Sandeep Tripathi vs State Of U.P. And Another
2021 Latest Caselaw 2628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							
 
							Reserved on: 09.02.2021
 
							Delivered on: 19.02.2021
 
Court No. - 68
 
Case :- CRIMINAL REVISION No. - 1179 of 2017
 
Revisionist :- Sandeep Tripathi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Anand Mohan Pandey
 
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Srivastav
 
Hon'ble Samit Gopal,J.

1. The present criminal revision has been preferred against the judgement and order dated 28.02.2017 passed by the Additional Principal Judge Family Court / Additional District Sessions Judge / Fast Track Court No. 1, Varanasi in Case No. 341 of 2013 (Smt. Geetanjali Mishra Vs. Sandeep Tripathi), under Section 125 Cr.P.C., Police Station Sigra, District Varanasi, whereby, the application of the opposite party No. 2 has been allowed by the said court and it has been ordered that the revisionist shall pay her Rs. 6000/- per month as maintenance to be paid by the 7th of each month.

2. An application under Section 125 Cr.P.C. dated 03.08.2013 was filed by Smt. Geetanjali Mishra / opposite party No. 2 against the revisionist Sandeep Tripathi before the Principal Judge / Family Court, Varanasi with the prayer that she may be granted Rs. 30,000/- per month as maintenance from the date of the filing of the application i.e. 03.08.2013. The same was supported by an affidavit of the opposite party No. 2 herself which is also dated 03.08.2013. The marriage of the revisionist was solemnized with the Smt. Geetanjali Mishra / opposite party No. 2 as per the Hindu customs and rituals on 06.03.2011. Some dispute arose between the couple on which she left her matrimonial house after a panchayat in May, 2011 and started living in her maternal house till May 2012. Thereafter, her husband came to her maternal house in July, 2012 and again raised the demand for dowry which had been continuing since before. She states that the income of her husband from his salary, agricultural land, landed property is about Rs. 80,000/- per moth and he is the only son of his parents and a such, he is having no liability. She has demanded Rs. 30,000/- per month as maintenance from the revisionist as she is not able to maintain herself and has no income.

3. The application under Section 125 Cr.P.C. was contested by the revisionist who moved a written statement / objection and stated that the opposite party No. 2 is engaged in the work of teaching and is a well qualified person having studied M.A., B.Ed and as such was qualified to the extent that she could easily maintain herself. It is further stated that she is working in a private institute. It is stated that the father and mother of the revisionist are old aged persons, bed ridden, ill and are on medication. It is stated that he was working in a private company and getting a salary of Rs. 10,800/- only and has been terminated on 03.09.2013 and as such the application be rejected.

4. The court below vide its judgement and order dated 28.02.2017, allowed the application filed under Section 125 Cr.P.C. and directed the revisionist to pay Rs. 6000/- per month to the opposite party No. 2 by the 7th of each month as maintenance.

5. The present revision has thus been preferred before this Court challenging the judgement and order dated 28.02.2017 passed by the court below.

6. Heard Sri Anand Mohan Pandey, learned counsel for the revisionist, Sri Dhirendra Kumar Srivastav, learned counsel for the opposite party No. 2 and Sri Janardan Prakash, learned A.G.A. for the State and perused the record.

7. Learned counsel for the revisionist argued that the judgement and order impugned herein is bad in the eyes of law. It is argued that the income of the revisionist has not been properly considered by the concerned court. It is further argued that the opposite party No. 2 was working in a private institute which has also not been considered. It is next argued that the opposite party No. 2 has completed her education and is having M.A., B.Ed degree and as such is more educated than the revisionist and thus she is in a position to maintain herself. It is argued that the father and mother of the revisionist are old aged, bed ridden, ill and are on medication and as such, he has the responsibility of his parents. It is argued that the amount as directed to be paid as maintenance of Rs. 6000/- per month is quite excessive as the revisionist was getting a salary of Rs. 10,800/- only when he was employed in the private company. It is next argued that the revisionist is now an Advocate and is practising since 2015 and is a struggling lawyer and as such on humanitarian grounds, the amount of maintenance as directed to be paid may be reduced. Learned counsel has further relied upon paragraph 14 of the judgement of P Raja V/s K C Sudha: (2014)LawSuit (Madras) 1392 and the judgement dated 04.11.2020 of the Apex Court in the case of Rajnesh Vs. Neha and Another in Criminal Appeal No. 730 of 2020.

8. Per contra, learned counsel appearing for the opposite party No. 2 has argued that the opposite party No. 2 is wholly and solely dependent on her father who is getting pension after his superannuation from bank. It is argued that the revisionist who is the only son of his parents and has residential property which consists of a three storied house in which the maximum area is rented and there is a rental income from it, there is a landed property in village Kunda, District Pratapgrah having an orchard and agricultural land from which there is a good income, he is getting salary from his place of work and his father is also getting pension who had retired from the post of Branch Manager in State Bank of India and as such, on the date of moving of the application, he was having an income of about Rs. 80,000/- per month. It is argued that the revisionist had four sisters out of whom three have already been married and the fourth sister is doing the work of teaching and is earning about Rs. 15,000/- per month and as such he has no responsibility and liability upon him. It is argued that the court below while deciding the application under Section 125 Cr.P.C., has meticulously dealt with the aspects of the matter particularly, regarding the issues of the opposite party No. 2 whether she has any source of income to sustain herself and whether the revisionist is liable to maintain her and has come to a conclusion that the wife is not able to maintain herself and she is entitled to lead a life in a respectable manner of the status of her husband and further the revisionist herein is well qualified having done B.Tech and M.C.A. and is earning a handsome amount. The court below has further given a finding that no evidence whatsoever has been filed by the revisionist / husband which would show that the wife was earning and was in a position to maintain herself but to the contrary after evaluating the evidence both orally and documentary has returned a finding that the wife is unable to maintain herself.

