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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 660 of 2023

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Date of Decision: 20.12.2023.

Dharmender Kumar Kaushal …Petitioner

Versus

Seema Devi …Respondent

Coram

Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 Yes.

For the Petitioner : Ms. Anu Tuli, Advocate.

For the Respondent : Mr. Bhim Raj Sharma, Advocate.

Rakesh Kainthla, Judge (Oral)

The petitioner has assailed the order dated

20.8.2022, passed by learned Principal Judge Family Court,

Shimla vide which the petition under Section 125(1) of the Cr.P.C.

for seeking interim maintenance was allowed and the

maintenance of ₹5,000/- per month was granted to the

respondent (Petitioner before the learned Principal Judge) from

the date of application till final disposal of the main petition.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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(Parties shall hereinafter be referred to in the same manner as

they were arrayed before the learned Trial Court for

.

convenience).

2. Briefly stated, the facts giving rise to the present

petition are that the petitioner filed a petition under Section 125

of Cr.P.C. for seeking maintenance @ ₹20,000/- per month. It

was asserted that the marriage between the petitioner and

respondent was solemnized as per Hindu rites and customs on

5-6th March 2018 at Village Kharoonwala, Post Office

Bhararighat, Sub-Tehsil Darlaghat, Tehsil Arki, District Solan,

H.P. The parties resided together after the marriage. The

respondent and his family members started harassing the

petitioner after about two months of the marriage without any

reason. Daily necessities were denied to the petitioner. The

respondent and his family members asked the petitioner to

persuade her parents to give her more dowry. The stridhan

gifted to the petitioner was also retained by the respondent and

his family members. The behaviour of the respondent

deteriorated with time. He physically and mentally tortured the

petitioner and abused her in filthy language. The petitioner

made a complaint to the Women’s Police Station, New Shimla on

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3.4.2021. The petitioner has no source of income, whereas the

respondent is working as a Chartered Accountant at Vikasnagar

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at a monthly salary of ₹40,000/-. He has no liability and no

other person to maintain except the petitioner. Hence, the

petition seeking the maintenance.

3. The petition was opposed by filing a reply taking

preliminary objections regarding lack of maintainability, the

petitioner not having come to the Court with clean hands and

the petitioner being barred by the principle of estoppel and

acquiescence. The contents of the petition were denied on

merits; however, the relationship between the parties was not

disputed. It was asserted that the respondent never maltreated

or harassed the petitioner. The petitioner had an extramarital

affair and she used to talk regularly to same person. She also

used to exchange video calls. The petitioner suffered from

psychological problems which were not disclosed to the

respondent at the time of the marriage. She would remain alone

in the room for hours and come out of the room to have food or

use the washroom. The sister-in-law of the respondent used to

take care of the household chores and the petitioner never

helped her. The respondent took care of the medical expenses of

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the petitioner. The police tried to settle the matter; however, the

petitioner was bent upon harassing the respondent and his

.

family members. The petitioner left the matrimonial home on

her own will and she is not entitled to any maintenance. She is

an able-bodied person having the qualification of a B.Ed. and

she can easily maintain herself. It was specifically denied that

the stridhan of the petitioner was taken by the respondent or his

family members. Therefore, it was prayed that the present

petition be dismissed.

4. A rejoinder denying the contents of the reply and

affirming those of the petition was filed.

5. An application seeking interim maintenance @

₹15,000/- per month was filed by the petitioner which was

opposed by the respondent.

6. Learned Principal Judge, Family Court, Shimla held

that the relationship between the parties was not disputed. It

was also not disputed that the petitioner was unemployed and

was dependent upon her parents for her daily needs. There was

no proof that the respondent was earning ₹40,000/- per month.

The plea of the respondent that the petitioner had left her

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matrimonial home without any reasonable cause was to be seen

at the time of the conclusion of the trial and not at the stage of

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interim maintenance. The respondent being the petitioner’s

husband is bound to maintain her; hence, maintenance

@₹5,000/- per month was awarded to the petitioner.

7. Aggrieved from the order passed by the learned

Principal Judge, Family Court, Shimla, the present petition has

been filed. It has been asserted that the learned Principal Judge,

Family Court had taken a very harsh view, which has caused

gross injustice to the respondent. The petitioner had deserted

the respondent without any reasonable cause and the

respondent had never neglected or refused to maintain the

petitioner. The income of the respondent is ₹6,000/- per month

and payment of maintenance of ₹5,000/- per month would be

unjust. Therefore, it was prayed that the present petition be

allowed and the order passed by the learned Principal Judge,

Family Court, Shimla be set aside.

8. I have heard Ms. Anu Tuli, learned Counsel for the

petitioner and Mr. Bhim Raj Sharma, learned counsel for the

respondent.

