Himachal Pradesh High Court

Reserved On: 23.09.2024 vs Sandeep Chaudhary on 25 October, 2024

2024:HHC:10300

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 365 of 2024 Reserved on: 23.09.2024 Date of Decision: 25.10.2024.


    [




    Priyanka                                                                     ...Petitioner

                                              Versus

    Sandeep Chaudhary                                                         ..Respondent


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Ms. Ruchika Khachi, Advocate. For the Respondent : Mr. Dila Ram through Power of Attorney of Sandeep Chaudhary-

respondent.

Rakesh Kainthla, Judge

The petitioner has filed the present petition against

the order dated 10.04.2024 passed by learned Principal Judge,

Family Court Hamirpur in Cr.M.A. No. 45/2021 with the prayer

to enhance the interim maintenance and award the litigation

expenses. (Parties shall hereinafter be referred to in the same

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2024:HHC:10300

manner as they were arrayed before the learned Trial Court for

convenience)

2. Briefly stated, the facts giving rise to the present

petition are that the applicant filed an application under

Section 125 (1)(d) of Cr.P.C. for a grant of interim maintenance

with litigation expenses. It was asserted that the marriage

between the parties was solemnized as per Hindu Rites and

Customs. The respondent harassed the applicant and levelled

false allegations against her character. He compelled her to

leave her matrimonial home on 18.10.2020. The applicant has

no source of income whereas the respondent is posted as

Patwari. The adjudication of the main petition was likely to

take some time; hence, the interim maintenance @ ₹10,000/-

per month and the litigation expenses were sought.

3. The application was opposed by filing a reply

denying the contents of the application. However, the

relationship between the parties was not disputed. It was

asserted that the applicant has a sufficient source of income

and the applicant has concealed this fact from the Court. The

applicant is well-qualified and post-graduate in Business

2024:HHC:10300

Administration. She deserted the respondent and was guilty of

adulterous conduct. She was maintaining illicit relations with

the third person.

4. A rejoinder denying the contents of the reply and

affirming those of the application was filed.

5. The learned Trial Court dismissed the application

vide order dated 11.01.2023. This order was assailed before this

Court in Criminal Revision No. 108/2023 and the matter was

remitted to the learned Trial Court for a fresh determination.

The respondent filed a Special Leave Petition before the

Hon'ble Supreme Court of India bearing SLP No. 650 of 2024,

which was dismissed on 22.01.2024.

6. Learned Trial Court held that the relationship

between the parties was not disputed. The interim

maintenance is granted to prevent vagrancy and restitution

during the adjudication of the respective pleas taken by the

parties. The respondent was a Government servant, whose

gross pay was more than ₹41,000/-He could easily pay an

amount of ₹6,000/- per month as interim maintenance to the

applicant; hence, the application was allowed and maintenance

@ ₹6,000/- per month was awarded to the applicant.

2024:HHC:10300

7. Being aggrieved from the order passed by

the learned Trial Court, the applicant/petitioner has

approached this Court asserting that the learned Principal

Judge erred in awarding the maintenance @₹6,000/- per

month. The salary of the respondent is ₹41,000/- per month.

He had not considered the financial status of the parties.

Therefore, it was prayed that the present petition be allowed

and the maintenance be enhanced.

8. I have heard Ms. Ruchika Khachi, learned counsel

for the petitioner and Mr. Dila Ram Power of Attorney of

Sanjeev Chaudhary-respondent.

9. Ms. Ruchika Khachi, learned counsel for the

petitioner submitted that the respondent is employed as a

Patwari. He is earning ₹41,000/- per month. Learned Trial

Court noticed the income but failed to award adequate

maintenance. The applicant is entitled to maintain the same

status, which she had in her matrimonial home and the

amount of ₹6,000/- per month is grossly inadequate,

therefore, she prayed that the present petition be allowed and

the maintenance be enhanced.

2024:HHC:10300

10. Mr Dila Ram, Power of Attorney on behalf of the

respondent submitted that the revision filed by the

respondent-Sanjeev Chaudhary was dismissed by this Court in

Criminal Revision No. 521 on 2024 decided on 09.08.2024 titled

Sandeep Chaudhary versus Priyanka, therefore, the present

petition should also be dismissed.

11. I have given considerable thought to the submission

made at the bar and have gone through the records carefully.

12. It was laid down by the Hon'ble Supreme Court in

Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330: (2010) 1

SCC (Cri) 1015: 2009 SCC OnLine SC 1214 that the Court

exercising revisional jurisdiction cannot reappreciate the facts

unless there is some perversity. It was observed:

"9. So far as Issue 1 is concerned i.e. as to whether the appellant got married to Smt Ranju Sarma, is a pure question of fact. All three courts below have given concurrent findings regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon the

2024:HHC:10300

fruitless task of determining the issues by reappreciating the evidence."

13. This position was reiterated in Amit Kapoor v.

Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687 :

(2013) 1 SCC (Cri) 986: 2012 SCC OnLine SC 724 wherein it was

observed:

12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

14. This Court had dismissed the revision preferred by

the respondent against the order after holding that the Court is

not required to see documentary evidence adduced on record

but only the pleadings of the parties. The purpose of granting

maintenance was to ensure that the applicant was not left to

starve. Therefore, the order was upheld. This Court had not

2024:HHC:10300

recorded any finding regarding the adequacy of the

maintenance because this question was not raised before this

Court. The applicant is aggrieved by the order passed by

the learned Trial Court and she has an independent right to

assail the same. Hence, the submission that the petition is to

be dismissed because the petition filed by the respondent was

also dismissed cannot be accepted.

15. The respondent had taken a plea that the applicant

was living in adultery but he failed to prove the same. It was

laid down in Gaddamsetti Rajya Lakshmi v. Gaddamsetti Venkata

Subbarao, 1955 SCC OnLine AP 12: 1955 ALT 161: 1955 ALT (NRC 1)

3: (1955) 1 An WR 215 : (1955) 1 An WR (NRC 2) 21 that a plea

taken by the husband that wife was residing in adultery would

amount to sufficient cause with the wife to leave her

matrimonial home and claim maintenance from her husband.

21. It is necessary for me to refer to the facts that in the application filed by the respondent he made an unfounded allegation imputing unchastity to his wife. In the evidence he did not seriously persist in proving that allegations. There is really no evidence establishing any unchastity on the part of the wife. It has been held in several decisions of the Madras High Court that imputation of unchastity to a wife amounts to cruelty so as to entitle her to maintenance.

2024:HHC:10300

16. Allahabad High Court took a similar view in

Dhanwanti Devi v. Singhasan Singh, 1979 SCC OnLine All 298:

1979 All LJ 762 : (1979) 16 ACC 193: 1979 A Cr R 308 and observed:

"9. Coming now to the merits of the case, the position is that the trial court had recorded a finding that the allegations of Singhasan Singh imputing unchastity to Smt. Dhanwanti Devi was not proved, Singhasan Singh had refuted that Hem Lata was his daughter. He characterized his wife as an immoral woman and his case was that Hem Lata was born of an illicit connection between his wife and Chhabinath. This allegation has been found to be unproved. To my mind, this by itself is sufficient ground for awarding a maintenance allowance to the wife. The Sessions Judge had no jurisdiction to reappraise the evidence on the record and to reverse this finding of fact arrived at by the trial court. No illegality was committed by the trial court in recording this finding of fact and the Sessions Judge has exceeded his jurisdiction in setting it aside. Therefore, apart from the other aspects of the matter, which may make the husband liable to pay maintenance to his wife on the ground of neglect, a frivolous and false accusation of unchastity entitles Smt. Dhanwanti Devi to a maintenance allowance."

17. Madhya Pradesh High Court also held similarly in

Shyamkali v. Bhaiyalal, 1997 SCC OnLine MP 29: (1999) 1 MP LJ

237: (1999) 1 HLR 300: (1997) 2 DMC 565: 1998 Cri LR (MP) 85

and observed:

"5. In reaching this conclusion, the Sessions Court appears to have lost sight of the obvious. If false allegations of unchastity are made against a wife, it is cruelty itself. If such an allegation is false, the wife is

2024:HHC:10300

entitled to live separately from the husband and to seek maintenance. Had the Sessions Court approached the matter from this angle, a proper adjudication ought to have been made. So the observation of the Sessions Court for denying the right of maintenance to the wife was on total misunderstanding of the legal implication and effect of an allegation of the husband. The Additional-Sessions Judge lost sight of this justification for her separate living."

18. Therefore, prima facie, the wife has a reasonable

cause to reside separately from the respondent and claim

maintenance.

19. It was submitted that the wife is professionally

qualified and can easily earn the maintenance; hence she is not

entitled to any maintenance. This submission is not acceptable.

It was laid down by the Punjab and Haryana High Court in Lipi

Mohapatra vs. Vinay Kumar 2018 (1) HLR 891 that maintenance

cannot be denied to a wife on the ground that she is capable of

earning. It was observed:

"On asking of the court, it has been informed that the applicant is educated having done Post Graduation in the subject of English. But the circumstances that she is capable of earning and is doing some constructive work for earning will not disentitle her for maintenance pendente lite as the said factor will not ipso facto disentitle her for the maintenance pendente lite as she has to be maintained commensurate with the status and earnings of the husband."

2024:HHC:10300

20. It was held by the Hon'ble Supreme Court in Manish

Jain vs. Akanksha Jain 2017 (15) SCC 801 that there is no answer

to the claim of the wife that she is educated and capable of

earning for herself. It was observed:

5. An order for maintenance pendente lite or costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife's parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support.

Maintenance is always dependent upon the factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.

21. Similarly, it was held in Shailja vs. Khobanna AIR

2017 SC 1174 that there is a distinction between actual earning

and capable of earning. It was observed:

8. That apart, we find that the High Court has proceeded on the basis that appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court.

Whether appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.

2024:HHC:10300

22. This position was reiterated in Rajnesh v. Neha,

(2021) 2 SCC 324: (2021) 2 SCC (Civ) 220: 2020 SCC OnLine SC

903 wherein it was observed:

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 v. Khobbanna [Shailja v.

Khobbanna, (2018) 12 SCC 199: (2018) 5 SCC (Civ) 308; See also the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 SCC OnLine Kar 8848: 2016 Cri LJ 4794 (Kar)], 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.

[Chaturbhuj v. Sita Bai, (2008) 2 SCC 316: (2008) 1 SCC (Civ) 547: (2008) 1 SCC (Cri) 356] Sustenance does not mean, and cannot be allowed to mean mere survival. [Vipul Lakhanpal v. Pooja Sharma, 2015 SCC OnLine HP 1252: 2015 Cri LJ 3451] 90.2. In Sunita Kachwaha v. Anil Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715:

(2015) 3 SCC (Civ) 753: (2015) 3 SCC (Cri) 589] 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

2024:HHC:10300

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 [Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694] while relying upon the judgment in Sunita Kachwaha [Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715: (2015) 3 SCC (Civ) 753 : (2015) 3 SCC (Cri) 589], 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 Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52: AIR 1968 Del 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.

90.5. This Court in Shamima Farooqui v. Shahid Khan [Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705: (2015) 3 SCC (Civ) 274: (2015) 2 SCC (Cri) 785] cited the judgment in Chander Parkash [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52: AIR 1968 Del 174] with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.

2024:HHC:10300

23. Hence, merely because the applicant is educated

and well-qualified to earn an income is an insufficient ground

to deny maintenance to her.

24. The learned Trial Court found the income of the

respondent to be more than ₹ 41,000/- and yet awarded

maintenance of ₹ 6,000/- per month.

25. It was laid down by the Hon'ble Supreme Court in

Chaturbhuj v. Sita Bai, (2008) 2 SCC 316: (2008) 1 SCC (Civ) 547:

(2008) 1 SCC (Cri) 356: 2007 SCC OnLine SC 1427 that the wife is

entitled to maintain a status which she had in her matrimonial

home. It was observed at page 320:

8...The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi [(1975) 2 SCC 386: 1975 SCC (Cri) 563: AIR 1975 SC 83] it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with the status of a family."

26. The learned Trial Court failed to appreciate the fact

that by awarding maintenance of ₹ 6,000/- per month, the

applicant could not have maintained the standard that she had

in her matrimonial home with an income of ₹ 41,000/- per

month. Learned Trial Court did not find any other liability of

the respondent and the maintenance of ₹ 6,000/- per month is

2024:HHC:10300

grossly inadequate when the total income of the petitioner is

more than ₹ 41,000/-.

27. The applicant has claimed the maintenance of ₹

10,000/- per month which is a reasonable amount keeping in

view the salary of the respondent. Further, the applicant is