Orissa High Court
Rajanikanta Mahalik vs Debashree Mohanty on 12 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.185 of 2022
Rajanikanta Mahalik .... Petitioner
Mr.B.K. Ragada, Advocate
-versus-
Debashree Mohanty .... Opp. Party
Mr.G.M. Rath, Advocate
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 12.04.2023
11. This matter is taken up through Hybrid arrangement
(video conferencing/physical mode).
This criminal revision petition has been filed by the
petitioner Rajanikanta Mahalik challenging the judgment
and order dated 25.03.2022 passed by the learned 2nd
Addl. Sessions Judge, Cuttack in Criminal Appeal Nos.25
of 2021 and 50 of 2021 so also the order dated
07.04.2021 passed by the learned J.M.F.C., (City),
Cuttack in D.V. Crl. Misc. Case No.72 of 2020.
It appears that the learned J.M.F.C., (City), Cuttack
vide order dated 07.04.2021 directed the petitioner to
pay Rs.5,000/- (rupees five thousand) per month to the
opposite party Debashree Mohanty towards her interim
maintenance from the date of order and the petitioner
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was further directed to pay Rs.2,000/- (rupees two
thousand) per month to the opposite party towards her
house rent and it was further directed the interim
maintenance shall be paid by the petitioner by the first
week of every succeeding English calendar month, failing
which, the opposite party is at liberty to execute the
order though the process of the Court. The petitioner
challenged the said order before the appellate Court in
Crl. Appeal No.50 of 2021 and the opposite party also
challenged the same order in the appellate Court more
particularly for quantum of interim maintenance in Crl.
Appeal No.25 of 2021 and both the appeals were heard
analogously and disposed of by the learned 2nd Addl.
Sessions Judge, Cuttack by a common judgment and
order dated 25th March 2022. The learned appellate
Court dismissed the Crl. Appeal No.50 of 2021 which was
filed by the petitioner and allowed the Crl. Appeal No.25
of 2021 filed by the opposite party and directed the
petitioner to pay a sum of Rs.15,000/- (rupees fifteen
thousand) per month to the opposite party either
through cash, or through cheque or through learned
Court below by 10th of each succeeding month obtaining
proper acknowledgment regarding its payment towards
the interim monthly maintenance of the opposite party
from the date of filing of the petition dated 26.11.2020
under section 23 of the P.W.D.V. Act, 2005 in D.V. Misc.
Case No.72 of 2020 till its final disposal. It was further
directed that the arrear maintenance shall be paid within
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four months from the date of the order and any amount
paid by the petitioner towards interim maintenance shall
be adjusted in the arrear maintenance accrued. It was
further directed that in case of default in payment of the
interim maintenance, the opposite party is at liberty to
take shelter of the Court for realization of the same.
When this matter came before this Court on
12.05.2022 in I.A. No.254 of 2022, this Court as an
interim measure directed execution of the impugned
order to remain stayed subject to condition that the
petitioner shall deposit an amount of Rs.1,00,000/-
(rupees one lakh) before the concerned Court within
fifteen days towards arrear interim maintenance of the
opposite party and an amount of Rs.6,000/- (rupees six
thousand) towards current monthly maintenance.
On 14.03.2023 a submission was made by the
learned counsel for the petitioner that the petitioner has
already deposited a sum of Rs. Rs.1,00,000/- (rupees
one lakh) in the Court of Ms. S. Padhy, J.M.F.C., Cuttack
in D.V. Misc. Case No.72 of 2020 and on the basis of
such submission, this Court passed the order that the
said deposited amount shall be released in favour of the
opposite party immediately.
When the matter was taken up on 21.03.2023
taking into account the submission made by the learned
counsel for the opposite party that the second part of the
order passed by this Court on dated 12.05.2022 in I.A.
No.254 of 2022 relating to deposit an amount of
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Rs.6,000/- (rupees six thousand) per month has not
been complied with and the outstanding dues has
become Rs.60,000/- (rupees sixth thousand). The
petitioner was asked to deposit such amount in the Court
below and accordingly, the petitioner complied with the
order and deposited an amount of Rs.60,000/- (rupees
sixth thousand) in the Court of Ms. S. Padhy, J.M.F.C.,
Cuttack in D.V. Misc. Case No.72 of 2020 and the said
amount has also been disbursed in favour of the opposite
party.
