Calcutta High Court (Appellete Side)
Susanta Pal vs The State Of West Bengal & Anr on 20 July, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3096 of 2019
With
CRAN 1 of 2019
(Old No. CRAN 4720 of 2019)
Susanta Pal
Vs
The State of West Bengal & Anr.
For the Petitioner : Ms. Debipriya Mitra,
Ms. Sudakshina Dey.
For the State : Mr. Binay Panda,
Mr. Subham Bhakat.
For the Opposite Party No. 2 : None
Heard on : 05.07.2023
Judgment on : 20.07.2023
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Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the
proceeding relating to Misc Case No. 40 of 2017, now pending for
disposal before the Learned Judicial Magistrate, Amta, for the offence
punishable under Section 12 and 23 of the protection of the women from
Domestic Violence Act.
2. The petitioner/husband's case is that the opposite party no. 2 was
married to the petitioner accordingly to Hindu rites and customs on 24th
day of Baishak 1407 B.S. and the said marriage was a negotiated one.
After few days of marriage the opposite party no. 2 alleged, that she was
subjected to torture by her husband, and the petitioner along with his
mother are alleged to have assaulted her with a bamboo and have taken
away the children of the opposite party no. 2 who are at present aged 14
years and 9 years respectively. The son of the opposite party no. 2
happens to be a special child and as the petitioner avoided to maintain
his family, the parents of the opposite party no. 2 tried to intervene and
solve the problem but on 20.07.2013 the opposite party no. 2 was again
assaulted by the petitioner and his family. The petitioner though alleged
to be earning Rs. 70,000/- (Rupees Seventy Thousand only) had
deliberately neglected to maintain his family and his wife, for which the
opposite party no. 2 filed an application under Sections 12 and 23 the
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protection of the Women from Domestic Violence Act being Misc Case no.
40 of 2017.
3. That petitioner states that the opposite party no. 2 with a malafide
intention had filed the instant application for which the petitioner out-
rightly denied all the allegations made therein by filling a written
objection to the said application.
4. The opposite party no. 2 in her written complaint ventilated false charge
about the petitioner and his family stating that she was not given proper
food and was alleged to have been tortured and assaulted in her
matrimonial house.
5. The opposite party no.2 previously also had roped the petitioner and his
parents on the said same false and frivolous complaint of mental and
physical alleged torture on her in her matrimonial home on the same
cause of action.
6. The opposite party no. 2 had obtained an order ex parte on 22.05.2013
vide Misc. Case No. 12 of 2013 and also filed a case under Section 125 of
the Criminal Procedure Code behind the back of the petitioner and the
petitioner did not have any chance to ventilate his grievances before the
Learned Court. The opposite party herself had willfully deserted her
matrimonial home with her two children and though she had filed a false
and frivolous case against the petitioner and his family members under
Section 498A/406 of Indian Penal Code vide G.R. Case No. 1302 of 2013
before the Learned 4th Judicial Magistrate, Sreerampore, Hooghly but
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due to the failure of the prosecution i.e. the opposite party no. 2's
frivolous claim to produce any substantial evidence, the Learned
Magistrate was pleased to acquit the petitioner and others of the false
charge by his order dated 15.05.2017.
7. The Petitioner states that the opposite party no. 2 curiously enough
stated before the Learned Magistrate that the petitioner's income
happens to be Rs. 70,000/- to Rs. 1,00,000/- per month without any
documentary evidence but the real fact is that the opposite party had
deliberately suppressed the net income of the petitioner who happens to
be a small businessman and whose income from the business is hardly
Rs. 20,000/- per month.
8. Ms. Debapriya Mitra, learned counsel for the petitioner, submits the
opposite party no. 2 by misleading the Learned trial Court had obtained
an order of maintenances on 22.05.2013 where the Learned Magistrate
directed the petitioner to make payment of Rs. 2,500/- per month to the
opposite party/wife and Rs. 1,500/- per month towards the maintenance
of two minor children totalling to Rs. 5,500/- per month.
9. The opposite party no. 2 in order to siphon money from the petitioner
has filed the instant application and the Learned Magistrate by his order
dated 23.05.2013 in Misc. Case No. 12 of 2013 came to a wrong finding
and also ignored the statutory provisions of Section 125 of the Criminal
Procedure Code.
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10. That on the self same cause of action the opposite party no. 2 with
malafide intention had filed an omnibus allegation against the petitioner
and his parents suppressing the fact that she had already filed an
application claiming maintenance under the Criminal Procedure Code
and thereafter again obtained an order of maintenance from the Learned
Judicial Magistrate, Amta, Howrah on 22.02.2018 wherein the Learned
Magistrate directed the petitioner to pay Rs. 1000/- (Rupees One
Thousand only) each to the opposite party no. 2 and her two children
with respect to the case mentioned above which is totally bad in law.
11. That on the same said cause of action, the opposite party no. 2
deliberately has filed different false and frivolous applications relating to
claiming of maintenance from the petitioner before various court's of law
which is illegal and bad in law and thus liable to be set aside.
12. Mr. Binay Panda, has appeared as the learned counsel for the state.
13. In spite of due service there is no representation on behalf of the
opposite party no. 2/wife.
14. The Misc Case in the present revision, before the trial court, has not
been disposed of finally. The grievance of the petitioner is against
an order of interim Maintenance dated 22.02.2018 under the PWDC
Act, 2005.
15. While disposing of the application under Section 12 and 23 of the
PWDC Act, 2005 finally, the Learned Magistrate can now follow the
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guidelines as laid down by the Supreme Court in Rajnesh Vs Neha,
(2021 SCC 324).
16. The said Judgment (Rajnesh Vs Neha (Supra)) 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
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
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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
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."
17. Keeping with the said guidelines, both the parties to the case will
file their Affidavit of Disclosure of Assets and liabilities before the
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trial Court. It is admitted by the petitioner (husband) that the
opposite party no. 2 (wife) lives in a portion of his house
separately with her children.
18. 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.
The admitted fact that she reside with her children separately in
the same house is an important fact to be kept in mind at the
time of final disposal of the case.
19. 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;
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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.
(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."
20. Accordingly considering the Materials on record, the order of interim
maintenance under revision dated 22.02.2018 passed by the Learned
Judicial Magistrate, Amta in Misc. Case No. 40 of 2017 being in
accordance with law, is hereby affirmed.
21. 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.
22. The revisional application being CRR 3096 of 2019 is accordingly
dismissed.
23. No order as to costs.
24. All connected applications, if any, stands disposed of.
25. Interim order, if any, stands vacated.
26. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
27. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
