—
Jharkhand High Court
Sanjeev Choubey vs Sweta Kumari on 19 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 217 of 2022
Sanjeev Choubey, aged about 43 years, s/o Sri Abhijit Choubey, resident of
Flat No. B-108, 2nd Floor, Swarn Jayanti, Rail Nagar, Sector 50, NOIDA, P.O.
Sector-41, P.S. Sector-49, District Gautam Budh Nagar (Uttar Pradesh)
… … Petitioner
Versus
1. Sweta Kumari, W/o Sanjeev Choubey, d/o Sri Dadan Mishra, resident of
Quarter No. D-8, Ranchi Colony, D.V.C. Maithon, P.O. and P.S. Maithon,
District-Dhanbad (Jharkhand)
2. State of Jharkhand … … Opp. Parties
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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Mukesh Kumar, Advocate
For the Opp. Party No.1 : Ms. Bharti Kumari, Advocate
—
th
12/19 February 2024
1. Heard the learned counsel for the parties.
2. This application has been preferred against order dated 15.12.2021
passed by learned Principal Judge, Family Court, Dhanbad in Original
Maintenance Case No. 198 of 2018, whereby petition for maintenance under
section 125 Cr. P.C. filed by the wife (opposite party herein) has been allowed
directing the petitioner to pay maintenance @ Rs. 50,000/- (Rs. Fifty Thousand
Only) per month to his wife.
3. The findings of the learned Family Court, interalia, recorded at
paragraph Nos. 10 to 12 are quoted as under: –
“10. From the assertions and allegations made by the parties it has
transpired that marital status is an admitted aspect of this case, therefore, at
this juncture I am required to examine whether the petitioner has a
reasonable excuse for living separately from her husband and getting
allowance for her monthly maintenance from him. I have further to
determine whether the petitioner has been able to maintain herself and if
both the questions are replied in affirmative for should be the reasonably
quantum of maintenance.
11. In the instant case marriage between the parties is admitted. It is also
admitted aspect of this case that the petitioner has been living separately in
her parent’s house and the respondent has sufficient monthly income to
maintain his wife nevertheless he is not making payment to her and the
respondent himself is not willing to keep the petitioner with him and he has
intentionally ousted the petitioner from his house, so, the petitioner is totally
justified in living separately from him. In view of the above facts and
circumstances, I find and hold that the respondent having sufficient means
2has neglected and refused to maintain his wife who is unable to maintain
herself.
12. So far as the contention of the respondent that the petitioner and her
parents have sufficient income for her maintenance is concerned, in a
catena of cases the Superior Courts have held that if the wife is earning, it
cannot operate as a bar from being awarded maintenance by the husband.
In Shailja Anr. V Khobbanna, the Apex Court has 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. Sustenance does not mean, and cannot be allowed to
mean mere survival.
In the case of Sunita Kachwaha Ors. V Anil Kachwaha through
the wife had a postgraduate degree, and was employed as a teacher 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.
The Bombay High Court in Sanjay Damodar Kale V Kalvani Sanjay
Kale while relying upon the judgment in Sunita Kachwaha held that neither
the mere potential to earn, nor the actual earning of the wife, however
meagre, i sufficient to deny the claim of maintenance.”
Arguments of the petitioner (husband)
4. The first point raised by the petitioner is that the impugned order calls
for interference in revisional jurisdiction in view of the fact that the conditions
as mentioned in Section 125(4) of the Cr. P.C. is not at all satisfied. He submits
that the opposite party no. 2 had left the matrimonial home on her own free will
and thereafter she did not return back. She had no reason to refuse to live with
the petitioner. The learned counsel has relied on the evidence of P.W. 1 and has
referred to paragraph No. 29 of her cross examination wherein she has stated
that she lived with the petitioner for 15 days and had gone to the hostel for her
studies and from the hostel only she used to visit the petitioner. Learned
counsel has also submitted that a divorce suit is also pending which has been
filed by the petitioner in the year 2017. The learned counsel has referred to the
evidence of the petitioner before the learned court below and has submitted that
the opposite party had left the matrimonial home in May 2012 and since then
she has been living in the hostel. He has also submitted that the learned court
below has not considered the evidences properly and therefore the impugned
order calls for interference.
