Mahabir Prasad vs. The State Of Jharkhand
Original PDF →Facts
The petitioner, Mahabir Prasad, filed a criminal revision challenging a Family Court order directing him to pay Rs. 15,000/- per month as maintenance to his wife, Shakuntala Devi (Opposite Party No. 2). The wife had filed a petition under Section 125 of the Cr. P. C. alleging cruelty, mental and physical torture, and the husband's illicit relationship. She claimed to be dependent and stated her husband had stopped providing maintenance since 2015. She also alleged the husband took a Rs. 4,00,000/- loan in her name for his business and possesses significant income from farming and three electronic goods shops, along with investments in land and property. The husband contended the wife's claim was not maintainable as identical grounds were raised in an earlier interim maintenance petition in a divorce suit, where Rs. 5,000/- was granted. He also disputed his income, claiming it was Rs. 1,50,000/- to Rs. 1,75,000/- annually, and stated his wife had ousted him from their house. He further claimed their two sons are majors and suppressed this fact.
Held
The High Court upheld the Family Court's decision to grant maintenance of Rs. 15,000/- per month to the wife, finding no illegality. The Court noted that the Family Court had considered the fact that both sons are highly educated and that the wife failed to produce documentary evidence regarding her husband's land and house. However, the High Court pointed out that the Family Court failed to take notice of documents marked as 'X' series, which included a dealer registration certificate, account statements of 'Priti Electronics' in the petitioner's name, a correction slip for land, bond papers showing booking of property in a housing project where the wife was a joint applicant with an investment of Rs. 3,00,000/-, and an electricity bill for the petitioner's shop. The Court also highlighted that the petitioner's son, P.W.-2, stated during cross-examination that his father has three shops and CCTV cameras are installed. The Court emphasized that it is often difficult for a wife to obtain documentary proof of her husband's assets and that the lower court should have obtained affidavits regarding assets and liabilities, especially when the husband attempts to conceal his income, referencing the Supreme Court's judgment in Rajneesh Vs. Neha Arora. The Court found the impugned judgment to be well-discussed and reasoned, upholding it with modifications as indicated in paragraph 26 of the judgment (which is not fully provided in the excerpt).
Key Issues
1. Whether the learned Principal Judge-cum-Family Court, Latehar, erred in allowing the maintenance petition filed by the opposite party no. 2 under Section 125 of the Cr. P. C. and directing the petitioner to pay maintenance of Rs. 15,000/- per month, despite the petitioner's alleged income being Rs. 1,50,000/- to Rs. 1,75,000/- annually and the suppression of material facts by the opposite party no. 2 regarding their major sons. Petitioner's Arguments: The impugned judgment is illegal, unsustainable, and based on surmises and conjectures. The court below failed to properly consider the petitioner's income, which is reflected in his Income Tax Return, and did not properly consider documents regarding the wife's claims about his properties. The petitioner argued that the wife suppressed the fact that their two sons are majors, aged 26 and 25, and that he has been ousted from his house by his wife and sons, forcing him to live in a rented accommodation. He claimed to have only one shop and that his elder son runs a mobile shop while the younger is an engineer. Revenue/State's Arguments: Not recorded in the judgment.
Sections Cited
Section 125
AI-generated summary — verify with the full judgment below
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 135 of 2022
….
Mahabir Prasad
…… Petitioner
Versus
The State of Jharkhand
Shakuntala Devi
…… Opp. Parties
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PRESENT
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Nilesh Kumar, Advocate
For the State
: Mrs. Nehala Sharmin, A.P.P.
For the O. P. No. 2 :Mr. Avishek Prasad, Advocate .
……
C.A.V. on 07/09/2022
Pronounced on 27/07/2023
….
