Tag Archives: Maintenance

wife earning 74000 NOT entitled to maintenance though NRI husband earns 75 lakhs p.a. Cal HC Classic !!

wife earning 74000 NOT entitled to maintenance though NRI husband earns 75 lakhs p.a. Cal HC Classic

Brief facts / bloggers notes

  • Husband files for divorce on grounds of cruelty
  • As always wife seeks $$$ moolaaah !!
  • Lower court notes that wife is gainfully employed and is NOT entitled to maintenance
  • however some 30,000 lawyers fee granted (though not stated, please note that lawyer fee is ONE TIME ONLY.
  • Wife goes on appeal to CALCUTTA HC
  • HC rightly observes that interim maintenance / alimony is for temporary reprieve till final orders are passed and a woman earning approx 74 K is NOT entitled to further maintenance
  • Special marriage act case
  • However , IMHO the dictum / logic should apply to other cases also !!

////////////9. The object of Section 36 of the Special Marriage Act, 1954 is to provide a temporary financial support pending any action under Chapter V or VI of the said Act to the wife who has no independent income sufficient to maintain herself. The present income of the wife/petitioner as it appears from her aforementioned salary certificates is not less than Rs. 74,000/- per month which is sufficient for her support particularly when she herself has assessed her requirement at Rs. 50,000/- in the application for alimony pendente lite.

The learned trial Judge in the order impugned has considered the requirement of the wife/petitioner vis-à-vis her income and is absolutely justified in refusing the prayer of the wife/petitioner for alimony pendente lite. The order impugned, therefore, does not call for any interference.////////////

Image result for CALCUTTA HC IMAGES

Calcutta High Court (Appellete Side)

Somdatta Chatterjee Nee … vs Anindya Chatterjee on 11 June, 2019

Form No. J (2)

IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Biswajit Basu

C.O. No. 1972 Of 2016
(Assigned)

Somdatta Chatterjee nee Raychaudhuri
versus
Anindya Chatterjee

For Petitioner : Mr. Probal Kr. Mukherjee, Sr. Adv.,
Mr. Sukanta Chakraborty,
Mr. Anindya Halder

For Opposite Party : Mr. Kallol Basu,
Mr. Tanoy Chakraborty,
Mr. Chhandak Dutta

Heard on : 11.06.2019.

Judgment On : 11.06.2019.

Biswajit Basu, J.

