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Himachal Pradesh High Court
Sarita Shah And Ors vs Rajesh Chauhan on 26 February, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.266 of 2023 Cr.
Revision No. 562 of 2023
.
Reserved on: 03.01.2024
Date of Decision: 26.02.2024
1. Cr. Revision No. 266 of 2023
Sarita Shah and Ors. …Petitioners
Versus
Rajesh Chauhan ..Respondent
2. Cr. Revision No. 562 of 2023
Rajesh Chauhan …Petitioner
Versus
Sarita Shah Ors. ..Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
In Cr. Revision No.266 of 2023
For the Petitioners : Mr Parveen Kumar Chandel,
Advocate.
For the Respondent : Ms. Anjali Soni Verma, Advocate.
In Cr. Revision No. 562 of 2023
For the Petitioner : Ms. Anjali Soni Verma, Advocate.
For the Respondents : Mr Parveen Kumar Chandel,
Advocate.
Rakesh Kainthla, Judge
The present revisions are directed against the order
dated 21.02.2023 passed by learned Principal Judge, Family
Court, Shimla, vide which maintenance @ ₹7,000/- was
awarded to Devanshi Chauhan and Himanshu Chauhan
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2
(petitioners No. 2 and 3 before the learned Trial Court) from the
date of the filing of the petition. (The 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
revisions are that the petitioners filed a petition under Section
125 of Cr.P.C. seeking maintenance @ ₹50,000/- per month. It
was asserted that petitioner No. 1 was married to the respondent
on 18.11.1996 at Chamba according to Hindu rites and
ceremonies. Petitioner No. 1 and respondent resided together as
husband and wife. Petitioner No. 2 was born in the year 1997 and
petitioner No. 3 was born in the year 1999. Petitioner No. 2 was
studying in S.D. College, Chandigarh. She was also pursuing a
diploma in Film Acting Course from Barry John Acting Studio,
Mumbai and was residing in Mumbai. Petitioner No. 3 completed
his secondary education and he was pursuing a diploma in
Nutrition and Health Science from Indira Gandhi National Open
University (IGNOU). The respondent used to abuse the
petitioners after getting intoxicated. The respondent filed a
petition for restitution of conjugal rights. A compromise was
effected between the parties and the petitioners started residing
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3
in the respondent’s house. The behaviour of the respondent did
not change and he continued to abuse the petitioners. The
.
respondent is working as a General Manager in HRTC and is
earning more than ₹1,50,000/- per month. He also owns the
property. He has not provided anything to the petitioners.
Petitioner No.1 is a patient of Asthma and hypertension and
requires a lot of money for her treatment. She retired as a
teacher/lecturer from Government College Una in 2021. She
requires ₹50,000/- per month from the respondent. She does
not have any separate accommodation. She has to maintain her
children and bear their educational expenses. Petitioner No. 2
has been suffering from Generalized Anxiety and Palpitation
Disorder since 2007. She is undergoing regular treatment at
Government Medical College and Hospital, Sector 32,
Chandigarh and Post Graduate Institute of Medical Education
and Research (PGIMER), Chandigarh. She had to take online
treatment from AMI Hospital, Gujarat after the COVID-19
Pandemic. Petitioner No. 3 is suffering from Attention Deficit
Hyperactivity Disorder (ADHD) from his childhood, which
caused him difficulty in his studies. He had a problem with his
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4
backbone and had to undergo regular treatment. Therefore, the
petition was filed to seek the maintenance.
.
3. Notice of the petition was issued to the respondent;
however, the respondent did not appear despite service; hence,
he was proceeded ex parte on 31.03.2022.
4. Petitioners examined petitioner No.3 (PW1),
petitioner No.1 (PW2) petitioner No.2 (PW3), HC-Manoj Kumar
(PW4) and Dr Karuna (PW5).
