Calcutta High Court (Appellete Side)

Annapurna Karmakar vs Bisweswor Karmakar & Anr on 20 February, 2023

                   IN THE HIGH COURT AT CALCUTTA

                    (Criminal Revisional Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                               CRR 7 of 2020

                            Annapurna Karmakar

                                     Vs

                          Bisweswor Karmakar & Anr.




For the Petitioner/wife             : Mr. B. P. Mondal,
                                      Mr. Sukanta Mondal.



For the Opposite Party No. 1        : Mr. Arnab Chatterjee.




For the State                       : Ms. Rita Dutta.




Heard on                            : 18.01.2023

Judgment on                         : 20.02.2023
                                     2


Shampa Dutt (Paul), J.:



       The revisional application has been filed against the judgment

and order dated 04.09.2019 passed by the Learned Judicial Magistrate,

2nd Court, Diamond Harbour in case No. MR-237 of 2015 under Section

125 of the Code of Criminal Procedure, granting a sum of Rs. 3000/- as

maintenance to the petitioner/wife and a sum of Rs. 1000/- for the

child born in the year 2012.


       The petitioner's case is that on 10.06.2015 the Wife/Petitioner

filed an application registered as Case No. M-237 of 2015 under Section

125 of the Code of Criminal Procedure against the Husband/Opposite

Party in the Court of Learned Additional Chief Judicial Magistrate, 2nd

Court, Diamond Harbour, South 24 Parganas.


       On 22.05.2011, the Marriage between the Petitioner and the

Opposite Party was solemnised according to Hindu rites and custom by

negotiation. The said marriage was duly registered on 30.08.2011.


       After marriage, a male baby named Tamal alias Aniruddha

Karmakar was born out of the wedlock on 17.10.2012. The son has

been living with the petitioner/mother.


       The Petitioner after marriage, found out that the Opposite party

is a characterless person. He has illicit relation with one Shrabanti

Karmakar, (his elder brother's wife).
                                     3


       The Petitioner requested the Opposite Party to stop his illicit

relationship but he did not pay heed to the petitioner rather he started

ill behavior and assault towards the petitioner.


       After knowing about torture upon the Petitioner, her father's

family members tried to convince the Opposite Party in many ways by

conciliation at the police station to mend his bad habits but all were in

vain rather he gradually increased torture upon the Petitioner.


       The Petitioner tried her best to remain with her in-laws even in

spite of being ousted after assault on many occasions.


       On 25.09.2013 the Petitioner's father's family members having

received information about torture upon the Petitioner by the Opposite

Party and his family members, rescued the Petitioner and her son with

the help of local police. Later on, she had to lodge a complaint with the

police station for the cruel behavior of the Opposite Party and his family

members.


       The Opposite Party and his family members kept the Petitioner's

valuables including a mobile phone.


       The Petitioner has no personal income whereas the financial

condition of the Opposite Party is very sound, his two storied ultra -

modern residential house finished with mosaic stone and tiles is

situated at village : Naba-Roynagar, Ranaghat. Beside this, he has
                                     4


purchased valuable landed properties in different places. He has been

carrying on a business of a big jewelry shop under the name and style

"New S.N. Jewelers" at Ranaghat and also has been carrying on a big

jewelry factory of gold and silver ornaments with the help of many

employees for sale and purchase of ornaments and a business of

mortgage of ornaments. He also has a garden, tank and paddy land

measuring more than 10 to 15 Bighas. He also sells precious stones.

His monthly income is at least Rs. 2,00,000/-.


        The Opposite Party, in spite of having sufficient means, willfully

neglects and denied to pay maintenance to the Petitioner and their son.


        The Petitioner, according to the provisions of Section 125 of the

Code of Civil Procedure, prayed for a direction upon the Opposite Party

to pay maintenance at the rate of Rs. 25,000/- per month for herself

and also for maintenance including expenditure of education and

clothes at the rate of Rs. 25,000/- only per month for her son from the

date of the application and also litigation cost of Rs. 1,000/- for each

day of litigation.


        Opposite Party having received a notice to show cause from the

Court of Learned Additional Chief Judicial Magistrate, 2nd Court,

Diamond Harbour, South 24 Parganas, in Case No. M-237 of 2015,

appeared and denied the allegations of physical and mental torture

upon the Petitioner.
                                       5


       The Petitioner/wife willfully did not come back to the house of

the Opposite Party.


       The Opposite Party is a poor day labour and works in the house

of people in the town and village having an average monthly income of

Rs. 1000-1200/- only and is otherwise unemployed. He maintains his

old parents somehow.


       On the Other hand, the Petitioner earns more than Rupees seven

to eight thousands per month at her father's house from the works of

Jari and Chikan and tailoring with sewing machine with the help of

labours and leads her life capriciously with comfort.


