Hasmukh Bhimshi Shah, v. Mrs. Bhavana Hasmukh Shah And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1353 OF 2015 Mr. Hasmukh Bhimshi Shah ..

Petitioner vs.

Mrs. Bhavna Hasmukh Shah & Anr.

..

Respondents Mr. R. M. Kanojiya for Petitioner.

Mr. S. N. Gawade and Mr. Ajay Sharma i/b. Shree & Co. for Respondent No. 1.

CORAM : M. S. SONAK, J.

DATE : 19 AUGUST 2016 P.C :

1] The challenge in this petition is to the order dated 30 April 2014 by which the 3rd Additional Sessions Judge, Thane, directed the petitioner to pay interim maintenance of Rs.7,000/- per month to the respondent wife and two minor children in addition to Rs.3,000/- per month towards the rent for the residence which the respondent wife is required to arrange.

2] Mr. Kanojiya, learned counsel for the petitioner has submitted that the petitioner is not working anywhere and consequently is not in receipt of any income. He further submitted that the expenses towards school fees of the children are being borne by the Wagad community, to which the petitioner belongs. Further he submitted that there is material on record to indicate that the respondent wife is engaged in tailoring work and has substantial income from out of 1/8

such work. For all these reasons, Mr. Kanojiya submitted that the impugned order warrants interference.

3] On 4 July 2016, this court, had made the following order: "1. The petitioner is directed to clear the entire arrears of maintenance within a period of six weeks from today. Stand over to 16th August, 2016."

4] Today, when the matter was called out, learned counsel for the respondent pointed out that the petitioner has not cleared any arrears and therefore, has disobeyed the directions issued by this court on 4 July 2016. Learned counsel for the respondent urged that appropriate contempt proceedings be initiated against the petitioner and the present petition be not entertained as the petitioner is in breach of the directions issued by this court. 5] Mr. Kanojiya, learned counsel for the petitioner submitted that there were some settlement talks between the parties and it is for this reason that the petitioner has not complied with the directions contained in the order dated 4 July 2016. 6] The matter was adjourned to the afternoon session in order to enable the petitioner to make a statement as to whether the petitioner was willing to clear the arrears within a reasonable period. By now, although the arrears have run upto Rs.4,64,000/-, Mr. 2/8

Kanojiya, learned counsel for the petitioner, on basis of instructions from the petitioner stated that the petitioner will pay only Rs.50,000/- by next week. At least prima facie, the petitioner is in breach of the directions contained in the order dated 4 July 2016. The explanation that some settlement talks are on and therefore there was no compliance, hardly inspires any confidence. The petitioner, at no stage, applied for any variation or recall of the direction contained in the order dated 4 July 2016. The petitioner also did not deposit / pay some reasonable amount and thereafter, seek some extension of time for payment of the balance. Therefore, strictly speaking, the petitioner need not have been heard on merits in the present matter. However, by way of indulgence, learned counsel for the petitioner was permitted to make his submission even on the merits of the matter.

7] Upon due consideration of rival contentions and perusal of the material on record, in my judgment, there is no case made out to interfere with the impugned order. The respondent wife has to maintain not only herself but two minor children. The respondent wife is required to incur expenses for the purposes of education and upkeep of the minor children. The mere circumstance that the respondent wife is earning some money or may be earning some money by way of tailoring which she undertakes, clearly, does not 3/8

disentitle the respondent from claiming any maintenance from the petitioner. The respondent, it appears, is making all out efforts to maintain herself and her children on account of the predicament which she claims the petitioner has put her into. Certainly, the petitioner, cannot use this circumstance as a ground to deny maintenance to the respondent.

8] The circumstance that the Wagad community, to which the petitioner belongs pays school fees of the petitioner's children is also not a ground for the petitioner to resist payment of maintenance to the wife and the children. Payment of school fees may be one aspect. However, there are several expenses associated with the education of the children. In any case, the petitioner, cannot draw mileage from the circumstance that his community is charitable and is taking efforts to see that the petitioner's children are not affected by destitution and poverty. 9] There are findings of fact recorded both by the trial court as well as the sessions court. It is true that the trial court had awarded maintenance of only Rs.3,500/- per month. The sessions court has correctly appreciated the material on record and has granted enhancement. There is neither any jurisdictional error nor perversity which can be detected in the impugned order. 4/8

10] The contention that the petitioner has no means to pay cannot be lightly accepted. There is nothing on record to indicate that the petitioner is either not earning any amount nor that he is incapable of earning any amount. Rather, the material on record at least prima facie suggests that the petitioner may be along with other family members owns immovable property. Besides the material on record at least prima facie suggests that the petitioner is also involved in the garment business. At the stage of determination of interim maintenance the reference by the sessions court to such material cannot be said to be either improper or unjustified. There is at least prima facie sufficient material on record to indicate the reasons as to why the respondent is not residing with the petitioner.

There are certain serious allegations involving alcoholism, assault, as well as other private matters which are not being referred to in this order, but which matters find reflection both in the order of the trial court as well as the sessions court. Again, it needs to be recorded that neither there is any jurisdictional error nor perversity in the impugned order. Accordingly, no case is made out to interfere with the impugned order.

11] The Hon'ble Apex Court in the case of Shamima Farooqui vs. Shahid Khan1 has held that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and (2015) 5 SCC 705 5/8

children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. Grant of maintenance to wife has been perceived as a measure of social justice. An order under section 125 of Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife.

Sometimes, a plea is advanced by the husband that he does not have the means to pay, or he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under section 125 Cr.P.C., unless disqualified, is an absolute right. Thus, it is the obligation of the husband to maintain wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

6/8

12] The aforesaid observations of the Hon'ble Apex Court, though in the context of provisions contained in section 125 of Cr.P.C are quite relevant in the context of the facts of the present case as well. The observations are particularly relevant in the context of the bald defences raised by the petitioner that he is incapable of maintaining his wife and two minor children as he has no job or the financial means to maintain them. In any case, there is hardly any material produced by the petitioner to substantiate his defence. The petitioner has also not been candid to the court in the matter of disclosures of his income and financial status. In such circumstances, the sessions judge can hardly be faulted for making the impugned order on the basis of whatever material that was available on record. The inference drawn by the learned sessions judge cannot be said to be illegitimate or unjustified in the facts and circumstances of the present case.

13] Accordingly, this petition is dismissed with costs which are assessed at Rs.5,000/- (Rupees Five Thousand). Such costs to be paid to the respondent together with arrears of maintenance within a period of four weeks from today. At this stage, learned counsel for the petitioner seeks for twelve weeks time to pay the arrears. Upon a query from the court as to whether the petitioner is willing to file an undertaking that the arrears will be cleared within twelve weeks, 7/8

learned counsel for the petitioner without even turning back to take instructions from the petitioner, who is present in person, states that no such undertaking can be given. If this is the position, then no useful purpose will be served by granting twelve weeks time to the petitioner.

14] The petitioner is prima facie in breach of directions issued by this court in its order dated 4 July 2016. Accordingly, notice is hereby issued to the petitioner to show cause as to why action under the Contempt of Courts Act 1971 read with provisions contained in Article 215 of the Constitution of India be not initiated against the petitioner. Though, present petition is disposed of, the petitioner is granted liberty to show cause within a period of six weeks from today. In case, the petitioner clears the entire arrears within a period of four weeks, the petitioner shall be entitled to urge that this circumstance may be treated as a mitigating circumstance. 15] This petition is disposed of. However, the matter may be listed after six weeks for directions in order to pursue the notice for prima facie contempt.

(M. S. SONAK, J.) Chandka 8/8