The Criminal Revision No. 135 of 2022 has been filed on behalf of the Petitioner challenging the Judgement dated 21.12.2021 passed by Sri Vishwa Nath Shukla, the learned Principal Judge-cum-Family Court, Latehar in the Original Maintenance Case No. 11 of 2019 whereby the learned Principal Judge-cum-Family Court, Latehar has allowed the petition of the opposite party no. 2 filed under Section 125 of the Cr. P. C. for maintenance and has directed the petitioner to pay maintenance amount of Rs. 15,000/- to the opposite party no. 2 i.e. from the December, 2021 payable by 10th of next month and onwards in every month and further directed that maintenance allowance paid by the petitioner to the Opposite Party No. 2 in Original Suit No. 24 of 2017 to be set off in the instant maintenance allowance.
The case of the wife- O.P. No. 2, in brief, is that the marriage of the wife-O.P. No. 2 was solemnized with the petitioner namely, Mahabir Prasad in the year 1987 as per Hindu rites and rituals and she gave birth to two sons and a daughter, but her daughter has died. It has been stated that her husband-petitioner
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has developed illicit relationship with another woman namely, Nirasha Devi resident of Village-Monger, P.S. & District-Latehar and he used to torture her physically and mentally and he has filed Original Suit No. 24 of 2017 against the opposite party no. 2 for divorce.
It is further stated that the Wife-Opposite party no. 2 has no source of income and she is fully dependent upon her husband- petitioner but he has stopped to fulfill her necessities and give any maintenance since the year 2015. It is also stated that her husband- petitioner has taken loan amount of Rs. 4,00,000/- from the bank in the year 2015-2016 in the name of his wife- opposite party no. 2 but he used the said amount to develop his business and it has become difficult for her survival. It is further stated that her husband-the petitioner has income about Rs. 12.00 to 15.00 lacs per annum from farming and cultivation of his ancestral land in Village-Lohardaga. Further he earns about Rs. 3.00 to 4.00 lac per month from his business running three shops for electronic goods in Latehar, near Tahana Chouk at Ranchi-Daltangonj Road and he has invested his money in purchasing land and house in Latehar town. It is also stated that her husband has purchased the Lands of Khata No. 18, Plot No. 164 from Pradeep Kumar Upadhyay valued for amount Rs. 10,000,00/- in the year 2017 but, he is not giving maintenance to the opposite party no. 2. 3. The petitioner upon service of notice appeared before the learned Court below and the petitioner-husband has filed his show cause as follows:- (i) That, the instant original Maintenance petition filed by the opposite party no. 2 praying for a grant of Rs. 30,000/- only as the interim maintenance amount is not maintainable at all. (ii) That, along with her show-cause in the Original Suit No. 24/2017 the opposite party no. 2 had also prayed for Interim
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Maintenance reliefs on various grounds cited therein. (iii) That, the grounds filed herein for the grant of maintenance cost are the identical grounds raised in the earlier petition tagged with the show-cause in original suit No. 24/2017 filed under Section 13(1) of the Hindu Marriage Act-1955. (iv) That, in that earlier petition the grounds for the grant for maintenance cost raised by the opposite party no. 2 herein had been elaborately discussed by the court. (v) That, the rebuttal grounds set-up by the petitioner therein had also been taken into consideration by the Court below and after a detailed analysis of the facts brought before the Court, the Court had come to the conclusion that a sum of Rs. 5,000/- (Five thousand only) by way of interim maintenance allowance would serve the purpose to the opposite party no. 2. (vi) That, thus the instant petition filed with a prayer for a grant of Rs. 30,000/- (Thirty thousand) only is not maintainable in view of the fact that that the earlier grant of Rs. 5,000/- (Five thousand) only can be enhanced or reduced only after regular hearing of the case of either party after shifting and analysing the evidence produce by them with respect to the Income of the petitioner and the entitlement to allowance of the petitioner.
Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for opposite party no. 2. 5. It is submitted by the learned counsel for the petitioner that impugned judgment is illegal and not sustainable in the eyes of law. It is submitted that the impugned judgment is bad in law as well as on facts and as such the same is liable to be set aside. It is submitted that the impugned judgment is based on surmises and conjectures. It is submitted that the learned Court below has granted maintenance to the amount of Rs. 15,000/- per month to the opposite party no. 2 without properly discussing the income of 4
the petitioner. It is submitted that annual income of the petitioner is Rs. 1,50,000/- to Rs. 1,75,000/- for which he has filed Income Tax Return, but the same has not been considered. It is submitted that the opposite party no. 2 has failed to prove any document regarding the house and the shop and the land of the petitioner in question and it has been falsely stated that the petitioner has purchased the land of Khata No. 18, Plot No. 164 from Pradeep Kumar Upadhyay valued for an amount Rs. 10,000,00/- in the year 2017 and no paper of agricultural land has been filed of his ancestral land in Village-Lohardaga from where the petitioner is said to be earning Rs. 10-15 Lakh.
It is submitted that the opposite party no. 2 has got two sons, who are major. It is submitted that the Opp. Party No.2 and the petitioner are having two children and the date of birth of the first son namely Anmol is 26.1.1995 and the date of birth of the other son namely Raj Kumar is 31.12.96, both are now aged about 26 years and 25 years and this very fact has been suppressed by the Opp. Party No.2 before the Court below. She has clearly stated that she is residing in the house of the petitioner. It is submitted that Anmol Kumar, son of the petitioner aged about 25 years, has been examined as Witness No. 2 i.e. P.W.-2 and he has stated during his deposition that his father is residing in a rented premises and he has not been able to say about the other business details of his father. P.W. 2 further stated that he is residing in a house which was well constructed. It is submitted that as a matter of fact, the opposite party no. 2 has ousted the petitioner from the house and the petitioner has been compelled to live in a rented house of one Umesh Prasad behind Inspection Bungalow. It is submitted that he has only one shop near Latehar Police Station. It is submitted that the elder son of the petitioner is having mobile shop whereas the younger son of the petitioner and the opposite party
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no. 2 is working as an Engineer. It is submitted that the petitioner had house over eight decimal of the land, but he was removed from his house by his wife and his two sons and the opposite party no. 2 along with her son are residing in the said house.
It is submitted that the petitioner has filed his Income Tax Return marked as Ext.-A for the year 2020-21, which shows that his monthly income is not more than Rs. 10,000/- to Rs. 12,000/- only per month. It is submitted that the learned Court below has wrongly assessed and considered the income of the petitioner as Rs. Sixty Thousand (60,000/-) per month, although his yearly assessment is between Rs. 1,50,000/- to Rs. 1,75,000/- only. It is submitted that the petitioner has been treated with mental cruelty by opposite party no. 2 along with her two sons, who are living separately since the year 2013 and even the opposite party no. 2 i.e. the wife, while being examined as P.W.-1, has also admitted that she is living in the house constructed by her husband over 11 decimals of land and out of three decimals is in her share and the remaining decimals in the share of her husband and has admitted the payment of Rs. 5,000/- per month from the petitioner. It is submitted that the petitioner has himself been the victim of circumstances and he has been removed from his own house and is running electric/electronic shop in a rented premises and he has to look after his father and mother. It is submitted that the petitioner has furnished Income Tax Return before the learned Court below during 2019-20 and his income was Rs. 1,68,000/- per annum whereas in the year 2020-21 his income was Rs. 1,75,000/- and in the year 2021-22 his income has been assessed to Rs. 1,91,680/- and therefore the income of the petitioner is Rs. 14,000/- to Rs. 15,000/- per month. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon’ble Supreme petitioner was directed to pay Rs. 5,000/- per month, but in the present case the petitioner has been directed to pay Rs. 15,000/- per month and as such, the impugned judgment passed by the learned Court below is not sustainable in the eye of law and may be set aside in the interest of justice and the Criminal Revision No. 135 of 2022 may be allowed
On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that the petitioner has thoroughly neglected his wife and two children. It is submitted that the income of the petitioner is between Rs. 1,50,000/- to Rs. 2,00,000/- per month and as such, no illegality has been committed by the learned Court below while passing the impugned judgement by directing the petitioner to pay Rs. 15,000/- per month as maintenance to the opposite party no.
