Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1220 OF 2018
(Arising out of SLP(Crl.) No.5495 of 2018)
Reema Salkan …..Appellant(s)
:Versus:
Sumer Singh Salkan ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Leave granted.
2. This appeal takes exception to the judgment and order
passed by the High Court of Delhi at New Delhi dated May 31,
2018 in Revision Petition (Criminal) No.204 of 2015, whereby
the High Court partly allowed the revision petition preferred by
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2018.09.25
14:19:21 IST
Reason:
the appellant and was pleased to set aside the judgment and
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order dated 28 January, 2015 in Petition No.363 of 2014,
passed by the Judge, Family Courts, North Rohini, Delhi, to
the limited extent of not granting maintenance amount to the
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appellant/wife from 10 December, 2010 onwards. The High
Court instead directed the respondent/husband to pay the
maintenance amount at the rate of Rs.9,000/ per month from
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9 December, 2010 onwards to the appellant/wife.
3. There is a chequered history of litigation between the
parties. Shorn of unnecessary details, the relevant facts for
determination of the present appeal are that the appellant and
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the respondent got married on 24 March, 2002, according to
Hindu rites and ceremonies at Infantry Hostel, Delhi
Cantonment, Delhi. The respondent, being a permanent
resident of Canada, had assured the appellant that he would
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take her with him to Canada on 28 March, 2002 on a Tourist
Visa. However, soon after the marriage, relations between the
appellant and the respondent became strained. The
respondent, being a permanent resident of Canada, returned
to Canada without making any arrangements to take the
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appellant to Canada even on a Tourist Visa, as assured.
Rather, he caused impediments in issuance of the Tourist Visa
to the appellant, by giving an application in writing in that
behalf to the Canadian Immigration Department. As relations
between the appellant and the respondent became strained,
the appellant filed a complaint before the Women Cell against
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the respondent and her inlaws. On 16 July, 2003, she also
filed an application under Section 125 of the Code of Criminal
Procedure for grant of maintenance of Rs.2 lakh per month
from the respondent before the Chief Metropolitan Magistrate,
Delhi. Be it noted that during the pendency of the said
application, interim maintenance amount was fixed, which
issue travelled upto this Court by way of Criminal Appeal
Nos.23472349/2014, which was disposed of by this Court on
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28 October, 2014 on the finding that the cause of justice
would be subserved if the appellant was granted a sum of
Rs.20,000/ per month as interim maintenance commencing
from November 1, 2014. However, for the reasons stated by
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the Family Court in its judgment dated 28 January, 2015,
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the final maintenance amount was fixed at Rs.10,000/ per
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month starting from 17 July, 2003 till 8 December, 2010
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and no maintenance was granted with effect from 8
December, 2010. The application for maintenance, filed in
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2003, was finally disposed of on 28 January, 2015 in the
following terms:
“ Relief:
In view of my finding on issue no.1 above the petition
u/s 125 Cr.P.C. is partly allowed and the respondent is
directed to pay maintenance to the petitioner as under:
1. From the date of filing of the petition i.e. 17.07.2003
till 08.12.2010, @ of Rs.10,000/ per month.
2. With effect from 08.12.2010 onwards the petitioner is
not entitled to any maintenance and her claim in this respect
stands dismissed.
The respondent shall clear off the arrears of maintenance if
any, within three months from the date of order. Any
payment made towards interim maintenance during the
pendency of the present petition and any maintenance paid
for the concurrent period, as per the order passed by any
other competent court in any other proceeding/litigation
between the parties, the money already deposited by the
orders of the Superior Courts or by the order of the
predecessor of this court, by the respondent shall be
adjusted, if required. No orders as to costs.
File be consigned to recordroom.”
4. Against this decision, the appellant filed a revision
petition before the High Court being Revision Petition
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(Criminal) No.204 of 2015, which has been partly allowed on
the following terms:
“85. Consequently, the impugned order dated 28.01.2015
is setaside to the extent of non granting the maintenance in
favour of the petitioner /wife from 09.12.2010 onwards.
However, the impugned maintenance in favour of the
petitioner/wife till 08.12.2010 at the rate of Rs. 10,000/ per
month is upheld. The respondent is directed to pay
maintenance amount of Rs.9,000/ per month from
09.12.2010 onwards. Hence, the present revision petition is
allowed. The arguments of the learned counsel for the
respondent and the judgments relied upon by the
respondent are of no help.
86. The present petition is allowed and disposed of in the
above terms.”