  1. The revisional application under Article 227 of the Constitution of India is directed against Order No. 17 dated March 18, 2016 passed by the learned Additional District Judge, 11th Court, Alipore, District 24 Parganas (South) in Miscellaneous Case No. 27 of 2015 arising out of Matrimonial Suit No. 31 of 2015.
  2. The husband/opposite party filed the connected matrimonial suit seeking dissolution of his marriage with the wife/petitioner by a decree of divorce, inter alia, on the grounds of cruelty.
  3. The wife in the said suit filed an application under Section 36 of the Special Marriage Act, 1954 praying alimony pendente lite at the rate of Rs. 50,000/- per month. The said application of the wife/petitioner was registered before the learned trial Judge as Misc. Case No. 27 of 2015.
  4. The learned trial Judge by the order impugned has disposed of the said Misc. Case thereby refused to grant any alimony pendente lite to the wife/petitioner on the ground that she has sufficient independent income to support herself. However, the learned trial Judge by the said order has awarded a sum of Rs. 30,000/- to the wife petitioner on account of litigation expenses.
  5. The grievance of the wife/petitioner is that the learned trial Judge while refusing her prayer for alimony has failed to appreciate that the husband is working in all reputed organizations in USA and is earning 1,20,000 USD per annum which in Indian currency is Rs. 75,00,000/- per annum and she is entitled to maintenance proportionate to the said income of the husband as her income is much less than her requirement and entitlement.
  6. The wife/petitioner in the application for alimony pendente lite has disclosed her income from salary at Rs. 48,000/- per month. She in the said application at paragraph 14 stated her requirement with break up. The said paragraph 14 of the application under Section 36 of the Special Marriage Act, 1954 is quoted below: “14. That the petitioner states that to maintain herself as per the status of the respondent the petitioner needs a sum of Rs. 50,000/- per month in following heads : Rs. 10,000/- as household maintenance and other utilities Rs. 4000/- as pocket allowance and Rs. 22,000/- for goods, groceries, clothes and other daily needs and Rs. 14,000/- legal expenses.”
  7. The wife/petitioner, therefore, has assessed her requirement to maintain herself as per the status of the husband/opposite party at Rs. 50,000/- per month. She has admitted that as on the date of filing of the said application her earning was Rs. 48,000/- per month as such her income on the date of filing of the said application for alimony pendente lite was sufficient for her support.
  8. The wife/petitioner on cross-examination has admitted that house rent allowances of Rs. 14,133/- and transport allowances of Rs. 3534/- are being reimbursed by her employer. Therefore, the wife/petitioner by virtue of her employment is receiving money from her employer on some of the heads on which her prayer for alimony pendente lite is founded.
  9. In terms of the direction passed by this Court the wife/petitioner has produced her salary certificate for the months of December 2018, January 2019 and March 2019. On perusal of the said salary certificates it appears that the wife/petitioner on account of her salary in the month of December 2018 and January 2019 had received salary of Rs. 74,624/- and in the month of March 2019 she had received a sum of Rs. 81,219/-.
  10. The object of Section 36 of the Special Marriage Act, 1954 is to provide a temporary financial support pending any action under Chapter V or VI of the said Act to the wife who has no independent income sufficient to maintain herself. The present income of the wife/petitioner as it appears from her aforementioned salary certificates is not less than Rs. 74,000/- per month which is sufficient for her support particularly when she herself has assessed her requirement at Rs. 50,000/- in the application for alimony pendente lite.
  11. The learned trial Judge in the order impugned has considered the requirement of the wife/petitioner vis-à-vis her income and is absolutely justified in refusing the prayer of the wife/petitioner for alimony pendente lite. The order impugned, therefore, does not call for any interference.
  12. C.O. No. 1972 of 2016 is accordingly dismissed. No order as to costs.

Urgent photostat certified copy of this Judgment, if applied for, be given to the parties on usual undertakings.

(Biswajit Basu, J.) SK

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Wife cannot claim CrPC 125 maintenance on the SAME SET of facts already used in a DV maintenance case! CrPC 125 Quashed – Madras HC

However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law.

8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed.

Wife cannot claim CrPC 125 maintenance on the SAME SET of facts already used in a DV maintenance case! Madras HC

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on :       07.03.2018

Date of Verdict :     26.06.2018

CORAM THE HONOURABLE MR.JUSTICE M.S.RAMESH

Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017

S.Suriya Devi  …Petitioner in Crl.O.P.27507/2017 & Respondent in Crl.O.P.10089/2017

V.

Thilip Kumar …Respondent in Crl.O.P.27507/2017 & Petitioner in Crl.O.P.10089/2017

Prayer in Crl.O.P.No.27507/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to direct the Family Court, Coimbatore to dispose the petition in M.C.No.38 of 2017 expeditiously pending on the file of the Family Court, Coimbatore within time frame as fixed by this Court.

Prayer in Crl.O.P.No.10089/2017:- Criminal Original Petition filed under Section 482 Cr.P.C. to quash the proceedings in M.C.No.38 of 2017 on the file of the Additional Family Court, Coimbatore.

For Petitioner in Crl.OP.27507/2017 : Ms.V.S.Usha Rani & Respondent in Crl.OP.10089/2017

For Petitioner in Crl.OP.10089/2017 : Mr.R.Baskar & Respondent in Crl.OP.27507/2017

C O M M O N O R D E R

While the husband had filed the petition in Crl.O.P.No.10089 of 2017 seeking for quashing the maintenance case in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore preferred by the respondent/wife, Crl.O.P.No.27507 of 2017 has been filed by the wife seeking for an expeditious disposal of her petition in MC.No.38 of 2017.