5. The second point raised by the petitioner is that the opposite party is
also a doctor and she is not only capable of maintaining herself but is having
sufficient means to maintain herself. It is submitted that the order has been
passed by completely ignoring the directions/guidelines of Hon’ble Apex Court
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in the case of Rajnesh vs. Neha Anr. Reported in (2021) 2 SCC 324. In
view of the aforesaid judgment, both the parties were required to submit their
respective affidavits of assets and liabilities even in pending cases particularly
in view of the facts that both parties of the present case are medical
practitioners and the wife (O.P. herein) is concealing her income. On this
count, the quantum of maintenance also calls for interference.
6. He submits that if the petitioner succeeds on the first point, the question
of quantifying the maintenance does not arise and the impugned order is fit to
be set aside.
Arguments of the opposite party (wife)
7. The learned counsel appearing on behalf of the opposite party while
opposing the prayer has submitted that the opposite party has deposed before
the learned court below that soon after marriage, the petitioner had tortured the
opposite party both mentally and physically in relation to jewelry and within 15
days he left her in the hostel and thereafter he did not come back and changed
his place of residence and in spite of best of her efforts, she could not find the
whereabouts of the petitioner. She has submitted that a case of domestic
violence is also pending.
8. So far as the evidence of the petitioner is concerned, the petitioner had
admitted during evidence that before the National Women’s Commission the
parties had entered into a compromise in 2015 and in the light of said
compromise, the petitioner never came to meet the opposite party. She submits
that the learned court below has also taken into consideration that in answer to
a question the petitioner has disclosed that even if the opposite party agrees to
live with him, he shall not allow her to live in his house. The learned counsel
submits that the learned court below has considered the materials on record and
passed a well-reasoned order and therefore the provision of Section 125(4) is
not attracted in the present case.
9. So far as the quantum of maintenance is concerned, she also does not
dispute that the required affidavit in terms of the judgment passed in the case of
Rajnesh versus Neha Another (supra) was not filed before the learned court
below and she submits that if this Court is not inclined to accept the first point
raised by the petitioner and decide the same in favour of the opposite party,
then matter has to be remitted back for the purposes of quantification of
maintenance.
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Findings of this Court
10. It is not in dispute that the opposite party No. 1 (hereinafter referred to
as the ‘wife’) belongs to Dhanbad where her parents are residing and the
petitioner (hereinafter referred to as the ‘husband’) originally belongs to
Bhojpur, Uttar Pradesh and was a medical practitioner at Noida. The marriage
between them was solemnized on 29.11.2011 in accordance with Hindu
Customs. It is also not in dispute that the wife is a qualified dentist.
11. The wife filed a petition on 21.04.2018 numbered as Original
Maintenance Case No. 198 of 2018 under Section 125 of Cr.P.C. against the
husband stating that the husband acted with cruelty upon the wife and owing to
physical and mental cruelty the wife was thrown out of matrimonial house on
14.12.2011. It was stated in the petition that during Dussehra in the year 2017,
she called upon the husband to provide money to maintain herself but no
amount was paid. The wife claimed that the husband had a monthly income of
Rs. 2,50,000/- per month from his medical practice and additional income of
Rs. 2,24,000/- per month from cultivation and Rs. 80,000/- per month as house
rent from the building at Noida. The wife stated her occupation as house wife
and claimed the maintenance of Rs. 1,00,000/- per month from the husband.
12. A show cause was filed by the husband on 19.06.2019 objecting to the
jurisdiction of the Court at Dhanbad by stating that neither the marriage was
solemnized at Dhanbad nor the parties had lived together at Dhanbad and that
at the time of presentation of the case, the wife was residing at Delhi. However,
the fact that the marriage was solemnized on 29.11.2011 between the parties
was not in dispute. It was the case of the husband that on 16.12.2011, the wife
abused the parents of the husband and started putting pressure to live separate
life, but when the husband protested, the wife left the matrimonial house and
started living in PG from the month of April 2012. The wife started filing false
and manufactured cases against the husband in order to pressurize him and
ultimately the husband was compel to file a suit for divorce under Section 13
(1) (i-a) of the Hindu Marriage Act before the learned Principal Judge, Family
Court, Budhnagar, U.P. which was registered as O.S. Case No. 768 of 2017
dated 08.11.2017 and on receipt of the notice in the aforesaid case, the wife
moved the Hon’ble Supreme Court for transfer of the aforesaid case at
Dhanbad but the prayer of the wife was declined and in order to harass and
humiliate the husband, the wife also filed a complaint under Section 12 of the
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Domestic Violence Act vide Complaint Case No. 9137 of 2017 which was
pending before the learned Metropolitan Magistrate Court, Saket at Delhi. It
was stated by the husband that the wife is a qualified doctor and she was
working at Delhi and was getting a salary of Rs. 1,10,000/- per month and with
regard to the husband it was stated that he had joined his service in the year
2014 and was working at Sanghai, China was currently drawing a salary of Rs.