The respondent has not filed any independent petition to
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assail the judgment of the High Court rather, it is the
appellant who has questioned the correctness of the quantum
of maintenance amount as determined by the Family Court
and the High Court, by filing the present appeal. As a result,
the sole question to be decided in the present appeal is
regarding the quantum of monthly maintenance amount
payable by the respondent to the appellant.
6. According to the appellant, the High Court in the
impugned judgment has inter alia overlooked the following
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points while determining the monthly maintenance amount
payable by the respondent to the appellant:
(i) Order dt. 28.10.2014 passed by this Court in
Criminal Appeal no.234749 of 2014 filed by Appellant
against reduction & nonpayment of interim
maintenance, whereby this Court granted Rs.20,000/
interim maintenance, cannot be reduced as there has
been no change in circumstances of parties since then.
Rather, it can only be increased in final maintenance;
(ii) Appellant’s Evidence, Affidavit of Financial Status
Exhibited proves that Respondent owns vast capital
assets including 26.50 bigha (6.625 hectare) agricultural
land in Meerut, UP;
(iii) Respondent [B.Com, MA (Economics) & MBA from
USA] has worked in USA, Dubai, Canada for nearly 20
years and hence can be presumed to be gainfully
occupied, a fact which he is concealing, besides having
savings, investments, social & medical security and
insurance of Canada Govt.; and
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(iv) Respondent’s last disclosed salary for the year
2010, on the basis whereof quantum could have been
calculated. As per the last disclosed salary of Cad
$48,372.34 p.a. (equal to Rs.21,28,368/ @Rs.44 per
Cad.$), monthly salary comes to Rs.1,77,364/. Even if
minimum increase @ 5% per annum is added to salary of
base year i.e. 2010, Respondent’s monthly salary would
be Rs.2,51,800/. In absence of disclosure, this is a
reasonable presumption for increase in salary. On adding
Rs.50,000/ per month agricultural income,
Respondent’s monthly income can be presumed to be
Rs.3 Lakh.
7. The respondent, on the other hand, has supported the
decision of the High Court but at the same time, by way of
counter affidavit filed to oppose this appeal, has urged that the
impugned judgment suffers from flawed reasoning on the
following counts:
(a) The High Court does not deal with the reasoning of
appreciation of evidence.
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(b) The High Court does not notice that the Family
Court, after a trial, has had an opportunity to observe the
demeanour of the parties and has commented on it.
(c) In Paragraph 38 of the judgment, the High Court
doesn’t overturn the reasoning of the reduction of the
interim maintenance from Rs.25,000/ (Rupees Twenty
Five Thousand Only).
(d) The High Court does not overturn the reasoning
that she has not established anywhere that she, as a
lawyer and an admittedly well educated and competent
professional, is unable to maintain herself.
(e) The High Court also noted the scandalous
allegations made by the Petitioner, against the
Respondent’s family which would reinforce his allegation
of the Petitioner’s vindictiveness.
(f) The High Court has noted judgments of various
High Courts wherein the principle laid down is that the
laws of maintenance are supposed to support but not
enrich; payments cannot continue adinfinitum.
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(g) The wife, too, is expected to mitigate her own losses
by showing at least some semblance of effort at work and
earning.
(h) The maintenance should be in accordance with
tenure of marriage, meaning thereby that long tenure
marriages with children or even with just a long term
investment of time, loss of earnings and so on can be
computed monetarily, but not so a 4 day marriage
resulting in a 15 year litigation, driven by a desire for
vengeance with a motive to harass.
We have heard the appellant appearing inperson and
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Ms. Malavika Rajkotia, learned counsel appearing for the
respondent.
9. As aforesaid, the sole question is about the quantum of
monthly maintenance amount payable by the respondent to
the appellant. In that, the Family Court has unambiguously
held that the respondent neglected to maintain the appellant,
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for the elaborate reasons recorded in its judgment dated 28
January, 2015. That finding of fact has been upheld by the
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High Court vide the impugned judgment. The Family Court
has also found as a fact that the appellant was unemployed,
though she is an MA in English and holds a Postgraduate
Diploma in Journalism and Mass Communication and is also
a Law Graduate enrolled with the Bar Council of Delhi. The
High Court has not disturbed that finding recorded by the
Family Court. Resultantly, both the Courts have concurrently
found that, in law, the respondent was obliged to maintain the
appellant.
10. The Family Court, however, restricted the liability of the
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respondent to pay maintenance amount only between 17
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July, 2003 and 8 December, 2010, which view did not
commend to the High Court. The High Court, instead directed
the respondent to pay a monthly maintenance amount to the
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appellant even after 9 December, 2010, but limited the
quantum to Rs.9,000/ per month.
