Monthly Archives: April 2015

SAME maintenance EVEN after retirement. Able bodied male can’t deny maintenance

Hon. Supreme Court

"…… Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.

While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors has held as follows:-

“ The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”…."

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.564-565 OF 2015

[Arising out of
SLP (Crl.) Nos. 6380-6381 of 2014]

SHAMIMA FAROOQUI… Appellant

Versus

SHAHID KHAN … Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. When centuries old obstructions are removed, age old shackles are either burnt or lost their force, the chains get rusted, and the human endowments and virtues are not indifferently treated and emphasis is laid on “free identity” and not on “annexed identity”, and the women of today can gracefully and boldly assert their legal rights and refuse to be tied down to the obscurant conservatism, and further determined to ostracize the “principle of commodity”, and the “barter system” to devoutly engage themselves in learning, criticizing and professing certain principles with committed sensibility and participating in all pertinent and concerned issues, there is no warrant or justification or need to pave the innovative multi-avenues which the law does not countenance or give its stamp of approval. Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. They are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority. They should be able to say that they are the persons of modern age and they have the ideas of today’s “Bharat”. Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. That is the truth in essentiality. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

3. The facts which are requisite to be stated for adjudication of these appeals are that the appellant filed an application under Section 125 of the Code of Criminal Procedure (CrPC) contending, inter alia, that she married Shahid Khan, the respondent herein, on 26.4.1992 and during her stay at the matrimonial home she was prohibited from talking to others, and the husband not only demanded a car from the family but also started harassing her. A time came when he sent her to the parental home where she was compelled to stay for almost three months. The indifferent husband did not come to take her back to the matrimonial home, but she returned with the fond and firm hope that the bond of wedlock would be sustained and cemented with love and peace but as the misfortune would have it, the demand for the vehicle continued and the harassment was used as a weapon for fulfilment of the demand. In due course she came to learn that the husband had illicit relationship with another woman and he wanted to marry her. Usual to sense of human curiosity and wife’s right when she asked him she was assaulted. The situation gradually worsened and it became unbearable for her to stay at the matrimonial home. At that juncture, she sought help of her parents who came and took her to the parental home at Lucknow where she availed treatment. Being deserted and ill-treated and, in a way, suffering from fear psychosis she took shelter in the house of her parents and when all her hopes got shattered for reunion, she filed an application for grant of maintenance at the rate of Rs.4000/- per month on the foundation that husband was working on the post of Nayak in the Army and getting a salary of Rs.10,000/- approximately apart from other perks.

4. The application for grant of maintenance was resisted with immense vigour by the husband disputing all the averments pertaining to demand of dowry and harassment and further alleging that he had already given divorce to her on 18.6.1997 and has also paid the Mehar to her.

5. A reply was filed to the same by wife asserting that she had neither the knowledge of divorce nor had she received an amount of Mehar.

6. During the proceeding before the learned Family Judge the wife-appellant examined herself and another, and the respondent-husband examined four witnesses, including himself. The learned Family Judge, Family Court, Lucknow while dealing with the application forming the subject matter Criminal Case No. 1120 of 1998 did not accept the primary objection as regards the maintainability under Section 125 CrPC as the applicant was a Muslim woman and came to hold even after the divorce the application of the wife under Section 125 CrPC was maintainable in the family court. Thereafter, the learned Family Judge appreciating the evidence brought on record came to opine that the marriage between the parties had taken place on 26.4.1992; that the husband had given divorce on 18.6.1997; that she was ill treated at her matrimonial home; and that she had come back to her parental house and staying there; that the husband had not made any provision for grant of maintenance; that the wife did not have any source of income to support her, and the plea advanced by the husband that she had means to sustain her had not been proved; that as the husband was getting at the time of disposal of the application as per the salary certificate Rs.17654/- and accordingly directed that a sum of Rs.2500/- should be paid as monthly maintenance allowance from the date of submission of application till the date of judgment and thereafter Rs.4000/- per month from the date of judgment till the date of remarriage. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

7. The aforesaid order passed by the learned Family Judge came to be assailed before the High Court in Criminal Revision wherein, the High Court after adumbrating the facts referred to the decisions in Anita Rani v. Rakeshpal Singh Dharmendra Kumar Gupta v. Chander Prabha Devi, Rakesh Kumar Dikshit v. Jayanti Devi , Ashutosh Tripathi v. State of U.P. , Paras Nath Kurmi v. The Session Judge and Sartaj v. State of U.P. and others and came to hold that though the learned principal Judge, Family Court had not ascribed any reason for grant of maintenance from the date of application, yet when the case for maintenance was filed in the year 1998 decided on 17.2.2012 and there was no order for interim maintenance, the grant of Rs.2500/- as monthly maintenance from the date of application was neither illegal nor excessive. The High Court took note of the fact that the husband had retired on 1.4.2012 and consequently reduced the maintenance allowance to Rs.2000/-from 1.4.2012 till remarriage of the appellant herein. Being of this view the learned Single Judge modified the order passed by the Family Court. Hence, the present appeal by special leave, at the instance of the wife.

8. We have heard Dr. J.N. Dubey, learned senior counsel for the appellant. Despite service of notice, none has appeared for the respondent.

9. It is submitted by Dr. Dubey, learned senior counsel that Section 125 CrPC is applicable to the Muslim women and the Family Court has jurisdiction to decide the issue. It is urged by him that the High Court has fallen into error by opining that the grant of maintenance at the rate of Rs.4,000/- per month is excessive and hence, it should be reduced to Rs.2000/- per month from the date of retirement of the husband i.e. 1.4.2012 till her re-marriage. It is also contended that the High Court failed to appreciate the plight of the appellant and reduced the amount and hence, the impugned order is not supportable in law.