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9. Ms Anu Tuli, learned Counsel for the petitioner

submitted that the respondent has filed an affidavit in

.

compliance with the direction passed by the Hon’ble Supreme

Court in Rajnesh v. Neha, (2021) 2 SCC 324, in which it was

specifically mentioned that the income of the respondent is

₹6,000/- per month. The petitioner is an able-bodied person.

She is highly qualified and has passed B.Ed. examination. She is

capable of earning and is not entitled to any maintenance from

her husband. The respondent would be left with ₹1,000/- per

month after the payment of ₹5,000/- per month to the

petitioner. The Court has to balance the equities of both parties

and cannot be unjust to either of the parties. Keeping in view

these parameters, the maintenance of ₹5,000/- per month,

awarded by the learned Principal Judge, Family Court, Shimla is

harsh. Hence, she prayed that the petition be allowed and the

order passed by learned Principal Judge, Family Court, Shimla be

set aside.

10. Mr. Bhim Raj Sharma, learned counsel for the

respondent supported the order passed by learned Principal

Judge, Family Court, Shimla and submitted that the respondent

is an able-bodied person. He is bound to maintain his wife and

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cannot escape from the liability on the ground that he is

incapable of earning. The learned Principal Judge, Family Court,

.

Shimla rightly held that the question of the petitioner leaving

her matrimonial home voluntarily or not is not to be adjudicated

at this stage. The petitioner is to be saved from vagrancy and the

amount of ₹5,000/- is just. Therefore, he prayed that the

present petition be dismissed.

11. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

12. The respondent has filed an affidavit of income, in

which he stated that his income is ₹6,000/- per month by

working as a part-time Accountant. However, he has not

furnished the income certificate issued by his employer stating

his designation and gross monthly income as required under

para-3 of Section F of the affidavit. He has filed the account

statement but it does not show the regular remittance of

₹6,000/- to corroborate his version that his income is ₹6,000/-

per month. It is undisputed that the respondent is an able-

bodied person and therefore, he is expected to earn the

minimum wages fixed by the State Government. It was laid

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down by the Hon’ble Supreme Court in Shamima Farooqui v.

Shahid Khan, (2015) 5 SCC 705 : (2015) 2 SCC (Cri) 785 : (2015) 3

.

SCC (Civ) 274: 2015 SCC OnLine SC 288 that an able-bodied person

cannot escape from paying maintenance to the wife on the

ground that he has no income to pay maintenance to her. It was

observed:

14……. 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 the wife’s right to receive
maintenance under Section 125 CrPC, 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 that 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.

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In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008) 1 SCC
(Civ) 547 : (2008) 1 SCC (Cri) 356], it has been ruled that :
(SCC p. 320, para 6)

.

“6. … Section 125 CrPC 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: 1978 SCC

(Cri) 508] falls within the 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:
2005 SCC (Cri) 787] .”

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: AIR 1968 Del 174]

wherein it has been opined thus : (SCC OnLine Del para 7)

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 an able-bodied
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. When the

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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 her 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

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.

13. Therefore, the plea of the respondent that he is

earning less than the minimum wage cannot be accepted and the

income of the respondent has to be considered based on

minimum wages.

14. The State Government had fixed the minimum wage

of ₹300/- per day or ₹9,000/- per month, therefore, the income

of the respondent has to be taken as ₹9,000/- per month.

15. It was submitted on behalf of the respondent that the

petitioner is highly educated. She is B.Ed. and is capable of

earning for herself. This submission will not help the

respondent. It was laid down by the Punjab and Haryana High

Court in Lipi Mohapatra vs. Vinay Kumar 2018 (1) HLR 891 that

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maintenance cannot be denied to a wife on the ground that she

is capable of earning. It was observed:

.

“On asking of the court, it has been informed that the
applicant is educated having done Post Graduation in the
subject of English. But the circumstances that she is

capable of earning and is doing some constructive work
for earning will not disentitle her for maintenance
pendente lite as the said factor will not ipso facto
disentitle her for the maintenance pendente lite as she

has to be maintained commensurate with the status and
earnings of the husband.”

16. Similarly it was held by the Hon’ble Supreme Court in

Manish Jain vs. Akanksha Jain 2017 (15) SCC 801 that it is no

answer to the claim of the wife that she is educated and capable

of earning for herself. It was observed:

“5. An order for maintenance pendente lite or for costs of
the proceedings is conditional on the circumstance that

the wife or husband who makes a claim for the same has
no independent income sufficient for her or his support

or to meet the necessary expenses of the proceeding. It is
no answer to a claim of maintenance that the wife is

educated and could support herself. Likewise, the financial
position of the wife’s parents is also immaterial. The
Court must take into consideration the status of the
parties and the capacity of the spouse to pay maintenance
and whether the applicant has any independent income
sufficient for her or his support. Maintenance is always
dependent upon the factual situation; the Court should,
therefore, mould the claim for maintenance determining
the quantum based on various factors brought before the
Court.”

