Calcutta High Court (Appellete Side)
Samir Sarkar vs The State Of West Bengal & Anr on 20 June, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 553 of 2020
Samir Sarkar
Vs.
The State Of West Bengal & Anr.
with
CRR 1420 of 2020
with
CRAN 1 of 2020
Angana Sarkar
Vs.
The State Of West Bengal and Anr.
For the Petitioner : Mr. Kallol Mondal,
(in CRR 553 of 2020) Mr. Krishan Ray,
and Mr. Souvik Das,
For the Opposite Party No. 2 Mr. Anamitra Banerjee,
(in CRR 1420 of 2020) Mr. Ayan Mondal,
Mr. Shamsher Ansari.
For the State : Ms. Sujata Das.
For the Petitioner : Mr. Ankit Agarwal.
(in CRR 1420 of 2020)
and
For the Opposite Party No.2
(in CRR 553 of 2020)
Heard on : 06.06.2023
Judgment on : 20.06.2023
2
Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the
proceedings being Misc. Case No.173 of 2019 under Section 125 of the Code
of Criminal Procedure pending before the learned Judicial Magistrate, 3rd
Court, Barrackpore, North 24 Parganas.
2. The petitioner's case is that the petitioner got married to the opposite
party no.2 on 11.02.2005 according to Hindu Rites and Customs. The first
child was born out of the said wedlock on 11.05.2007. The said marriage is
still subsisting.
3. In December, 2008 the wife of the petitioner left her matrimonial
home along with her minor handicapped child and since then she is living
with her parents. When the petitioner contacted the opposite party no.2 to
know about the issue, the parents of the opposite party no.2 asked the
petitioner to leave his house and to stay with the opposite party no.2 and
their minor child in a rented place near the parental home of the opposite
party no.2, at Ghola, Sodepur.
4. That after several fruitless efforts to resolve the issue, the petitioner
served a letter to resume conjugal life with the opposite party no.2, through
his advocate, dated 21.08.2009. In reply to the said letter, the opposite party
no.2 also served a letter through her advocate, dated 02.09.2009, where the
proposal of renting a house in Ghola, near the parental home of the opposite
party no.2 was mentioned again.
5. When all these efforts of resuming the conjugal life, and having his
minor son back from the parental house of the opposite party no.2 failed,
the petitioner, with no alternative, filed a petition under Section 97 of the
3
Code of Criminal Procedure, before the learned Sub Divisional Magistrate,
Ranaghat being Misc. Petition No.1071 of 2009. Written objection was filed
on behalf of the opposite party no.2 in the said case, where it was claimed
that the opposite party no.2 is staying with her parents at her own will. After
hearing both the parties, the learned Sub Divisional Magistrate, Ranaghat
opined that there is no reason to proceed further and the case was filed
(disposed).
6. Thereafter, the opposite party no.2, filed an application claiming
maintenance under Section 125 of the Code of Criminal Procedure before
the learned Judicial Magistrate, 2nd Court, Barrackpore, being Misc. Case
No.510 of 2009. In the said proceeding, by an order dated 06.10.2010,
payment of an interim maintenance of Rs.1500/- to wife and Rs.2500/- to
the child was directed upon the petitioner. The petitioner filed a revisional
application before the High Court at Calcutta, challenging the order dated
06.10.2010 passed by the learned Judicial Magistrate, 2nd Court,
Barrackpore, being C.R.R. No.44 of 2011, and by an order dated
15.03.2011, this Hon'ble Court was pleased to reduce the amount of interim
maintenance to the extent of Rs.1500/- each to the wife and the child. The
proceeding under Section 125 of the Code of Criminal Procedure, is still
pending.
7. Subsequently, by an order dated 10.02.2017, the learned Judicial
Magistrate, 2nd Court, Barrackpore was pleased to pass an order, where
Misc. Case no. 510 of 2009 was dismissed for non prosecution.
8. In the proceeding in Misc. Case No.510 of 2009, the opposite party
no.2 was examined as prosecution witness no.1, and she specifically stated
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in her cross examination that, she is willing to go back to her husband, but
she does not want to stay at her matrimonial home. Later, in the same cross
examination she stated that she would go to her matrimonial house but only
if the petitioner arranges the provisions required for her parents.
9. On 17.12.2009 the petitioner filed a petition under Section 9 of the
Hindu Marriage Act, being Matrimonial Suit No.898 of 2009, before the
learned District and Sessions Judge, Krishnagar, Nadia.
10. It is submitted by the petitioner that the case of the opposite party
no.2 is that she was thrown out from her matrimonial home after being
tortured in the year of 2008, but she did not lodge any complaint regarding
the same before any authority. Subsequently, to fill up the lacuna in the
maintenance proceeding on the point of torture, she lodged a complaint on
01.07.2015 with the Ranaghat Police Station against total nine persons
including the aged parents, relatives of the petitioner and petitioner himself.
Based on the said complaint Ranaghat Police Station Case No.238 of 2015
dated 01.07.2015 under Sections 498A/406/34 of the Indian Penal Code.
