Sumairvijay Chandravijay Singh vs Srimati Preetika Sumairvijay ...
2021 Latest Caselaw 17003 Guj

     R/SCR.A/7843/2018                       ORDER DATED: 28/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CRIMINAL APPLICATION NO. 7843 of 2018
                            With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of
                            2021
      In R/SPECIAL CRIMINAL APPLICATION NO. 7843 of 2018
                            With
      CRIMINAL MISC.APPLICATION (RECALL) NO. 2 of 2021
      In R/SPECIAL CRIMINAL APPLICATION NO. 7843 of 2018
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                SUMAIRVIJAY CHANDRAVIJAY SINGH
                             Versus
     SRIMATI PREETIKA SUMAIRVIJAY SINGH D/O NARENDRA SINGH
==========================================================
Appearance:
MR GAUTAM JOSHI, LD. SENIOR ADVOCATE WITH MR HARSHESH R
KAKKAD(7813) for the Applicant(s) No. 1
MR RC KAKKAD(389) for the Applicant(s) No. 1
MS VANDANA KEJRIVAL, LD. ADVOCATE WITH MR MAHESH K
POOJARA(5879) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 4
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                         Date : 28/10/2021

                           ORAL ORDER

1. By way of present petition under Article 226 and 227 of the Constitution of India, the present petitioner is challenging the order dated 28/03/2018 passed by the learned Principal Judge, Family Court, Rajkot below Exh.7 in Criminal Misc. Application No.849 of 2017 whereby the learned judge directed to pay interim maintenance amount of Rs.15,000/- to respondent nos.1 to 3 in total amount to Rs.45,000/- per month from the date of filing of the application i.e. from 04/09/2017 and also directed to pay the cost of Rs.5,000/- to the respondents.

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2. Respondents Nos.1 to 3 filed an application under Section 125 of the Code of Criminal Procedure wherein maintenance of Rs.3,69,549/- per month was prayed by respondents.

2.1. Marriage of present petitioner and respondent no.1 was solemnized on 13/12/2002. They have two children aged about 14 and 11 years.

2.2. The petitioner has filed reply and objections vide Exh.18 on 28/02/2018 against the maintenance application and application for interim maintenance filed by the respondents.

3. Mr. Gautam Joshi, learned Senior Advocate along with Mr. H. R. Kakkad, learned advocate appearing for the petitioner stated that earlier the petitioner had filed Criminal Revision Application No.540 of 2018 challenging the order dated 28/03/2018 passed by the learned Principal Judge, Family Court, Rajkot below Exh.7 in Criminal Misc. Application No.849 of 2017, however, as found that revision application would not be maintainable, the court granted liberty to the petitioner to move appropriate application before appropriate forum. Thus, the present application.

4. It is stated by Mr. Gautam Joshi, learned Senior Advocate for the petitioner that order of interim maintenance passed by learned Family Court, Rajkot below application Exh.7 in Criminal Misc. Application No.849 of 2017 is without considering the facts and material documents on record and without considering the liabilities and priorities of the petitioner.

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5. Mr. Gautam Joshi, learned Senior Advocate stated that the petitioner is ready and willing to reside with respondent no.1 wife and children, but as respondent no.1 is not ready to stay with the petitioner and therefore, respondent no.1 is not entitled to get maintenance from the petitioner.

6. Learned Senior Advocate Mr. Gautam Joshi stated that the learned Judge ought to have considered the fact that respondent no.1 has concocted a false story against present petitioner. He stated that as the income of the present petitioner was not satisfactory for the respondents to lead a luxurious life, therefore, she has willingly left the matrimonial home.

7. Learned Senior Advocate Mr. Gautam Joshi further submitted that the learned Judge failed to appropriate material evidence on record whereby the petitioner submitted documentary evidence pertaining respondent no.1 being a Architect and earning very good amount. It is also stated by learned advocate for the petitioner that the learned Judge failed to consider that respondent no.1 has suppressed said material fact and played fraud with the Court by stating that she is doing house hold work though she is engaged in the business of Architect and having a flourishing practice in the field of Architect and Interior Designing and earning handsome income from the said business.

8. Mr. Gautam Joshi, learned Senior Advocate contended that ability of the petitioner is also required to be considered by the learned Judge while passing any order for maintenance

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as in present case petitioner is not able to afford such expenses for the respondent no.1 as per her life style. He further stated that in the present case, the learned Judge erred in believing that the petitioner belongs to royal family and earning Rs.75,00,000/- per month. On the contrary, the petitioner is working as a care taker of agricultural fields and his expenses are borne by his father.

