Calcutta High Court (Appellete Side)
Khusboo Singhania vs Praveen Singhania on 20 December, 2022
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 178 of 2019
Khusboo Singhania
Vs
Praveen Singhania
For the Petitioner : Mr. Sanjoy Bose,
Mr. P.B. Mallick.
For the Opposite Party : None.
Heard on : 30.11.2022
Judgment on : 20.12.2022
2
Shampa Dutt (Paul), J.:
The present revision has been filed by the petitioner/wife against
an order of interim maintenance dated 5th June 2018 passed by the
Learned Additional Chief Judicial Magistrate, Bidhannagar in M. Case
No. 22 of 2017, granting an interim maintenance of Rs. 30,000/- (Rs.
15,000/- each for the petitioner and minor son), praying for revised and
an enhancement of the amount of maintenance.
The case of the petitioner is that she was married to the
opposite party herein on 26th June 2004 and the marriage was
solemnized according to Hindu rites and customs.
After her marriage she handed over all her stridhan articles to
her husband and in laws, including her Adhar Card and son's Birth
Certificate subsequently when he was born on 8th December, 2005.
The petitioner has been mentally and physically tortured since
her marriage. The opposite party being an alcoholic ill treated the
petitioner every day. Finally she was ousted from her matrimonial home
on 20.04.2015 without her stridhan articles.
Several attempts of reconciliation was made by the petitioners
family, but the opposite party and his family did not allow her in her
matrimonial home and threatened her in her parental home that he
would remarry and get more money.
3
The petitioner lodged a complaint with the phoolbagan police
station on 8th July, 2017, and also moved an application under section
156(3) of the code of criminal procedure before the Learned A.C.J.M. at
Sealdah and thereafter Phoolbagan P. S. registered a F.I. R. and started
Phoolbagan P.S. Case No. 116 of 2017 dated 28th August 2017 against
the opposite party and his parents under section 498A/406/341PC and
sections 3&4 of the dowry Act.
The petitioner after being ousted from her matrimonial home is
at the mercy of her friends and relatives and has to beg every single
penny for her livelihood and also for the upbringing of her minor son.
It was under these circumstances the petitioner was compelled
to file an application under section 125 of the Code of Criminal
Procedure before the Learned Additional Chief Judicial Magistrate,
Bidhannagar on 7th September 2017 which was registered as M. Case
No. 22 of 2017 (Khusboo Singhania Vs Praveen Singhania) and claimed
Rs. 3,00,000/- towards maintenance for herself and her minor son and
Rs. 30,000/- towards medical expenses for herself and her minor son.
The Opposite party filed his objection. Finally the order under
revision was passed.
Being aggrieved the petitioner has filed this revision praying for
enhancement of the amount of maintenance.
4
Mr. Sanjoy Bose, Learned Counsel for the petitioner, has
submitted that the amount of maintenance granted is grossly
inadequate. The opposite party is the director of four companies and the
order is totally without considering the actual financial situation of the
parties and is thus illegal and bad in law, which needs revision by way
of an enhancement, so that the petitioner can lead a life with at least
the minimum requirement and their son can be properly educated. It is
the opposite party's responsibility to maintain his family which includes
his wife and son. The opposite party has the financial capacity to pay
maintenance of such sum as prayed for so that the petitioner and her
son can lead a normal and comfortable life matching the status of the
opposite party's family. It is no fault of her that she has been driven out
of her matrimonial home with her son and is not being allowed to
continue her married life in spite of her best efforts. That the petitioner
is leading a life of deprivation on being deserted without any fault on
her part and fault on her part and as such the prayer for enhancement
of the amount of maintenance has been stressed upon on the revisional
application being allowed.
In spite of due service, the opposite party has neither
appeared and thus not contested this case.
As seen from the certified copy of the order of the Learned
Magistrate granting interim maintenance, the case of the opposite
5
party/husband before the trial court is that the petitioner and her
family members always pressurized the opposite party to became a
domesticated husband and as the opposite party did not concede to
such a proposition, the petitioner and her family members have
entangled the opposite party in several cases which are based on false
and frivolous facts. The petitioner out of her own volition went back to
her father's house with all her belongings on 20.01.2014. It has been
further pleaded in the written objection before the learned Magistrate
that the opposite party has tried to resume his matrimonial life with the
petitioner but the petitioner refused to stay with the opposite party and
the opposite party was even denied to met his son and having no other
alternative the opposite party filed a suit for restitution of conjugal
rights and the case is still pending. As regards his income, the opposite
party has averred that the quantum of income of the opposite party as
manifested by the petitioner is illusory. The opposite party has further
pleaded that the petitioner being a teacher has her own income and
is able to maintain herself and their minor son. Based on this
contention the opposite party has prayed for refusal of the petitioner's
claim of interim maintenance.
