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Sarita Kumari vs Avinash Kumar on 18 February, 2020

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.230 of 2018
Arising Out of PS. Case No.- Year-1111 Thana- District-

Sarita Kumari daughter of Kailash Nath Thakur and wife of Sri Avinash
Kumar, Resident of Mauja Khedarpur, P.O. Daudnagar, Via Balukaram, P.S.
and District Vaishali.

… … Petitioner/s
Versus
Avinash Kumar son of Awadh Kishore Prasad Singh, Resident of 345/B, Gali
No. 17, Durga Bihar Phase No. 2, Dinpur, Najphgarh, New Delhi 110043.

… … Respondent/s

Appearance :
For the Petitioner/s : Mr.Srinandan Singh, Adv.
Ms.Prakritita Sharma, Adv.
For the Opposite Party : Mr. Jai Prakash Verma, Adv.

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER

7 18-02-2020 Heard learned counsel for the petitioner and learned

counsel representing the opposite party.

Petitioner in the present case is the wife of opposite

party. She is aggrieved by and dissatisfied with the order dated

15.11.2017 passed by learned Principal Judge, Family Court,

Vaishali at Hajipur in Maintenance Case No.8 of 2016 under

Section 125 of the Code of Criminal Procedure whereby the

petitioner has been granted a maintenance amount of Rs.6,000/-

per month.

Learned counsel for the petitioner submits that this

petitioner was married to the opposite party on 19.06.2001, they

have a son from the wedlock but soon after the marriage she
Patna High Court CR. REV. No.230 of 2018(7) dt.18-02-2020
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was being subjected to ill behaviour by her husband and in-laws

whereafter she started living in her Maike, her husband does not

want to keep her, therefore, she would be entitled for a

maintenance commensurate to the status of her husband.

Learned counsel further submits that the husband-

opposite party is posted as Junior Engineer in the Indian

Railway Service and presently he is posted at New Delhi and his

salary is about Rs.50,000/- per month. Pointing out to the

evidences which were adduced in course of the proceeding

under Section 125 Cr.P.C., learned counsel submits that the

opposite party had himself deposed in course of the proceeding

and has stated that he does not want to keep this petitioner with

him due to her cruelty. The son of the petitioner lives with the

opposite party and is doing his education at Delhi. It is her

submission that there being an admitted income of at least

Rs.50,000/- per month in the hand of the opposite party, an

award of maintenance of Rs.6,000/- only to the petitioner cannot

be said to be a reasonable maintenance and learned Principal

Judge has completely erred in not taking into consideration the

various judicial pronouncements and the principles laid down

by the Hon’ble Apex Court wherein it has been categorically

held that the maintenance has to be awarded by taking into
Patna High Court CR. REV. No.230 of 2018(7) dt.18-02-2020
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consideration the various aspects including the income of the

husband, the status of the parties, their respective needs and

reasonable expenses which are required for the maintenance.

Learned counsel has relied upon a judgment of the

Hon’ble Apex Court in the case of Shamima Farooqui Vs.

Shahid Khan reported in (2015) 5 SCC 7052015(3) PLJR 58

SC; the judgment in the case of Manish Jain Vs. Akanksha

Jain reported in (2017) 15 SCC 801 and upon judgment of the

learned coordinate Bench of this Court in the case of Dr.

Shayan Ahmad Vs. The State of Bihar Anr. reported in

2017 (4) PLJR 479.

On the other hand, learned counsel for the opposite

party has opposed this application. It is the submission of

learned counsel for the opposite party that even though this

opposite party was getting as on November, 2017 net payment

of Rs.55,756/- from his service (present salary has not been

disclosed despite query made by this Court), he has no other

source of income and from this income itself he has to maintain

his son and parents as well. It is his further submission that in

the given facts and circumstances of the case, the learned

Principal Judge, Family Court has committed no error by

awarding a maintenance of Rs.6,000/- per month.
Patna High Court CR. REV. No.230 of 2018(7) dt.18-02-2020
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Having heard learned counsel for the parties and on

perusal of the records, this Court finds that earlier while hearing

the parties on 06.02.2020 this Court had directed the opposite

party to file an affidavit disclosing the salary which he was

receiving as on 15.11.2017 and other sources of income either

from his personal or ancestral property. The said affidavit was

called for on finding from the counter affidavit filed on behalf of

the opposite party that he had shown his monthly expenses at

Rs.71,660/- whereas in the court below he had taken a plea that

he was getting only Rs.40,000/- per month as salary.