10. It is submitted by learned Senior Advocate for the petitioner that the learned Judge failed in considering the fact of delay of about two year in filing the application of maintenance from the date of separation of the parties. It is also submitted that during these two years, respondent no.1 threatened the petitioner to give divorce or face the consequences, however, as the petitioner did not pay any heed to the threats, respondent no.1 filed a false complaint, as well as present proceedings to harass the petitioner.

11. Mr. Joshi, learned Senior Advocate for the petitioner submitted that from the date of separation till filing of an application for maintenance, respondent no.1 was bearing all the expenses that itself shows that she is able to manage such exorbitant expenses compared to the present petitioner.

12. Mr. Joshi, learned Senior Advocate for the petitioner also stated that considering income tax returns from the year 2008-2009 to year 2017-2018, the petitioner is not earning more than Rs.10,000/- per month and therefore, interim maintenance awarded by the learned Judge of Rs.45,000/- in total is not proper and is required to be quashed and set aside.

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13. Learned Senior Advocate appearing for the petitioner stated that as observed in various decisions of this Hon'ble Court as well as Hon'ble Supreme Court while fixing the quantum of maintenance, the Court has to take into account not only the needs of person who claims maintenance but also capacity, status, commitments and obligations of a person who is required to pay it. If the person is required to maintain other family members like children, parents etc., reasonable allowance for their maintenance shall have to be made. The party who has to pay maintenance is also not be virtually rendered a destitute. A fair balancing of the relevant factors is to be taken care of by the Court without making an emotional approach to the problem. On assumption and presumption, such amount of maintenance is granted which is even otherwise not possible for the petitioner to pay to the respondents.

14. Learned Senior Advocate appearing for the petitioner, in support of his submissions has relied upon the following observation made in para-8 of the Hon'ble High Court of Madhya Pradesh, Indore Bench in the case of Smt Mamta Jaiswal vs. Rajesh Jailswal. In para-8, it is stated as under:

"8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarreling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by

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way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the Matrimonial Courts should dispose of the matrimonial petitions early as possible. The Matrimonial Courts have to keep it in mind that the quarrels between the spouses create dangerous impact on minds of their off-springs of such wedlocks. The offsprings do not understand as to where they should see? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They cannot be exposed to such danger on account of such fighting parents."

15. Ms. Vandana Kejriwal, learned advocate along with Mr.M.K. Pujara, learned advocate for the respondents nos.1 to 3 submitted that interim order of maintenance passed by the learned Principal Judge, Family Court, Rajkot is reasoned order directing the petitioner to pay interim maintenance of Rs.15,000/- for each of the respondents totaling to amount of Rs.45,000/- per month.

16. Ms. Vandana Kejriwal, learned advocate submitted that by order dated 12/09/2018, this Court was pleaded to reduce the said amount to Rs.30,000/- and further stayed the proceedings in Criminal Misc. Application No.849 of 2017.

17. Ms. Kejriwal, learned advocate further submitted that present petitioner has failed to comply with the order of this Hon'ble Court and is in default of payment of Rs.30,000/- and thereby has adopted callous and uncaring attitude towards his children which is clear evidence of the false allegations of the petitioner and ill intention and ill will as also of his complete

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lack of sense of duty and responsibility towards his children.

18. Ms. Kejriwal, learned advocate submitted that petitioner has till date not filed his income expenditure affidavit neither in Section 125 proceedings nor in DV proceedings. The petitioner is hailing from the royal family of Dumraon and being exceptionally rich with a very lavish lifestyle has deserted his wife and children and has not made any timely payments of even the said meager amount of Rs.45,000/- per month and thereafter of Rs.30,000/-. It is also contended that the petitioner has not approached this Court with a clean hands and with a false and misleading facts, has suppressed relevant and necessary facts and details pertaining to the matter and obtained orders on the basis of gross misrepresentation. It is also submitted by learned advocate for the respondents that the petitioner has deserted his wife and children since the year 2015. The petitioner used every tactic under the sun to thwart the attempts of the respondents to obtain justice by adopting delay tactics, filing false and baseless complaints against the respondents by not complying with judicial orders.

19. It is stated that the son of the petitioner aged about 11 years is suffering from "Diamond Blackfan Anemia (DBA)" which requires continuous medical care routine and also high expenses. This DBA is a rare inherited bone marrow failure syndrome, characterized by a failure of the bone marrow to produce red blood cells and this failure caused DBA patients to become severely anemic. It is also submitted that the child requires constant supervision, regular medical checkups, expensive medical treatment. That the said intense care and

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supervision as also the financial burden is huge responsibility on the mother to handle all alone. She further submitted that respondent no.1 bears full and complete responsibility of both the children i.e. their day to day expenses, their education etc. and most important of all, the younger child needs constant care and diligence and cannot be left unsupervised at all, has to be rushed to medical care in the event of any untoward condition. Respondent wife is not financially capable to incur such huge expenses towards medical issues and is already over burdened by loans and she has sold off the meager jewelry that was in her custody for maintenance of the children.