It is submitted that the judgement passed by the learned Court below is well discussed and reasoned one and as such, the criminal revision application may be dismissed.
On the other hand, learned counsel for the opposite party no. 2, after adopting the submission of the learned A.P.P., has further submitted that the impugned judgment passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that this Criminal Revision Application is devoid of merit. It is submitted that the petitioner has completely neglected his wife and two children namely Anmol and Raj Kumar respectively. It is submitted that it has come in the evidence of the petitioner while examined as O.P. W. No. 1 that he is running shop of Electronic Goods and its repairing and its name is “Prity Electronics” near Latehar Police Station and he has taken loan of Rs. 5,00,000/- and the Learned Court below has assessed
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income of the petitioner as Rs. 60,000/- per month. It is further submitted that the Learned Court below, has considered his Income Tax Return for the assessment of the year 2020-21 though his income is shown in the IT Return as Rs. 1,75,000/-, but the learned Court below has also considered the Ext.-B, B/1, B/2 and B/3 respectively, which are the returns of GST filed from the shop of the petitioner and which has also been admitted by the petitioner for the year 2021-22. 10. It is submitted that the petitioner has performed 2nd marriage with one Nirasha Devi of Latehar District. It is submitted that the petitioner has filed Original Suit No. 24 of 2017 against the opposite party no. 2 for seeking a decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955 on the ground of cruelty. and the said Suit was decreed and marriage between the petitioner and the opposite party no. 2 was dissolved. However, the petitioner has been directed to pay monthly maintenance amount of Rs. 15,000/- per month to the defendant-opposite party no. -2, Shakuntla Devi from the month of the order i.e. December, 2021 payable by 10th day of next month and onward in every month. It is submitted that in the present case none of the exceptions applies in the present case as she still lives in her matrimonial house and this petitioner does not want to live with her though this opposite party no. 2 time and again had requested this petitioner to lead their conjugal life and she is still ready to restore her conjugal life with this petitioner, but the petitioner has deliberately neglected her.
It is further submitted that during cross-examination of OPW-I-Mahabir Prasad, it has come in evidence that the petitioner is having shop of Electric Items, Computer Hardware, General Order Supplier, Mobile Phone, T. V., Solar Plates, UPS, Peripherals, CTV Stabilizer, Washing Machine, Watch Battery, Fan, Invertor, and Refrigerator. It is submitted that the petitioner
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had flatly denied to keep his wife and children during his cross- examination by stating that they will live separately with honour. He has also stated that he will not get the house repaired in which his wife is residing and will not pay its electricity bill and will not make any expenditure in the study of his elder son and it has become habit of him to live separately. It is submitted that the petitioner is earning more than Rs. 3.00-4.00 Lakh per month. It is further submitted that even both the sons of the opposite party no. 2 will be entitled to maintenance for the period, they were minor and even after attaining the majority, it is also obligation on the part of father i.e. the petitioner to take care of his sons for their better education and progress of his children and as such, this Criminal Revision Application may be dismissed.
Perused the Lower Court Records and the impugned judgment passed by the learned Court below and considered the submissions of learned counsel for both the sides.
It transpires from the Lower Court Records that Original Maintenance Case No. 11 of 2019 has been filed on behalf of the opposite party no. 2 against the petitioner for the grant of maintenance for herself and her two sons namely Anmol Kumar aged 17 years and Ravi Kumar aged 16 years on 26.03.2019 for grant of maintenance of Rs. 30,000/- per month to each of the applicants and to Rs. 20,000/- each to all the applicants for their litigation cost, education, and for treatment and for constructing the house and to pay the loan taken from the Central Bank.
