Full Judgment Text
2022:DHC:2157
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 5 May, 2022
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Pronounced on: 31 May, 2022
+ CRL. REV. P. 71/2022 & CRL.M.A 2210/2022
AMIT SHARMA ..... Revisionist
Through: Mr. Surender Chauhan and
Mr. Abhinav Kajal, Advocates
versus
SHELKKA SHARMA & ORS ..... Respondent
Through: Ms. Swaty Singh Malik and
Ms. Tanvi Sharma, Advocates
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
J U D G M E N T
CHANDRA DHARI SINGH, J.
1. The instant criminal revision under Section 397 read with Section
401 of the Code of Criminal Procedure, 1973 (in short “Cr.P.C”) has been
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filed for setting aside the impugned order dated 6 August, 2020 passed by
Principal Judge, Family Courts, Dwarka, Delhi (hereinafter “learned
Principal Judge”) in Maintenance Case No. 327/2018 titled as Shelkka
Sharma & Ors. vs. Amit Sharma , by which the revisionist was directed to
pay maintenance of Rs. 25,000/- per month to respondent nos. 2 and 3,
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each; and order dated 6 March 2021 by which an application under
Section 127 of the Cr.P.C was dismissed.
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FACTUAL MATRIX
2. Brief facts as transpired from the record are as follows:
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i. Both the revisionist and the respondent got married on 11 May,
2005, according to Hindu rites and ceremonies. Out of the said
wedlock two children were born. Master Aarav (respondent no. 2)
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was born on 22 January 2008 in United States of America and
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Master Ryan (Respondent no. 3) was born on 11 January 2014 at
New Delhi. In or about June 2018, relationship between the parties
got strained. The Respondent no. 1 left the company of the revisionist
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and on 5 June 2018 filed a petition under Section 125 of the Cr.P.C
claiming maintenance of Rs. 1,00,000/- per month along with the
application of interim maintenance of Rs. 1,00,000/-, for herself and
her two minor sons.
ii. The revisionist, upon receipt of the notice in the aforesaid petition,
appeared and filed a detailed reply to the said petition under Section
125 of the Cr.P.C denying all the allegations.
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iii. The Court below vide order dated 7 August 2018 directed the
parties to file income details on affidavit. Both the parties filed their
respective income affidavits. Respondent no. 1 also filed her
rejoinder to the reply filed by the revisionist.
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iv. On 29 July, 2020 during the course of arguments on the application
seeking ad-interim maintenance, both the parties agreed that the date
of separation is November 2019 and from January 2020 onwards the
revisionist will pay school fees for both the children and will also pay
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Rs. 15,000/- per month to meet their expenses by the end of each
month by transferring money in the bank account of the Respondent
no. 2 and 3. It was further agreed that the revisionist will pick both
the children on every Saturday at 12 Noon from the house of
respondent no.1 and drop back by 8 PM on Sunday.
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v. The impugned order dated 6 August 2020 was passed by the Court
below, wherein the revisionist’s income was assessed as Rs.
1,00,000/- per month and he was directed to pay Rs. 25,000/- per
month to Respondent no. 2 and 3, each, including their school fees
from the date of filing of the application. It was also held that
Respondent no. 1 herein is earning sufficient money to effectively
maintain herself and therefore she is not entitled to any amount of
maintenance.
vi. Thereafter, the revisionist filed an application under Section 127 of
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the Cr.P.C for alteration and modification of order dated 6 August
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2020, which was dismissed vide impugned order dated 6 March
2021.
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vii. Being aggrieved by the orders dated 6 August 2020 and 6 March
2021, the instant Criminal Revision has been filed by the revisionist.
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Revisionist prays for partly setting aside the order dated 6 August
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2020 and setting aside the order dated 6 March 2021, both passed
by learned Principal Judge.
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SUBMISSIONS
3. Mr. Surender Chauhan, learned counsel appearing on behalf of the
revisionist submitted that respondent is a women of sufficient means and is
earning more than Rs. 1 Lakh per month. It is submitted that Court below
has wrongly and illegally assessed the income of the revisionist as Rs.