2.Heard Ms.V.S.Usha Rani, learned counsel for the wife and Mr.R.Baskar, learned counsel for the husband.

3.For the sake of convenience, the facts revealed in Crl.O.P.No.10089 of 2017 is being addressed to. The marriage between the petitioner and the respondent herein was performed on 25.05.2014. After brief stay together for less than two months, both the parties had separated. According to the petitioner, the respondent had left the matrimonial house on 13.07.2014. During their estranged relationship, the petitioner herein left the country on 14.02.2015 in connection with his employment.

4.It is in connection with the estranged relationship, the respondent herein had filed a complaint under the Protection of Women from Domestic Violence Act, 2000 in DVA.No.27 of 2016 seeking for various reliefs including the relief of monthly maintenance, in which the respondent’s husband and in-laws were made as party respondents. On receipt of summons in the domestic violence case for the complaint dated 25.05.2016, the petitioner/husband herein moved a quash petition in Crl.O.P.No.2972 of 2017, which is pending against the petitioner herein.

5.But, would the aggrieved person be entitled to claim maintenance simultaneously under the provisions of Code of Criminal Procedure Code as well as Domestic Violence Act for the same cause of action? The scheme of Domestic Violence Act is to provide for an effective protection of the lives of women guaranteed under the Constitution, who are the victims of violence of any kind occurring within the Family for incidental matters. Section 125 Cr.P.C., empowers the Magistrate to order for maintenance when it is established that the person having sufficient means, neglects or refuses to maintain his wife. Whenever such an order of maintenance is passed under Section 125 Cr.P.C., and in the given circumstances, the aggrieved person is of the view that there has been further acts of domestic violence, incurring expenses and loss, the order already passed under Section 125 Cr.P.C., will not preclude the aggrieved person in invoking the provision under Section 20 of the Domestic Violence Act. However, when the aggrieved person has invoked the provisions of Section 125 Cr.P.C., on a set of cause of action or refusal to maintain, it would not be permissible for her to invoke Section 20 of the Domestic Violence Act for the same cause of action, pleading that she had incurred expenses and losses owing to these same acts of domestic violence and thereby claim additional maintenance. The language deployed under Section 20(1)(d) is only for the purpose of enabling the aggrieved person to seek for maintenance when there has been further acts of domestic violence, pursuant to an order passed under Section 125 Cr.P.C., whereby she incurs expenses or losses as a result of the domestic violence. It is with this object that Section 20(1) of the Domestic Violence Act has been enacted and by no stretch of imagination can it be said that a wife can simultaneously claim maintenance before two forums, on the same set of cause of actions, under the Code of Criminal Procedure Code as well as the Domestic Violence Act. Such parallel and simultaneous proceedings would not only be illegal but also would amount to an abuse of process of law. In the judgment relied upon by the learned counsel for the petitioner reported in 2015 (4) LW 545 [B.Prakash V. Deepa and another], this Court had observed as follows:-

17.The next question, which arises for consideration, is as to whether an order for maintenance made by a Magistrate under Section 125 of the Code, shall be a bar for a Magistrate acting under Section 20 of the Act to pass an order for maintenance. In this regard, again, we should have a look into the Section 20(1)(d) of the Act, which states that the monetary relief granted under Section 20 of the Act may include an order for maintenance, in addition to an order of maintenance under Section 125 of the Code. Thus, it is crystal clear that a previous order for maintenance passed by a Magistrate under Section 125 of the Code, is not a bar for a Magistrate acting under Section 20 of the Act to pass yet another order granting monetary relief under Section 20 of the Act, by way of maintenance under Section 125 of the Code. Here, it needs to be noted that the subsequent order made under Section 20 of the Act is not in any way in modification or variation of the earlier order made under Section 125 of the Code by a Magistrate.