Today an affidavit has been filed on behalf of the

opposite party. In paragraph ‘3’ of the affidavit it is stated that as

on 15.11.2017 the basic salary of the opposite party was

Rs.44,900/- with DA, HRA and Travelling allowance etc. his

gross income was Rs.61,701/- and after some deductions he was

drawing net pay of Rs.55,756/-. In the affidavit it is stated that

he has no other source of income, but at the same time it is also

stated that the income which come from agriculture land goes to

his father. At this stage, now a statement is being made that he

has to take friendly loan to maintain his son as well as his

parents including medical expenses of his parents. He has also

come with a stand that he has two married sisters and the elder
Patna High Court CR. REV. No.230 of 2018(7) dt.18-02-2020
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sister along with two sons one of whom is completely mentally

retard also live with opposite party and he bears the

maintenance. Learned counsel for the opposite party, therefore,

submits that, in the given facts and circumstances, the impugned

order needs no interference.

This Court also finds that in the proceeding under

Section 125 Cr.P.C. the petitioner as well as the opposite party

in the court below had examined two witnesses. While it was

the stand of the petitioner-wife in the court below that she had

been compelled to live in her Maike because of the physical

atrocities and mental cruelty committed upon her and demand of

dowry by the husband and in-laws, the husband-opposite party

took a stand that he is not willing to live with the wife-petitioner

because of her cruelty.

Be that as it may, it is evident from the records that

the entitlement of the petitioner to get maintenance is not in

dispute. On the quantum of maintenance, the petitioner-wife

claimed that her husband is earning at least Rs.50,000/- per

month which was a correct stand as is evident from the affidavit

now filed by the opposite party and in fact this was never

disputed seriously by him in course of his evidence in the court

below.

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Learned counsel for the opposite party is unable to

demonstrate before this Court that before the learned Principal

Judge, Family Court at any stage the opposite party-husband has

taken a stand that his parents and one of the sisters are

dependent upon him. In the counter affidavit filed before this

Court at the earliest opportunity the opposite party-husband

disclosed in paragraph ‘6’ his monthly expenses at Rs.71,660/-

which includes Rs.10,000/- as medical expenses of ailing

parents. What kind of ailment are there from which his parents

are suffering have not been disclosed, in the affidavit filed

today, however, it has been admitted that there is some income

from the agriculture but again the total land which the opposite

and his family is possessing have been withheld by him despite

a clear order that the opposite party should disclose all his

properties. A vague kind of statement has been made that all

income derived from the agriculture are being kept by his father.

This is an admission on the part of the opposite party

that he is getting income from the agriculture and withholdment

of information about the agricultural land and income from the

agriculture, from this Court would result in drawing an adverse

inference that the opposite party is not disclosing his income

correctly and is trying to withheld certain information from this
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Court.

Be that as it may, the submission of learned counsel

for the opposite party that the opposite party is maintaining one

of his sisters was never a stand of the opposite party either in the

court below or in the first affidavit filed before this Court. The

fact that presently the petitioner who is wife of opposite party

has been compelled to live in her Maike and she has been

awarded only a sum of Rs.6,000/- per month takes this Court to

consider as to whether in the given facts and circumstances of

the case the award of maintenance of Rs.6,000/- may be said to

be just and proper. In this connection, it would be relevant to

take note of the judgment of the Hon’ble Apex Court in the case

of Shamima Farooqui (supra). The relevant part of paragraph

14 of the judgment reported in (2015) 5 SCC 705 is quoted

hereunder for a ready reference:-

“14. …..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 2000 per
month. It can never be forgotten that the
inherent and fundamental principle behind
Section 125 CrPC is for amelioration of the
financial state of affairs as well as mental agony
and anguish that a woman suffers when she is
compelled to leave her matrimonial home. The
statute commands that there have 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
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never allow to mean a mere survival. A woman,
who is constrained to leave the marital home,
should not be allowed to feel that she has fallen
from grace and move hither and thither
arranging for sustenance. As per law, she is
entitled to lead a life in the similar manner as
she would have lived in the house of her
husband. And that is where the status and strata
of the husband comes into play and that is
where the legal obligation of the husband
becomes a prominent one. As long as the wife is
held entitled to grant of maintenance within the
parameters of Section 125 CrPC, it has to be
adequate so that she can live with dignity as she
would have lived in her matrimonial home. She
cannot be compelled to become a destitute or a
beggar. There can be no shadow of doubt that
an order under Section 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.”