1,70,000/- per month out of which his own cost of living was Rs. 65,000/- per
month. He had elderly mother and father who were living at Noida and were
being maintained by the husband. It was asserted that the old aged ailing
parents of the husband were dependent upon him and accordingly it was prayed
that the case filed by the wife be dismissed.
13. The records of the learned court below reveal that the matter was sent for
mediation vide order dated 19.06.2019 when it was stated by the parties that
there was a chance of settlement and both the parties had appeared in person
but ultimately the case was proceeded before the learned Family Court. Before
this Court also, the matter was sent for mediation before Jharkhand State Legal
Services Authority and ultimately the mediation has failed.
14. Initially when the proceeding was ex-parte, the father of the wife was
examined as P.W. 1 and the wife was examined as P.W. 2. However, when the
ex-parte order was recalled, the wife was examined as P.W. 1 and the father of
the wife was examined as P.W. 2 and both the witnesses were duly cross-
examined by the husband. The husband was examined as R.W. 1 who was the
sole witness from his side. The husband was also duly cross-examined by the
wife.
15. The wife in her evidence on affidavit has stated that after her marriage
with the husband on 29.11.2011, she went to Noida and the husband on
account of some dispute relating to jewelry started physical and mental torture.
The husband had left her in the college hostel after 15 days of marriage and
thereafter he did not come. He also changed his address due to which the wife
was not able to find out his whereabouts. Thereafter, she received notice of
divorce in the month of November 2017; applied for transfer of case which was
rejected; in the mediation the husband had refused to keep her and therefore
she had filed a case for maintenance. It was stated in her evidence that the
husband was having medical practice in Metro Hospital at Noida and had a
monthly income of Rs. 2.5 to 3 lakhs and had additional income of Rs. 2 to 2.5
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lakhs from agriculture and Rs. 80,000/- from the rent of the house at Delhi. She
supported her claim of maintenance of Rs. 1,00,000/- by stating that she is
unemployed and unable to maintain herself. She further stated that the husband
had taken her out from his house on 14.12.2011 and dropped her in college
hostel and since then she has been living in her parental house and thereafter
the husband did not ever come to her in order to give any maintenance to her.
She was being maintained by her father who has income from pension.
The wife has been thoroughly cross-examined. She admitted in her cross-
examination that she has filed a case under Domestic Violence Act and that she
is a registered dental practitioner. She came to know about the medical practice
of her husband in the year 2014. She had not seen the pay-slip of her husband,
but her husband had himself told her that he had monthly income of Rs.
3,00,000/-. She has stated that she is not aware of exact amount of her monthly
expenses but around Rs. 45,000/- is spent. She denied that she was working as
medical practitioner in Delhi and that she was getting Rs. 1,00,000/- per month.
She admitted that the husband was the only son of his parents and his parents
were around 67 to 68 years of age. She has denied that she never wanted to stay
with her husband after marriage and that she voluntarily started living
separately from her husband and on account of which the husband had filed a
divorce petition. In paragraph 29 of her cross-examined, she had stated that it is
correct to say that she stayed with her husband in his house for 15 days and
thereafter for her studies she came to hostel and that from there she used to
visit her husband.
So far as the father of the wife is concerned, he has supported her case in his
evidence and he has also been thoroughly cross-examined. He has denied in his
cross-examined that his daughter was living in Delhi and was running a clinic
and was having an income of Rs. 1,00,000/- per month.
