Jharkhand High Court
Vivek Rai vs Sunita Rai on 10 May, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 473 of 2019
Vivek Rai, s/o Sri Vijay Narayan Rai, aged 51 years, r/o 39 D/1
Stanley Road, P.O. Katra Kutchery & P.S. Allahabad Cant.,
District Allahabad (UP), Permanent r/o village Suhwal, P.O. &
P.S. Suhwal District Gazipur (UP) ... ... Petitioner
Versus
Sunita Rai, w/o Vivek Rai, d/o Deepan Rai, r/o Bari Co-operative
284, P.S. Bokaro Steel City, P.O. & District Bokaro, Permanent r/o
village & P.O. Puraina, P.S. Karanda & District Gazipur (UP).
... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Yogesh Modi, Advocate
For the Opp. Parties : Mr. Mukesh Kumar, Advocate
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08/10.05.2024 Heard the learned counsel for the parties.
2. This revision has been filed for setting aside the order dated
16.01.2019 passed by learned Principal Judge, Family Court, Bokaro
in OMC No.38 of 2004, whereby the learned court has directed the
petitioner to pay Rs.10,000/- per month to the opposite party as
maintenance.
3. The marriage between the parties on 03.07.1998 is not in
dispute. No child was born out of the wedlock. A case under Section
498A was filed by the opposite party No.2 against the petitioner.
4. The learned counsel for the petitioner submits that though the
petitioner is well-educated, but the quantum of maintenance has not
been properly fixed inasmuch as the fact that the petitioner went out of
employment upon being arrested in a criminal case has not been
considered. The learned counsel has further submitted that no
documentary evidence was produced in support of the income of the
petitioner before the learned court. He also submits that the learned
court granted the order of maintenance on the ground that at the
relevant point of time of marriage, the petitioner was working as an
engineer.
5. The learned counsel, appearing on behalf of the opposite party,
has submitted that the petitioner stands convicted as of now, and in
spite of the order of this Court, he has not surrendered in the case, and
accordingly, his revision has been dismissed for non-filing of the
surrender certificate. He has further submitted that though no
documentary evidence was furnished, but oral evidence was adduced
with regard to the income of the petitioner. He has also submitted that
the petitioner also had income from rent, which was amounting to
Rs.25,000/- and income from agriculture amounting to Rs.5,00,000/-
per annum. The learned counsel submits that although the Opposite
Party No. 2 is B.Sc (Hons.), but she has no source of livelihood.
6. After hearing the learned counsels for the parties and
considering the facts and circumstances of this case, the only point for
consideration is with regard to quantum of maintenance.
7. With regard to the income of the petitioner, there are serious
disputes and it appears that though at the time of marriage, the
petitioner had salaried income also as recorded in the impugned order
amounting to Rs.35,000/- per month but the petitioner was dismissed
on account of the criminal case filed against him. The records also
show that there was oral evidence on behalf of the Opposite Party
No.2 with regard to other sources of income of the petitioner,
including, agricultural income and income from rent.
8. Considering the nature of the dispute with regard to quantum of
maintenance, this Court is of the view that in view of the true
disclosures with regard to income, assets and liabilities of both the
parties is required to be brought on record. The judgment passed by
the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha and Anr.
reported in (2021) 2 SCC 324, has laid down the modalities and the
manner in which the quantum of maintenance is to be fixed and as to
how the parties have to make true disclosure on affidavit before the
concerned court in matrimonial matter relating to maintenance. The
consequences of filing false affidavit have also been provided.
9. Some of the important observations and directions issued by the
Hon'ble Supreme Court in the case of Rajnesh v. Neha, (2021) 2 SCC
324 which are relevant for the present case are as under: -
72. Keeping in mind the need for a uniform format of Affidavit of Disclosure
of Assets and Liabilities to be filed in maintenance proceedings, this Court
considers it necessary to frame guidelines in exercise of our powers under
Article 136 read with Article 142 of the Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by the parties in all maintenance proceedings, including pending
proceedings before the Family Court/District Court/Magistrate's Court
concerned, as the case may be, throughout the country;
72.2. (b) The applicant making the claim for maintenance will be required
to file a concise application accompanied with the Affidavit of Disclosure of
Assets;
72.3. (c) The respondent must submit the reply along with the Affidavit of
Disclosure within a maximum period of four weeks. The courts may not
grant more than two opportunities for submission of the Affidavit of
Disclosure of Assets and Liabilities to the respondent. If the respondent
delays in filing the reply with the affidavit, and seeks more than two
adjournments for this purpose, the court may consider exercising the power
to strike off the defence of the respondent, if the conduct is found to be wilful
and contumacious in delaying the proceedings. On the failure to file the
affidavit within the prescribed time, the Family Court may proceed to
decide the application for maintenance on the basis of the affidavit filed by
the applicant and the pleadings on record;
72.4. (d) The above format may be modified by the court concerned, if the
exigencies of a case require the same. It would be left to the judicial
discretion of the court concerned to issue necessary directions in this
regard.