(underline is mine)

In the case of Manish Jain (supra), once again the

aforesaid principles have been reiterated. In this connection, it

would be apt to quote paragraph 16 of the judgment hereunder:-

“16. 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
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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 factual
situation; the court should, therefore, mould the
claim for maintenance determining the quantum
based on various factors brought before the
court.”

Following the aforesaid principles a learned

coordinate Bench of this Court in the case of Dr. Shyan Ahmad

(supra) has also reiterated the same view in paragraph 12 of the

judgment which reads thus:-

“12. In a proceeding under Section 125 of the
Cr.P.C., a right to claim maintenance is not
dependent on who is right and who is wrong in
matrimonial disputes. Once it is found that the
wife is unable to maintain herself and the
husband having sufficient means neglects and
refuses to maintain her, a duty is cast upon the
court to award maintenance. Similarly, in
appropriate case, the court can award interim
maintenance pending final disposal of the
application. The law requires that the court
must take into consideration the status of parties
and the capacity of the husband to pay
maintenance.”

In the light of the aforesaid judgment of the Hon’ble

Apex Court and the principles laid down in those judgments

when this Court considers the entire facts and circumstances of
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the case it would come to a conclusion that the learned Principal

Judge, Family Court has erred in not appreciating that the

petitioner being wife of the opposite party would be entitled to

live in the same status and comfort and it must be

commensurate to the status of the opposite party which by no

means can be said to be available to the petitioner with a paltry

sum of Rs.6,000/- in the present day’s price index of the

Country. With a sum of Rs.6,000/- per month the petitioner

cannot meet her necessary needs of life much less have a

reasonable lifestyle. There is no reason as to why the petitioner

being the wife of opposite party should not get an amount

commensurate to the income of the opposite party. The admitted

position is that as on 15.11.2017 the opposite party was getting

Rs.55,756/- as net pay, the agriculture income is also there it is

totally immaterial as to who is receiving the amount whether the

opposite party or his father. At least one thing is clear that the

bald plea of the opposite party without there being any material

to support his contention that he is maintaining his parents and

at the same time saying that agriculture income goes in the hand

of the parents cannot go together.

Be that as it may, the stand of the opposite party now

being taken with regard to the maintenance of his one of the
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sister is nothing but an afterthought and bald statement made at

this stage just to impress upon the Court not to interfere with the

impugned judgment, however, this Court is not impressed with

the changing stand of the opposite party and rejects the

improvements which are being made by him by filing an

affidavit before this Court at this stage.

This Court is of the considered opinion that in the

kind of income which the opposite party was receiving in hand

and that too was the net income of the year 2017 which must

have increased by now, even considering the amount which he

was receiving in the year 2017, the opposite party must be

obliged to pay at least a sum of Rs.12,000/- per month to the

petitioner.

As a result, the impugned judgment/order is modified

to the extent that the opposite party would be liable to pay

Rs.12,000/- per month to the petitioner.

The Court has been informed that prior to that the

opposite party was paying interim maintenance of Rs.5,000/-

per month but after the order dated 15.11.2017 nothing has been

paid. The opposite party was not even paying the amount of

Rs.6,000/- which was finally awarded by the learned Principal

Judge. As stated above, now the maintenance amount of
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Rs.12,000/- shall be payable from the same date as was ordered

by learned Principal Judge, Family Court, i.e. with effect from

the date of filing of the case after deducting the amount already

paid by the opposite party as interim maintenance.

This application stands allowed to the extent indicated

above.

(Rajeev Ranjan Prasad, J)
arvind/-

AFR
U T

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