18. If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.

6.In the present case in hand, I have perused the pleadings in the petition filed under Domestic Violence Act for monetary relief as well as the petition under Section 125 of Cr.P.C., seeking for maintenance. The grievance of the respondent and the cause of action alleged in both these petitions are one and the same. The respondent herein had already invoked the provisions of the Domestic Violence Act seeking for monetary reliefs among other reliefs on 25.05.2016. Subsequently, she had invoked the provisions under Section 125 Cr.P.C., on 08.02.2017. In the petition under Domestic Violence Act, the respondent herein had sought for a direction to pay a sum of Rs.50,000/- for maintenance under Section 20(3) of the Domestic Violence Act. In the subsequent maintenance case filed under Section 125 Cr.P.C., the respondent herein had sought for a monthly maintenance of Rs.1 lakh.

7.Insofar as Section 20(3) of Domestic Violence Act is concerned, the same has to be read along with sub section (1) and the powers of the Magistrate to order for a lumpsum payment or a monthly payment under sub section (3) is a continuation of the powers vested on the Magistrate while ordering monetary relief to meet the expenses incurred and losses suffered by the aggrieved person. In other words, whenever an application seeking for monetary relief under Section 20(1) is made and when the Magistrate comes to the conclusion that such a monetary relief is required to be ordered in favour of the aggrieved person, he shall have powers to order such an amount either as lumpsum payments or monthly payment of maintenance as provided under sub section (3) of the Act. In any case, the amount referred to under sub section (3) is only for the maintenance of the aggrieved person.

8.The petitioner herein having chosen to invoke the provisions of the Domestic Violence Act seeking for monetary relief under Section 20(3), cannot subsequently invoke Section 125 Cr.P.C., for maintenance on the same set of facts and cause of action in view of my reasonings given above. Even otherwise, there is no provision under the Code of Criminal Procedure empowering the Magistrate to order for maintenance under Section 125 Cr.P.C., when it is brought to his notice that an order for maintenance has already been granted under Domestic Violence Act or any other enactments. If both the Courts are permitted to adjudicate the claim made by the respondent/wife and in case, an order is passed granting maintenance in both the cases, there would be gross miscarriage of justice and the petitioner would be put to serious prejudice. Hence, it would be impediment that the subsequent proceedings initiated by the respondent herein under the provisions of Section 125 Cr.P.C., requires to be quashed. No prejudice would be caused to the respondent by quashing the proceedings since her interest has already been protected in her earlier proceedings under Domestic Violence Act.

9.In view of the aforesaid discussions, the petition in Crl.O.P.No.10089 of 2017 is allowed. Consequently, the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore stands quashed. In view of the quashing of the proceedings in M.C.No.38 of 2017 on the file of the learned Additional Judge, Family Court, Coimbatore, Crl.O.P.27507 of 2017 seeking for expeditious disposal of the maintenance case, stands dismissed. Consequently, connected Miscellaneous Petitions are closed.

26.06.2018 Speaking order

Index : Yes

Internet : Yes

DP To The Additional Family Court, Coimbatore.

M.S.RAMESH, J.,

DP Order in Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017 26.06.2018

Wife Can Be Prosecuted For Lying Before Court To Claim Maintenance: Gujarat HC

It is often found that the litigants coming before the court chose to speak blatant lies and do so with complete impudence, the court said.Lying on affidavit and deposing falsehood in the witness box…

Wife Can Be Prosecuted For Lying Before Court To Claim Maintenance:

Gujarat HC

[Read Judgment]

BY: ASHOK KM

14 Nov 2016 10:43 AM

It is often found that the litigants coming before the court chose to speak blatant lies and do so with complete impudence, the court said. Lying on affidavit and deposing falsehood in the witness box is much not unusual in litigation, especially when it is a matrimonial one.