5. Learned Principal Judge, Family Court held that the
statement of Dr Karuna revealed that petitioner No.2 Devanshi
Chauhan was suffering from anxiety disorder. Petitioner No.3-
Himanshu Chauhan visited the hospital in the year 2007 for the
treatment of attention deficit hyperactivity disorder. The
version of the petitioners that the respondent was abusing them
remained unrebutted. The respondent is earning ₹1,50,000/-.
Petitioner No.1 has sufficient income for her subsistence and is
not entitled to any maintenance. Petitioners No.2 and 3 are
suffering from mental ailments as per the statement of Dr.
Karuna. They have no source of income to fulfil their daily needs
and are suffering due to mental and physical ailments. The
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5
respondent is duty-bound to maintain the petitioners.
Therefore, the petition was allowed and maintenance @
.
₹7,000/- per month was awarded to the petitioners No.2 and 3.
6. Being aggrieved from the order passed by the learned
Principal Judge, two separate revisions have been filed. In the
revision filed by the petitioners, it was asserted that the learned
Principal Judge relied upon the fact that petitioner No.1 has
retired as a Teacher/Lecturer from Government College, Una and
concluded that she has sufficient income to maintain herself. It
was not appreciated that she was getting a handsome salary,
which was reduced after her retirement; therefore, it has
become difficult for her to maintain herself and her children.
The mere fact that the wife is earning will not disentitle her from
claiming the maintenance. Petitioner No.2 had made a
complaint against the respondent regarding the hurt caused to
her. Petitioners have been undergoing treatment since 2007 and
they find it difficult to maintain themselves with a meagre
amount of ₹7,000/-; hence, it was prayed that the present
petition be allowed and the maintenance be enhanced to
₹50,000/- per month.
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6
7. In a petition filed by the respondent-husband, it was
asserted that the order was passed contrary to Section 125 of
.
Cr.P.C. No proper opportunity was afforded to the respondent to
lead evidence. It was wrongly held that the respondent is liable
to pay maintenance to petitioners No.2 and 3. They are major
and are not entitled to any maintenance. No physical or mental
disability was proved on record, which would prevent petitioners
No.2 and 3 from earning to maintain themselves. Being major,
they are not entitled to maintenance from the respondent and
the liability cannot be fastened upon him. Dr Karuna nowhere
stated that petitioners No.2 and 3 are unable to maintain
themselves due to their ailments. Petitioner No.2 has completed
her M.A. in English from S.D. College Chandigarh and she is
residing in Mumbai, which shows that she is not suffering from
physical or mental disorder or any disability. Petitioner No.3 is
also pursuing his graduation, which shows that he can maintain
himself. Petitioner No.1 left the company of the respondent in
the year 2004 and the respondent had to file a petition for
restitution of conjugal rights. The petitioners reside in the
Government accommodation allotted to the respondent at
Taradevi. The plea taken by them that they require the money to
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7
pay the rent is not correct. Therefore, it was prayed that the
present revision be allowed and the order passed by the learned
.
Principal Judge be set aside.
8. I have heard Mr Parveen Kumar Chandel, learned
counsel for the petitioners and Ms Anjali Soni Verma, learned
counsel for the respondent.
9. Mr Parveen Kumar Chandel, learned counsel for the
petitioners submitted that the learned Principal Judge erred in
denying maintenance to petitioner No. 1. There is a great
disparity between the incomes of petitioner No.1 and the
respondent and the maintenance should have been awarded to
bridge the disparity. He has relied upon the judgment of Punjab
and Haryana High Court in Amit Kumar vs. Navjot Dubey in
Criminal Revision No.6198 of 2023 decided on 12.12.2016 and
Rajnesh versus Neha, 2021 (2) SCC 324 in support of this
submission. He further submitted that the learned Principal
Judge, Family Court erred in awarding the maintenance @
₹7,000/- to petitioners No.2 and 3. This amount is grossly
insufficient to maintain them; therefore, he prayed that the
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8
maintenance be awarded @ ₹50,000/- per month to the
petitioners.
