Smt. Bharti Nimodiya vs Amit Nimodiya
2021 Latest Caselaw 775 MP

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                                        CRR-283-2017 & 545-2017

       THE HIGH COURT OF MADHYA PRADESH
                     CRR-283-2017
Amit Nimodiya Adopted Vs. Smt. Bharti Nimodiya and another

                                and

                       CRR-545-2017
   Shrimati Bharti Nimodiya and another Vs. Amit Nimodiya


Gwalior, Dated: 17-03-2021

      Shri Abhishek Singh Bhadoriya, Counsel for the applicant -

husband.

      Shri R.K. Sharma, Senior Counsel with Shri M.K. Chaudhary,

Counsel for the respondents - wife and child.

      By this common order, CRR-283-2017 filed by husband and

CRR-545-2017 filed by wife and child shall be disposed of.

      On 25.07.2017 counsel for the husband had submitted that the

respondents No. 1 and 2, i.e., wife and the child have also filed

Criminal Revision No. 545/2017, therefore, Criminal Revision No.

283/2017 filed by husband may also be taken up along with Criminal

Revision filed by the wife and child and, accordingly, by order dated

09.03.2021, the copy of memo of revision was supplied to the

counsel for the husband.

Facts

of Criminal Revision No. 283/2017

This criminal revision under Sections 397, 401 of Cr.P.C. has

been filed for quashing the order dated 28.01.2017 passed by the

CRR-283-2017 & 545-2017

Principal Judge, Family Court, Sheopur in Miscellaneous Case No.

1300076/2015, by which the application filed by the respondents

under Section 125 of Cr.P.C. has been allowed and the applicant has

been directed to pay Rs.5,000/- per month to the respondent No. 1 -

wife and Rs.4,000/- to the respondent No. 2 - child.

Today, I.A. No. 8974/2021 has been filed by the applicant for

taking additional documents on record. Along with the present

application, the applicant has filed his salary slips.

The salary slip of the applicant are essential for the proper

adjudication of the question involved in the present case, therefore,

the same is allowed and the documents filed along with I.A. No.

8974/2021 are taken on record.

The undisputed facts for disposal of the present revision in

short are that the applicant and the respondent No. 1 are husband and

wife, whereas the respondent No. 2 was born out of the wedlock. It is

the case of the parties that the marriage took place on 04.02.2010 at

Kota (Rajasthan). The applicant is working on the post of Supervisor

in Aditya Birla Group Cement Factory and it was claimed by the

respondents that he was earning Rs.50,000/- per month. As the

applicant is an alcoholist, therefore, he used to beat the respondent

No. 1 under the influence of alcohol and the applicant and his family

members used to demand a car and an amount of Rs.5.00 lacs by way

of dowry. About two years back, when the father of the respondent

CRR-283-2017 & 545-2017

No. 1 fell ill, then she expressed her willingness to see him. She was

thrown out of her matrimonial house by the applicant and thereafter

the respondent No. 1 is residing in her parental home. Respondents

have no independent source of income and, therefore, they are

entitled for monthly maintenance of Rs.25,000/-.

The applicant filed his reply and denied the allegations of

demand of dowry. It was further claimed that the respondent No. 1 is

an literate lady and, therefore, she is competent to maintain herself as

well as to maintain the respondent No. 2. Monthly take home salary

of the applicant is Rs.20,000/- and he has other responsibilities also.

Respondent No.1 has already instituted various criminal cases on the

applicant.

The Trial Court after recording the evidence of the parties

came to a conclusion that the respondent No. 1 is residing separately

for the sufficient reasons and the respondents are entitled for

maintenance under Section 125 of Cr.P.C. However, it was also

observed that none of the parties have filed salary slip of the

applicant to show his monthly income, but considering his status, it

was held by the Court that the applicant must be receiving

Rs.30,000/- per month and even otherwise, if the admission of the

applicant that he is getting Rs.20,000/- per month is accepted, then

still he is financially well settled person as the parents of the

CRR-283-2017 & 545-2017

applicant are retired employees getting pension and the applicant has

no other responsibilities.