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17. Similarly it was held in Shailja v. Khobbanna, (2018)

12 SCC 199 : (2018) 5 SCC (Civ) 308: 2017 SCC OnLine SC 269 that

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there is a distinction between actual earning and capable of

earning. It was observed:

5. That apart, we find that the High Court has proceeded
on the basis that Appellant 1 was capable of earning and
that is one of the reasons for reducing the maintenance

granted to her by the Family Court. Whether Appellant 1 is
capable of earning or whether she is actually earning are
two different requirements. Merely because Appellant 1 is
capable of earning is not, in our opinion, sufficient reason

to reduce the maintenance awarded by the Family Court.

18. Therefore, the maintenance cannot be denied to the

wife on the grounds that she is highly qualified and capable of

earning for herself. In order to deny the maintenance, it has to

be shown that the wife is actually earning something, which is

sufficient for her maintenance and it is not sufficient to

establish that she is capable of earning for herself.

19. It was submitted that the petitioner is taking tuition

and she is capable of earning for herself. This submission is also

not acceptable. It was laid down by the Hon’ble Supreme Court

Rajathi v. C. Ganesan, (1999) 6 SCC 326 that words unable to

maintain herself would include the means available to the wife

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when she was living with her husband and does not include the

efforts made by her after desertion to survive. It was observed:

.

“The words “unable to maintain herself” would mean
that means available to the deserted wife while she was
living with her husband and would not take within

themselves the efforts made by the wife after the
desertion to survive somehow. Section 125 is enacted on
the premise that it is the obligation of the husband to
maintain his wife, children and parents. It will, therefore,

be for him to show that he has no sufficient means to
discharge his obligation and that he did not neglect or
refuse to maintain them or any one of them.”

20. Thus, the efforts made by the wife to sustain herself

cannot be used to deny maintenance to her.

21. Once it is found that the minimum wage is ₹9,000/-,

the maintenance of ₹5,000/- is excessive. Payment of

maintenance of ₹5,000/- would leave an amount of ₹4,000/-

with the respondent to maintain himself. There is a force in the

submission of learned counsel for the respondent that the Court

has to balance the equities of both parties and cannot favour one

party over another. When the equities are balanced, an amount

of ₹4,500/- would be sufficient as maintenance for the wife

which would leave an equal amount with the respondent to

maintain himself. It is undisputed that the respondent does not

have any liability except maintaining the petitioner, hence both

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parties would be left with an equal amount after the payment of

₹4,500/-.

.

22. The learned Principal Judge, Family Court had rightly

held that the Court is not to decide whether the wife has left the

matrimonial home with a reasonable or without a reasonable

cause at this stage and this has to be seen at the time of the trial.

It was laid down by this Court in Subhash Chand v. Krishani Devi,

2021 SCC OnLine HP 7309 that granting interim maintenance is

like providing first aid to the wife. It was observed:

16. Granting interim maintenance is similar to giving first
aid. Chapter IX of the Criminal Procedure Code, 1973,

provides a quick remedy by a summary procedure to
protect the applicant against starvation and tide over
immediate difficulties by a deserted wife or children to

secure some reasonable sum by way of maintenance. S.
125(1)(a) of CrPC provides a grant of maintenance to the

wife, unable to maintain herself. Proviso to S. 125 CrPC
empowers the Magistrate to order monthly allowance for
the interim maintenance and also the expenses of such

proceeding during its pendency. The foundation of the
measures of social Justice enacted by the Legislature lay
beneath the sweep of Article 15 (3) of the Constitution of
India. It fulfils the concept of a welfare State in a vibrant
democracy by safeguarding wives and children and
preventing them from the modes of vagrancy and its
consequences. Given the above, it would be appropriate
for the Courts to direct the person against whom an
application is made under S. 125 of the Code to pay some
reasonable sum by way of maintenance to the applicant
pending the final disposal of the application

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23. Therefore, the Court is only concerned with the

prevention of vagrancy and destitution at the stage of granting

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interim maintenance. She cannot be denied maintenance on the

ground that she had left her matrimonial home without a

reasonable cause.

24. No other point was urged.

25.

In view of the above, the present petition is partly

allowed and the interim maintenance is reduced from ₹5,000/-

to ₹4,500/- per month from the date of filing of the petition.

26. The parties to the petition are directed through their

respective counsel to appear before the learned Trial Court on

10.01.2024.

27. The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

(Rakesh Kainthla)
Judge
20th December, 2023
(Chander)

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