.
10. Ms Anjali Soni Verma, learned counsel for the
respondent submitted that the learned Principal Judge erred in
awarding maintenance to petitioners No.2 and 3. There was no
evidence that petitioners No.2 and 3 were unable to maintain
themselves. It is undisputed that they have become major and a
father is bound to maintain his major children only if they are
unable to maintain themselves due to some disability. The
statement of Dr. Karuna does not show any disability. She relied
upon the judgment of the Hon’ble Supreme Court in Abhilasha v.
Parkash (2021) 13 SCC 99: 2020 SCC OnLine SC 736 in support of
this submission. She further submitted that the petition for
maintenance cannot be used to balance the income of the parties
and the only criterion is whether the wife is unable to maintain
herself or not. When it is proved that the wife has independent
income, she cannot be held entitled to any maintenance;
therefore, she prayed that the revision filed by the petitioners be
dismissed and the revision filed by the respondent be allowed.
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9
11. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
.
12. Section 125 of the Criminal Procedure Code deals
with maintenance to the wife, children and parents. It reads that
any person having sufficient means neglects or refuses to
maintain his legitimate or illegitimate minor children or his
legitimate or illegitimate child not being a married daughter
who has attained majority where such child because of any
physical or mental abnormality or injury is unable to maintain
himself. Thus, it is apparent that only minor legitimate and
illegitimate children are entitled to maintenance from their
father and the right of the major legitimate and illegitimate
children depends upon the proof of physical or mental
abnormality or injury because of which, they are unable to
maintain themselves.
13. It was specifically mentioned in Para 2 of the petition
that petitioner No. 2 was born in the year 1997 and petitioner No.
3 was born in the year 1999, therefore, petitioner No.2 was aged
24 years and petitioner No.3 was aged 22 years on the date of
filing of the petition on 14.02.2022. Thus, both the petitioners
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10
no. 2 3 were major on the date of filing of the petition. It was
asserted in the petition that petitioners No. 2 3 suffered from
.
mental disorders and petitioner No.3 also suffered from
backbone problems. Dr. Karuna (PW5) was examined to prove
this fact. She stated that patient Devanshi Chauhan was brought
for treatment in the hospital on 29.3.2007. She was suffering
from mixed anxiety and depressive symptoms with
disassociated fits. She was advised anti-anxiety medication and
psychological intervention. She was attended on 12.12.2011 by Dr.
Priti Arun, who issued a prescription slip. She administered
psychiatry therapy sessions from 2007 to 2017. The patient did
not visit the hospital as per the record afterwards.
14. This statement at best can only prove that Devanshi
Chauhan had mixed anxiety depressive symptoms and
disassociated fits, for which she continued to take treatment
from the year 2007 to 2017. This statement does not show that
petitioner No.2 continued to suffer from this disorder after 2017
as well. Further, she has nowhere stated that this disorder would
prevent petitioner No.2 from maintaining herself. This was
significant because petitioner No.2 stated in her proof affidavit
(Ext. PW3/A) that she was pursuing M.A. (English) from S.D.
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11
College Chandigarh through correspondence and pursuing her
career in acting and modelling. This clearly shows that on the
.
date of the filing of the affidavit, she was pursuing an MA in
English and an acting and modelling career. Thus, it cannot be
said that she had any difficulty in life due to the psychiatric
disorder. She stated in Para 9 that she was unemployed and
wanted to pursue her career in acting and modelling but was
dependent upon her mother for her well-being. She stated in
para 10 that she was a student and pursuing courses from
Chandigarh and Mumbai. She was undergoing treatment and
required maintenance from her father. She nowhere stated that
she was unable to maintain herself due to mental or physical
problems. Learned Principal Judge, Family Court misread the
statement of Dr Karuna to hold that petitioner No.2 was unable
to maintain herself due to a mental and physical ailment. It was
laid down by the Hon’ble Supreme Court in Abhilasha (supra)
that a major daughter is not entitled to claim maintenance from
her father under Section 125 of Cr. P.C.; however, she may get the
maintenance under Section 18 of the Hindu Adoption and
Maintenance Act on proof of sufficient facts. It was observed:
“35. In the case before us, the application was filed under
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12Section 125CrPC before the Judicial Magistrate First Class,
Rewari who passed the order dated 16-2-2011. The
Magistrate while deciding proceedings under Section
125CrPC could not have exercised the jurisdiction under.