1,00,000/- per month without considering the reply to the petition under
Section 125 of the Cr.P.C and the affidavit of Income and Assets, wherein
the revisionist categorically mentioned his income as Rs. 25,208/- per
month. The respondent no. 1 although alleged in her petition under Section
125 of Cr.P.C as well as in the affidavit of Income and Assets that the
income of the revisionist is Rs. 3,00,000/- but she did not file any document
or material on record to substantiate the same. It is submitted that there is
no material or document available on record to prima facie show that
income of the revisionist is Rs. 1,00,000/-. Therefore, the assessment of the
income of the revisionist is only a guess work, which is not permissible
under law.
4. The learned counsel for revisionist submitted that the Court below
has directed the revisionist to pay a sum of Rs. 25,000/- per month to
respondent no. 2 and 3, each, from the date of filing of the application,
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which is contrary to consent order dated 29 July, 2020. It is submitted that
it is settled law that an order passed with consent of the parties cannot be
altered, modified and set-aside unless there is an allegation of fraud or
misrepresentation raised by either party against each other. In the present
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case there is no allegation by any of the parties that the order dated 29 July
2020 was passed by playing fraud or misrepresentation. It is further
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submitted that despite the order dated 29 July, 2020, respondent no. 1 has
not even allowed the revisionist to meet his two children from last 4-5
months.
5. It is submitted that Court below has rightly held that respondent no. 1
has sufficient earning and therefore, she is not entitled to any amount of
maintenance and Court below has dismissed the application under Section
127 of the Cr.P.C without considering the facts of the case.
6. In support of his argument, learned counsel for the revisionist relied
upon the following judgments:
i. In Rajneesh vs Neha ,(2021) 2 SCC 324 the Hon’ble Supreme Court
held as under:
“91. The living expenses of the child would include
expenses for food, clothing, residence, medical
expenses, education of children. Extra coaching
classes or any other vocational training courses to
complement the basic education must be factored
in, while awarding child support. Albeit, it should
be a reasonable amount to be awarded for
extracurricular/coaching classes, and not an
overly extravagant amount which may be claimed.
92. Education expenses of the children must be
normally borne by the father. If the wife is working
and earning sufficiently, the expenses may be
shared proportionately between the parties.”
ii. In the case of Bharat Hedge vs Shrimati Saroj , 2007 SCC OnLine
Del 622, the Co-ordinate Bench of this Court laid down certain
factors/guidelines to be considered for determining the maintenance
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but the Court below has ignored the law laid down while awarding
the maintenance to Respondent Nos.2 and 3. The relevant paragraphs
are as follows:
“ 8. Unfortunately, in India, parties do not
truthfully reveal their income. For self employed
persons or persons employed in the unorganized
sector, truthful income never surfaces. Tax
avoidance is the norm. Tax compliance is the
exception in this country. Therefore, in
determining interim maintenance, there cannot be
mathematical exactitude. The court has to take a
general view. From the various judicial
precedents, the under noted 11 factors can be
culled out, which are to be taken into
consideration while deciding an application under
Section 24 of the Hindu Marriage Act. The same
are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the
claimant.
4. The number of persons, the non applicant has to
maintain.
5. The amount should aid the applicant to live in a
similar life style as he/she enjoyed in the
matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education,
medical attendance and treatment etc. of the
applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while
estimating the income of the non applicant when
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all the sources or correct sources are not
disclosed.
10. The non applicant to defray the cost of
litigation.