20. Ms. Kejriwal, learned advocate for the respondent submits that the petitioner hails from the Royal Families of Dumraon, Jamnagar, Nepal, Champrajpur. The petitioner's father Chandra Vijay Singh is hailing from the Royal Family of Dumraon, Bihar and mostly resides in Delhi and shuttles between Delhi and Dumraon. Petitioner's mother, Ahalyadevi @ Umabaa Chandravijay Singh is only child hails from the Royal Families from Gujarat and Nepal i.e. paternal grand father of the petitioner being Jaywant Kumar of Chamrajpur in Gujarat and Maternal Grand Mother, Nani, Lekharajya Lakshmidei Jayvant Vala hailing from the royal families of Nepal are residing at Jamnagar.

21. It is also stated by Ms. Kejriwal, learned advocate that Dumraon is a sub division in Buxar district in the Indian state of Bihar. Dumraon is one of Bihar's oldest municipalities and one of India's oldest princely states which is also known as Dumraon Raj. The petitioner lives the life in style of Rajas and

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Maharajas and has a princely lifestyle and resides in palace as well as owns vast lands and properties at Jamnagar, Champarajpur, Rajkot, Delhi, Deharadun, Kolkata, Patna and Dumraon, having a fleet of cars, spending time hunting and partying, has vast income from investments, lands, agriculture and various other sources of income. The petitioner himself spends his time between Dumraon with his father and rest of the family and in Jamnagar with his Mother and Nani. The respondent had her matrimonial homes at Dumroan, Jamnagar and Delhi and various other places and used to shuttle between these places regularly and frequently.

22. Respondent no.2, daughter is studying in Mayo College Girls School and the minor son was studying in the Galaxy School Rajkot and is now studying in the Daly College, Indore. The petitioner himself been educated in the educational institutions i.e. Mayo College, Ajmer, St. Xavier's High School, Jamnagar, Rajkumar College, Rajkot. Ms. Kejriwal, learned advocate submitted that the respondent has produced all the relevant documents along with reply which runs from page no.149 to 523 to show about life style of the petitioner and educational and medical expenses of the children. Ms.Kejriwal, learned advocate stated that in accordance with the judgment in case of Rajnesh vs. Neha and Another reported in (2021) 2 SCC 324, respondent wife has submitted her affidavit of assets and liabilities while no such affidavit has been produced by the petitioner. It is stated by way of affidavit that income tax returns in the name of respondent no.1 is of the period when she was staying with her parents-in-law and such returns were filed under the instruction of the petitioner. Ms. Kejriwal, learned advocate

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submitted that respondent has under taken the course of interior designer and because of pandemic, she lost her prospect of earning. Referring to the details of the expenses, Ms.Kejrival, learned advocate submitted that Rs.45,000/- is a meager amount.

23. The Principal Judge Family Court, Rajkot vide order dated 28/03/2018 has referred to the facts of the matters and observed the fact that the respondent no.2 studies in Mayo Girls College and annual fee is Rs.8,00,000/- and including travel and hostel expenses, total expenses of the daughter comes to Rs.15,50,000/- while the son is in standard-1 and his annual expenses for education is Rs.3,09,580/- and for his annual medical expenses, the amount comes to Rs.4,40,000/- and, therefore, the total annual expenses on the son is Rs.7,49,580/- which comes to monthly Rs.62,465/-. Monthly rent and the maintenance on the property is considered as Rs.19,500/-. The the learned Judge finds the total monthly expenses as Rs.77,417/-.

24. The learned Judge has also considered the reply of the present petitioner at Exh.18 and observed that from para-2 to 23, the facts stated by the respondent has been denied. The petitioner has contended that he is staying in joint family of Bihar and his father is agriculturist, and the petitioner administers the agricultural work and he receives monthly income of Rs.10,000/- from his father. The petitioner contends of having cooperated the respondent for her architect work from the year 2005 to 2015 and it has been stated by the petitioner that respondent no.1 was working and he was helping her in household work and was taking care of

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the children too.