Learned counsel for the petitioner submitted that
the Hon'ble Supreme Court in case of Rajnesh -Vrs.-
Neha and another reported in (2021) 2 Supreme
Court Cases 324 which was decided on 4th November
2020 has laid down the criteria/factors to be considered
for determining and granting interim/ permanent alimony
and from paragraph 72 to 93, the said aspect has been
highlighted but neither the learned Magistrate nor the
learned appellate Court has taken into account the
principle laid down by the Hon'ble Supreme Court and
therefore, the determination of the quantum of interim
maintenance so also the house rent is not sustainable in
the eye of law. Learned counsel for the opposite party
has also not disputed that the ratio laid down by the
Hon'ble Supreme Court in the case of Rajnesh (supra)
has not been taken into account by the Court below. In
the said case, relevant paragraphs are reproduced as
follows:
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"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 concerned Family
Court/District Court/Magistrate's Court, 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
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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 basis of the Affidavit filed by
the Applicant and the pleadings on record;
72.4.(d) The above format may be
modified by the concerned Court, if the
exigencies of a case require the same. It
would be left to the judicial discretion of the
concerned Court, 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
concerned Court 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
// 7 //
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 Code of
Criminal Procedure, and for contempt of
Court.
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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 concerned Family
Court/District Court/Magistrate's Court must
make an endeavour to decide the I.A. 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.
73. Parties may lead oral and
documentary evidence with respect to
income, expenditure, standard of living, etc.
before the concerned Court, for fixing the
permanent alimony payable to the spouse.
74. In contemporary society, where
several marriages do not last for a
reasonable length of time, it may be
inequitable to direct the contesting spouse
to pay permanent alimony to the applicant
for the rest of her life. The duration of the
marriage would be a relevant factor to be
taken into consideration for determining the
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permanent alimony to be paid.
75. Provision for grant of reasonable
expenses for the marriage of children must
be made at the time of determining
permanent alimony, where the custody is
with the wife. The expenses would be
determined by taking into account the
financial position of the husband and the
customs of the family.
76. If there are any trust funds /
investments created by any spouse /
grandparents in favour of the children, this
would also be taken into consideration while
deciding the final child support.
III. Criteria for determining quantum of
maintenance
77. The objective of granting interim /
permanent alimony is to ensure that the
dependant 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
dependant children; whether the applicant is
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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.
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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 dependant 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
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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 HAMA provides
statutory guidance with respect to the
criteria for determining the quantum of
maintenance. Sub-section (2) of Section 23
of 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 D.V. 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
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which the aggrieved woman was accustomed
to in her matrimonial home.
84. The Delhi High Court in Bharat
Hedge v Smt. Saroj Hegde laid down the
following factors to be considered for
determining maintenance:
"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 guess work 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 u/s 125 Cr.PC is
adjustable against the amount awarded u/
// 14 //
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 re-train herself
to secure a job in the paid workforce to
rehabilitate herself. With advancement of
age, it would be difficult for a dependant
wife to get an easy entry into the work-force
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after a break of several years.
(b) Right to residence
87. Section 17 of the D.V. Act grants an
aggrieved woman the right to live in the
"shared household". Section 2(s) defines
"shared household" to include the household
where the aggrieved woman lived at any
stage of the domestic relationship; or the
household owned and rented jointly or singly
by both, or singly by either of the spouses;
or a joint family house, of which the
respondent is a member.
88. The right of a woman to reside in a
"shared household" defined under Section
2(s) entitles the aggrieved woman for right
of residence in the shared household,
irrespective of her having any legal interest
in the same. This Court in Satish Chander
Ahuja v Sneha Ahuja (supra) held that
"shared household" referred to in Section
2(s) is the shared household of the
aggrieved person where she was living at
the time when the application was filed, or
at any stage lived in a domestic relationship.