The opposite party further submitted that the opposite party has
very negligible income and the companies which have been mentioned
by the petitioner are the family business and the opposite party and the
income of the opposite has been verified by a CA and certificate to that
6
effect has been filed. The petitioner has made false statements in the
petition and that must entail the dismissal of the petition. It was further
argued that the petitioner was never subjected to any cruelty by the
opposite party or his family members and the entire allegations
ventilated in the petition are false and frivolous. The opposite party lay
much emphasis on section 125 sub-section (4) of the Criminal
procedure Code 1973 and argued that the petitioner is not entitled get
any maintenance as the petitioner herself deserted the opposite
party/husband. The order of interim maintenance passed by the
Learned Magistrate is 05.06.2018.
While disposing of the application under Section 125 Cr.P.C.
finally, the Learned Magistrate can now follow the guidelines as laid
down by the Supreme Court in Rajnesh Vs Neha, (2021 SCC 324).
The said Judgment raises the issue of maintenance as a whole.
All the Acts providing the said benefit has been considered, discussed
and guidelines laid down. The final Direction there in is as follows:-
"VI Final Directions
In view of the foregoing discussion as
contained in Part B - I to V of this judgment, we
deem it appropriate to pass the following
directions in exercise of our powers under Article
142 of the Constitution of India : (a) Issue of
overlapping jurisdiction
To overcome the issue of overlapping
jurisdiction, and avoid conflicting orders being
passed in different proceedings, it has become
7
necessary to issue directions in this regard, so
that there is uniformity in the practice followed by
the Family Courts/District Courts/Magistrate
Courts throughout the country. We direct that:
(i) where successive claims for maintenance
are made by a party under different
statutes, the Court would consider an
adjustment or setoff, of the amount
awarded in the previous proceeding/s,
while determining whether any further
amount is to be awarded in the subsequent
proceeding;
(ii) (ii) it is made mandatory for the applicant to
disclose the previous proceeding and the
orders passed therein, in the subsequent
proceeding;
(iii) (iii) if the order passed in the previous
proceeding/s requires any modification or
variation, it would be required to be done in
the same proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and
Liabilities annexed as Enclosures I, II and III of
this judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings,
including pending proceedings before the
concerned Family Court / District Court /
Magistrates Court, as the case may be,
throughout the country.
(c) Criteria for determining the quantum of
maintenance
For determining the quantum of maintenance
payable to an applicant, the Court shall take into
account the criteria enumerated in Part B - III of
the judgment. 56 The aforesaid factors are
however not exhaustive, and the concerned Court
may exercise its discretion to consider any other
factor/s which may be necessary or of relevance
in the facts and circumstances of a case.
(d) Date from which maintenance is to be
awarded
8
We make it clear that maintenance in all cases
will be awarded from the date of filing the
application for maintenance, as held in Part B - IV
above.
(e) Enforcement / Execution of orders of
maintenance
For enforcement / execution of orders of
maintenance, it is directed that an order or decree
of maintenance may be enforced under Section
28A of the Hindu Marriage Act, 1956; Section
20(6) of the D.V. Act; and Section 128 of Cr.P.C.,
as may be applicable. The order of maintenance
may be enforced as a money decree of a civil court
as per the provisions of the CPC, more particularly
Sections 51, 55, 58, 60 r.w. Order XXI."
Keeping with the said guidelines both the parties to the
case will file their Affidavit of Disclosure of Assets and liabilities
before the trial Court, Considering the stand of the parties that the
opposite party/husband is a director in three companies and that
the petitioner /wife is also a working woman, as none of the parties
have filed any documents before either the trial court nor before
this court, which thus makes it difficult for this court to consider
the prayer for enhancement.
There is another factor to be considered by the Learned
Magistrate at the time of final disposal of the case as to whether
the petitioner was driven out from her matrimonial home or had
she deserted her husband without any just and sufficient reasons.
9
The opposite party/husband though has filed a suit for restitution
of Conjugal Rights which is still pending.
The criteria determining quantum of maintenance as in
Rajnesh Vs Neha (Supra) is:-
"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.
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
10
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.
(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.
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 Hegde37 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 Ahuja38 (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 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. 40 Sustenance does not
mean, and cannot be allowed to mean mere
survival.
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."
Accordingly considering the Materials on record, the order of
interim maintenance under revision dated 5th June 2018 passed by the
Learned Additional Chief Judicial Magistrate, Bidhannagar in M. Case
No. 22 of 2017 is hereby affirmed.
The Trial Court will decide the case finally as per the
directions in the body of this judgment and make all endeavour to
dispose of the case finally as expeditiously as possible.
CRR No. 178 of 2019 is thus dismissed.
All connected Application stand disposed of.
Interim order if any stands vacated.
There will be no order as to costs.
A copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