10. First of all, we intend to deal with the applicability of Section 125 CrPC to a Muslim woman who has been divorced. In Shamim Bano v. Asraf Khan, this Court after referring to the Constitution Bench decisions in Danial Latifi v. Union of India and Khatoon Nisa v. State of U.P. had opined as follows:

“ 13. The aforesaid principle clearly lays down that even after an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence.

14. Slightly recently, in Shabana Bano v. Imran Khan, a two-Judge Bench, placing reliance on Danial Latifi (supra), has ruled that:-“

21. The appellant’s petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 CrPC cannot be restricted for the iddat period only.” Though the aforesaid decision was rendered interpreting Section 7 of the Family Courts Act, 1984, yet the principle stated therein would be applicable, for the same is in consonance with the principle stated by the Constitution Bench in Khatoon Nisa (supra).”

In view of the aforesaid dictum, there can be no shadow of doubt that Section 125 CrPC has been rightly held to be applicable by the learned Family Judge.

11. On a perusal of the order passed by the Family Court, it is manifest that it has taken note of the fact that the salary of the husband was Rs.17,654/- in May, 2009. It had fixed Rs.2,500/- as monthly maintenance from the date of submission of application till the date of order i.e. 17.2.2012 and from the date of order, at the rate of Rs.4,000/- per month till the date of remarriage. The High Court has opined that while granting maintenance from the date of application, judicial discretion has to be appropriately exercised, for the High Court has noted that the grant of maintenance at the rate of Rs.2,500/- per month from the date of application till date of order, did not call for modification.

12. The aforesaid finding of the High Court, affirming the view of the learned Family Judge is absolutely correct. But what is disturbing is that though the application for grant of maintenance was filed in the year 1998, it was not decided till 17.2.2012. It is also shocking to note that there was no order for grant of interim maintenance. It needs no special emphasis to state that when an application for grant of maintenance is filed by the wife the delay in disposal of the application, to say the least, is an unacceptable situation. It is, in fact, a distressing phenomenon. An application for grant of maintenance has to be disposed of at the earliest. The family courts, which have been established to deal with the matrimonial disputes, which include application under Section 125 CrPC, have become absolutely apathetic to the same. The concern and anguish that was expressed by this Court in Bhuwan Mohan Singh v. Meena and Ors., is to the following effect:-

“ 13. The Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. A three-Judge Bench in K.A. Abdul Jaleel v. T.A. Shahida, while highlighting on the purpose of bringing in the Family Courts Act by the legislature, opined thus:-“

The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.”

14. The purpose of highlighting this aspect is that in the case at hand the proceeding before the Family Court was conducted without being alive to the objects and reasons of the Act and the spirit of the provisions Under Section 125 of the Code. It is unfortunate that the case continued for nine years before the Family Court. It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.” [emphasis
supplied]

13. When the aforesaid anguish was expressed, the predicament was not expected to be removed with any kind of magic. However, the fact remains, these litigations can really corrode the human relationship not only today but will also have the impact for years to come and has the potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as the first aspect is concerned, it is the duty of the Courts to curtail them. There need not be hurry but procrastination should not be manifest, reflecting the attitude of the Court. As regards the second facet, it is the duty of the Court to have the complete control over the proceeding and not permit the lis to swim the unpredictable grand river of time without knowing when shall it land on the shores or take shelter in a corner tree that stands “still” on some unknown bank of the river. It cannot allow it to sing the song of the brook. “Men may come and men may go, but I go on for ever.” This would be the greatest tragedy that can happen to the adjudicating system which is required to deal with most sensitive matters between the man and wife or other family members relating to matrimonial and domestic affairs. There has to be a pro-active approach in this regard and the said approach should be instilled in the Family Court Judges by the Judicial Academies functioning under the High Courts. For the present, we say no more.

14. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs.17,654/-. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

15. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs.2,000/-. In today’s world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. has held as follows:-

“ The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”

16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, it has been ruled that:-

“ Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this 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.”

This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

17. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash wherein it has been opined thus:-

“ 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 a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.”

18. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

19. In the instant case, as is seen, the High Court has reduced the amount of maintenance from Rs.4,000/- to Rs.2,000/-. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is a sanctuary of errors. In fact, when the order is based on proper appreciation of evidence on record, no revisional court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses cannot be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non-application of mind and, therefore, we are unable to sustain the said order.

20. Having stated the principle, we would have proceeded to record our consequential conclusion. But, a significant one, we cannot be oblivious of the asseverations made by the appellant. It has been asserted that the respondent had taken voluntary retirement after the judgment dated 17.2.2012 with the purpose of escaping the liability to pay the maintenance amount as directed to the petitioner; that the last drawn salary of respondent taken into account by the learned Family Judge was Rs.17,564/- as per salary slip of May, 2009 and after deduction of AFPP Fund and AGI, the salary of the respondent was Rs.12,564/- and hence, even on the basis of the last basic pay (i.e. Rs.9,830/-) of the respondent the total pension would come to Rs.14,611/- and if 40% of commutation is taken into account then the pension of the respondent amounts to Rs.11,535/-; and that the respondent, in addition to his pension, hand received encashment of commutation to the extent of 40% i.e. Rs.3,84,500/- and other retiral dues i.e. AFPP, AFGI, Gratuity and leave encashment to the tune of Rs.16,01,455/-.

21. The aforesaid aspects have gone uncontroverted as the respondent-husband has not appeared and contested the matter. Therefore, we are disposed to accept the assertions. This exposition of facts further impels us to set aside the order of the High Court.

22. Consequently, the appeals are allowed, the orders passed by the High Court are set aside and that of the Family Court is restored. There shall be no order as to costs.

………………………………….J. [DIPAK MISRA]

………………………………….J. [PRAFULLA C. PANT]

NEW DELHI

APRIL 06, 2015.

PDF File uploaded to http://1drv.ms/1PpllMZ

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

mother in law can file DV case on daughter in law ; Delhi HC

"…. A mother who is being maltreated and harassed by her son would be an "aggrieved person". If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the „respondent?. This phenomenon of the daughters-in-law harassing their mothers-in-law especially who are dependent is not uncommon in the Indian society…….."