The ego clashes between the parties, the husband and wife, catalyses the otherwise usual tendency to lie. But this recent order by Gujarat High Court is a warning to such people. Also Read – Guj HC Orders Removal Of Police Protection Granted Mechanically For Fencing Disputed Land [Read Judgment]

The Gujarat High Court has upheld a trial court order which ordered prosecution of a lady for blatantly lying before the court to claim maintenance from the husband. Stating that his wife had suppressed the fact that she gets permanent alimony from her former husband and lied in affidavit, an application was moved before the Family Court, Rajkot, by the husband, to take action against his wife under Section 195 read with Section 340 CrPC for committing an offence under Sections 191, 192 and 193 of the Indian Penal Code, which was allowed by the trial court. The wife approached the high court seeking quashing of this order. 

https://www.livelaw.in/wife-can-prosecuted-lying-court-claim-maintenance-gujarat-hc/
— Read on www.livelaw.in/wife-can-prosecuted-lying-court-claim-maintenance-gujarat-hc/

Wife living separately without any reason NOT entitled to CrPC 125 maintenance. Madhya Pradesh High Court

Lawyer wife leaves Matrimonial home few DAYS days after marriage. Goes away with her brother ostensibly to find him a (find the brother) a match. Wife Never returns back even after husband calling her back. Wife Claims harassment, cruelty etc and seeks maintenance. Looses at Madhya Pradesh HC based on FACTs of the case

money_cash

HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH INDORE

( Single Bench )

( Hon’ble Shri Justice Jarat Kumar Jain )

Criminal Revision No.829 of 2014

Anil S/o Shri Suganchandra Jain

VERSUS

Smt. Sunita W/o Shri Anil Kumar Jain and State of M.P.

********

Shri S.J.Polekar, learned Counsel for the applicant.

Shri Piyush Shrivastava, learned Counsel for the respondent No.1

Smt. Mamta Shandilya, learned Dy. Govt. Advocate for the respondent No.2/State.

https://twitter.com/ATMwithDick

********

ORDER

( Passed on this th day of November, 2016 )

THIS revision under Section 19(4) of the Family Court Act, 1984 has been filed against the order dated 31.05.2014 passed by the Principal Judge, Family Court, Ratlam in M.Cr.C. No.203/2014 whereby directed the applicant/husband to pay maintenance @ Rs.4,000/- per month to the non-applicant/wife from the date of order.

[2] It is an admitted fact that applicant’s marriage was performed with non-applicant on 20.04.2008 and they lived together first time for 7 days and second time for 12 days i.e. 11.05.2008 to 22.05.2008. Thereafter non-applicant/wife had left matrimonial home and since then she is living in her parental home at Ratlam. She is an enrolled Advocate since the year 1991.

[3] Non-applicant/wife had filed an application under Section 125 of the Cr.P.C. stating that when she lived in her matrimonial home since 11.05.2008 to 22.05.2008 during that period her husband (applicant) and mother-in-law had so harassed her that she was forced to leave her matrimonial home, before leaving the matrimonial home her https://twitter.com/ATMwithDick signatures were obtained on blank stamp papers. Applicant’s first marriage was performed with Ranjana but only after two months she divorced the applicant due to harassment of applicant. Non-applicant is having no means to maintain herself whereas applicant is a manufacturer of Ayurvedic medicine and used to earn Rs.25,000/- per month. On these grounds she claimed maintenance @ Rs.5,000/- per month from the date of application.

[4] Applicant in the reply denied the allegations and stated that he and his mother had never harassed the non-applicant. On 23.05.2008, in the absence of applicant non-applicant had left matrimonial home along with her brother Anil and one Shrenik Bapna. On 26.05.2008 applicant went to Ratlam to take non-applicant with him, however, she refused to come with the applicant, thereafter applicant made many attempts to take back her https://twitter.com/ATMwithDick but she was not ready to come back and live with applicant. Thus, she is living in her parental home without any reason. The applicant is hardly earned Rs.3,000/- per month and he has to maintain his sick mother also; whereas non-applicant is an Advocate and has sufficient income to maintain herself. In such circumstances, she is not entitled for maintenance.

[5] Both the parties adduced evidence. Trial Court held that the non-applicant was harassed by her mother-in-law and applicant. Hence, she had sufficient reason not to live with her husband/applicant. Applicant is earning more than Rs.50,000/- per year whereas non-applicant/wife had no income from the profession as an Advocate. Hence, Trial Court directed the applicant to pay maintenance @ Rs.4,000/- per month from the date of order. Being aggrieved the applicant has filed this revision.