25. It is to be noted that the petitioner has not disclosed his source of income. He has not filed affidavit to that effect. The documents at Exh.6 has been acknowledged by learned Judge to take note of the properties of the petitioner at Jamnagar, Champrajpur, Rajkot, Delhi, Dehradun, Kolkatta, Patna and Dumraon and has noted the fact of petitioner having monthly income of Rs.75,00,000/-. The learned Judge has noted the contention of residing in joint family and taking care of the agricultural work and receiving monthly amount of Rs.10,000/- and that he has cooperated in the carrier of the respondent from 2005 to 2015 and the respondent had left the family on her own volition. The list of documents at Exh.19 was noted by the learned Judge. The learned Judge observed that the documents produced by both the sides would be question of evidence, and the matter was for the decision of interim maintenance, the learned Judge considered the fact that both the parties are from very royal families and though husband and wife are having disputes with each other, the same should not have any adverse effect on the children so far as their education and upbringing is concerned. The learned Judge has come to the conclusion that both the parents are equally responsible for the education and upbringing of the children and thus taking into consideration the status of the parents, the learned Judge came to the conclusion that the fact of education of children and living expenses cannot be ignored. The learned Judge recognized the school receipts of both the children and document of rent agreement. Thus, taking into consideration the provision of Section 125, the learned Judge ordered for monthly maintenance of Rs.15,000/-

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each i.e. Rs.45,000/- for all the three respondents.

23. In the decision of Rajnesh vs. Neha and Another reported in (2021) 2 SCC 324, for Section 125 of the Criminal Procedure Code, it is observed as under:

"32. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions : (i) the husband has sufficient means; and (ii) "neglects" to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.

33. The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court / family court in an appropriate proceeding, such as the Hindu Marriage Act, 1955.

34. In Bhagwan Dutt v Kamla Devi 6 the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is "unable to maintain herself" is entitled to seek maintenance. The Court held : (SCC p.392, para 19)

"19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments." (emphasis supplied)

35. Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs. 500 "in the whole". In view of the rising costs of living and inflation rates, the ceiling of Rs. 500 was done away by the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment Act states that the wife had to wait for several years before being granted maintenance. Consequently, the Amendment Act introduced an express provision for grant of "interim maintenance". The Magistrate was vested with the power to order the respondent to make a monthly allowance towards interim maintenance during the pendency of the petition. Under sub- section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days' from the date of service of notice on the respondent."

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24. In the above referred decision, for the issue, when wife is earning some income, the Honble, Apex Court has observed thus:

"90. 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:

90.1. In Shailja & Anr. v Khobbanna, 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. Sustenance does not mean, and cannot be allowed to mean mere survival.

90.2. In Sunita Kachwaha & Ors. v Anil Kachwaha 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.

90.3. The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale 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.

90.4. 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. 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.

90.5. This Court in Shamima Farooqui v Shahid Khan cited the judgment in Chander Prakash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife."

25. In the same decision, the observation for maintenance of minor children is as under:

"91. 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-

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curricular / coaching classes, and not an overly extravagant amount which may be claimed.

92. 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.

26. For Serious disability or ill health also, in the said decision, the Court observed as under:

"93. 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 qualifying maintenance."

27. Thus, as observed in the case of Rajnesh vs. Neha and Another (supra), the object of provision of Section 125 is to prevent vagrancy and destitution. The magistrate is required to find out what is required by the wife to maintain a standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family. During the pendency of the proceedings under Section 125 of the Criminal Procedure Code, the magistrate is required to order for the monthly allowance for the interim maintenance for the wife and children and the expenses of the proceedings which the magistrate considers reasonable. The learned Principal Judge has taken into consideration the facts of the expenses of both the children, standard of living and has very appropriately dealt with the issues and has in fact concentrated on the need of providing interim maintenance to the wife and the children. The amount of Rs.15,000/- to each respondent is not excessive. Since there are rival claims on income of the parties, the petitioner's contention of the wife's income to be considered is a matter of evidence, even if that, as stated be considered the monthly amount of Rs.15,000/-

granted to the respondent no.1 would not be over burdening

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the petitioner. The parties are from royal family. The medical and education expenses of children are high which the petitioner as a husband has to shoulder it.

28. In view of the aforesaid, there is no reason to interfere in the order dated 28/03/2018 passed by the learned Principal Judge, Family Court, Rajkot. The said order cannot be termed as illegal, erroneous or bad in law.

29. Hence, present petition stands rejected with no order as to costs. The order passed by the learned Principal Judge, Family Court in Criminal Misc. Application No.849 of 2017 stands upheld.

30. Since Special Criminal Application No.7843 of 2018 stands rejected, no cause survives in the connected Criminal Misc. Applications and hence the same are disposed of accordingly.

(GITA GOPI,J) ila