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Calcutta High Court (Appellete Side)

Chandan Singh vs Smt. Shila Singh Anr on 4 March, 2024

IN THE HIGH COURT AT CALCUTTA

(Criminal Revisional Jurisdiction)

APPELLATE SIDE

Present:

The Hon’ble Justice Shampa Dutt (Paul)

CRR 1849 of 2019

Chandan Singh

Vs

Smt. Shila Singh Anr.

For the Petitioner : Mr. Kaushik Choudhury.

For the Opposite Party No. 1 : None.

For the State : None.

Hearing concluded on : 08.02.2024

Judgment on : 04.03.2024
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Shampa Dutt (Paul), J.:

1. The present revision has been preferred against an order dated

06.03.2019 passed in Misc. Case No. 72 of 2018 passed by the Learned

Judicial Magistrate, 5th Court, Bankura allowing the application for

interim maintenance filed by the opposite party No.1 and directing the

petitioner to pay interim maintenance allowance @ Rs. 4,000/- per

month for the opposite party No.1 and Rs. 4,000/- per month for each of

her two minor sons from the date of the order.

2. The petitioner/husband states that the opposite party No.1 filed an

application under Section 125 of the Code of Criminal Procedure, 1973

before the Chief Judicial Magistrate, Bankura against the petitioner,

inter alia claiming monthly maintenance for herself and also for her two

minor children. In connection with the aforesaid case under Section 125

of the Code of Criminal Procedure, 1973, the opposite party No. 1 also

filed an application for interim maintenance, inter alia, praying for Rs.

40,000/- per month from the date of filing of the application from the

petitioner. This application was filed on 6th June, 2018.

3. The petitioner has been contesting the main application for maintenance

under Section 125 of the Code of Criminal Procedure, 1973 by filing a

written objection thereto and therein all material allegations of the

opposite party no. 1 were denied by the petitioner.

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4. It is stated by the petitioner that the opposite no.1 has sufficient

means to maintain herself. Being a highly educated women, the

opposite party No. 1 presently is a School Teacher of a private school

and earns Rs. 20,000/- to Rs. 25,000/- per month from their and she

is also getting Rs. 15,000/- per month from her car business. On the

other hand, the petitioner is an employee in a private sector and is

posted as Consulting Partner for O.E.M.C.D. Technology Solutions,

New Delhi and earns Rs. 50,000/- (Max.) or 10% of the sale, whichever

is loss. The petitioner has no other source of income except the

aforesaid job, from which the petitioner has to pay Rs. 17,624/- as

E.M.I. for the loan of Gaziabad flat and he has to also pay Rs. 3,500/-

per month for maintenance of the said flat and Rs. 5,000/- per month

to his mother as her maintenance and this facts shows that the

petitioner has no capability to provide for such huge amount of

maintenance as claimed by the opposite party No.1 in her aforesaid

application.

5. The aforesaid application for interim maintenance was allowed by the

Learned Judicial Magistrate, 5th Court, Bankura by an order dated

06.03.2019 in Misc. Case No. 72 of 2018, directing the petitioner to

pay Rs. 4000/- per month for the opposite No. 1 and Rs. 4,000/- per

month each for her two minor sons from the date of the order.

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6. Admittedly the order under revision is an order allowing the prayer for

Interim Maintenance and thus considering the nature of the order

requires no interference by this court.

7. While disposing of the application under Section 125 Cr.P.C. finally,

the Learned Magistrate can now follow the guidelines as laid down by

the Supreme Court in Rajnesh Vs Neha, (2021 SCC 324).

8. The said Judgment discusses the issue of maintenance as a whole. All

the Acts providing the said benefit have been considered, discussed

and guidelines laid down. The final Directions there in are as follows:-

“VI Final Directions

In view of the foregoing discussion as
contained in Part B – I 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

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

(iii) (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

The 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

For 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. 56 The 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

We 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

For 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.,
as may be applicable. The order of maintenance
may be enforced as a money decree of a civil court
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as per the provisions of the CPC, more particularly
Sections 51, 55, 58, 60 r.w. Order XXI.”

9. Keeping with the said guidelines both the parties to the case will

file their Affidavit of Disclosure of Assets and liabilities before the

trial Court, Considering the stand of the parties that the opposite

party/husband is a director in three companies and that the

petitioner/wife is also a working woman, as none of the parties

have filed any documents before either the trial court nor before

this court, which thus makes it difficult for this court to consider

the prayer for enhancement.

10. There is another factor to be considered by the Learned

Magistrate at the time of final disposal of the case as to whether

the petitioner was driven out from her matrimonial home or had

she deserted her husband without any just and sufficient reasons.

The opposite party/husband though has filed a suit for restitution

of Conjugal Rights which is still pending.

11. The criteria determining quantum of maintenance as in Rajnesh

Vs Neha (Supra) is:-

“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.

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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.

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
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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.

(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.

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 Hegde37 laid down the following
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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
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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 Ahuja38 (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
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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 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. 40 Sustenance does not
mean, and cannot be allowed to mean mere
survival.

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.

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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
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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.”

12. Accordingly considering the Materials on record, the order of interim

maintenance under revision dated 06.03.2019 passed by the Learned

Judicial Magistrate, 5th Court, Bankura in Misc. Case No. 72 of 2018

is hereby modified to the extent that the directions as to the

arrear from the date of filing be stayed till disposal of the

application under Section 125 Cr.P.C.

13. The Trial Court will decide the case finally as per the directions in

the body of this judgment including the issue of the arrears of

maintenance and make all endeavour to dispose of the case finally

as expeditiously as possible.

14. CRR 1849 of 2019 is disposed of accordingly.

15. All connected applications, if any, stand disposed of.

16. Interim order, if any, stands vacated.

17. Copy of this judgment be sent to the learned Trial Court for necessary

compliance.

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18. Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal

formalities.

(Shampa Dutt (Paul), J.)