16. So far as the husband is concerned, he has admitted the factum of
marriage in his evidence and also stated that after marriage on 15.12.2011, he
came to Noida with his wife. He has stated that he lived in the apartment at
Noida with his wife for only one day and thereafter the wife went to the hostel
for the purpose of her studies. He has stated that after the wife had left for
hostel, he used to meet the wife and she used to come to his house. However,
the wife left the house in the month of May 2012 and had stated that the
relationship of husband and wife was never established. He has stated that after
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May 2012, he used to meet the wife outside and he used to pay Rs. 15,000/- per
month as monthly expenses. He has stated that his wife always insisted him to
live separately from his parents and he made all efforts so that the wife could
live with the family members. He has stated that the wife never told him as to
where she was staying after May 2012 but she used to come to take the money
and at that point of time the husband used to work at Metro Hospital, Sector
11, Noida. He has stated that the wife filed a case in the year 2014 before the
National Women’s Commission and in the month of September 2014, there
was a compromise between the parties and as per the compromise, the husband
was to pay Rs. 18,000/- to the wife as per the terms of settlement. He stated
that he paid the said amount for six months through online transfer but during
this period the wife never came to him although he made repeated request and
there was such effort from the family of both the sides. He has stated that in the
year 2014, his father was working in Tanda, Uttar Pradesh and he had given in
writing that the wife was welcome in her matrimonial house, but in spite of that
the wife neither came nor gave any reason for not coming. He has stated that
after the year 2014-15, again in the year 2016, the husband made effort to bring
his wife. At this, the Court had put a question to the husband to which he
responded that if the wife is willing to go with him and stay with him, then also
he will not keep her.
Thereafter, the husband has been thoroughly cross-examined. He has stated in
his cross-examination that after leaving his house in the month of May 2012,
the wife was living in the hostel. He has further stated that in between period
from 2012-2019 in the month of September 2015, he had paid Rs. 18,000/- per
month from the year 2015 to February 2016 and that made payment of Rs.
20,000/- per month as interim maintenance by virtue of the order of the learned
Court below in this case. He stated that has been working in Sanghai and his
monthly income was Rs. 1,70,000/- per month but no evidence to that effect
has been produced by him. He has stated that he has a four storied house in
Noida and that he has his ancestral house and landed property in the district of
Bhojpur but denied that he was having an income of Rs. 2,24,000/- per month
from agriculture and also denied that he was having Rs. 80,000/- per month as
house rent. He has also stated that he had also not filed any details with regard
to income of his wife in the Court.
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17. The records of the case reveal that neither any documentary evidence
was filed before the learned Family Court nor any affidavit was filed in terms
of the judgment passed by the Hon’ble Supreme Court in the case of Rajnesh
vs. Neha Another (supra). This Court finds that the husband claimed that
the wife was working as dental practitioner which was denied by the wife and
the wife claimed that the husband was working as medical practitioner in
Sanghai, China which was admitted by the husband, but the quantum of his
income was disputed. The wife claimed that the husband had agricultural
income as well as the income from house rent which was denied by the
husband in his cross-examined. The records of the case also indicate that a
petition was filed by the husband on 13.01.2020 seeking direction to competent
authority of Income Tax Department at Delhi for furnishing income tax return,
TDS certificate of the wife giving her PAN Number for the financial years
2016-17 to 2018-19. However, such a petition was not pressed and the parties
remained absent on a number of dates. The argument on behalf of the wife was
concluded on 03.12.2021 and the matter was posted for the argument of the
husband on 04.12.2021 on which date the presence of both the parties has been
recorded but at the time of arguments no one turned up on behalf of the
husband to argue the case on repeated calls and the case was fixed for orders on
15.12.2021 and thereafter the impugned order has been passed on the basis of
the materials on record.
18. This Court finds that there has been matrimonial discord between the
parties and the parties have been living separately. The aforesaid evidence
reveal that there was no willingness on the part of the husband to take the wife
back to her matrimonial house and the husband had also refused to take her
back in response to a court question. Both the parties are in litigating term and
the husband has filed a petition seeking divorce and the wife has also filed a
case under Domestic Violence Act which is pending. It further appears from
the cross-examination of the husband that there was a compromise between the
parties in National Women’s Commission wherein the husband had agreed to
pay Rs. 18,000/- as maintenance and the husband claimed that he paid the same
to his wife through online transfer from the year 2015 to February 2016 and
during this period also they did not live together but at the same time the
admittedly since 2014, the husband has been living in Sanghai, China as a
medical practitioner.
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19. In totality of the facts and circumstances of this case, this Court is of the
considered view that the learned Family Court has rightly recorded a finding
that the wife had a reasonable excuse for living separately from her husband.
The impugned order in this respect and to the aforesaid extent is presentable
and suffers from no illegality or perversity calling for interference in revisional
jurisdiction of this Court.
20. In view of the aforesaid facts and circumstances, the first point of
the argument raised by the petitioner-husband that the conditions as
mentioned in Section 125(4) of the Cr. P.C. is not at all satisfied and that
the wife had no reason to refuse to live with the petitioner is rejected and
decided against the husband and in favour of the wife.