11. The amount awarded u/s. 125 Cr.PC is
adjustable against the amount awarded u/s. 24 of
the Act.”
iii. In Vijay Kumar vs State of Bihar AIR 2004 SC 2123 , the Hon’ble
Supreme Court has held that proceedings under Section 125 Cr.P.C is
a civil proceeding. Relevant paragraphs are as follows:
“11. The position of law relating to proper
jurisdiction was highlighted by this Court in Jagir
Kaur v. Jaswant Singh [AIR 1963 SC 1521 :
(1963) 2 Cri LJ 413] as follows: (AIR pp. 1523-24,
para 5)
“The crucial words of sub-section (8) are,
„resides‟, „is‟ and „where he last resided with his
wife‟. Under the Code of 1882 the Magistrate of
the district where the husband or father, as the
case may be, resided only had jurisdiction. Now
the jurisdiction is wider. It gives three alternative
forums. This in our view, has been designedly done
by the legislature to enable a discarded wife or a
helpless child to get the much needed and urgent
relief in one or other of the three forums
convenient to them. The proceedings under this
section are in the nature of civil proceedings, the
remedy is a summary one and the person seeking
that remedy, as we have pointed out, is ordinarily
a helpless person. So the words should be liberally
construed without doing any violence to the
language.”
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14. The basic distinction between Section 488 of
the old Code and Section 126 of the Code is that
Section 126 has essentially enlarged the venue of
proceedings for maintenance so as to move the
place where the wife may be residing on the date
of application. The change was thought necessary
because of certain observations by the Law
Commission, taking note of the fact that often
deserted wives are compelled to live with their
relatives far away from the place where the
husband and wife last resided together. As noted
by this Court in several cases, proceedings under
Section 125 of the Code are of civil nature. Unlike
clauses (b) and (c) of Section 126(1) an
application by the father or the mother claiming
maintenance has to be filed where the person from
whom maintenance is claimed lives.”
7. In view of the above facts and circumstances, the learned counsel
appearing on behalf of the revisionist submitted that the impugned order is
bad in law as the same was passed without considering the facts of the case
and without perusing the documents/materials on record. It is therefore,
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prayed that the orders dated 6 August 2020 and 6 March 2021, passed by
the learned Principal Judge, be set aside and the revisionist may be allowed
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to pay the amount in terms of order dated 29 July 2020 passed by the
Court below.
8. Per contra , Ms. Swaty Singh Malik, learned counsel appearing on
behalf of the respondents vehemently opposed the instant revision petition
and submitted that the same is based on false, vague, concocted, frivolous
and fictitious facts. It is nothing but an effort to delay the proceedings and
harass the respondents.
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9. Learned counsel for the respondents submitted that the revisionist has
concealed the material facts regarding his conduct before the Court below.
Time and again, Court has issued warrants of arrest and attachment against
the revisionist for his continuous non-appearance and non-compliance of
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order dated 6 August 2020, but he failed to pay maintenance to his minor
children.
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10. It is submitted that vide order dated 6 August 2020, court below has
granted maintenance only to the minor children i.e respondent no. 2 and 3
and did not grant any maintenance to Respondent no. 1. It is further
submitted that the revisionist is bound by the provisions provided under
Section 125 (2) of the Cr.P.C, wherein it is categorically stated that any
allowance for maintenance or interim maintenance and expenses of the
proceedings shall be payable from the date of the order, or, if so ordered,
from the date of application for maintenance or interim maintenance and
expense of proceeding.
11. It is submitted that the Court below has passed a well-reasoned order
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on 6 March, 2021, wherein it is categorically held that the arrangement as
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stated in order dated 29 July, 2020 was not the interim maintenance order
on the basis of agreement between the parties, rather it was direction given
by the Court till the next date of hearing, so that education and maintenance
of the children should not suffer. Interim application for maintenance was
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disposed of vide order dated 6 August 2020, wherein the revisionist has
been directed to pay Rs. 25,000/- per month to respondent nos. 2 and 3,
each.
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12. It is vehemently submitted that the Court below has all the powers to
make any arrangement for the welfare of the wife or children while finally
disposing of any petition/application under Section 125 of the Cr.P.C and
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the order dated 29 July, 2020 was the one wherein direction was given for
the welfare of respondent nos. 2 and 3, so that their education and
necessities remain fulfilled.
13. The learned counsel appearing on behalf of the respondents
submitted that the Court below has passed the orders challenged in the
instant revision petition after considering the entire facts of the case as well
as the evidence, documents and other material(s) available on record related
to the income of the revisionist.