72.5. (e) If apart from the information contained in the Affidavits of
Disclosure, any further information is required, the court concerned may
pass appropriate orders in respect thereof.
72.6. (f) If there is any dispute with respect to the declaration made in the
Affidavit of Disclosure, the aggrieved party may seek permission of the
court to serve interrogatories, and seek production of relevant documents
from the opposite party under Order 11 CPC. On filing of the affidavit, the
court may invoke the provisions of Order 10 CPC or Section 165 of the
Evidence Act, 1872, if it considers it necessary to do so. The income of one
party is often not within the knowledge of the other spouse. The court may
invoke Section 106 of the Evidence Act, 1872 if necessary, since the income,
assets and liabilities of the spouse are within the personal knowledge of the
party concerned.
72.7. (g) If during the course of proceedings, there is a change in the
financial status of any party, or there is a change of any relevant
circumstances, or if some new information comes to light, the party may
submit an amended/supplementary affidavit, which would be considered by
the court at the time of final determination.
72.8. (h) The pleadings made in the applications for maintenance and
replies filed should be responsible pleadings; if false statements and
misrepresentations are made, the court may consider initiation of
proceeding under Section 340 CrPC, and for contempt of court.
72.9. (i) In case the parties belong to the economically weaker sections
("EWS"), or are living below the poverty line ("BPL"), or are casual
labourers, the requirement of filing the affidavit would be dispensed with.
72.10. (j) The Family Court/District Court/Magistrate's Court concerned
must make an endeavour to decide the IA for interim maintenance by a
reasoned order, within a period of four to six months at the latest, after the
Affidavits of Disclosure have been filed before the court.
72.11. (k) A professional Marriage Counsellor must be made available in
every Family Court.
III. Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure that
the dependent 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.
78. The factors which would weigh with the court inter alia are the status of
the parties; reasonable needs of the wife and dependent 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.
79. In Manish Jain v. Akanksha Jain 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.
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.
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. 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.
82. Section 23 of the HAMA provides statutory guidance with respect to the
criteria for determining the quantum of maintenance. Subsection (2) of
Section 23 of the 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.
83. Section 20(2) of the DV 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.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde laid down the
following factors to be considered for determining maintenance : (SCC
OnLine Del para 8)
"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 guesswork 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 under Section 125 CrPC is adjustable against the
amount awarded under Section 24 of the Act."
85. 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
86. 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 retrain herself to secure a job in the paid workforce to rehabilitate
herself. With advancement of age, it would be difficult for a dependent wife
to get an easy entry into the workforce after a break of several years.
(b) Right to residence
87. ..................................
(c) Where wife is earning some income
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 , 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 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 , 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 . 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 Parkash 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
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.
(e) Serious disability or ill health
93. Serious disability or ill health of a spouse, child/children from the
marriage/dependent relative who require constant care and recurrent
expenditure, would also be a relevant consideration while quantifying
maintenance.
117. Section 125(3) CrPC provides that if the party against whom the order
of maintenance is passed fails to comply with the order of maintenance, the
same shall be recovered in the manner as provided for fines, and the
Magistrate may award sentence of imprisonment for a term which may
extend to one month, or until payment, whichever is earlier.
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(b) Payment of Interim Maintenance
129. 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 Family Court/District Court/Magistrates Court
concerned, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
130. 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. The aforesaid factors are however not exhaustive, and the
court concerned 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
131. 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.
(e) Enforcement/Execution of orders of maintenance
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10. As the actual income, assets and liabilities of both the parties
have not been brought on record, this Court finds that the impugned
order is fit to be set aside only to the extent it relates to the quantum of
maintenance and the matter is required to be remitted back to the court
concerned so that the parties may file their appropriate affidavit in
terms of the aforesaid judgement of the Hon'ble Supreme Court and
the quantum of maintenance be fixed. It is further observed that the
parties would have to file their affidavits of disclosures right from the
date of filing of the original maintenance case till the date of filing of
the affidavits as it varied from time to time, which would give the true
picture regarding the financial position and status of the respective
parties.
11. Accordingly, the impugned order dated 16.01.2019 is hereby
set aside. The parties are directed to appear before the learned court on
02.07.2024 at 11 a.m. with their respective affidavits regarding
disclosures in terms of the aforesaid judgment.
12. The learned court shall make all endeavour to dispose of the
matter finally latest by 30.09.2024.
13. It is further observed that the petitioner shall continue to pay the
current maintenance amount of Rs. 10,000/- per month, as was fixed
by the learned court in the impugned order by way of interim
maintenance from this month till the disposal of the case. The amount
of the maintenance so paid will be subject to final outcome of the
case. So far as the payment of maintenance for the month of May
2024 is concerned, the same should be remitted in the account of the
Opposite Party No. 2 by 10.06.2024 and so far as the subsequent
months are concerned, the same is directed to be remitted in the
account of the Opposite Party No. 2 prior to the last working day of
the corresponding month.
14. This revision is accordingly disposed of.
15. Let a copy of this order be communicated to the court
concerned through Fax.
(Anubha Rawat Choudhary, J.)
Saurav
