Dilip Kumar Singh vs Smt. Chanda Kumari
2021 Latest Caselaw 1340 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(C) No. 4321 of 2019
                                  With
                      W.P.(C) No. 4379 of 2019
Dilip Kumar Singh                    .....   ... Petitioner (in both cases)
                               Versus
Smt. Chanda Kumari                   .... .... Respondent (in both cases)

CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR

For the Petitioner :- Mr. Onkar Nath Tiwari, Advocate For the Respondent :- Mr. Niranjan Singh, Advocate Order No. 10 Dated: 17.03.2021

The present cases are taken up today through Video conferencing.

2. W.P.(C) No. 4321 of 2019 has been filed by the petitioner for quashing and setting aside the order dated 29.06.2019 (Anneuxre-4 to the writ petition) passed by the Additional Principal Judge (Additional Family Court), Dhanbad in Original Suit No. 778 of 2017 whereby the respondent's application dated 05.01.2019 filed under Section 24 of the Hindu Marriage Act, 1955 (in short "the Act, 1955") has been allowed and the petitioner has been directed to pay Rs.10,000/- per month as maintenance pendente lite to the respondent and has further been directed to pay Rs.500/- per date to the respondent on her appearance and Rs.300/- per date in case of her non-appearance in the proceeding.

3. W.P.(C) No. 4379 of 2019 has been filed by the petitioner for quashing and setting aside the order dated 29.06.2019 (Annexure-4 to the writ petition) passed by the Additional Principal Judge (Additional Family Court), Dhanbad in Original Suit No. 778 of 2017 whereby the petitioner's application dated 04.03.2016 filed under Section 26 of the Act, 1955 read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (in short "the Act, 1956") praying for custody of his minor children has been dismissed.

4. The factual background of the case as stated in both the writ petitions is that the marriage between the petitioner and the respondent was solemnized on 12.03.2006 according to Hindu rites and custom and out of the said wedlock, they were blessed with two children namely Nikita Singh (daughter) and Mihir Narayan Singh (son). It has further been stated that the petitioner attempted all the possible ways to save the conjugal life but due to undue demands and cruel behaviour of the respondent towards him, he was compelled to file matrimonial suit being H.M.A No. 196 of 2016 before the Principal Judge, Family Court (Tis

Hazari Court) Delhi under section 13(1)(i-a) of the Act, 1955 seeking dissolution of marriage by a decree of divorce. The respondent filed Transfer Petition (Civil) No. 1858 of 2016 before the Hon'ble Supreme Court to transfer the said matrimonial suit from the Principal Judge, Family Court (Tis Hazari Court), Delhi to the Principal Judge, Family Court, Dhanbad. The said petition was allowed and the matrimonial suit was transferred to Dhanbad which was subsequently renumbered as Original Suit No. 778 of 2017 which is still pending. The respondent appeared in the said case and filed written statement denying all the allegations levelled against her. In the meantime, the respondent filed a petition on 05.01.2019 under Section 24 of the Act, 1955 claiming Rs.15,000/- per month as maintenance pendente lite and expenses of proceedings during the pendency of the said matrimonial suit. The petitioner had also filed a petition on 04.03.2016 under Section 26 of the Act, 1955 read with Section 6(a) of the At, 1956 for custody of his minor children which was objected by the respondent. The court below heard both the aforesaid petitions and vide common order dated 29.06.2019 allowed the petition for maintenance pendent lite of the respondent filed under Section 24 of the Act, 1955 directing the petitioner to pay Rs.10,000/- per month as pendent lite maintenance as well as to pay Rs.500/- per date to the respondent on her appearance and Rs.300/- per date in case of her non-appearance in the proceeding. The said court however dismissed the petitioner's application filed under Section 26 of the Act, 1955 regarding custody of his minor children.

5. Learned counsel for the petitioner submits that though the respondent has willingly left her matrimonial house, yet the petitioner is ready to keep her as wife along with children with full dignity and honour in accordance with his financial status. However, the respondent with ulterior motive, did not accept the request of the petitioner which may jeopardize the future of the children who are being deprived of proper care and maintenance as well as education. It is further submitted that the court below has failed to appreciate that the petitioner being natural father has the right under law for proper care and education of his minor children who are not being properly looked after in their maternal home. The petitioner is residing in Delhi and can look after his children properly providing them all the amenities and convenience. The court below has

erred in not giving the visitation right to the petitioner during the pendency of the said matrimonial suit and has dismissed the petition without entering into the actual facts. It is also submitted that the FIR dated 20.08.2016 lodged by the respondent is the counter action against the matrimonial suit filed by the petitioner, that too, with an imaginary ground that the petitioner has extramarital relationship with another woman namely Anuradha Devi. The petitioner has filed a petition before the court below praying for appointment of pleader commissioner in original Maintenance Suit No. 251 of 2017 so as to enquire and find out the veracity of the said allegation as neither any ID proof nor any description regarding said Anuradha Devi has been produced by the respondent. Moreover, she has also not been made an accused in the FIR. It is further submitted that the court below has failed to appreciate the ITRs filed by the petitioner which reveals that gross total income of the petitioner in the Assessment Years 2017-18 and 2019-20 was Rs.2,25,000/- and Rs. 1,73,659/- respectively. The court below has also failed to appreciate that the respondent is well qualified having degree of B.A and B.LIB and she is capable to earn livelihood. She is also engaged as a teacher in Dhanbad and therefore she is not entitled for maintenance as claimed by her. The petitioner is residing in Delhi having monthly earning of about Rs.15,000/- and as such he is not in a position to make payment of Rs.10,000/- per month plus litigation cost to the respondent.

6. Per contra, learned counsel for the respondent submits that the petitioner is living with another woman namely Anuradha Devi and he was compelling the respondent to live together with the said lady which in itself was an act of cruelty by the petitioner. Due to the said reason, the petitioner is fully responsible for shattering the conjugal life of the respondent and has filed the said divorce case to put undue pressure on her. It is further submitted that an FIR being Dhanbad P.S Case No. 543 of 2016 under Section 498-A and other provisions of the Indian Penal Code was lodged against the petitioner in which he remained in judicial custody for about three months and as such it is wrong to say that the respondent did not have sufficient reason to leave the matrimonial home. The petitioner is not entitled to take custody of the children as he is having extramarital relationship with another lady and both the children

are also the witnesses to the same. It is also submitted that the paramount consideration for custody of minor children is their welfare and not any other statutory rights of the parents under Section 6(a) of the Act, 1956. The children's wish must be given prime importance and they should not be treated as property or commodity. Such issue should be handled with love and affection applying human touch to the problem. The petitioner did not file any application making prayer for his visitation right to his minor children and the said issue has been raised for the first time before this Court. Moreover, the court below has given liberty to the petitioner to take legal recourse for his claim of visitation right. It is further submitted that there is no need to take detailed evidence for passing any order under Section 24 of the Act, 1955. The petitioner filed his ITR of the Assessment Year 2019-20 on 07.08.2019 i.e after passing the impugned order dated 29.06.2019 and as such it is wrong to say that the court below has committed error in passing the impugned order of maintenance. The respondent has no independent source of earning whereas the petitioner is an Advocate of fair standing at Rohind Civil Court, Delhi and has handsome monthly income of about Rs.1,50,000/-. He is also having a Santro Car and two houses in Delhi - one at plot no.15 and another at plot no.16 in Niyada Enclave, Uttam Nagar near Vikas Nagar, Delhi out of which one house has been given on rent @ Rs.30,000/- per month. Apart from this, the petitioner has income from his share of 52 bighas of ancestral agricultural land.

7. Heard learned counsel for the parties and perused the materials available on record. So far as the challenge to the order of maintenance pendente lite granted by the court below is concerned, learned counsel for the petitioner has contended that the same is too excessive in comparison to the earning of the petitioner. In support of the said contention, the ITRs filed by the petitioner for the Assessment Years 2017-18 and 2019-20 showing his earning as gross total income of Rs.2,25,000/- and Rs.1,73,659/- respectively have been brought on record. It has vehemently been argued by the learned counsel for the respondent that since the petitioner had filed his ITR of the Assessment Year 2019-20 on 07.08.2019 i.e. after passing the impugned order dated 29.06.2019, the said document could not have been produced before the court below while hearing of the application for interim maintenance. The

copies of the said ITRs having been produced for the first time before this Court may not be appreciated at this stage.

8. Having heard the learned counsel for the parties and on perusal of the record of the case, it appears that the learned court below has observed that the respondent is living separately and has no source of income to maintain her as well as her children. It has further been observed that the children are studying in Kids Garden School at Dhanbad. The daughter is 12 years old whereas son is 10 years old. I am of the view that in the attending circumstances, the maintenance pendente lite as awarded by the court below is not excessive, rather the same can be said to bare minimum to maintain the respondent and her children as also to meet the expenses of court proceeding.

9. In the case of Reema Salkan Vs. Sumer Singh Salkan reported in (2019) 12 SCC 303, the Hon'ble Supreme Court has held as under:-

13. Be that as it may, the High Court took into account all the relevant aspects and justly rejected the plea of the respondent about inability to pay maintenance amount to the appellant on the finding that he was well educated and an able-bodied person. Therefore, it was not open to the respondent to extricate from his liability to maintain his wife. It would be apposite to advert to the relevant portion of the impugned judgment which reads thus: (Reema Salkan case [Reema Salkan v. Sumer Singh Salkan, 2018 SCC OnLine Del 9380], SCC OnLine Del paras 80-84) "80. The respondent during the cross-examination has admitted that he too is BCom, MA (Eco) and MBA from Kentucky University, USA; the respondent is a Canadian citizen working with Sprint Canada and is earning Canadian $(CAD) 29,306.59 as net annual salary. However, he has claimed that he has resigned from Sprint Canada on 23-11-2010 and the same has been accepted on 27-11-2010 and the respondent since then is unemployed and has got no source of income to maintain himself and his family.

81. In the instant case, the petitioner has filed the case under Section 125 CrPC, 1973 for grant of maintenance as she does not know any skill and specialised work to earn her livelihood i.e. in Para 26 of maintenance petition against her husband. However, the respondent husband who is well educated and comes from extremely respectable family simply denies the same. The respondent husband in his written statement does not plead that he is not an able-bodied person nor he is able to prove sufficient earning or income of the petitioner.

82. It is an admitted fact emerging on record that both the parties got married as per Hindu rites and customs on 24-3-

2002 and since then the petitioner was living with her parents from 10-8-2002 onwards, and the parents are under no legal obligation to maintain a married daughter whose husband is living in Canada and having Canadian citizenship. The plea of the respondent that he does not have any source of income and he could not maintain the wife is no answer as he is mature and an able-bodied person having good health and

physique and he can earn enough on the basis of him being able-bodied to meet the expenses of his wife. In this context, the observation made in Chander Parkash v. Shila Rani [Chander Parkash v. Shila Rani, 1968 SCC OnLine Del 52 : AIR 1968 Del 174] by this Court is relevant and reproduced as under: (SCC OnLine Del para 7) '7. ... an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child.'

83. The husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself under the personal law arising out of the marital status and is not under contractual obligation. The following observation of the Apex Court in [Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353] , is relevant: (SCC p. 357, para 2) '2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.'

84. The respondent's mere plea that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife in presence of good physique along with educational qualification."

(emphasis in original)

14. The view so taken by the High Court is unassailable. Indeed, the

respondent has raised a plea to question the correctness of the said view, in the reply-affidavit filed in this appeal, but in our opinion, the finding recorded by the High Court is unexceptionable."

10. In the case of Rajnesh Vs. Neha & Another reported in (2021) 2 SCC 324, the Hon'ble Supreme Court has held as under:-

"80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent 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. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303]

81. 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.

[Chaturbhuj v. Sita Bai, (2008) 2 SCC 316] 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.

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 extracurricular/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."

11. So far the issue with regard to the custody of children is concerned, it appears from the record that the children are studying in Kids Garden School at Dhanbad and have been living with their mother since the date of separation between the petitioner and the respondent.

12. In the case of Gaurav Nagpal Vs. Sumedha Nagpal reported in (2009) 1 SCC 42, the Hon'ble Supreme Court has held as under:-

"50. When the court is confronted with conflicting

demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [(2008) 7 SCC 673], the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases."

13. It is now well settled that for deciding custody of children during pendency of matrimonial dispute between the parents, the paramount consideration is to look into the moral and ethical welfare of the children rather than taking into consideration the rights of parents on legalistic basis. The financial condition of the parents would not be the sole criteria for deciding the application for custody, rather the court has to give due weightage to the children's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above their physical comforts, the moral and ethical values must be noted. One of the contentions of the learned counsel for the petitioner is that the petitioner is residing in Delhi and is able to look after the children properly with all amenities and convenience of their life. I am not convinced with the said argument as the same cannot be a sole ground to allow the custody of the children. If the petitioner wishes to give all amenities and convenience to his children being their father, he may provide the same to them at the place where they are residing with their mother i.e. the respondent.

14. Thus, this Court does not find any infirmity in the impugned order dated 29.06.2019 passed by the court below in Original Suit No. 778 of 2017 rejecting the petitioner's prayer for handing over the custody of the children to him. So far as the visitation right is concerned, the court

below has already given liberty to the petitioner to file fresh application for the same.

15. In view of the aforesaid discussions, both the writ petitions are dismissed. However, the petitioner is at liberty to approach the court below seeking his visitation right with the children, which shall be dealt with by the court below in accordance with law.

(Rajesh Shankar, J.) Ritesh/-AFR