14. The learned counsel for the respondent/wife at the outset submitted
that the principle of providing maintenance is to ensure the living
conditions of the respondent/ wife and children similar to that of the
revisionist/husband whereas in the present case, the respondent children are
yet to receive the amount.
15. It is further submitted that there is limited scope in the revision to
interfere in any order passed by the Court below. In the revisional
jurisdiction the Court may only see any error apparent on record or gross
illegality committed by the Court below while passing any judicial order
but in the instant case there are no errors apparent on the facts or record and
there is no illegality committed by the Court below. Therefore, the instant
petition is devoid of merits and is therefore liable to be dismissed.
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16. I have heard the matter at considerable length. The parties are
entangled in several rounds of litigation. Mainly, allegations are counter-
allegations against each other. Since proceedings under Section 125 of the
Cr.P.C. are still pending, I am not inclined to go into the merits of the rival
contentions as raised by the parties. The only question falling for
consideration before this Court is whether the amount of Rs. 25,000/-
awarded by the Court below as interim maintenance for paying school fees
of the respondent no. 2 and 3 is on the higher side.
17. This Court has heard learned counsel of the parties at length and
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perused the record. I have also perused orders dated 6 August 2020 and 6
March 2021.
ANALYSIS AND FINDINGS
18. It is an admitted fact that marriage between the revisionist and
respondent no. 1 was solemnized and out of said wedlock two children were
born. But due to some differences between revisionist and respondent no.1,
they stated living separately from November, 2019, pursuant to which,
respondent no.1 filed petition under Section 125 of the Cr.P.C. The object
behind Section 125 of the Cr.P.C is to prevent vagrancy and destitution of
wife, minor children and the parents. In case of Manish Jain Vs. Akanksha
Jain, (2017) 15 SCC 801 , the Hon’ble Supreme Court has observed as
under:
“ 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 income
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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.”
19. In the instant case, the revisionist has stated that while awarding the
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interim maintenance vide order dated 6 August 2020, the Court below has
ignored the fact that respondent no.1 is a resourceful woman and having an
income of approximately Rs. 1,00,000/- per month from her business. As
per the documents filed by the revisionist before the Court below there is
nothing to assess the exact income of the respondent. The learned Principal
Judge, while disposing of the interim application for maintenance under
Section 125 of the Cr.P.C bearing MT No. 327/2018 has observed as
follows:
“11. In Bharat Hegde Vs. Saroj Hegde 140
(2007) DLT 16 , the Court has observed that
unfortunately in India, parties do not truthfully
reveal their income. For self-employed person or
persons employed in unorganized sector, truthful
income never surfaces. Tax avoidance is the norm
and tax compliance is the exception in this
Country. Further in Jayant Bhargava vs. Priya
Bhargava (2011) 181 DLT 602 , the Court has
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observed that tendency of the spouse in
proceedings for maintenance is to not truthfully
disclose their true-income. In such cases some
guesswork on the part of the Court is permissible.
12. Keeping in view the facts and circumstances
of this case and by making guess work, income of
the respondent is assessed as Rs. 1,00,000/- per
month. Revisionist no. 1 is also held to be earning
sufficient money to suitably maintain herself.
Therefore, revisionist no. 1 is not held entitled to
any amount of maintenance. For maintenance of
revisionist no. 2 and revisionist no. 3, respondent
is directed to pay Rs, 25,000/- each to revisionist
no. 2 and revisionist no. 3 per month which
includes their school fee from the date of filing of
this application. Any amount paid by respondent
to revisionists on account of interim maintenance
or towards the school fee during the pendency of
this petition shall be adjusted in calculating the
total amount of arrears.
13. Respondent is directed to clear the
outstanding arrears of maintenance within 2
months in 2 equal monthly installments and
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continue to pay the current maintenance by 10 of
each month henceforth.
14. Application filed on behalf of revisionists
praying for Interim Maintenance stands disposed
of accordingly.”