In the above maintenance case, it has been stated that marriage between the petitioner and the opposite party no. 2 was solemnized in the year 1987 as per Hindu customs and the opposite party had given birth two sons and one daughter, but one daughter has died. However, the petitioner is in illicit relationship with one Nirasha Devi and the Petitioner has filed Original Suit No. 24 of 9
2017 for decree of divorce. It has been stated that since the year 2015, the petitioner has not paid any amount to her and she is maintaining herself by taking help of nearby people and by taking loan and has taken steps for education of her both the children and even taken loan of Rs 4,00,000/- from the Central Bank, Latehar. It has been stated that her husband is earning Rs. 12-15 Lakh per annum from Grihasti (i.e. Agriculture) and has got three electronic shops near Latehar Police Station, Ranchi-Daltonganj Road and also having one Godown. It has been stated that her husband i.e. the petitioner is earning Rs. 3.00-4.00 Lakh per month from business and also purchasing land and has purchased one land in Latehar Town. She has also stated that her husband i.e. the petitioner has purchased land of Khata No. 18, Plot No. 164 from Pradeep Kumar Upadhyay valued for an amount Rs. 10,000,00/- in the year 2017. 15. Petitioner has filed his show cause on 14.06.2019 and the petitioner surprisingly has not been denied the averment of the opposite party no.2 that the petitioner is having ancestral land in Lohardaga district and is also having three shops near the Lohardaga Police Station and one godown and has purchased land of Khata No. 18, Plot No. 164 from Pradeep Kumar Upadhyay valued for amount Rs. 10,000,00/- in the year 2017 and the petitioner has also not denied regarding having relationship with one Nirasha Devi in his show cause.
The Applicant-opposite party no. 2 in support of her case got examined two (02) witnesses, who are as follows:-
(i) P.W.-1 is Shakuntla Devi herself and, (ii) P.W.-2 is Anmol Kumar, son of the opposite party no. 2 and the petitioner.
The opposite party no. 2, in support of her case, has got filed certain documents, which were marked for identification as 10
follows: - i) Marked 'X'- is for identification- Photocopy of Government of Jharkhand Commerical Taxes Department Registration Certificate of Dealer Mahabir Prasad. ii) Marked 'X/1'- is Photocopy of statement of A/C No. 4901201000002, Customer Name- Priti Electronics, Mahabir Prasad iii) Marked 'X/2' - is Photocopy of Correction Slip Village- Latehar Khata No. 37, Plot No. 42 area 0.08 acres dt. 03.01.1997 iv) Marked 'X/3 & X/4'- are Photocopy of Bond Paper Alchemist Township India Ltd. dated 15.07.2014 and 15.09.2014 v) Marked 'X/5'- is Photocopy of Electric consumption Bill Meter No. -081014017 in the name of Mahabir Prasad i.e. the Petitioner.
On the other hand, the petitioner has examined himself as witness OPW-1. 19. The petitioner has filed the following documents in support of his case, which are as follows: - i) Ext. 'A'–is Print copy of Return Year 2020-21 of Mahabir Prasad, ii) Ext. 'B'- is GSTR-3B of July 2021-2022 of Mahabir Prasad, iii) Ext. 'B/1'- is GSTR-3B of August 2021-2022 of Mahabir, iv) Ext. 'B/2'- is GSTR-3B of September, 2021-2022 of Mahabir Prasad and v) Ext. 'B/3'-is GSTR-3B of October, 2021-2022 of Mahabir Prasad.
It transpires that the learned Court below had allowed the claim of the wife-opposite party no. 2 by directing the petitioner to pay Rs. 15,000/- per month to the opposite party no. 2 from the month of order i.e. December, 2021 payable by 10th of next month
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and onwards in every month. It was also observed that maintenance allowance paid by the petitioner to the opposite party no. 2 in Original Suit No. 24 of 2017 to be set off and the learned Court blow has rejected the claim of both the sons of the opposite party no. 2 for grant of any maintenance on the ground that they have become majors.
At this stage, it is relevant to notice here that the learned Principal Judge, Family Court, Latehar has allowed the Original Suit No. 24 of 2016 filed by the petitioner against the opposite party no. 2 under Section 13(1)(i-b) of the Hindu Marriage Act and has decreed to dissolve the marriage between the parties on the ground of desertion of the opposite party no.