"…Thus, it is evident that phenomenon which was sought to be addressed was "domestic violence" and not "domestic violence qua the daughter-in-law or the wife only as contemplated under Section 498A……"

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Delhi High Court

Kusum Lata Sharma vs State & Anr. on 2 September, 2011

Author: Mukta Gupta

IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl. M.C. No. 725/2011 & Crl. M.A. No.2797/2011 (Stay)

Reserved on: 19th July, 2011
Decided on: 2nd September, 2011

KUSUM LATA SHARMA ….. Petitioner
Through: Mr. Atul Verma, Advocate

versus

STATE & ANR. ….. Respondents
Through: Mr. Pawan Bahl, APP for the State
Mr. M.S. Jadhav, Adv. for R-2.

Coram:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported Yes
in the Digest?

MUKTA GUPTA, J.

1. The Petitioner, one of the Respondents in a Complaint Case No. 40/2011, PS Hauz Khas, New Delhi titled as "Ms. Shakuntala Sharma vs. Nagender Vashishtha & Ors" received summons from the Court of learned Metropolitan Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005(in short the „Act?) to appear on 8th March, 2011. The Petitioner states that the Complainant/Respondent No. 2 is her mother-in- law who is having property dispute with the Petitioner?s husband since 2005 and in order to coerce the Petitioner?s husband to forego his share in the property left behind by Petitioner?s father-in-law, the Respondent no.2 has filed the complaint.

2. It is contended that the object of the Act was for redressal of married women who were subjected to cruelty by their husband or in-laws. The object of the Act clearly states that it does not enable any relative of the husband or the male partner to file a complaint against the wife or the female partner. Thus in a nutshell the contention is that a mother-in-law cannot take recourse to the proceedings under Section 12 of the Act to file a complaint against the daughter-in-law.

3. The learned counsel for the Petitioner relies upon the object of the Act and contends that as per para „2? and „4? of the Statements of Objects & Reasons of the Act, the Act was enacted to address to the phenomena of cruelty inflicted under Section 498A IPC in its entirety. It is further contended that as per Section 2, the Respondent means any adult male person who is or has been in a relationship with the aggrieved person and against whom any relief has been sought under this Act. The proviso to Section 2(q) which provides that an aggrieved wife or female living in a relationship in the nature of marriage may also file a complaint against a relative or the husband or the male partner does not include a female relative.

4. The issue whether the „females? are included or not in the definition of „Respondent? in Section 2(q) of the Act came up for consideration before the Hon?ble Supreme Court in Sou. Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors., 2011 (3) SCC 650 wherein their Lordships held:-

13. It is true that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005.

15. In our view, both the Sessions Judge and the High Court went wrong in holding otherwise, possibly being influenced by the definition of the expression "Respondent" in the main body of Section 2(q) of the aforesaid Act.

16. The Appeal, therefore, succeeds. The judgments and orders, both of the learned Sessions Judge, Amravati, dated 15 th July, 2009 and the Nagpur Bench of the Bombay High Court dated 5th March, 2010, in Crl. Writ Petition No. 588 of 2009 are set aside.

Consequently, the trial Court shall also proceed against the said Respondent Nos. 2 and 3 on the complaint filed by the Appellant"

5. Division Bench of this Court in "Varsha Kapoor vs. UOI & Ors. 2010 VI AD(Delhi) 472 interpreting Section 2(q) of the Act also came to the same conclusion. Thus the issue whether under Section 2(q) of the Act "the female relative" would be inclusive in the definition is no more res integra. The Division Bench held as under:-

"12. When we interpret the provisions of Section 2 (q) in the context
of the aforesaid scheme, our conclusion would be that the petition is
maintainable even against a woman in the situation contained in
proviso to Section 2(q) of the DV Act. No doubt, the provision is not
very satisfactorily worded and there appears to be some ambiguity in
the definition of „respondent? as contained in Section 2 (q). The
Director of Southern Institute for Social Science Research, Dr. S.S.
Jagnayak in his report has described the ambiguity in Section 2(q) as
"Loopholes to Escape the Respondents from the Cult of this Law" and
opined in the following words:

"As per Section 2 Clause (q) the respondent means any adult male
person who is or has been in a domestic relationship. Hence, a plain
reading of the Act would show that an application will not lie under
the provisions of this Act against a female. But, when Section 19(1)
proviso is perused, it can be seen that the petition is maintainable,
even against a lady. Often this has taken as a contention, when
ladies are arrayed as respondents and it is contended that petition
against female respondents are not maintainable. This is a loophole
which should be plugged."

13. But then, Courts are not supposed to throw their hands up in the air expressing their helplessness. It becomes the duty of the Court to give correct interpretation to such a provision having regard to the purpose sought to be achieved by enacting a particular legislation. This so expressed by the Supreme Court in the case of Ahmedabad Municipal Corpn. Anr. Vs. Nilaybhai R. Thakore & Anr. [(1999) 8 SCC 139 in the following words:

"14. Before proceeding to interpret Rule 7 in the manner which we
think is the correct interpretation, we have to bear in mind that it
is not the jurisdiction of the court to enter into the arena of the
legislative prerogative of enacting laws. However, keeping in mind
the fact that the Rule in question is only a subordinate legislation
and by declaring the Rule ultra vires, as has been done by the High
Court, we would be only causing considerable damage to the cause for
which the Municipality had enacted this Rule. We, therefore, think it
appropriate to rely upon the famous and oft-quoted principle relied
by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher
[1994] 2 All ER 155 wherein he held : "When a defect appears a judge
cannot simply fold his hand and blame the draftsman. He must set to
work on the constructive task of finding the intention of Parliament
and then he must supplement the written words so as to give ‘force
and life’ to the intention of the Legislature. A judge should ask
himself the question how, if the makers of the Act had themselves
come across this ruck in the texture of it, they would have
straightened it out? He must then do as they would have done. A judge
must not alter the material of which the Act is woven, but he can and
should iron out the creases". This statement of law made by Lord
Denning has been consistently followed by this Court starting in the
case of M. Pentiah and Ors. v. Muddala Veeramallappa and Ors. :
[1961]2SCR295 and followed as recently as in the case of S. Gopal
Reddy v. Slate of Andhra Pradesh : 1996CriLJ3237 . Thus, following
the above Rule of interpretation and with a view to iron out the
creases in the impugned Rule which offends Article 14, we interpret
Rule 7 as follows : "Local student means a student who has passed
H.S.C./New S.S.C. examination and the qualifying examination from any
of the High Schools or Colleges situated within the Ahmedabad
Municipal Corporation limits and includes a permanent resident
student of Ahmedabad Municipality who acquires the above
qualifications from any of the High School or College situated within
Ahmedabad Urban Development Area."

14. This Court also followed the aforesaid principles in the case of Star India P. Ltd. Vs. The Telecom Regulatory Authority of India and Ors. [146 (2008) DLT 445 (DB) in the following words:

"28. It is also a firmly entrenched principle of interpretation of
statutes that the Court is obliged to correct obvious drafting errors
and adopt the constructive role of ‘finding the intention of
Parliament… not only from the language of the statute, but also
from a consideration of the social conditions which gave rise to it’
as enunciated in State of Bihar v. Bihar Distillery Ltd.:
AIR1997SC1511 . The Court should also endeavor to harmoniously
construe a statute so that provisions which appear to be
irreconcilable can be given effect to, rather than strike down one or
the other. It must also not be forgotten that jural presumption is in
favor of the constitutionality of a statute."

15. Having regard to the purpose which the DV Act seeks to achieve and when we read Section 2 (q) along with other provisions, out task is quite simple, which may in first blush appear to be somewhat tricky. We are of the considered view that the manner in which definition of „respondent? is given under Section 2(q) of DV Act, it has to be segregated into two independent and mutually exclusive parts, not treating proviso as adjunct to the main provision. These two parts are:

a) Main enacting part which deals with those aggrieved persons, who are „in a domestic relationship?. Thus, in those cases where aggrieved person is in a domestic relationship with other person against whom she has sought any relief under the DV Act, in that case, such person as respondent has to be an adult male person. Given that aggrieved person has to be a female, such aggrieved person in a domestic relationship can be a mother, a sister, a daughter, sister-in-law, etc.

b) Proviso, on the other hand, deals with limited and specific class of aggrieved person, viz. a wife or a female living in relationship in the nature of marriage. First time by this legislation, the legislator has accepted live in relationship by giving those female who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. This proviso, therefore, caters for wife or a female in a live in relationship. In their case, the definition of „respondent? is widened by not limiting it to „adult male person? only, but also including „a relative of husband or the male partner?, as the case may be.

What follows is that on the one hand, aggrieved persons other than wife or a female living in a relationship in the nature of marriage, viz., sister, mother, daughter or sister-in-law as aggrieved person can file application against adult male person only. But on the other hand, wife or female living in a relationship in the nature of marriage is given right to file complaint not only against husband or male partner, but also against his relatives.

16. Having dissected definition into two parts, the rationale for including a female/woman under the expression „relative of the husband or male partner? is not difficult to fathom. It is common knowledge that in case a wife is harassed by husband, other family members may also join husband in treating the wife cruelty and such family members would invariably include female relatives as well. If restricted interpretation is given, as contended by the petitioner, the very purpose for which this Act is enacted would be defeated. It would be very easy for the husband or other male members to frustrate the remedy by ensuring that the violence on the wife is perpetrated by female members. Even when Protection Order under Section 18 or Residence Order under Section 19 is passed, the same can easily be defeated by violating the said orders at the hands of the female relatives of the husband.

19. It is also well-recognized principle of law that while interpreting a provision in statute, it is the duty of the Court to give effect to all provisions. When aforesaid provisions are read conjointly keeping the scheme of the DV Act, it becomes abundantly clear that the legislator intended female relatives also to be respondents in the proceedings initiated by wife or female living in relationship in the nature of marriage."

6. The next issue which arises for consideration is whether the word „aggrieved person? in Section 2(a) of the Act has to be given a restricted meaning in view of the Statement of Objects & Reasons so as to include the daughter-in-law only and excludes only a mother-in-law, sister-in-law or daughter from its ambit. The relevant Sections read as under:-

"2(a) "aggrieved person" means any woman who is or has been in a
domestic relationship with the respondent and who alleges to have
been subjected to any act of domestic violence by the respondent;

(b)…………………..

(c)…………………..

(d)………………….

(e)………………….

(f) "domestic relationship" means a relationship between two persons
who live or have, at any point of time, lived together in a shared
household, when they are related by consanguinity, marriage or
through a relationship in the nature of marriage, adoption or are
family members living together as a joint family;"

7. Thus, a perusal of Section 2(a) and 2(f) of the Act shows that any woman who is in a domestic relationship, the said domestic relationship being one between two persons who lived at any point of time together in a shared household related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or family members living as a joint family and alleges that she has been subjected to any domestic violence by the Respondent is entitled to relief under the Act.

8. The word „aggrieved person? cannot be given a restricted meaning in view of para „2? of the Statement of Objects & Reasons which states that:-

"The phenomenon of domestic violence is widely prevalent but has
remained largely invisible in the public domain. Presently, where a
woman is subjected to cruelty by her husband or his relatives, it is
an offence under Section 498A of the Indian Penal Code. The civil law
does not however address this phenomenon in its entirety.

Thus, it is evident that phenomenon which was sought to be addressed was "domestic violence" and not "domestic violence qua the daughter-in-law or the wife only as contemplated under Section 498A.