Further, there is no evidence on record that respondent no.1 is
employed or earning any income and is residing with her parents along with
two minor children. Merely on the basis of guess work income of the
respondent is assessed as Rs. 1,00,000/-, but it cannot be presumed that she
has such a regular source of income.
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20. The provision for maintenance under Section 125 of the Cr.P.C reads
as under: -
“ 125 . Order for maintenance of wives, children
and parents.
(1) If any person having sufficient means neglects
or refuses to maintain--
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself,
or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority,
where such child is, by reason of any physical or
mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to maintain
himself or herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make
a monthly allowance for the maintenance of his
wife or such child, father or mother, at such
monthly rate as such Magistrate thinks fit and to
pay the same to such person as the Magistrate may
from time to time direct:
Provided that the Magistrate may order the father
of a minor female child referred to in clause (b) to
make such allowance, until she attains her
majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is
not possessed of sufficient means:
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[Provided further that the Magistrate may, during
the pendency of the proceeding regarding monthly
allowance for the maintenance under this sub-
section, order such person to make a monthly
allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses
of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:
Provided also that an application for the monthly
allowance for the interim maintenance and
expenses of proceeding under the second proviso
shall, as far as possible, be disposed of within sixty
days from the date of the service of notice of the
application to such person.]
Explanation.--For the purposes of this Chapter,
(a) "minor" means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.
(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if
so ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such
Magistrate may, for every breach of the order,
issue a warrant for levying the amount due in the
manner provided for levying fines, and may
sentence such person, for the whole or any part of
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each months allowance for the maintenance or the
interim maintenance and expenses of proceeding,
as the case may be, remaining unpaid after the
execution of the warrant, to imprisonment for a
term which may extend to one month or until
payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.- If a husband has contracted
marriage with another woman or keeps a mistress,
it shall be considered to be just ground for his
wifes refusal to live with him.
(4) No wife shall be entitled to receive an
allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the
case may be, from her husband under this section
if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual
consent.
(5) On proof that any wife in whose favour an
order has been made under this section in living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
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living separately by mutual consent, the
Magistrate shall cancel the order.”
21. Bare reading of the Section 125 of the Cr.P.C suggests that the
intention of the legislature while making the provision for maintenance was
to ensure that a person shall oblige with his matrimonial and family
obligations of maintaining his wife and children, when they do not have
sufficient means to sustain themselves. The power to adjudicate on the issue
of maintenance has been given, at the first instance, to the Magistrate, who
may upon being satisfied direct the concerned person to provide such
maintenance/monthly allowance to his wife, children or parents. There is,
therefore, a discretionary power with the Magistrate that is to be exercised
while appreciating the evidence and material on record when awarding
maintenance to the parties.
22. One of the material facts to be considered by the Court while
entertaining a matter under Section 125 of the Cr.P.C, before adjudicating
upon the quantum of maintenance, the Court may first, in light of the
provision under Section 125 of the Cr.P.C, be prima facie satisfied on the
point that there exists a lawful domestic relationship between the parties,
which gives rise to the obligations and duties to maintain the family
members.
SECTION 125 OF THE Cr.P.C AND REVISIONAL JURISDICTION
23. It is an established law that the Revisional Court need not re-assess or
re-appreciate the material and evidence available on record before the Trial
Court. A Revisional Court is to limit its jurisdiction for adjudicating upon
the material illegalities and irregularities apparent in the impugned orders.
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The marital status in cases of maintenance under Section 125 of the Cr.P.C,
shall therefore, be declared by the Civil Court and the Revisional Court
shall restrain itself to the questions before it without reopening the
evidence.
24. In Pyla Mutyalamma v. Pyla Suri Demudu (2011) 12 SCC 189 , the
Hon’ble Supreme Court has set out the standards of revisional jurisdiction
to be exercised by the High Courts in maintenance proceedings under
Section 125 of the Cr.P.C, wherein it was observed as under:
“ 16. In a revision against the maintenance order
passed in proceedings under Section 125 CrPC,
the Revisional Court has no power to reassess
evidence and substitute its own findings. Under
revisional jurisdiction, the questions whether the
applicant is a married wife, the children are
legitimate/illegitimate, being pre-eminently
questions of fact, cannot be reopened and the
Revisional Court cannot substitute its own views.