21. This Court also finds that the learned Family Court has rightly recorded
that the husband having sufficient means had neglected and refused to maintain
his wife. The learned court below has also rightly observed that even if the wife
and her parents had sufficient income for her maintenance that cannot operate
as a bar from being awarded maintenance by the husband.
22. Some of the important observations and directions issued by the Hon’ble
Supreme Court in the case of Rajnesh v. Neha reported in (2021) 2 SCC 324
which are relevant for the present case are as under :-
“72. Keeping in mind the need for a uniform format of Affidavit of
Disclosure of Assets and Liabilities to be filed in maintenance
proceedings, this Court considers it necessary to frame guidelines in
exercise of our powers under Article 136 read with Article 142 of the
Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed
at Enclosures I, II and III of this judgment, as may be applicable, shall
be filed by the parties in all maintenance proceedings, including
pending proceedings before the Family Court/District
Court/Magistrate’s Court concerned, as the case may be, throughout
the country;
72.2. (b) The applicant making the claim for maintenance will be
required to file a concise application accompanied with the Affidavit
of Disclosure of Assets;
72.3. (c) The respondent must submit the reply along with the Affidavit
of Disclosure within a maximum period of four weeks. The courts may
not grant more than two opportunities for submission of the Affidavit
of Disclosure of Assets and Liabilities to the respondent. If the
respondent delays in filing the reply with the affidavit, and seeks more
than two adjournments for this purpose, the court may consider
exercising the power to strike off the defence of the respondent, if the
conduct is found to be wilful and contumacious in delaying the
10proceedings. On the failure to file the affidavit within the prescribed
time, the Family Court may proceed to decide the application for
maintenance on the basis of the affidavit filed by the applicant and the
pleadings on record;
72.4. (d) The above format may be modified by the court concerned, if
the exigencies of a case require the same. It would be left to the
judicial discretion of the court concerned to issue necessary directions
in this regard.
72.5. (e) If apart from the information contained in the Affidavits of
Disclosure, any further information is required, the court concerned
may pass appropriate orders in respect thereof.
72.6. (f) If there is any dispute with respect to the declaration made in
the Affidavit of Disclosure, the aggrieved party may seek permission
of the court to serve interrogatories, and seek production of relevant
documents from the opposite party under Order 11 CPC. On filing of
the affidavit, the court may invoke the provisions of Order 10 CPC or
Section 165 of the Evidence Act, 1872, if it considers it necessary to
do so. The income of one party is often not within the knowledge of the
other spouse. The court may invoke Section 106 of the Evidence Act,
1872 if necessary, since the income, assets and liabilities of the spouse
are within the personal knowledge of the party concerned.
72.7. (g) If during the course of proceedings, there is a change in the
financial status of any party, or there is a change of any relevant
circumstances, or if some new information comes to light, the party
may submit an amended/supplementary affidavit, which would be
considered by the court at the time of final determination.
72.8. (h) The pleadings made in the applications for maintenance and
replies filed should be responsible pleadings; if false statements and
misrepresentations are made, the court may consider initiation of
proceeding under Section 340 CrPC, and for contempt of court.
72.9. (i) In case the parties belong to the economically weaker
sections (“EWS”), or are living below the poverty line (“BPL”), or
are casual labourers, the requirement of filing the affidavit would be
dispensed with.
72.10. (j) The Family Court/District Court/Magistrate’s Court
concerned must make an endeavour to decide the IA for interim
maintenance by a reasoned order, within a period of four to six
months at the latest, after the Affidavits of Disclosure have been filed
before the court.
72.11. (k) A professional Marriage Counsellor must be made
available in every Family Court.
……………………………………………………………
(c) Where wife is earning some income
90. 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:
90.1. In Shailja v. Khobbanna, this Court held that merely because the
wife is capable of earning, it would not be a sufficient ground to
11reduce 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. Sustenance does not mean, and cannot be
allowed to mean mere survival.
90.2. In Sunita Kachwaha v. Anil Kachwaha 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.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani
Sanjay Kale while relying upon the judgment in Sunita Kachwaha,
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.
90.4. 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
Parkash v. Shila Rani. 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.
90.5. This Court in Shamima Farooqui v. Shahid Khan cited the
judgment in Chander Parkash with approval, and held that the
obligation of the husband to provide maintenance stands on a higher
pedestal than the wife.
…………………………………………………..