Challenging the order passed by the Court below, it is

submitted by the counsel for the applicant that the Court below has

granted excessive maintenance, whereas the respondents have filed

Criminal Revision No.545/2017 for enhancement of amount of

maintenance. By order dated 09.03.2021, the copy of criminal

revision filed by the respondents, which has been registered as Cr.R.

No. 545/2017, was supplied to the counsel for the applicant.

Heard the learned counsel for the parties.

Record of the Court below has been received, from which it is

clear that the applicant did not place his salary slip on record. The

entire case was based on ocular evidence of the parties. However, the

applicant had made an admission that his monthly salary is

approximately Rs.20,000/-. Today, the applicant has filed his salary

slips along with I.A. No.8974/2021. The application under Section

125 of Cr.P.C. was filed on 07.05.2015 and the impugned judgment

was passed on 28.01.2017. The applicant has filed his salary slips of

various months. According to the salary slip of August, 2017, his

income was Rs.28,204/-, whereas his deductions were Rs.6684/-. It is

well established principle of law that for calculating the take home

salary of the husband, only mandatory and statutory monetary

deductions are required to be taken into consideration and the

CRR-283-2017 & 545-2017

voluntarily deductions cannot be considered at all. From the details

of the description given in the monthly salary slip of the applicant of

the month of August, 2017, following is a description of the

deductions made from the salary slip of the applicant of the month of

August, 2017:-

                 Particulars                     Amount
       Provident Fund (PF)               1586
       Provident Fund Voluntarily        1586





       Mediclaim Premium                 1888

As per the above-mentioned deductions, it is clear that except

provident fund and house rent recovery, no other deductions were

mandatory. Similarly, as per the salary slip of the month of January,

2021, gross income of the applicant is Rs.31,942/- and the details of

the deductions are as under:-

                  Particulars                    Amount
       Provident Fund                     1757
       Voluntary Provident Fund           1904

       Mess Recovery                      3547

                                           CRR-283-2017 & 545-2017

Thus, it is clear that except provident fund and house rent

recovery, all other deductions were voluntary, therefore, after

ignoring the voluntary deductions, this Court is of the considered

opinion that the take home salary of the applicant is Rs.30,143/-.

Furthermore, there is more one aspect of the matter. An amount of

Rs.3,547/- has been deducted towards mess recovery. It is not the

case of the applicant that the food in the mess is not available at

subsidized rates.

Be that whatever it may.

If the applicant is spending Rs.3,447/- per month towards his

food, then by no stretch of imagination, he can say that the

maintenance amount of Rs.4,000/- granted to his daughter is on a

higher side, specifically when the expenses on the education,

uniform, nutritious diet, clothes etc. are in addition to the normal diet

of a child. If the normal diet of the applicant at the subsidized rates

was costing Rs.3,547/- per month, then it is held that the amount of

Rs.4,000/- per month granted to respondent No. 2 is on a lower side.

Furthermore, the Court below has granted Rs.5,000/- per month to

the respondent No. 1 by way of maintenance.

CRR-283-2017 & 545-2017

It is the case of the applicant that since the respondent No. 1 is

a literate lady, therefore, she is competent to maintain herself.

The submission made by the counsel for the applicant is

misconceived.

It is not the case of the applicant that respondent No. 1 is an

earning woman. Merely, because the respondent No. 1 is a literate

woman would not dis-entitle her from claiming maintenance. It is

primary duty of a husband to maintain his wife and child. Wife and

child are entitled to lead a life, which otherwise they could have lead

with their husband/father. The applicant is an able bodied person

working on a responsible post and his net take home salary is

Rs.30,000/- per month. The applicant has not disputed that he has no

responsibility to look after his parents and his parents are not

pensioners.

The Supreme Court in the case of Sanjeev Kapoor Vs.