Learned counsel has relied upon the following judgements:-

(i) Rajnesh Vs. Neha and Another: Criminal Appeal No. 730 of 2020 (SC)

(ii) Bhagwan Dutt Vs. Smt. Kamla Devi and Another: (1975) 2 SCC 386

(iii) Sunita Kachwaha & others Vs. Anil Kachwaha: (2014 ) 16 SCC 715

(iv) Chanchal Mehta Vs. Supriya Mehta: 2016 LawSuit (P&H) 3302

(v) Ramesh S/o Chanbasappa Adeppa and others Vs. Laxmi W/o Ramesh Adeppa and others: 2014 LawSuit(Kar) 571

9. The Apex Court in the case of Bhuwan Mohan Singh Vs. Meena and others : (2015) 6 SCC 353 has held that wife is also entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. It is further held that the husband cannot deprive her of the benefit of living with dignity. Para 2 of the judgment is as follows:

"2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

10. Further in the case of Rajnesh Vs. Neha and another : Criminal Appeal No. 730 of 2020 (Arising out of SLP (Crl.) 9503 of 2018) decided on November 4, 2020 : 2020 SCC Online SC 903 the Apex Court has discussed about the determinants of maintenance allowance payable to wife and children. In the said judgment it has been observed as follows:

"III Criteria for determining quantum of maintenance:

(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7, refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.]

In Manish Jain v Akanksha Jain : (2017) 15 SCC 801 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. [Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303]

(ii) A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. [Chaturbhuj v Sita Bai (2008) 2 SCC 316]

The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant's property and any income derived from such property, (v) income from claimant's own earning or from any other source.

(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde : (2007) 140 DLT 16 laid down the following factors to be considered for determining maintenance:

"1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17."

(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.

(a) Age and employment of parties:

In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.

(b) Right to residence:

Section 17 of the D.V. Act grants an aggrieved woman the right to live in the "shared household". Section 2(s) defines "shared household" to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.

The right of a woman to reside in a "shared household" defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja : Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020 (supra) held that "shared household" referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a "shared household". It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a "shared household". Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.

Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.

(c) Where wife is earning some income:

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.

In Shailja & Anr. v Khobbanna : (2018) 12 SCC 199 [See also decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794] this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. [Chaturbhuj Vs. Sita Bai : (2008) 2 SCC 316] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252]

In Sunita Kachwaha & Ors. v Anil Kachwaha : (2014) 16 SCC 715 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale : 2020 SCC OnLine Bom 694 while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander Prakash : AIR 1968 Delhi 174. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

This Court in Shamima Farooqui v Shahid Khan : (2015) 5 SCC 705 cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.

(d) Maintenance of minor children:

The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

(e) Serious disability or ill health:

Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance."

11. The fact that the revisionist is well qualified and working in a private company is not in dispute. Further the fact that the revisionist is the only son of his parents and his father has retired and getting a pension is also not in dispute. The revisionist is a hail and hearty person and is expected to maintain his wife by working and putting in labour and earning money. The court below has returned a finding that there is no evidence on record to show that the wife has ample means to maintain herself. In so far as the question of the wife imparting tuition is concerned, neither the income has been disclosed nor the amount of the same has come in evidence which would go to show that she was in a position to maintain herself. The giving of maintenance to a wife is not merely a pleasure for the husband but it is the duty of the husband to maintain his wife who herself is unable to maintain herself. The argument and the objection that the wife is more educated than the revisionist / husband and as such, she is able to maintain herself as she can fetch her livelihood on her own would not by itself make a person self-sustainable by only having the ability to earn her livelihood. The wife may have the capacity to earn but she was unable to earn her livelihood is the essence of the legislation and as such it is the duty of the husband to maintain his wife. A person having an eligibility to get an employment as per his educational qualification may not be in a position to get an employment and unable to earn livelihood because of lack of employment and thereby, inability to earn.

12. In the present case, the evidence as has come does not show that the wife was having an employment and was able to maintain herself and live a life similar to the manner as she would have lived in the house of her husband.

13. As per the argument raised on behalf of the revisionist is concerned, the revisionist has been in the profession of being an Advocate since 2015. The said profession which goes without saying is a very respectable and an honourable profession.

14. On the argument of the learned counsel for the revisionist for the reduction of the amount of maintenance on humanitarian grounds, the present judgement and order impugned herein is of the year 2017 and the fact of rise in inflation, cost of living and also taking into consideration the increase of income by way of fees / renumeration which keeps on increasing cannot be ignored. The revisionist had been in the profession as an Advocate since two years prior to the impugned judgement. The charges and fees are bound to increase since then.

15. Having taken into consideration, the relevant factors for determining the quantum of maintenance in the light of the legal principles laid by the Apex Court and the facts of the present case, this Court is of the view that the amount of maintenance as awarded is appropriate and there is no irregularity and illegality in the order impugned.

16. The present revision is thus dismissed.

17. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

18. The computer generated copy of such order shall be self attested by the counsel of the party concerned.

19. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 19.02.2021

AS Rathore

(Samit Gopal,J.)