VI. Final Directions
127. 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
128. 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:
128.1. (i) Where successive claims for maintenance are made by a
party under different statutes, the court would consider an adjustment
or set-off, of the amount awarded in the previous proceeding(s), while
determining whether any further amount is to be awarded in the
subsequent proceeding.
128.2. (ii) It is made mandatory for the applicant to disclose the
previous proceeding and the orders passed therein, in the subsequent
proceeding.
128.3. (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.
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(b) Payment of Interim Maintenance
129. 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 Family Court/District
Court/Magistrates Court concerned, as the case may be, throughout
the country.
(c) Criteria for determining the quantum of maintenance
130. 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. The aforesaid factors are however not
exhaustive, and the court concerned 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
131. 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
132. For enforcement/execution of orders of maintenance, it is
directed that an order or decree of maintenance may be enforced
under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6) of
the DV Act; and Section 128 of CrPC, as may be applicable. The
order of maintenance may be enforced as a money decree of a civil
court as per the provisions of the CPC, more particularly Sections 51,
55, 58, 60 read with Order 21.
133. Before we part with this judgment, we note our appreciation of
the valuable assistance provided by the learned Amici Curiae Ms
Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior Advocates in
this case.
134. A copy of this judgment be communicated by the Secretary
General of this Court, to the Registrars of all High Courts, who would
in turn circulate it to all the District Courts in the States. It shall be
displayed on the website of all District Courts/Family Courts/Courts
of Judicial Magistrates for awareness and implementation.”
23. So far as the quantum of maintenance is concerned, in view of the plea
taken by both the parties, it was incumbent upon the Court to ask both the
parties to file their disclosures in terms of the enclosure to the judgment passed
in the case of Rajnesh Vs. Neha Another (supra). The learned Family Court
has not taken care to ask the parties to furnish the required affidavits in terms
of the enclosure to the judgment so that the actual financial position of both
husband and wife could have come to light by virtue of their disclosure. The
same having not been done, the quantification of maintenance cannot be
sustained in the eyes of law and accordingly, the same is set-aside.
Accordingly, the matter is remanded back to the learned Family Court for
passing a fresh order on the quantum of maintenance.
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24. It is also observed that since the monthly income of the parties could
vary from time to time, therefore, the parties to file their disclosures for each of
the financial year right from the date when the case was filed before the learned
court below. Considering the facts of this case, the affidavit of the husband
should also disclose as to whether his parents have any independent source of
income such as pension.
25. The point no.2 as raised by the petitioner-husband is accordingly
decided.
26. The parties to appear before the learned Family Court on 19th March
2024 with the required affidavit in terms of the judgment passed by the
Hon’ble Supreme Court in the case of Rajnesh Vs. Neha Another (supra)
and observation made above. The learned Family Court is directed to pass
fresh order as expeditiously as possible but not later than 6 months from 19th of
March 2024 taking into consideration the materials already on record and also
the materials to be brought on record as per aforesaid directions.
27. The records of the case indicate that the wife had also filed a petition
seeking interim maintenance vide petition dated 06.07.2016 and the same was
allowed vide order dated 23.07.2019 to the extent of Rs. 20,000/- and the wife
also received an amount of Rs. 20,000/- from the husband on 26.08.2019 when
both the parties were present in the Court. It further appears that the arrear in
the matter of payment of interim maintenance mounted up and a petition was
filed by the wife for enforcement of the order of interim maintenance under
Section 128 of Cr.P.C. and as per order dated 25.04.2023, an order passed by
this Court in the present case i.e. Criminal Revision No. 217 of 2022 on
19.04.2023 was produced before the learned court below directing the husband
to pay a sum of Rs. 3,00,000/- through bank draft or through online transfer
and interim relief was granted by this Court to the husband. The aforesaid
amount was remitted to the wife which has been recorded in order dated
29.08.2023 passed by this Court.
28. The interim maintenance was fixed by the learned Family Court and a
part of the same has been paid by virtue of the order passed by this Court while
granting interim relief. The petitioner shall pay the arrears of interim
maintenance and continue to pay interim maintenance till the disposal of the
case by the learned Family Court subject to the final outcome of the case. The
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final order be communicated to the parties through e-mail at the e-mail id to be
provided by them.
29. The present petition is accordingly disposed of.
30. Pending I.A., if any, is closed.
31. Let a copy of this order be communicated to the learned court below
through ‘FAX/e-mail’.
(Anubha Rawat Choudhary, J.)
Mukul
AFR