The living of the aggrieved woman in the
shared household must have a degree of
permanence. A mere fleeting or casual living
at different places would not constitute a
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"shared household". It is important to
consider the intention of the parties, nature
of living, and nature of the household, to
determine whether the premises is a "shared
household". Section 2(s) read with Sections
17 and 19 of the D.V. Act entitles a woman
to the right of residence in a shared
household, irrespective of her having any
legal interest in the same. There is no
requirement of law that the husband should
be a member of the joint family, or that the
household must belong to the joint family, in
which he or the aggrieved woman has any
right, title or interest. The shared household
may not necessarily be owned or tenanted
by the husband singly or jointly.
89. Section 19 (1)(f) of the D.V. Act
provides that the Magistrate may pass a
residence order inter alia directing the
respondent to secure the same level of
alternate accommodation for the aggrieved
woman as enjoyed by her in the shared
household. While passing such an order, the
Magistrate may direct the respondent to pay
the rent and other payments, having regard
to the financial needs and resources of the
parties.
(c) Where wife is earning some income
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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 & Anr. 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 & Ors. 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.
// 18 //
90.3. The Bombay High Court in Sanjay
Damodar Kale v Kalyani Sanjay Kale while
relying upon the judgment in Sunita
Kachwaha (supra), 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
Prakash Bodhraj v Shila Rani Chander
Prakash. 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
Prakash (supra) with approval, and held that
the obligation of the husband to provide
maintenance stands on a higher pedestal
than the wife.
// 19 //
(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 extra-curricular / 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 /
dependant relative who require constant
care and recurrent expenditure, would also
be a relevant consideration while quantifying
maintenance.
IV. Date from which Maintenance to be
awarded
94. There is no provision in the HMA
with respect to the date from which an Order
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of maintenance may be made effective.
Similarly, Section 12 of the D.V. Act, does
not provide the date from which the
maintenance is to be awarded. Section
125(2) Cr.P.C. is the only statutory provision
which provides that the Magistrate may
award maintenance either from the date of
the order, or from the date of application.
95. In the absence of a uniform regime,
there is a vast variance in the practice
adopted by the Family Courts in the country,
with respect to the date from which
maintenance must be awarded. The
divergent views taken by the Family Courts
are: first, from the date on which the
application for maintenance was filed;
second, the date of the order granting
maintenance; third, the date on which the
summons was served upon the respondent.
(a) From date of application
96. The view that maintenance ought to
be granted from the date when the
application was made, is based on the
rationale that the primary object of
maintenance laws is to protect a deserted
wife and dependant children from destitution
and vagrancy. If maintenance is not paid
from the date of application, the party
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seeking maintenance would be deprived of
sustenance, owing to the time taken for
disposal of the application, which often runs
into several years."
Considering the submissions made by the learned
counsel for the respective parties, since it is not disputed
that while determining the quantum of interim
maintenance, the learned Courts below have not taken
into account the ratio laid down in the case of Rajnesh
(supra), the order dated 07.04.2021 under Annexure-1
passed in D.V. Misc. Case No.72 of 2020 as well as the
judgment and order dated 25.03.2022 passed by the
learned 2nd Addl. Sessions Judge, Cuttack in Criminal
Appeal No.25 of 2021 and 50 of 2021 under
Annexure-2 are hereby set aside.
The matter is remanded to the Court of Ms. S.
Padhy, J.M.F.C., Cuttack for fresh adjudication of the
interim maintenance application. To cut short the delay,
it is directed that both the parties or their counsel shall
appear before the learned Ms. S. Padhy, J.M.F.C.,
Cuttack in D.V. Misc. Case No.72 of 2020 on 27th April
2023. The learned Magistrate shall fix date/dates for
hearing the interim maintenance application and after
hearing learned counsel for both the parties, pass the
necessary order on or before 31st June 2023. Till
determination of the order of interim maintenance by the
learned Magistrate, the petitioner shall continue to pay
monthly interim maintenance at the rate fixed by this
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Court in the order dated 12.05.2022 in I.A. No.254 of
2022 till the quantum of interim maintenance is
determined by the learned Magistrate.
Accordingly the criminal revision is allowed.
( S.K. Sahoo)
Judge
Sipun
