase “unable to maintain herself” in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not

take within itself the efforts made by the wife after desertion
to survive somehow. Section 125 Cr.P.C. is a measure of
social justice and is specially enacted to protect women and
children and as noted by this Court in Captain Ramesh
Chander Kaushal v. Mrs. Veena Kaushal and Ors
. (AIR 1978
SC 1807) falls within constitutional sweep of Article 15(3)
reinforced by Article 39 of the Constitution of India, 1950 (in
short the ‘Constitution’). 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 and Ors.
(2005 (2) Supreme 503).”

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In Shamima Farooqui v. Shahid Khan (supra) it is held:

15. 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 CrPC, 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
CrPC 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 CrPC, unless disqualified, is

an absolute right. While determining the quantum of
maintenance, this Court in Jabsir Kaur Sehgal v. District
Judge Dehradun Ors
. [(1997) 7 SCC 7] has held as

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“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

The impugned order when is tested on the anvil of
principle of law laid down in Captain Ramesh Chander Kaushal v.
Mrs. Veena Kaushal
and others (supra), Chaturbhuj v. Sitabai
(supra), and Shamima Farooqui v. Shahid Khan (supra) cannot be
faulted with as would warrant an interference.

Consequently, petition fails and is dismissed. No costs.

vivek tripathi

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