The High Court, therefore, is not required in
revision to interfere with the positive finding in
favour of the marriage and patronage of a child.
But where finding is a negative one, the High
Court would entertain the revision, re-evaluate the
evidence and come to a conclusion whether the
findings or conclusions reached by the Magistrate
are legally sustainable or not as negative finding
has evil consequences on the life of both the child
and the woman. This was the view expressed by the
Supreme Court in Santosh v. Naresh Pal [(1998) 8
SCC 447], as also in Pravati Rani Sahoo v. Bishnu
pada Sahoo [(2002) 10 SCC 510: 2004 SCC (Cri)
1140]. Thus, the ratio decidendi which emerges
out of a catena of authorities on the efficacy and
value of the order passed by the Magistrate while
determining maintenance under Section 125 CrPC
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is that it should not be disturbed while exercising
revisional jurisdiction.”
25. In the case of Deb Narayan Haldar Vs. Anushree Haldar (2003) 11
SC 303, the Hon’ble Supreme Court held:
“20. …We have reached this conclusion after
appreciating the evidence on record since there is
no discussion of the evidence in the judgment of
the High Court. The counsel for the respondent
posed before us a question as a part of his
submission as to why the respondent should leave
her matrimonial home without any reason. In
cases where there is a dispute between husband
and wife it is very difficult to unravel the true
reason for the dispute. After separation when the
relationship turns sour, all sorts of allegations and
counter-allegations are made against each other.
Evidence of contemporaneous nature therefore
plays an important role in such cases as it may
reveal the thinking and attitude of the parties
towards each other at the relevant time. Such
evidence is usually found in the form of letters
written by the parties to each other or to their
friends and relatives or recorded in any other
document of contemporaneous nature. If really the
respondent was subjected to cruelty and
harassment in the manner alleged by her, we have
no doubt she would have written about such
treatment to her friends and relatives with whom
she may have corresponded. The reports allegedly
made by her to the police may have thrown some
light on this aspect of the matter. Such evidence is
completely absent in this case. It appears to us that
the parties lived happily for many years after the
marriage till about the year 1996, whereafter there
was some misunderstanding which ultimately
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resulted in their separation. Why this happened, it
is difficult to fathom, but the evidence on record
does not convince us that the respondent was
subjected to torture and harassment by the
appellant, and certainly not for the reasons alleged
by her. The court is not permitted to conjecture
and surmise. It must base its findings on the
evidence produced before it by the parties. The
enquiry by the court is restricted to the evidence
on record and the case pleaded by the parties. It is
not permissible to the court to conjecture and
surmise and make out a third case not pleaded by
the parties only to answer the query such as the
one posed to us .”
26. The Hon’ble Supreme Court in the case of Chaturbhuj Vs. Sita Bai
(2008) 2 SCC 316 , has held that the object of the maintenance proceedings
is not to punish a person for his past neglect, but to prevent vagrancy by
compelling those who can provide support to those who are unable to
support themselves and who have a moral claim to support. The Hon’ble
Supreme Court has observed as under:
“6. The object of the maintenance proceedings is
not to punish a person for his past neglect, but to
prevent vagrancy by compelling those who can
provide support to those who are unable to support
themselves and who have a moral claim to
support. The phrase “unable to maintain herself”
in the instant case would mean that means
available to the deserted wife while she was living
with her husband and would not take within itself
the efforts made by the wife after desertion to
survive somehow. Section 125 Cr. P. C. is a
measure of social justice and is specially enacted
to protect women and children and as noted by this
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court in Captain Ramesh Chander Kaushal v.
Veena Kaushal falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the
Constitution of India. It is meant to achieve a
social purpose. The object is to prevent vagrancy
and destitution. It provides a speedy remedy for
the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights
and natural duties of a man to maintain his wife,
children and parents when they are unable to
maintain themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya v.
State of Gujarat.”
