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Dr. Sajid N. Tambe vs Shaifali on 31 July, 2019

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

Indore, dated : 31.07.2019

Shri Arjun Pathak, learned counsel for the petitioner in
CRR No.2167/2018.

Shri Darshan Singh, learned counsel for the petitioner in
CRR No.5627/2018.

Both husband and wife, whose marriage could not work
and who are living separately since 2016 i.e. within a year of
marriage, have preferred these counter petitions.

2. Wife, who is granted maintenance of Rs.8,000/- per
month in her favour and Rs.5,000/- in favour of her minor 3
years old son, is dissatisfied with the quantum and husband also
feels himself aggrieved by the grant of maintenance as well as
quantum of maintenance. Wife has come for enhancement and
husband has come for rejection or atleast reduction in the
quantum of maintenance.

3. Marriage and separate living of both the parties, is not
disputed.

4. As per statement made by the husband, he has already
divorced his wife by Talak-Ae-Biddat commonly known as
Triple Talak by sending a post card along with the amount of
Mehar settled at the time of marriage and the same is received
by the wife.

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

5. Wife has denied this fact stating that even she has filed a
petition for restitution of conjugal rights.

6. Further, it is not disputed between the parties that husband
is MD Radiologist and wife is double MBA.

7. It is contended by the wife that husband runs a Diagnostic
Center in Pune in the name and style of “A.B Diagnostic
Center” and he also provides his service in KEM Hospital.

8. Husband has claimed that wife also works and earns a lot.
He claims that wife also files ITR showing her income more
than Rs.2,00,000/- and she has fixed deposits of more than
Rs.40,00,000/- and earns handsome interest on such deposits.

9. First objection of the husband is that wife is not entitled
for any maintenance as she has already divorced by the
husband.

10. Learned counsel has placed reliance on the judgment of
Hon’ble the Supreme Court in the case of Latif Vs. Union of
India reported in AIR 2001 SC 3958, later followed in Ikbal
Bano VS State of UP reported in 2007(5) Supreme 1998.

11. To counter the contention of the husband, learned counsel
for the wife invited my attention to the Explanation B appended
to the proviso to section 125 of the Cr.P.C, which shows that
“wife includes a woman, who has been divorced by, or has
obtained divorce from, her husband and has not remarried”.

12. There is not dispute that wife has not remarried yet.

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

13. Learned family Court has considered income tax return of
the husband showing his taxable income of Rs.14,98,000/- per
annum in the year 2016-17.

14. Challenging this observation of the learned family Court,
the learned counsel for the husband has submitted that after
deducting all expenses, net income of the husband comes to the
tune of Rs.2,80,454/-, which is shown in the ITR of the year
2016-17 itself, and these deductions are not considered by the
learned family Court, but this contention of the learned counsel
for the husband is misconceived. The figure mentioned by the
learned counsel is a figure of total tax and interest payable and
not the net income as claimed by the husband.

15. Impugned order passed by the learned family Court does
not reflect that the issue of entitlement of the wife for getting
maintenance was raised before the learned family Court.

16. Both the parties have come before this court against the
order of interim maintenance and they have opportunity to raise
all such grounds before the learned family Court.

17. Interim maintenance is an interim measure to provide and
to support the estranged wife to survive. Question of
entitlement of the Muslim divorce woman is considered by the
Hon’ble the Supreme Court in Shabana Bano Vs. Imran Khan
passed in CRA No.2309/2009 arising out of SLP (Cri.)
No.717/2009 dated 04.12.2009 and it is held that such woman
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

is entitled for maintenance under section 125 of the Cr.P.C fro
her husband.

18. Object of the interim maintenance has been considered by
the Hon’ble Supreme Court time and again. It is stated in
Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal,
AIR 1978 SC 1807 : (1979 Cri. LJ 3) and in Chturbhuj Vs.
Sita Bai AIR 2008 SC 530 that this provision is a measure of
social justice and specially enacted to protect women and
children. 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 again highlighted in Savitaben Somabhai Bhatiya v.
State of Gujarat and Ors. (2005 (2) Supreme 503).