Chandana Kapoor and others reported in (2020) 13 SCC 172, has

held as under:-

"23. Before we proceed to look into the Legislative Scheme of Section 125 Cr.P.C., we need to notice few rules of interpretation of statutes when court is concerned with interpretation of a social justice legislation. Section 125 Cr.P.C. is a social justice legislation which order for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced. This 15 Court had occasion to consider the interpretation of Section 125 Cr.P.C. in Badshah versus

CRR-283-2017 & 545-2017

Urmila Badshah Godse and another, (2014) 1 SCC

188. In paragraphs 13.3 to 18, following has been laid down: -

"13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.

14. Of late, in this very direction, it is emphasised that the courts have to adopt different approaches in "social justice adjudication", which is also known as "social context adjudication" as mere "adversarial 16 approach" may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently:

"It is, therefore, respectfully submitted that 'social context judging' is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a

CRR-283-2017 & 545-2017

situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication."

15. The provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual.

While dealing with cases under this provision, drift in the approach from "adversarial" litigation to social context adjudication is the need of the hour.

16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law.

17. Cardozo acknowledges in his classic "... no system of jus scriptum has been able to escape the need of it."

and he elaborates:

"It is true that codes and statutes do not render the Judge superfluous, nor his work

CRR-283-2017 & 545-2017

perfunctory and mechanical. There are gaps to be filled. ... There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, 18 however obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a Judge's troubles in ascribing meaning to a statute. ...

Says Gray in his lectures:

"The fact is that the difficulties of so-

called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the Judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present."

18. The court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision -- libre recherché scientifique i.e. "free scientific research". We are of the opinion that there is a non-rebuttable presumption that the legislature while making a provision like Section 125 Cr.P.C., to fulfil its constitutional duty in good faith, had always intended to give relief to the woman becoming "wife" under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano 19 guaranteeing maintenance rights to Muslim women is a classical example."

Merely, a wife is capable of earning cannot be a ground to deny

CRR-283-2017 & 545-2017

maintenance. The Supreme Court in the case of Rajnesh Vs. Neha

and another by order dated 04.11.2020 passed in Criminal Appeal

No.730/2020 has held that the financial position of the parents of the

wife would not be material while determining the quantum of

maintenance. It has also been held that it is no answer to a claim of

maintenance that wife is educated and could support herself. The

Court must take the status of the parties and the capacity of the

spouse to pay maintenance into consideration. Since the quantum of

maintenance is dependent upon factual situations, therefore, the

Court must mould the claim dependent upon the various factors like

financial capacity of husband, his actual income, reasonable expenses

for his own maintenance, dependency of family members to whom he

is obliged to maintain under the law, his liabilities are some of the

factors, which are required to be taken into consideration to arrive at

the appropriate amount of maintenance. The Court must also have

due regard to the standard of living of husband as well as inflation

rates and high cost of living. If the income of the applicant is

considered in the light of the salary slip submitted by him, then it is

clear that his monthly income is Rs.30,000/-. However, looking to the

expenses, which are required to be borne by the respondent No. 1 for

the education of the respondent No. 2 as well as necessity of

nutritious food and other basic requirements, it is directed that the

CRR-283-2017 & 545-2017

amount of maintenance of Rs.4,000/- per month awarded by the Trial

Court is on a lower side and it is, accordingly, enhanced to Rs.7,500/-

per month. Similarly, amount of Rs.5,000/- per month granted to the

respondent No. 1 is also enhanced to Rs.7,500/- per month.

The order-sheets of this case indicate that except on

09.03.2021, the applicant had never sought time to argue the mater.

Under these circumstances, it is directed that the enhanced amount

shall be payable from the date of this order.

Accordingly, the order dated 28.01.2017 passed by the

Principal Judge, Family Court, Sheopur in Miscellaneous Criminal

Case No.1300076/2015 is hereby affirmed subject to above-

mentioned modification.

Ex consquenti, the Criminal Revision No. 283/2017 filed by

the husband is hereby dismissed and the Criminal Revision No.

545/2017 filed by the wife and daughter is hereby allowed.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.03.23 18:04:47 +05'30'