[6] Learned Counsel for the applicant submits that the non- applicant had left the matrimonial home voluntarily and is living in her parental home without any reason. The finding of trial court that only in 12 days non-applicant was so harassed that she was forced to leave matrimonial home is erroneous. Actually she is practicing lawyer since the year 1991 at Ratlam and has sufficient income to maintain herself. Thus, she is not entitled for maintenance. Trial court gave a finding that applicant used to earn Rs.50,000/- per year; whereas directed the applicant to pay Rs.4,000/- per month i.e. Rs.48,000/- per year to the non-applicant. Such direction is against the evidence on record. Thus, the order passed by the Trial Court is liable to be set aside. For this purpose learned Counsel for the applicant placed reliance on the judgment of this Court in the case of Prakash Kushwaha V/s. Smt. Pooja reported in 2014 (2) JLJ 189 and Savita Bai V/s. Prahlad reported in 2013 (3) M.P. Weekly Note 77.

[7] On the other hand, learned Counsel for the non-applicant supports the impugned order and submitted that the non- applicant/wife is ready to live with the applicant; however, due to harassment she is compelled to live separately. Hon’ble Apex Court in the case of Laxmi Bai Patel V/s. Shyam Kumar Patel reported in JT 2002 (3) SC 409 held that the responsibility of husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. This court in the case of Dalibai V/s. Rajendra Singh reported in 2006 (1) MPLJ 495 held that wife left matrimonial house and started living separately due to harassment by husband. To prove this fact statement of wife is sufficient to hold that there was reasonable and sufficient cause available to her to live separately, hence the revision be dismissed.

[8] After hearing learned Counsel for the parties, perused the record.

[9] This Court has to examine the findings of Trial Court as to whether non-applicant/wife has sufficient reason to live separately and whether she is unable to maintain herself.

[10] Admittedly after marriage non-applicant/wife lived in her matrimonial home first time for 7 days. There is no allegation that during that period she was harassed by her in-laws, thereafter she lived in her matrimonial home from 11.05.2008 to 22.05.2008 i.e. for 12 days, thereafter she was forced to leave her matrimonial home. In this regard it is useful to refer Para 9 of her deposition in which she admitted that she was having a mobile phone and used to talk with her brother, however, she has not made any complaint about her harassment to her brother. She left matrimonial home with her brother Anil. But she has not made any complaint to anybody or lodged a report at Police Station. On the other hand, her brother Anil Chhajed (PW-2) deposed that on 22.05.2008 she came to Ratlam to select a girl for his marriage. Anil did not depose that non-applicant has complained him about harassment in her matrimonial home. https://vinayak.wordpress.com/ In the cross-examination of the applicant no question was asked about alleged cruelty and harassment.

[11] I would like to refer to the judgment of this Court in the case of Savita Bai (Supra) in which after marriage Savita Bai resided only for 8 days in the house of her husband and thereafter, she left the house without any reason and unable to prove the charge of harassment. Under such circumstances, this Court has held that â??the applicant-wife is not entitled for maintenance.â? In the present case also non-applicant-wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed. It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. https://vinayak.wordpress.com/ Thus, it can not be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home.

[12] Learned counsel for the non-applicants placed reliance on the judgment of Laxmi Bai Patel (Supra) and Dalibai (Supra). Facts of these cases are quite different, https://vinayak.wordpress.com/ therefore, these cases are not helpful to the non-applicants.

[13] With the aforesaid, I am of the view that the finding of the Trial Court that non-applicant/wife has sufficient reason to live separately is not sustainable in law. Non- applicant/wife is residing separately without any reason, hence, she is not entitled for maintenance under Section 125 of Cr.P.C.

 

Thus, the order passed by the Trial Court is hereby set-aside and the revision is hereby allowed.