The said proceeding is still pending.
11. That finally the efforts of the petitioner to resume his conjugal life with
the opposite party no.2 became fruitful as the opposite party no.2 agreed to
the proposal of the petitioner to stay in her matrimonial home with their
minor disabled son. In the month of November, 2015, the opposite party
no.2 came back to her matrimonial home with the child, and the couple
started living together again.
12. It is further submitted that while leading a peaceful and sweet
conjugal life, the petitioner and the opposite party no.2 were blessed with
5
another child on 08.03.2017. The only coarseness in this otherwise happy
relationship is that the opposite party no.2 curiously enough, did not take
any steps to withdraw the said complaint dated 01.07.2015, for reasons best
known to her.
13. The opposite party no.2 then used to pressurize him to provide
assistance to her parents. Though with the birth of the second child, the
financial burden increased on the petitioner, he was trying his level best to
take care of the parents of the opposite party no.2 as well.
14. On 20.02.2019, without informing anyone, the opposite party no.2
again left her matrimonial home, leaving the two children behind. When the
petitioner came back from work, and contacted the opposite party no.2 via
telephone, the opposite party no.2 stated that she will come and take the
children with her afterwards, to live at her parental home. The petitioner did
not agree to the proposal and informed her that he does not want his
children to live at the parental home of the opposite party no.2 and
requested the opposite party no.2 to come back repeatedly. But the opposite
party no.2 refused the request of the petitioner. Subsequently, a false
General Diary was lodged with Ranaghat Women Police Station by the
opposite party no.2, and by force of that she took away the second child
with her, leaving the first child with special needs behind in the petitioner's
custody.
15. In 2009 the opposite party no.2 lodged the present case, being Misc.
Case No.173 of 2019, under Section 125 of the Code of Criminal Procedure,
before the learned Judicial Magistrate, 3rd Court, Barrackpore claiming
Rs.30,000/- and Rs.20,000/- per month for her and her second child
6
respectively, from the petitioner. Written objection was filed on behalf of the
petitioner/husband.
16. By an order dated 27.12.2019 the learned Judicial Magistrate, 3rd
Court, Barrackpore was pleased to direct the petitioner to pay a
maintenance of Rs.3000/- to the opposite party no.2 and Rs.2,000/- for the
child, totaling Rs.5,000/- per month.
17. The petitioner states that the opposite party no.2 is a working lady
and she regularly files her income tax.
18. The petitioner is working in a Hardware Shop, earning about
Rs.8,000/- per month. The aged parents of the petitioner and the first child
with special need stay with the petitioner.
19. Mr. Kallol Mondal, learned counsel for the petitioner (husband) in
CRR 553 of 2020 has submitted that the order under revision has cause
severe hardship on him. The Court also failed to take into consideration
that the opposite party no. 2 left the petitioner's house on her own without
just and sufficient reason and has her own source of income. Hence, the
impugned procedure is bad in law and is liable to be set aside.
20. Mr. Ankit Agarwal learned counsel for the petitioner (wife) in CRR
1420 of 2020 has preferred the revision praying for enhancement of the
quantum of interim maintenance granted by the same order dated
27.12.2019, which the husband/petitioner has prayed for setting aside.
21. Considering the materials on record the following facts are before
this court:-
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i) The wife has left behind her child with special needs with the
husband and left her matrimonial home with the healthy child on
her own, without just and sufficient reasons.
ii) The order challenged is an interim order of maintenance
pending final adjudication.
iii) In the order under revision, the learned Magistrate has
observed that the wife has certain income.
iv) The husband's case is that the wife has deserted him and their
helpless child willfully without just and sufficient reasons.
22. Considering all these facts, this Court directs that 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).
23. 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
necessary to issue directions in this regard, so
that there is uniformity in the practice followed
by the Family Courts/District
8
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) it is made mandatory for the applicant
to disclose the previous proceeding and
the orders passed therein, in the
subsequent proceeding;
(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
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.
9
(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."
24. 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 husband has to
look after his aged parents and a disabled child and that the wife is also
a working woman. There is another factor to be considered by the
Learned Magistrate at the time of final disposal of the case as to
whether the wife was driven out from her matrimonial home or had she
deserted her husband willfully, without any just and sufficient reasons.
The husband though had filed a suit for restitution of Conjugal Rights.
25. 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.
10
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 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
11
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."
26. The order dated 06.10.2010 passed in Misc. Case No.173 of 2019
under Section 125 of the Code of Criminal Procedure by the learned Judicial
Magistrate, 3rd Court, Barrackpore, North 24 Parganas, is hereby affirmed,
subject to final adjudication/disposal of the proceedings under Section 125
Cr.P.C.
27. 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.
28. CRR No. 553 of 2020 and CRR 1420 of 2020 are thus dismissed.
29. No order as to costs.
30. All connected applications stand disposed of.
31. Interim order, if any, stands vacated.
32. Copy of this judgment be sent to the learned Trial Court forthwith for
necessary compliance.
33. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