9. As a matter of fact, para „4(i)? clarifies that even those women who are sisters, widows, mothers, single woman or living with the abuser are entitled to legal protection under the proposed legislation. A mother who is being maltreated and harassed by her son would be an "aggrieved person". If the said harassment is caused through the female relative of the son i.e. his wife, the said female relative will fall within the ambit of the „respondent?. This phenomenon of the daughters-in-law harassing their mothers-in-law especially who are dependent is not uncommon in the Indian society.

10. In view of the authoritative pronouncement of the Hon?ble Supreme Court, para „4? of the Statement of Objects and Reasons cannot be stated to have excluded a female relative of the male partner or a respondent and thus, a mother-in-law being an "aggrieved person" can file a complaint against the daughter-in-law as a respondent.

11. Thus, I find that no case for quashing of the complaint is made out. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE

SEPTEMBER 02, 2011

vkm

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Kejriwal govt set to launch bigger, better anti-corruption helpline; How can husbands use this ?

Delhi: Kejriwal govt set to launch bigger, better anti-corruption helpline today

  • Faizan Haider, Hindustan Times, New Delhi
  • Updated: Apr 05, 2015 09:26 IST

kjeriwal

Delhi CM and AAP convener Arvind Kejriwal arrives to attend the party’s national executive at Kapashera in New Delhi. (PTI Photo)

The biggest talking point of the Aam Aadmi Party’s (AAP’s) 49-day tenure in 2014 is set to make a comeback from Sunday. The AAP government will return with its anti-corruption helpline on Sunday, asking citizens to conduct sting operations of corrupt officials. The government has invited the public residents to attend the event that will be held at Talkatora stadium.

The helpline number 1031, which could cater to only 25% calls due to a shortage of lines, has undergone a makeover and can now attend 10,000 calls per day against 1,000 last time.

Sources said executives had been trained to attend calls and direct the caller on how to conduct sting operations. After receiving the call, an executive will categorized the call in two parts – serious and non-serious.

“The serious calls will further be categorized according to callers agreeing to conduct sting operations and as per departments where raids need to be conducted. The details will then be transferred to the anti-corruption branch, which will initiate action,” said a senior Delhi government official, requesting anonymity.

The faces operating the helpline will be kept a secret and the operators will call back residents duly to ascertain details of their planned operation. “Callers will be subsequently coached on how to trap those asking for a bribe. The people who advise them are part of a separate cell and are trained in sting operations,” the official added.

Since, conducting sting is not only about recording but also requires behavioral training, the experts are expected to spend a lot of time with a caller. “If a person is hesitant in conducting the sting operation, our staff will do it on their behalf. We have enough man power and technical equipment to do so,” he further said.

The Delhi government has also strengthened its anti-corruption branch and increased the funding of the department for better investigation of corruption cases. The government has increased the budget of the anti-corruption branch to Rs 15 crore from Rs 8 crore. There will be 40 teams who will take part in investigations and raid.

Domestic help alleges sexual harassment by SC lawyer’s son ; The Hindu web Edition !

Return to frontpage

Updated: April 2, 2015 05:35 IST

Domestic help alleges sexual harassment by SC lawyer’s son

Staff Reporter

The Delhi Police have registered a case of sexual harassment against the son of a senior Supreme Court lawyer. The case was registered on the basis of a complaint filed by the man’s domestic help at the Vasant Vihar police station on Tuesday.

According to the police, the woman who had been working at the house of the accused for the last three years has alleged that her employer Kartik (35) had been sexually harassing her for the last three months.

“The woman told us that every time she tried to object to his behaviour or tried to lodge a complaint, he threatened her with his father’s authority. His father is a lawyer practising at the Supreme Court, who is currently unwell and has been resting at home after he underwent a surgery,” a police officer said.

The officer, however, refused to divulge the name of the lawyer.

The complainant was asked to look after the accused man’s father after his surgery. For this, she was required to leave her home and stay at her employer’s house to be able to look after his father round the clock.

“During this period the complainant and the accused started interacting and taking advantage of this, the man tried to sexually harass the woman,” the officer added.

The complainant hails from South India and has been staying at the accused man’s house for the last three months. The accused works at a private company.

The police are now trying to talk to other family members of the accused to get more information.

Source : ‘The Hindu’ web edition

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

14 lakhs over & above earlier monthlies. Ancestral property & future sal increase considered !

IRBM ahead of times?

While many activists are fighting against Hindu Marriage act amendment (famously called the IRBM), fearing that wife will get a share of the males ancestral property, here is a classic case where in the year 2010, the husband has been ordered to pay 14 Lakhs though his monthly salary is only 40 thousands and the wife is entitled to only Rs 10000 p.m. if she were to get money monthly! Why are the courts going for a lumpsum when the man isn’t showing a huge bank balance ?? it’s because of ancestral property !!

I guess this will be the fashion in future, when courts start ordering such large alimony considering ancestral property!!

“….. That matter was considered …. salary in excess of Rs.22,000/- per month and directed that from 1.4.2007 the husband shall pay permanent alimony at the rate of Rs.10,000/- …..”

“….It was also highlighted that on account of death of her mother on 6.1.2000 and death of her father on 16.11.2005 the wife has inherited movable and immovable property of her parents and has substantial amount of Rs.4.45 lakhs in fixed deposits and even larger amount in her bank accounts…..

“….8. After considering the various case laws cited by the parties, the court below found her entitled for permanent alimony but since it held that there was nothing on record that the husband petitioner was in possession of huge cash, bank balance or more than one residential house, the court below found it proper to award monthly maintenance at the rate of Rs.10,000/- per month with effect from 1.10.2000 i.e. after decree of divorce dated 28.9.2000…..”