[ JARAT KUMAR JAIN ] JUDGE

ns + Adarsh

*****************

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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

Family Court has NO jurisdiction to award lump sum for accommodation under Sec 127 CrPC

Wife looses 3 lakhs lumpsum awarded ! However Family court has rights to award monthly maintenance based on merits of the case and earning of the husband

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 505 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

==========================================================
KETAN PRAFULBHAI VYAS….Applicant(s)

Versus

STATE OF GUJARAT & 2….Respondent(s) ==========================================================

Appearance:
MR ASIT B JOSHI, ADVOCATE for the Applicant(s) No. 1
MR BHASH H MANKAD, ADVOCATE with MS GARIMA MALHOTRA, ==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 03/08/2016

CAV JUDGMENT

  1. Heard learned advocate Mr.Asit B.Joshi for the applicant, learned advocates Ms.Garima Malhotra with Mr.Bhash H.Mankad for respondents No.2 and 3 and learned APP Mr.K.P. Raval for respondent No.1 – State being formal party.
  2. The applicant – husband has challenged the order dated 5.8.2015 by the Principal Judge, Family Court, Rajkot in Criminal Misc.Application No.61 of 2011. By such impugned order, Principal Judge, Family Court, Rajkot has awarded an amount of Rs.7,000/- to Rs.10,000/- for different period between 25.1.2011 being date of application till date of order and period thereafter. By same impugned order, an amount between Rs.3,500/- to Rs.5,000/- is also awarded towards maintenance of minor son of the spouse. Thereby, from 1.1.2015, the total liability of the applicant – husband is to pay Rs.10,000/- as maintenance to the wife and Rs.5,000/- to their minor son i.e. total Rs.15,000/-. In addition to such amount of maintenance, the Family Court has also directed the husband to pay a lump sum amount of Rs.3 Lacs for the provision of residential accommodation. I have heard both the sides and perused the available record, which includes oral evidence of both the sides so also reply and affidavit-in- rejoinder before this Court.
  3. However, irrespective of factual details emerging from record, it is clear that Family Court has no jurisdiction whatsoever to award lump sum amount towards provision for residential accommodation when claim is under Section 127 of the Code of Criminal Procedure (‘the Code’, for short) for increasing the amount of maintenance already awarded u/s.125 of the Code, though the Family Court may have similar jurisdiction in case of appropriate application under any other enactment viz. Protection of Women from Domestic Violence Act, 2005 and Hindu Adoption and Maintenance Act, 1956 etc. Therefore, by all means, there is reason to interfere with the impugned order and to quash and set-aside the impugned order so far as it is directing the applicant – husband to pay the lump sum amount of Rs.3 Lacs towards provision for residential accommodation.
  4. Therefore, so far as additional amount of Rs.3,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Komalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
  5. It is a settled legal position that the word ‘maintenance’ has no limited consideration, meaning thereby though the word ‘maintenance’ includes all benefits towards for food, lodging, boarding, medicines, clothes, transportation, entertainment etc., in other words, it includes all the facilities that may be made available to the wife in her house with her husband, but in any case, the word ‘maintenance’ does not include the provision or a right to seek lump sum amount for residential accommodation.
  6. For the purpose, reference of Section 125 of the Code of Criminal Procedure is material which speaks about the right of the person to get maintenance and though the word ‘maintenance’ is nowhere defined, it is clear and obvious that ‘maintenance’ means monthly amount to be paid by the husband or the concerned person to the wife or parents or children as the case may be; where the material part of Section 125 of the Code of Criminal Procedure reads as under :- Section : 125. Order for maintenance of wives, children and parents :- (1) xxxx xxxx xxxx (a) xxxx xxxx xxxx (b) xxxx xxxx xxxx (c) xxxx xxxx xxxx (d) xxxx xxxx xxxx 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 1[***], as such Magistrate thinks fit, and to pay to such person as the Magistrate may from time to time direct:
  7. Therefore, a bare reading of the relevant provisions of Section 125 of Code of Criminal Procedure makes it clear that under such Section, right of the wife or the concerned person is to get the monthly allowance on such monthly rate that the Magistrate may think fit from time to time. Thus, in any case, the learned Family Court has no right or jurisdiction whatsoever, to direct the present applicant to provide lump sum amount to the wife for residential accommodation.
  8. However, learned advocate for the respondents are relying upon following citations and therefore, they need to be referred and explained:- 8.1 In the matter between Chaturbhuj Vs. Sita Bai reported in AIR 2007 SCW 7416. Learned advocate has referred last few lines of paragraph 5, which reads that – “It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution.”. However, though this is a well-known citation on this subject, it cannot be ignored that it nowhere confirms that provision for shelter is to be provided in lump sum, which is certainly not in consonance with the provisions of statute itself wherein words used are “a monthly allowance for the maintenance”. Therefore, though amount of maintenance may include amount for shelter, it should be paid per month either as rent or in any other manner, but not in lump sum as awarded in the impugned order. 8.2 In the matter between Komalam Amma (supra), which is relied upon by the respondents is already discussed herein above. 8.3 Unreported judgment dated 19.4.2016 between Sandip Pramodrai Jani Vs. State of Gujarat & Ors. decided in Special Criminal Application No.1129 of 2016, the Single Judge of this Court has relying upon the decision of Komalam Amma (supra) and Mangat (dead) and Anr. vs. Punna Devi (Smt.) (Dead) and Ors reported in (1995)6 SCC 88 held that order of payment of lump sum amount towards provision for residential accommodation is provided and thereby, refused to quash such order by dismissing the petition. However, judgment of Komalam Amma (supra) is already discussed herein above, which makes it clear that it does not confirm that the Family Court or the Magistrate has power to grant lump sum amount towards provision for residential accommodation in favour HC-NIC Page 7 of 10 Created On Sat Aug 06 03:40:38 IST 2016 of wife, more particularly with reference to Section 125 of the Code.
  9. Therefore, none of above judgment makes it clear that the trial Court has absolute and uncontrolled jurisdiction to grant lump sum amount towards residential accommodation also though the phrase used in Section 125 of the Code is quite clear that a Magistrate may order to make a monthly allowance in maintenance. It is also evident that in all such cited cases, the Court has relied upon the provisions of Hindu Adoption and Maintenance Act and not under the provisions of Section 125 of the Code.
  10. Whereas, so far as the amount of monthly maintenance is concerned, Family Court has rightly bifurcated the total amount in three slabs by awarding Rs.10,500/- in aggregate for both the respondents for the period between January, 2011 to December, 2012 and again Rs.12,000/- for two years from January, 2013 to December, 2014 and Rs.15,000/- from January, 2015 onwards. So far as quantum is concerned, there is specific documentary evidence on record regarding income of the applicant – husband in the form of his salary slips, which confirms that though his salary was approximately Rs.18,000/- in the year 2008, the same has been increased to approximately Rs.44,000/- from October, 2014 and HC-NIC Page 8 of 10 Created On Sat Aug 06 03:40:38 IST 2016 it must have been increased thereafter. Therefore, when a person is earning Rs.44,000/- in the month of February, 2015, when his evidence was recorded, then, an amount of Rs.15,000/- i.e. only 1/3rd of his earnings for two living persons can never be said to be excessive in any manner whatsoever. Therefore, so far as quantum of maintenance is concerned, I do not see any reason or substance to interfere with the impugned order, more particularly considering the fact that impugned order is passed in an application u/s.127 of the Code by wife and minor for enhancement of maintenance and thereby, so far as their right to get maintenance and liability of the applicant to pay maintenance is now not in dispute.
  11. In view of above facts and circumstances, the present Criminal Revision Application is partly allowed. Thereby, though order of monthly maintenance is upheld and confirmed as per the impugned order, the order regarding payment of Rs.3 Lacs lump sum towards provision for residential accommodation to be paid by the husband to the wife is hereby quashed and set- aside.
  12. Interim relief, if any, shall stand vacated.

(S.G.SHAH, J.)