Section 20(3) of the 1956 Act and the submission of the
appellant cannot be accepted that the court below should
have allowed the application for maintenance even
though she has become major. We do not find anyinfirmity in the order of the Judicial Magistrate First Class
as well as the learned Additional Magistrate in not
granting maintenance to the appellant who had become
major.
36. The maintenance as contemplated under the 1956 Act
is a larger concept as compared to the concept of
maintenance under Section 125CrPC. Section 3(b) while
defining maintenance gives an inclusive definitionincluding marriage expenses in the following words:
“3. Definitions.–In this Act unless the context
otherwise requires–
***
(b) “maintenance” includes–
(i) in all cases, provision for food, clothing,
residence, education and medical attendanceand treatment;
(ii) in the case of an unmarried daughter also
the reasonable expenses of and incident to
her marriage;
(c) “minor” means a person who has not completed
his or her age of eighteen years.”
37. The purpose and object of Section 125CrPC, as noted
above, is to provide immediate relief to the applicant in
summary proceedings, whereas right under Section 20
read with Section 3(b) of the 1956 Act contains larger
right, which needs determination by a civil court, hence
for the larger claims as enshrined under Section 20, the
proceedings need to be initiated under Section 20 of the
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13
Act and the legislature never contemplated to burden the
Magistrate while exercising jurisdiction under Section
125CrPC to determine the claims contemplated by the
1956 Act.”
.
15. Petitioner No.3-Himanshu Chauhan stated in his
proof affidavit (Ext. PW1/A) that he was pursuing a B.A. (1st year)
from Rajiv Gandhi Government College, Shimla. The behaviour
of his father was not good and he used to abuse and beat the
petitioners. The petitioner no. 3 has been suffering from
attention deficit hyperactivity disorder since his childhood,
which caused difficulty in school and his studies. He was
receiving treatment from the Department of Psychiatry,
Government Medical College and Hospital, Sector 32,
Chandigarh. He had problems with L4 and L5 vertebrae in his
backbone and he had to undergo regular treatment. His mother
had to bear a lot of medical expenditure for his well-being and
his father was not providing any maintenance. He was a student
and dependent upon his mother. He required maintenance from
his father for his medical treatment and studies.
16. He has nowhere stated that he was unable to work for
himself due to his disability. He described himself as suffering
from attention deficit hyperactivity disorder and problems in L4
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14
and L5 vertebrae but nowhere stated that these problems
prevented him from earning his livelihood. The statement of Dr.
.
Karuna (PW5) shows that Himanshu Chauhan visited the
hospital in the year 2007 and the hospital issued a certificate on
07.11.2017. There is no evidence that the problem noticed in the
year 2007 continued even on the date of deposition or before
that. No Orthopedician was examined to prove that petitioner
No.3 is unable to earn his livelihood due to the problem in L4 and
L5 vertebrae; hence, the plea that petitioner No.3 is unable to
earn his livelihood due to physical or mental incapacity was not
established.
17. Learned Principal Judge held that petitioners No.2
and 3 are suffering from mental and physical ailments. They
have no source of income; therefore, the respondent is bound to
maintain them. The question whether petitioners No.2 and 3
were unable to maintain themselves or not was not considered
by the learned Principal Judge.
18. Therefore, the learned Principal Judge erred in
awarding maintenance in favour of petitioners No.2 and 3.