“….14. An effort was made by this Court for making the parties agree to part amicably by agreeing for a reasonable and proper lump sum amount as alimony and not to pursue the criminal cases lodged by the wife. The wife insisted for the entire claim amount of Rs.30 lakhs and the husband expressed inability in paying lump sum alimony beyond Rs.18 lakhs. Since the gap could not be bridged, the efforts for amicable settlement failed …”

"….On the other hand, it has been submitted by wife that in paragraph 17 of the judgment under appeal the court below has taken note of existence of ancestral lands as well as sale deed in the name of the husband, a report of the Circle Officer to show at least 16 acres of land in the name of grandfather of the husband. …”

"…..in order to avoid further trauma to her and difficulties in getting monthly maintenance regularly in view of persisting bad relationship it will be in the interest of justice to award one time lump sum alimony. While the real value of a fixed amount of money payable is bound to decrease with passage of time, the salary of the husband is likely to increase in the coming years. Considering his salary income as well as materials to show his immovable property, in our view, a lump sum amount of Rs.14 lakhs would be just, appropriate and reasonable by way of lump sum permanent alimony. ….."

I can’t see the 498a etc pending in lower courts being quashed even !!

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Patna High Court

Manoj Ambastha vs Smt.Lakshmy Rani Kapoor on 3 September, 2010

Author: Shiva Kirti Singh

MISCELLANEOUS APPEAL No.370 OF 2005

Manoj Ambastha son of Shri A. K. Sinha at present resident of

Mohalla- Anandpuri, P.S. S.K.Puri, Town and District Patna ….. Petitioner- Appellant

VERSUS

Smt. Lakshmy Rani Kapoor daughter of Prof. Brahma Deo Prasad,

resident of Sadar Gali, Khajekallan, P.,S. Khajekallan, Patnacity,

District Patna …. Respondent – Respondent

WITH

MISCELLANEOUS APPEAL No.179 OF 2006

Lakshmy Rani Kapoor D/o Brahmadeo Prasad, R/o Sadar Gali, Patna

city, P.S. Khajekala, Distt. Patna …. Appellant – Respondent

VERSUS

Manoj Ambastha son of Awadhesh Kumar Sinha, R/o Manorama

Karkil Kunj Flat No.204 B, Boring Canal Road- 8, posted at Distt.

Mining Officer, New Secretariat, Patna …. Respondent- Petitioner

***********

Against the common judgment and order dated 20.8.2005 passed in Matrimonial Case No.28 of 1996 by the Principal Judge, Family Court, Patna

**********

For the Appellant – : M/s Janardan Pd. Singh and

Respondent Upendra Kumar Singh, Advocates

For the Respondent – : Mrs Lakshmy Rani Kapoor, In- person Appellant

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*********

PRESENT

THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH

THE HON’BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

Shiva Kirti Singh, J.

Both the appeals under Section 19 of the Family Court Act, 1984 (hereinafter referred to as ‘the Act’) arise out of a common order dated 20.8.2005 passed in Matrimonial Case No.28 of 1996 by the Principal Judge, Family Court, Patna under Section 25 of the Act. By the order under appeal, the learned court below has not accepted the claim of the appellant Lakshmy Rani Kappor ( for short ‘the wife’) for a lump sum permanent alimony of Rs.30 lakhs but has granted alimony by way of monthly payment of Rs.10,000/-. The wife has preferred Miscellaneous Appeal No.179 of 2006 for decree of her claim of Rs.30 lakhs by way of permanent alimony in one lump sum whereas Manoj Ambastha (for short ‘the husband’) has preferred the other appeal on the ground that the award of Rs.10,000/- per month by way of alimony is excessive.

2. For proper appreciation of the issue involved in these appeals, a look at the background facts in brief appears to be relevant. The husband brought about Matrimonial Suit No.28 of 1996 under Section 13 of the Hindu Marriage Act, 1955 seeking a decree of divorce against his wife on the grounds of cruelty, desertion and adultery. The allegations were denied by his wife who alleged cruelty on the part of the husband such as by demand of dowry, physical assault etc. On these grounds she also prayed for a decree of divorce which was granted by judgment and decree dated 28.9.2000. However, on some technical ground such as lack of verification and affidavit, the Family Court did not allow permanent alimony. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

3. The wife challenged the denial of permanent alimony and maintenance before this Court through Miscellaneous Appeal No.587 of 2000. By judgment and order dated 5.3.2003, this Court directed the husband to pay maintenance at the rate of Rs.4,000/- per month till a final decision of her claim for alimony and maintenance under Section 25 of the Hindu Marriage Act and remitted the matter to the Family Court for a decision within four months.

4. It is further relevant to note that Miscellaneous Appeal No.587 of 2000 preferred by the wife was also directed against findings like desertion and cruelty which were made the ground for grant of divorce. In that appeal an order was passed on 19.3.2001 which is Annexure-3 to Miscellaneous Appeal No.370 of 2005. By that order while fixing interim maintenance of Rs.4000 per month, a Division Bench of this Court held that only for technical reasons the court below had examined the alleged grounds for divorce and held them good for granting divorce along with a finding that the divorce between the two had become a necessity. This Court held that the discussions and findings regarding desertion and cruelty were superfluous and in the facts of the case, could not be taken seriously so as to affect the claim of the wife for permanent alimony under Section 25 of the Act. By that order this court revised the interim maintenance from Rs.1600 to Rs.4000/- per month till the court below passed final orders under Section 25 of the Hindu Marriage Act and disposed of the matrimonial suit. Against that order the husband preferred Civil Review No.60 of 2001 which was heard with the main Miscellaneous Appeal No.587 of 2000 leading to final disposal of the Miscellaneous Appeal by order dated 5.3.2003 which is Annexure -4 to Miscellaneous Appeal No.370 of 2005.

