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Sarita Shah And Ors vs Rajesh Chauhan on 26 February, 2024

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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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12

Section 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 any

infirmity 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 definition

including 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 attendance

and 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

26/02/2024 20:30:14 :::CIS
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

26/02/2024 20:30:14 :::CIS
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 the

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16

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.

.

[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

26/02/2024 20:30:14 :::CIS
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)

26/02/2024 20:30:14 :::CIS

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