“7. Under the law the burden is placed in the first
place upon the wife to show that the means of her
husband are sufficient. In the instant case there is
no dispute that the appellant has the requisite
means. But there is an inseparable condition which
has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in
addition to the requirement that the husband must
have neglected or refused to maintain his wife. It
has to be established that the wife was unable to
maintain herself. The appellant has placed
material to show that the respondent wife was
earning some income. That is not sufficient to rule
out application of Section 125 Cr. P. C. It has to
be established that with the amount she earned the
respondent wife was able to maintain herself.”
27. The objective of granting interim/permanent alimony is to ensure that
the dependent spouse is not reduced to destitution or vagrancy on account
of the failure of the marriage, and not as punishment to the other spouse.
The financial capacity of the husband, his actual income with reasonable
expenses for his own maintenance, and dependant family members whom
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he is obliged to maintain under the law, liabilities if any, would be required
to be taken into consideration, to arrive at the appropriate quantum of
maintenance to be paid. It is settled law that balance and equity must
carefully be drawn between all relevant factors. The test of determination of
maintenance in matrimonial disputes depends on the financial status of the
respondent and the standard of living that the revisionist was accustomed to
in her matrimonial home.
28. In the case of Chaturbhuj (Supra) , the Hon’ble Supreme Court has
held that the maintenance amount awarded must be reasonable and realistic,
and advised either of the two extremes i.e. maintenance awarded to the wife
should neither be so extravagant which becomes oppressive and unbearable
for the revisionist, nor should it be so meager that it derives the wife to
penury. The sufficiency of the quantum has to be adjudicated so that the
wife and children are able to maintain themselves with reasonable comfort.
29. The Hindu Marriage Act, 1955 provides statutory guidance with
respect to the criteria for determining the quantum of maintenance. It
provides the following factors which may be taken into consideration:
a. Position and status of the parties.
b. Reasonable wants of the claimant
c. If the revisionist/claimant is living separately, the justification for
the same.
d. Value of the claimant’s property and any income derived from
such property.
e. Income from claimant’s own earning or from any other source.
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30. A perusal of the law laid down by the Hon’ble Supreme Court would
indicate that the proceedings under Section 125 Cr. P. C. have been enacted
to remedy/reduce the financial sufferings of a lady who was forced to leave
her matrimonial house along with two minor children, so that some
arrangements would be made to enable her to sustain herself and her
children. It is the duty of the revisionist to maintain his wife and minor
children by providing financial support to her and their children. The
Husband cannot avoid his obligation to maintain his wife and children
except if any legally permissible ground is contained in the statute.
31. In the present case, the revisionist relies on the documents which
show that the respondent is a Tarot card reader and an Astrologer who is
running two websites, but has not placed on record any documents to assess
her exact income from that business and to establish that she is earning
more than Rs. 1 Lakh per month.
32. The revisionist has also not been able to point out any perversity in
the impugned orders. The Court below i.e. learned Principal Judge, while
allowing the interim maintenance under Section 125 of the Cr.P.C and
th
granting the interim maintenance to the respondent vide order dated 6
August 2017, has taken into consideration entire facts and
documents/materials on record and even this Court does not find any
material on record to ascertain the exact income of the respondent.
CONCLUSION
33. Upon perusal of the impugned order, this court does not find any
illegality or error apparent on record and finds no cogent reason to invoke
its extra ordinary jurisdiction and interfere in the impugned order.
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34. In view of the aforementioned facts, circumstances, law established,
material(s) available on record and keeping in mind the limitation of
revisional jurisdiction [ref: Deb Narayan Haldar (Supra)] , this Court does
not find any force in the arguments advanced by the learned counsel for the
revisionist and accordingly, instant revision petition is hereby dismissed
th th
upholding orders dated 6 August 2020 and 6 March 2021. Pending
application, if any, also stands disposed of.
35. It is made clear that any observations made herein are only for the
purposes of the adjudication of the instant petition and shall have no
bearing whatsoever on the merits of the case, at any stage in any
proceedings before any Court.
36. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
MAY 31, 2022
Aj/ct
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