5. In spite of direction to dispose of the application under Section 25 of the Hindu Marriage Act within four months, the matter remained pending because of non- cooperative attitude of the husband. He had filed MJC No.932 of 2003 before this Court for modification of the final judgment dated 5.3.2003 passed by this Court in Miscellaneous Appeal No.587 of 2000. That matter was finally disposed of by order dated 10.3.2005. A copy of that order is Annexure- 1 to Miscellaneous Appeal No.179 of 2006. Therein this Court noticed the non- cooperative attitude of the husband as he had disregarded the order of the Family Court to give details of his property and latest salary statement. The interim maintenance of Rs.4000/- per month granted on the basis of salary of Rs.13,000/- at the relevant time as decided on 19.3.2001 was not interfered with and several directions were issued by this Court for expediting the proceeding before the Family Court and for its disposal within a period of four months. Thereafter, the order under appeal was passed on 20.8.2005.

6. As per order of remand passed by this Court, the Family Court reconsidered the entire matter relevant for deciding permanent alimony and maintenance under Section 25 of the Hindu Marriage Act. For this, it considered the conduct of the parties by discussing the relevant materials on this issue in paragraphs 11, 12 and 13 of the impugned order and came to a conclusion in paragraph 14 that both sides had made allegations against each other but the beginning was made from the husband side and there is nothing in the conduct of the wife to deprive her of alimony or for grant of reduced alimony.

7. On the issue of income of the parties, the court below noticed that the husband was a Class II officer in Government of Bihar for more than 16 years and his salary chart in Exhibit B series was also noticed along with the fact that since sometime he was under suspension. It was also noticed that the wife had no property in her name and her father was free to dispose of his property any way he liked. The husband had admitted in his evidence that he has some ancestral lands along with some co-sharers but insisted that there is no income from those properties. On behalf of the wife, sale deed dated 24.1.1970 (Exhibit 10) in the name of her husband and report regarding 16 acres of ancestral properties was brought on record but the court found that income from such properties could not be established. The statement of the petitioner husband that he had booked a flat in which he was residing but registration had not been done till date was noticed by the court below. However, allotment letter from the builder and developer in favour of the husband was brought on record as Exhibit 7 in respect of a flat in Manorama Kokil Kunj Apartment, Anandpuri, Patna. Application for electrical connection in that flat by the husband and electric bill for the meter installed therein were also exhibited. The court below also noticed Exhibit 9, a telephone bill in the name of father of the husband installed in Ram Krishna Villa, Mahesh Nagar, Patna but it found that the same was not sufficient to prove ownership of that house in favour of the husband or his father.

8. After considering the various case laws cited by the parties, the court below found her entitled for permanent alimony but since it held that there was nothing on record that the husband petitioner was in possession of huge cash, bank balance or more than one residential house, the court below found it proper to award monthly maintenance at the rate of Rs.10,000/- per month with effect from 1.10.2000 i.e. after decree of divorce dated 28.9.2000.

9. In view of the fact that the husband was under suspension at the relevant time the court below permitted him to continue payment of maintenance at the rate of Rs.4000/- only per month and it was directed that payment / recovery of arrears of remaining Rs.6000/- per month shall remain in abeyance till decision of the Department on his suspension or till he starts getting full pay. It was further directed that in case suspension of the husband petitioner is revoked, the concerned Department shall deduct balance of the remaining maintenance amount from the arrears of salary and pay the same to the wife respondent. But in case he is dismissed from service on account of departmental proceeding pending against him, he will continue paying monthly maintenance at the rate of Rs.4000/- per month only. The immovable property of the husband was placed under- charge for the payment/ recovery of the arrears of maintenance amount.

10. It is not in dispute that the husband remained under suspension from May 2003 till March 2007 and during this period, he was getting only subsistence allowance and has already paid maintenance at the rate of Rs.4,000/- per month.

11. After revocation of suspension on 1.4.2007, the wife made a prayer before this Court in these appeals that the husband may be directed to pay the arrears of maintenance at the rate of Rs.10,000/- per month and to continue to pay future maintenance at that rate as per direction in the order under appeal, till the disposal of these appeals. That matter was considered and by order dated 4.8.2008 this Court considered the Income tax salary statement pertaining to the husband, then posted as Mineral Development Officer, for the financial year 2007-08 which showed salary in excess of Rs.22,000/- per month and directed that from 1.4.2007 the husband shall pay permanent alimony at the rate of Rs.10,000/- and the arrears for the period from 1.4.2007 till 31.7.2008 were also directed to be paid in installments. Admittedly, those arrears have been paid as per direction of this Court. Complaints have been made by the wife that the current maintenance is being paid after delay and allegedly defaults have taken place. In defence, it has been submitted that delay has been caused on occasions due to wife not being available at the known address. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

12. On behalf of the appellant husband it has been submitted that through a supplementary affidavit in Miscellaneous Appeal No.370 of 2005 the order of punishment in departmental proceeding dated 3.4.2007 has been brought on record which shows that for the suspension period he is not to get anything beyond the subsistence allowance. It was also highlighted that on account of death of her mother on 6.1.2000 and death of her father on 16.11.2005 the wife has inherited movable and immovable property of her parents and has substantial amount of Rs.4.45 lakhs in fixed deposits and even larger amount in her bank accounts.

13. The pay slip of the husband for the month of March 2010 is available on record through a supplementary affidavit filed by him in Miscellaneous Appeal No.370 of 2005 and it shows that after deducting Rs.2000 on account of GPF, Rs.2000/- for income tax and Rs.120 for group insurance, his net monthly salary is Rs.40813/- (Forty thousand eight hundred and thirteen). The court below has found that according to allegation made by the wife the husband had relationship with another lady since 1995 and allegedly during the pendency of the divorce proceeding, he entered into a second marriage and has an issue. According to the husband, the said marriage was subsequent to decree of divorce. But it appears that the wife has not only succeeded in securing conviction of the husband in a case under Section 498A of the IPC from the trial court but has also lodged a criminal case under Section 494 and other Sections of the IPC in which cognizance has been taken by Sub Divisional Judicial Magistrate, Patna on 9.7.2007.