19. Further in Bhuwan Mohan Singh v. Meena and Ors.
AIR 2014 SC 2875 the Apex Court expressed that the
maintenance is obligation of the husband and that Section 125
of the Cr.P.C. was conceived to ameliorate the agony, anguish,
financial suffering of a woman, who left her matrimonial home
for the reasons provided in the provision so that some suitable
arrangements can be made by the Court and she can sustain
herself and also her children if they are with her. Husband had
to maintain them. In fact, it is the sacrosanct duty to render the
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

financial support. There is no escape route unless there is an
order from the Court that the wife is not entitled to get
maintenance from the husband on any legally permissible
grounds.

20. Again in Shamima Farooqui Vs. Shahid Khan AIR
2015 SC 2025 the Apex Court not only discussed the object of
the provision but also explained as to what does sustenance
mean. The Court held that the object of S. 125 is amelioration
of financial status of wife so that she can sustain herself and
sustenance cannot mean mere survival. Quantum of
maintenance has therefore to be so fixed that she is entitled to
lead a life in similar manner as she would have lived in house
of her husband. Para 15 of the judgement is as follows:

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, Cr.P.C. 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
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

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
125, 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 Jasbir Kaur Sehgal v. District Judge
Dehradun and Ors. (1997) 7 SCC 7 : (AIR 1997
SC 3397) has held as follows:-

“The court has to consider the status
of the parties, their respective needs,
the capacity of the husband to pay
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

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
extortionate.”

16. Grant of maintenance to wife has been
perceived as a measure of social justice by this
Court. In Chaturbhuj v. Sita Bai (2008) 2 SCC
316 : (AIR 2008 SC 530), it has been ruled that:-

“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 Captain
Ramesh Chander Kaushal v. Veena Kaushal
(1978) 4 SCC 70 : (AIR 1978 SC 1807) falls
within 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 : (AIE 2005 SC 1809).” This being the
position in law, it is the obligation of the husband
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

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. 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 the 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 the 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.

21. It is asserted in Badshah v. Sou. Urmila Badshah
Godse 2014 AIR SCW 256 purposive interpretation needs to
be given to provision of S. 125 and it is bounden duty of
Courts to advance cause of social justice. It is a settled
proposition of law that the wife is entitled to a financial status
equivalent to that of the husband. In para 8 of the judgement,
the Court stated:

8.under Section 125 Cr.P.C. the test is whether
the wife is in a position to maintain herself in the
way she was used to in the place of her husband.
In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it
was observed that the wife should be in a
position to maintain standard of living which is
neither luxurious nor penurious but what is
consistent with status of a family. The expression
“unable to maintain herself” does not mean that
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

the wife must be absolutely destitute before she
can apply for maintenance under Section 125
Cr.P.C.”

22. Though, the husband has claimed that wife earns a lot
through her profession and through her savings/deposits but no
documents to prima facie support this contention is produced on
record while the wife has produced income tax return which has
been considered by the learned family Court while passing the
impugned order.

23. I have considered and have carefully gone through the
documents produced by the parties as well as their appreciation
by the learned Family Court.

24. Looking to the income of the husband and the fact that
nothing is before this court to show at this stage that wife is
working somewhere and is earning something. I feel that the
compensation awarded by the learned Family Court is on lesser
side.

25. Keeping in view the status and income of the husband and
other facts and circumstances of the case, in the opinion of this
Court, Rs.15,000/- in favour of the wife and Rs.10,000/- in
favour of the minor children total Rs.25,000/- maintenance,
therefore, the order of the learned family Court is modified
accordingly.

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
CRR No.2167/2018
Shaifali Tambe Vs .Dr.Shajid Tambe
CRR No.5627/2018
Dr.Sajid Tambe Vs. Shaifali

26. The husband is directed to pay the maintenance as
determined above.

27. With the aforesaid modification, the present petitions
stand disposed off.

(Virender Singh)
Digitally signed by SOURABH Judge
YADAV
Date: 2019.08.02 13:02:31 +05’30’
sourabh

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