Petitioners No.2 and 3 being the major are not entitled to any
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15
maintenance in the absence of proof of their incapacity to earn
their livelihood.
.
19. Learned Principal Judge held that petitioner No.1 is a
retired Government servant. She had sufficient income to
maintain herself; therefore, she was not entitled to any
maintenance. It was submitted that the learned Principal Judge
erred in denying maintenance to petitioner No.1. It was duly
proved on record that petitioner No.1 was earning ₹74,857/- as
per the detail filed on record, whereas the respondent is earning
₹1,50,000/-. There is a great disparity in the income of the
parties and in such a situation, the petitioner is entitled to
maintenance. Reliance was placed upon the judgment of Punjab
and Haryana High Court in Amit Kumar (supra), wherein it was
held that the wife was entitled to enjoy the same amenities as
she was enjoying in her matrimonial home. A similar view was
taken in Rajnesh v. Neha, (2021) 2 SCC 324: 2020 SCC OnLine SC
903 wherein it was observed as under:
90.1. In Shailja v. Khobbanna [Shailja v. Khobbanna, (2018)
12 SCC 199 : (2018) 5 SCC (Civ) 308; See also the decision of
the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC
OnLine Kar 8848: 2016 Cri LJ 4794 (Kar)], this Court held
that merely because the wife is capable of earning, it
would not be a sufficient ground to reduce the26/02/2024 20:30:14 :::CIS
16maintenance 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.
.
[Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ)
547 : (2008) 1 SCC (Cri) 356] Sustenance does not mean,
and cannot be allowed to mean mere survival. [Vipul
Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252 : 2015
Cri LJ 3451]
20. There can be no dispute with this proposition of law
that the wife is entitled to the same amenities, which she was
enjoying in her matrimonial home; however, the Courts cannot
balance the salary of a husband and wife in the proceedings
under Section 125 of Cr.P.C. and has to determine whether the
wife was able to maintain herself or not at the same level which
she was maintaining in her matrimonial home.
21. The petitioner stated in her affidavit of assets and
liabilities that she was residing in her matrimonial home. She
required medical expenses of ₹55,000/- for herself and her
children, household expenses of ₹15,000/- for her own and
₹18,000/- rent for her daughter + ₹10,000/- for her food. It has
already been found out above that petitioners No.2 and 3 are not
entitled to any maintenance from their father; therefore, the
petitioner will only be entitled to the medical expenses, and
household expenses for herself. The petitioner no. 1 has
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17
quantified the medical expenses for herself and her children at ₹
55,000/- and household expenses at ₹ 15,000/- total ₹70,000/-.
.
If the medical expenses of the children are excluded, the
expenses of the petitioner no. 1 will be less than ₹70,000/-.
22. Petitioner No. 1 is a retired Government servant and
entitled to reimbursement of the medical expenses. This factor
has also to be considered while evaluating the need for medical
expenses. The record of treatment of petitioner No. 1 was not
filed to show the medical expenses being incurred by her;
therefore, it cannot be said that the amount of ₹74,857/- being
earned by petitioner No.1 is insufficient for her maintenance and
that she is entitled to the additional expenses.
23. Therefore, the learned Principal Judge, Family Court
had rightly declined the maintenance to the petitioner No.1 and
no interference is required with the same.
Final Order:
24. In view of the above, the criminal revision filed
by the respondent/husband is allowed and the order passed
by the learned Principal Judge, Family Court awarding the
maintenance to petitioners No.2 and 3 is ordered to be set
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18
aside. The petition filed by the petitioners seeking the
enhancement of the maintenance and awarding of the
.
maintenance in favour of petitioner No. 1 is dismissed;
however, this will not prevent petitioner No.2 from
claiming the maintenance under the Hindu Maintenance
and Adoption Act on proof of the necessary conditions, if
otherwise entitled.
(Rakesh Kainthla)
r Judge
26th February, 2024
(Saurav Pathania)
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