11. The High Court has recognized the fact that the appellant
was not in a position to maintain herself but it restricted the
maintenance amount to Rs.9,000/ per month on the finding
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that the respondent was unemployed and had no source of
income. However, having found that the respondent was well
educated and an ablebodied person, the High Court went on
to hold that he was liable to maintain his wife. The High Court
further noted that the respondent had failed to produce any
evidence regarding his unemployment or that he had no
source of income. Resultantly, the High Court posed a
question as to how the respondent was able to manage his
affairs after his return from Canada, since 2010. Therefore,
the High Court applied notional income basis to arrive at his
(respondent’s) minimum income of Rs.18,332/ as per the
current minimum wages in Delhi, as a person possessing
qualifications of B.Com., MA (Eco.) and MBA from Kentucky
University, USA, and on that basis, directed the respondent to
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pay Rs.9,000/per month to the appellant from 9 December,
2010 onwards until further orders.
The manner in which the proceedings, instituted by the
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appellant under Section 125 Cr.P.C., have progressed from
2003 leaves much to be desired. During the pendency of the
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maintenance application filed by the appellant on 16 July,
2003, the respondent’s father filed a civil suit which, according
to the appellant, was intended to prevent attachment of the
family property of the respondent from execution of the order
in her favour passed in the maintenance proceedings. The suit
for declaration filed by the respondent’s father was dismissed
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on 30 August, 2003, after a fullfledged trial but to prevent
attachment of land/family property in interim maintenance
case, he moved an application for restoration of the suit.
Further, despite the injunction order passed by the Delhi High
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Court dated 28 October, 2004, which was operating against
the respondent, he approached the courts in Canada and
obtained an exparte divorce allegedly to escape the liability to
pay the maintenance amount and also adopted delaying
tactics in the progress of the subject maintenance
proceedings. Furthermore, the Magistrate granted interim
maintenance of Rs.25, 000/ per month from the date of filing
of the maintenance petition on the prima facie finding that the
respondent’s monthly salary, earned in Canada, was over Rs.1
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lakh in the year 2003. That issue was finally resolved by this
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Court vide order dated 20 October, 2014 by observing that
the cause of justice would be subserved if the appellant was
granted a sum of Rs.20,000/ per month as an interim
maintenance, commencing from November, 2014. That
interim arrangement was continued till the final disposal of
the maintenance petition by the Family Court.
13. Be that as it may, the High Court took into account all
the relevant aspects and justly rejected the plea of the
respondent about inability to pay maintenance amount to the
appellant on the finding that he was well educated and an
ablebodied person. Therefore, it was not open to the
respondent to extricate from his liability to maintain his wife.
It would be apposite to advert to the relevant portion of the
impugned judgment which reads thus:
“79. The respondent during the cross examination has
admitted that he too is B.Com, M.A.(Eco.) and MBA from
Kentucky University, USA; the respondent is a Canadian
citizen working with Sprint Canada and is earning Canadian
$(CAD) 29,306.59 as net Annual Salary. However, he has
claimed that he has resigned from Sprint Canada on
23.11.2010 and the same has been accepted on 27.11.2010
and the respondent since then is unemployed and has got no
source of income to maintain himself and his family.
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80. In the instant case, the petitioner has filed the case
under Section 125 Cr.P.C., 1973 for grant of maintenance as
she does not know any skill and specialised work to earn her
livelihood i.e. in paragraph 26 of maintenance petition
against her husband. However, the respondent husband who
is well educated and comes from extremely respectable
family simply denies the same. The respondent husband in
his written statement does not plead that he is not an able
bodied person nor he is able to prove sufficient earning or
income of the petitioner.
81. It is an admitted fact emerging on record that both the
parties got married as per Hindu Rights and Customs on
24.03.2002 and since then the petitioner was living with her
parents from 10.08.2002 onwards, and the parents are
under no legal obligation to maintain a married daughter
whose husband is living in Canada and having Canadian
citizenship. The plea of the respondent that he does not have
any source of income and he could not maintain the wife is
no answer as he is mature and an able bodied person having
good health and physique and he can earn enough on the
basis of him being able bodied to meet the expenses of his
wife. In this context, the observation made in Chander
Prakash v. Shrimati Shila Rani , AIR 1968 Del 174 by this
Court is relevant and reproduced as under:
"7.........an able bodied young man has to be presumed
to be capable of earning sufficient money so as to be
able reasonably to maintain his wife and child and he
cannot be heard to say that he is not in position to
earn enough to be able to maintain them according to
the family standard. It is for such ablebodied person
to show to the Court cogent grounds for holding that
he is unable, for reasons beyond his control, to earn
enough to discharge his legal obligation of maintaining
his wife and child."