Although it has come in the evidence of OPW-1 in Maintenance Case No. 11 of 2019 at para-27 that the petitioner is not willing to keep his wife and children as he is also in habit to live alone.
Learned Principal Judge, Family Court, Latehar has framed following issues, which are as follows: - I. Whether case of the petitioner is maintainable? II. Whether petitioner has reasonable cause to live separately from her husband? III. Whether petitioner is unable to maintain herself and her sons? IV. Whether the opposite party has sufficient means to give maintenance to the petitioner? V. Whether petitioner is entitled for maintenance if yes, to what extent?
It transpires that the, learned Court below has decided Issue No. II on the ground that since divorce has been allowed by the Court between the parties, which is reasonable cause to the petitioner to live separately from her husband/opposite parties.
Thereafter the learned Court below has decided the issue No.-
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III and IV by directing the petitioner to pay maintenance to the wife only, but has rejected the claim of maintenance of both the sons on the ground that they were shown as 16-17 years in maintenance case.
Thus it is evident that the learned Court below has committed grave illegality by rejecting the claim of the Applicant- opposite party no. 2 for grant of maintenance of her two sons till they became major as per the Provisions of Section 125 of the Cr.P.C. and the Lower Court below ought to have allowed prayer for their maintenance amount for the period for which they were entitled to.
It is well settled from catena of decisions and also from the judgment rendered by the Hon’ble Supreme Court in the case of and in teeth of the judgment rendered by the Hon’ble Supreme Court below itself while awarding maintenance of Rs. 15,000/- per month.
Thus, this Court is of the view that both the sons i.e. Anmol Kumar and Ravi Kumar will also be entitled to maintenance from the date of filing of application although it has not been challenged by the opposite party no. 2 by filing a separate Revision Application, but this Court is in its discretion and welfare of the parties can direct for payment of the same in the interest of justice. Even the learned Court below has further committed illegality by directing the petitioner to pay Rs. 15,000/- to the opposite party no. 2 from the date of Judgment i.e. 21.12.2021, which is also in teeth of the judgment rendered by the Hon’ble Supreme Court in the case of Applicant-Opposite party no. 2 will also be entitled to payment of maintenance amount from the date of filing of the application i.e. on 26.03.2019. 27. In the case of matrimonial disputes it is the tendency of the parties to conceal their income and they may try to mislead the Court.
It has been held in Kiran Tomar & Ors Vs State of Utter Pradesh & Another reported in 2022 live law (SC) 904 at paragraph 10 & 11, as follows:- “Para-10:- On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met.” “Para 11:- In this view of the matter, the High Court was not justified in setting aside the order of the Family Court on the basis of the reasoning which has been extracted above in the earlier part of this order.”
It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- “Para-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.
Para-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. [ Refer to Jasbir Kaur Sehgal v. District Judge,
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Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]
Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] 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.
Para-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 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]
Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13) “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. 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 social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”
Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.”
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paragraph 15, as follows:- “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs 95.527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was held that 25% of the husband's net salary would be just and proper and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance.
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Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.”
It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99, at para 27 to 31, which are as follows:- “Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 17
20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20. Para-30:- We may also notice another judgment of this Court in Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) “7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act.”
(emphasis in original) 33. which are as follows:- “Para 5. Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11)
The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her."
“Para 7. No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex- husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee.”
From perusal of the Lower Court Records, it would appear that the above Maintenance Case No. 11 of 2019 was filed on 26.03.2019. 35. The learned Court below has decided the quantum of maintenance in Issue Nos. I and V and has held that the husband is obliged to pay maintenance and has directed the petitioner to pay the 20
maintenance of Rs. 15,000/- per month to the Applicant- O.P. No.
The learned Court below has considered the fact that both the sons are highly educated and the opposite party no. 2 has failed to show any paper regarding land and house of her husband i.e. the petitioner.