       The Opposite Party loves his wife more than his own life and

wants to live with her peacefully. If the Petitioner comes to live with him

and behaves like ideal wife, the Opposite Party agrees to maintain her

but he has no capacity to give her maintenance separately.


       The Learned Judicial Magistrate, 1st Class, 2nd Court at Diamond

Harbour,   South      24   Parganas   having   considered   the   exhibited

documents, evidences adduced by the parties and having heard the

arguments of the both the parties, disposed of MR 237 of 2015 under

Section 125 of the Code of Criminal Procedure on contest without cost

by a judgment dated 04.09.2019 directing the Opposite Party to pay a

cumulative monthly maintenance amount of Rs. 3000/- only to the

Petitioner and Rs. 1000/- only for her minor son on and from the date
                                      6


of the judgment i.e. on 04.09.2019 within the 20th day of every

succeeding month.


         The quantum of maintenance for both the Petitioner and her

minor son appears to be very paltry sum not only for their maintenance

in these days of price hike but also for the growing need of minor son's

educational expenses beside their medical treatment.


         The Opposite Party explicitly admitted in his pleading that their

marriage was settled on the basis of an advertisement published in the

Annandabazar Patrika and the contents of the said news paper reveals

that the Opposite Party claimed to be a well established gold merchant

earning Rs. 50-60,000/- per month. Unfortunately this admission as to

income as to Opposite Party could have been a guiding factor to enable

the Learned Magistrate to decide the quantum of maintenance more

effectively inasmuch as the Learned Magistrate held the following inter

alia:-


         i)    The Petitioner has miserable failed to prove the existence

               of landed properties and earning from business of the

               husband.

         ii)   The Opposite Party has hidden his true income.


         In view of the conduct of the husband/Opposite Party, his

income could be held as Rs. 50-60,000/- only per month in view of
                                       7


Exhibit 1/4 and the quantum of the maintenance should have been

determined accordingly for the ends of justice.


          Mr. B. P. Mondal learned counsel for the Petitioner has

submitted that the Learned Judicial Magistrate, 2nd Court at Diamond

Harbour, South 24 Parganas ought to have considered that the income

of the husband/Opposite Party is at least Rs. 50-60,000/- only as

advertised in the matrimonial column of the said news paper i.e

Exhibit- 1/4. But the husband /Opposite party has hidden his income

by describing himself as day labour.


          That both the lives of the wife/petitioner and her minor son are

at stake due to inadequacy of the quantum of maintenance.


          The wife/petitioner and her son will be in serious distress unless

the quantum of maintenance is enhanced by this Hon'ble Court

considering the monthly income as disclosed by the husband /opposite

party in the Exhibit 1/4 i.e. Matrimonial advertisement of the

Annandabazar Patrika.


          Mr. Arnab Chatterjee, the learned counsel for the opposite

party/husband has submitted that the opposite party is still willing to

live a happy and peaceful conjugal life with his wife and child. But the

opposite party does not have the means to maintain another family as

he has several liabilities, including his aged mother and mentally ill

sister.
                                        8


        Both the parties have filed their affidavit of assets and

liabilities.


        The affidavit shows that the opposite party/husband has an

yearly profit of Rs. 6,70,526.88/- (Monthly income Rs. 55,877.24).


        The copy of the bank passbook filed by the wife petitioner

shows that at present she has Rs. 1320.35/- in her account after

withdrawing Rs. 3000/- for her son's (10 years old) school uniform.

The wife presently resides in her parent's home with her brothers.


        The materials on record including the document marked exhibit

1/4 which is the "Matrimonial advertisement" by the opposite

party/husband shows his income as Rs. 50,000/- to 60,000/- per

month and the said statement is corroborated by the copies of income

tax return annexed to the opposite party/husband's affidavit of assets

and liabilities.


        The Supreme Court in Rajnesh vs Neha, (2021 SCC 324),

dealt with the issue and laid down the guidelines and directions:-


                   "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
                      9


passed in different proceedings, it has become
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.
                                   10


               (d) Date from which maintenance is to be
              awarded

                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."



      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
                     11


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 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.
                     12


       (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.

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."

Thus considering the fact that:-

The affidavit shows that the opposite party/husband has an

yearly profit of Rs. 6,70,526.88/- (Monthly income Rs. 55,877.24)

and the copy of the bank passbook filed by the wife petitioner

shows that at present she has Rs. 1320.35/- in her account after

withdrawing Rs. 3000/- for her son's (10 years old) school uniform.

The wife presently resides in her parent's home with her brothers,

the quantum of maintenance is enhanced to Rs. 10,000 each, total

Rs. 20,000/- to be paid by 10th of each month and from the date of

filing (Rajnesh vs Neha (Supra)). Monthly arrear on equal monthly

instalment with monthly maintenance from March, 2023 onwards.

CRR 7 of 2020 is thus allowed.