82. The husband being an ablebodied person is duty bound
to maintain his wife who is unable to maintain herself under
the personal law arising out of the marital status and is not
under contractual obligation. The following observation of
the Apex Court in ,
Bhuwan Mohan Singh v. Meena AIR
2014 SC 2875 , is relevant:
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"3.….Be it ingeminated that Section 125 of the Code of
Criminal Procedure (for short “the Code”) was
conceived to ameliorate the agony, anguish, financial
suffering of a woman who left her matrimonial home
for the reasons provided in the provision so that some
suitable arrangements can be made by the court and
she can sustain herself and also her children if they
are with her. The concept of sustenance does not
necessarily mean to lead the life of an animal, feel like
an unperson to be thrown away from grace and roam
for her basic maintenance somewhere else. She is
entitled in law to lead a life in the similar manner as
she would have lived in the house of her husband.
That is where the status and strata come into play,
and that is where the obligations of the husband, in
case of a wife, become a prominent one. In a
proceeding of this nature, the husband cannot take
subterfuges to deprive her of the benefit of living with
dignity. Regard being had to the solemn pledge at the
time of marriage and also in consonance with the
statutory law that governs the field, it is the obligation
of the husband to see that the wife does not become a
destitute, a beggar. A situation is not to be maladroitly
created where under she is compelled to resign to her
fate and think of life “dust unto dust”. It is totally
impermissible. In fact, it is the sacrosanct duty to
render the financial support even if the husband is
required to earn money with physical labour, if he is
ablebodied. There is no escape route unless there is
an order from the court that the wife is not entitled to
get maintenance from the husband on any legally
permissible grounds.
(emphasis applied)
83. The respondent's mere plea that he does not possess
any source of income ipso facto does not absolve himself of
his moral duty to maintain his wife in presence of good
physique along with educational qualification.”
The view so taken by the High Court is unassailable. Indeed,
the respondent has raised a plea to question the correctness of
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the said view, in the reply affidavit filed in this appeal, but in
our opinion, the finding recorded by the High Court is un
exceptionable.
The only question is: whether the quantum of
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maintenance amount determined by the High Court is just
and proper. The discussion in respect of this question can be
traced only to paragraph 84 of the impugned judgment which
reads thus:
“84. So far, the quantum of maintenance is concerned
nothing consistent is emerging on record to show the specific
amount which is being earned by the respondent after 2010,
however the husband is legally bound to maintain his wife as
per the status of a respectable family to which he belongs.
The husband being ablebodied along with high qualification
B.Com, M.A.(Eco) and MBA from Kentucky University, USA
could earn at least minimum of Rs. 18,332/ as per the
current minimum wage in Delhi. Therefore, the petitioner
being wife is entitled to Rs. 9,000/ per month from
09.12.2010 onwards till further orders.”
The principle invoked by the High Court for
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determination of monthly maintenance amount payable to the
appellant on the basis of notional minimum income of the
respondent as per the current minimum wages in Delhi, in our
opinion, is untenable. We are of the considered opinion that
regard must be had to the living standard of the respondent
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and his family, his past conduct in successfully protracting
the disposal of the maintenance petition filed in the year 2003,
until 2015; coupled with the fact that a specious and
unsubstantiated plea has been taken by him that he is
unemployed from 2010, despite the fact that he is highly
qualified and an ablebodied person; his monthly income while
working in Canada in the year 2010 was over Rs.1,77,364/;
and that this Court in Criminal Appeal Nos.23472349/2014
has prima facie found that the cause of justice would be
subserved if the appellant is granted an interim maintenance
of Rs.20,000/ per month commencing from November 1,
2014. At this distance of time, keeping in mind the spiraling
inflation rate and high cost of living index today, to do
complete justice between the parties, we are inclined to direct
that the respondent shall pay a sum of Rs.20,000/ per month
to the appellant towards the maintenance amount with effect
from January 2010 and at the rate of Rs.25,000/ per month
st
with effect from 1 June, 2018 until further orders. We order
accordingly.
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16. We, therefore, direct the respondent to pay the enhanced
maintenance amount, as determined in terms of this order, to
the appellant within a period of eight weeks from today after
duly adjusting the amount already deposited in Court/paid to
the appellant till date. The appellant will be entitled to
forthwith withdraw the maintenance amount deposited by the
respondent in Court, if any. The impugned judgment of the
High Court is accordingly modified in the aforementioned
terms.
The appeal is allowed in the aforementioned terms.
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.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
September 25, 2018.