In this regard, it is evident that the learned Court below has failed to take notice of document marked as Marked 'X' for its identification which is Photocopy of Government of Jharkhand Commercial Taxes Department Registration Certificate of Dealer Mahabir Prasad. Marked 'X/1' which is Photocopy of statement of A/C No. 4901201000002, Customer Name- Priti Electronics, Mahabir Prasad, Marked 'X/2' which is Photocopy of Correction Slip Village-Latehar Khata No. 37, Plot No. 42 area 0.08 acres dt. 03.01.1997, Marked 'X/3 & X/4' are Photocopy of Bond Paper Alchemist Township India Ltd. dated 15.07.2014 and 15.09.2014, Marked 'X/5' which is Photocopy of Electric consumption Bill Meter No. -081014017 of Mahabir Prasad. Document X/3 and X/4 clearly show that the petitioner had booked certain land/flat/villa/apartment in the housing project of Alchemist Township India Limited, Punjab both dated 15.07.2014 and 15.09.2014 and the opposite party no. 2 has been shown as Joint Applicant in the said case and they have invested Rs. 3,00,000/-. Document X/5 is the Electricity Bill issued by Jharkhand Urja Vikas Nigam Ltd. showing the name of the shop of the petitioner.
Apart from this P.W.-2, Anmol Kumar has specifically stated during his cross-examination that his father has three shops and even CCTV Cameras are installed in the said shop of the petitioner. Apart from this when the petitioner has stated during his cross-examination that his wife is living in the land of his house. When he was confronted on the point of his nature of the shop maintained by the petitioner, then he has flatly shown ignorance and has shown innocence by stating that he can read English, but cannot
21
understand. He further deliberately stated that he does understand the word of hardware and he does not understand the word of Stationary which shows that he is giving out and out false evidence. He has shown ignorance that he is doing shop of Electronic Items, Computer Hardware, General Order Supplier, Mobile Phone, T. V., Solar Plates, UPS, Peripherals, CTV Stabilizer, Washing Machine, Watch Battery, Fan, Invertor, Refrigerator, which shows that the petitioner is deliberately showing ignorance to dilute the claim of the opposite party no. 2. 38. It further transpires that Document marked for identification as X/2 is correction slip of land of Khata No.-37 Plot No.-42 area 0.08 acre dated 03.01.1997 Village –Latehar has also been issued in the name of the petitioner. It transpires from the impugned judgement that the learned Court below has assessed the income of the petitioner as Rs. 60,000/- per month.
It has been seen in the Maintenance Case that it is always difficult for a wife to come with documentary proof of the assets and property of her husband and the learned Court below ought to have obtained affidavits with regard to assets and liability of both the sides particularly, when the husband is trying to conceal his real income.
It is evident from the pleading of Maintenance Case and for which a specific pleading has been made by the opposite party no. 2 that the petitioner –her husband is having three storeyed house and land at several places and three electronic shops and the same has not been denied by the petitioner in his show cause. However, the learned Court below has not considered the said plea of the opposite party no. 2 on the ground that opposite party no. 2 i.e. wife has failed to document of the said property. The learned Court below ought to have called for an affidavit from both the sides particularly from the petitioner regarding his income and assets on an affidavit in light of the judgment rendered by Hon’ble Supreme Court in the case of 22 maintenance i.e. Rs. 15,000/- per month to his wife i.e. opposite party no. 2 filed under Section 125 of the Cr. P. C. and the judgment dated 21.12.2021 passed in Original Maintenance Case No. 11 of 2019 by the learned Principal Judge, Family Court, Latehar by which learned Principal Judge, Family Court, Latehar has directed the petitioner to pay maintenance amount, is well discussed and reasoned order and speaking one and as such, no interference is required from this Court with the modification as indicated and mentioned in para-26 of this Judgment and the judgment dated 21.12.2021 passed in Original Maintenance Case No. 11 of 2019 by the learned Principal Judge, Family Court, Latehar is upheld with modification.
Accordingly, Criminal Revision No. 135 of 2022 is dismissed, however, without any costs.
(Sanjay Prasad, J.)
Kamlesh/
Reproduced from the public record of the Jharkhand High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.