14. An effort was made by this Court for making the parties agree to part amicably by agreeing for a reasonable and proper lump sum amount as alimony and not to pursue the criminal cases lodged by the wife. The wife insisted for the entire claim amount of Rs.30 lakhs and the husband expressed inability in paying lump sum alimony beyond Rs.18 lakhs. Since the gap could not be bridged, the efforts for amicable settlement failed and hence, the matter now has to be decided on merits.

15. Considering the fact that husband is a Gazetted officer and drawing net salary around Rs.40,000/-, we find that the amount of Rs.10,000/- per month cannot be reduced any further as pleaded on behalf of the husband. In fact, if this Court decides in favour of alimony by way of monthly payment then Rs.10,000 may need to be revised to Rs.14,000.

16. However, it has further been submitted on behalf of the husband that the direction to pay maintenance at the rate of Rs.10,000/- per month since 1.10.2000 is excessive and without considering that at that time, as per order of this Court his salary was around Rs.13,000/- per month and, therefore, this Court had fixed interim maintenance at the rate of Rs.4,000/- per month only. Further submission is that the subsistence allowance was still lower between the period of suspension i.e. May 2003 to March 2007 and, therefore, while passing interim order on 4.8.2008, this Court directed, in the interest of justice, to pay permanent alimony at the rate of Rs.10,000/- on or from 1.4.2007 i.e. only after revocation of suspension. Hence, it has been submitted that this Court should modify the order under appeal by reducing the maintenance amount from 1.10.2000 till March 2007 at the rate of Rs.4000/- per month. On the other hand, the wife has submitted that existence of immovable property belonging to the husband was found by the court below and although income from that property could not be proved but every property must be deemed to have some notional income and hence, no interference should be made with the amount of maintenance even for the aforesaid period between 1/10/2000 and 31.3.2007, rather this Court should direct for payment of arrears for that period within a fixed period or else permit the execution proceeding in the court below to proceed.

17. On considering the earlier orders and the salary as well as subsistence allowance which the husband received prior to April 2007, we find merit in the aforesaid submission advanced on behalf of the husband. Hence, for the purpose of arrears of maintenance only, the maintenance amount of Rs.10,000/- per month is ordered to be reduced to Rs.4,000/- per month for the period 1.10.2000 to 31.3.2007. If on the basis of Rs.4,000/- per month payable for that period any arrear is found due as per materials on record, the same should be paid by the husband to the wife within a period of three months from the date of this judgment failing which the same will be realizable through execution proceeding as per law.

18. Coming to the claim of the wife, it is to be decided whether the alimony and maintenance should be left at Rs.10000/- per month or should be enhanced by way of monthly payment only or the claim of the wife for grant of a proper lump sum alimony be accepted. In that event, it would be necessary for this Court to find out what should be a reasonable and proper lump sum permanent alimony. In case, monthly alimony and maintenance is to be awarded then in our view, it should be Rs.14,000/- per month for the present.

19. The learned court below has fixed Rs.10000/- per month as alimony and maintenance in preference to one time lump sum payment on the ground that there is nothing on record to show that the husband is in possession of huge cash, bank balance or more than one residential house so as to arrange for one time payment. On the other hand, it has been submitted by wife that in paragraph 17 of the judgment under appeal the court below has taken note of existence of ancestral lands as well as sale deed in the name of the husband, a report of the Circle Officer to show at least 16 acres of land in the name of grandfather of the husband. According to her, the father of the husband also has a house and separate income as retired Labour Commissioner and there are enough exhibits to show that the husband has acquired a flat in the town of Patna. Thus, it has been submitted that from the materials available on record and from the offer of Rs.18 lakhs made for compromise of all cases it is clear that the husband has necessary means to pay one time lump sum alimony. According to the wife, the relations between the two parties have deteriorated so much that she will never get regular payment of monthly maintenance and she will always be forced to approach the court through execution proceeding and this shall adversely affect her entire future life. It has been submitted on her behalf that she is no doubt a Post graduate but is unemployed and now when her parents are no more, she needs financial security for the rest of her life so as to meet eventuality like illness, accident etc.

20. Having considered the entire facts and circumstances of the case and the submissions of the rival parties, we feel persuaded to accept the submission on behalf of the wife that in order to avoid further trauma to her and difficulties in getting monthly maintenance regularly in view of persisting bad relationship it will be in the interest of justice to award one time lump sum alimony. While the real value of a fixed amount of money payable is bound to decrease with passage of time, the salary of the husband is likely to increase in the coming years. Considering his salary income as well as materials to show his immovable property, in our view, a lump sum amount of Rs.14 lakhs would be just, appropriate and reasonable by way of lump sum permanent alimony. This amount shall be payable by the husband to the wife either in installments or in a lump sum within a period of nine months from today. However, 50 per cent of the said amount must be paid within a period of four months from today. The rest amount shall be payable within remaining period of five months. The liability to pay interim maintenance at the rate of Rs.10000/- per month shall continue till the entire amount of Rs.14 lakhs is paid to the wife.

21. Although the effort for amicable settlement has failed but before parting with this judgment we wish and hope for the wife to agree for amicable settlement of all the pending litigations on the terms offered and if that happens within a reasonable time, we grant liberty to the parties to file a joint application for modification of this order and for incorporating the terms of compromise in larger interest of both the parties. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

22. Both the appeals are disposed of accordingly. There shall be no order as to costs.

(Shiva Kirti Singh, J.) I agree.

Hemant Kumar Srivastava, J.

(Hemant Kumar Srivastava, J.)

Patna High Court

The 3rd September, 2010

S.Kumar NAFR

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Manoj_Ambastha_son_of_Shri_A_K_Sinha__Vs_Smt_Lakshmy_Rani_Kapoor_daughter_of_Prof_Brahma_Deo_Prasad_Pay_14lakhs_alimony_Ancestral_property_&_future_sal_increase_considered

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist