Jharkhand High Court

Ajay Kumar Mishra vs Smt. Usha Devi on 11 March, 2022

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 C.M.P. No. 323 of 2021

Ajay Kumar Mishra                                ...     ...     Petitioner
                                    Versus
Smt. Usha Devi                                   ...       ...     Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Sanjay Kumar Tiwari, Advocate For the Respondent :

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Order No. 03 Dated: 11.03.2022

The C.M.P. is taken up today through Video conferencing.

The present C.M.P. has been filed for quashing the order dated 06.04.2021 (Annexure-5 to the present petition) passed by the District & Additional Sessions Judge-I, Khunti in Matrimonial Title Suit No. 05/2013, whereby an application filed by the respondent (wife) under Section 24 of the Hindu Marriage Act, 1955 has been allowed and the petitioner has been directed to pay Rs. 10,000/- per month to the respondent with effect from November, 2020 till disposal of the said matrimonial suit and has further been directed to pay Rs. 1,000/- in cash on each date of proceeding of the said suit as the cost of proceeding till disposal of the same.

2. Learned counsel for the petitioner submits that marriage between the petitioner and the respondent was solemnized on 26.06.2000 according to the Hindu rights and customs at Bagbera, Jamshedpur. Thereafter, they lived together as husband and wife at petitioner‟s paternal home situated at Murhu, Khunti. On 14.01.2001, first daughter was born from the said wedlock. Thereafter, second daughter was born in April, 2003 and a son was born in the month of July, 2005. Subsequently, the petitioner was being subjected to torture by the respondent in different ways and despite his best efforts to maintain good matrimonial relationship with the respondent, he could not succeed. The respondent also started staying separately from the petitioner due to which there was no physical relationship between them since June, 2010. Under the said situation, the petitioner filed Matrimonial Title Suit No. 05/2013 under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 in the court of Principal Judge, Family Court, Ranchi, which was subsequently transferred to the court of District & Additional Sessions Judge-I, Khunti. On issuance of notice, the respondent appeared in the said matrimonial suit and also filed an application under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance pendente lite and expense of the proceeding from the petitioner. The said application was disposed of by the learned court below vide order dated 06.04.2021 directing the petitioner to pay Rs. 10,000/- per month to the respondent either in cash or through electronic mode on or before 10th day of every month of English calendar with effect from November 2020 till disposal of the said suit. The petitioner was also directed to pay Rs. 1,000/- in cash on each date of proceeding till disposal of the said suit.

3. Learned counsel for the petitioner while assailing the order dated 06.04.2021 submits that the aforesaid amount ordered to be paid by the petitioner to the respondent is quite excessive and the petitioner does not have sufficient means to pay the same. He has also to take care of his old mother and son who are staying with him. Moreover, he has also to pay back loan for the truck purchased by him.

4. Heard learned counsel for the petitioner and perused the content of the CMP. On perusal of the impugned order dated 06.04.2021, it appears that the learned court below has considered the fact that the respondent is a legally married wife of the petitioner and admittedly, there are three children (two daughters and one son) from the said wedlock, who all are residing with their mother. It has also been observed that the respondent has no independent source of income so as to support her and three children. Moreover, since the petitioner is the owner of a truck, he has sufficient source of income to maintain the respondent as well as the children.

5. Even if the claim of the learned counsel for the petitioner that among the three children, the son is staying with him and he is also taking care of his mother is accepted, the fact remains that the

respondent does not have any independent source of income who has not only to maintain herself but also to maintain two daughters.

6. The financial difficulties of the husband cannot be a ground to avoid payment of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 to his legally wedded wife, rather it is the solemn duty of the husband to take care of the wife living in separation during pendency of matrimonial suit who has no independent means of income.

7. 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."

8. In the case of "Rajnesh Vs. Neha & Anr." 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."

9. In the present case, the learned court below vide impugned order dated 06.04.2021 has fixed an interim maintenance of Rs. 10,000/- per month to be paid to the respondent as well as Rs. 1,000/- to be paid on each date of the proceeding of the matrimonial suit. In my view, the said amount is not excessive, rather a reasonable one and, therefore, I see no infirmity in the said order passed by the learned court below.