High Court of Punjab and HaryanaCRM-M/20584/2018dismissed

Gyan Chand @ Gian Chand v. Shakutla

2024-10-246 pages

# "

"$% &'

%()*)&+ , , # "

- "

,,, ./0 0, 0 1 2 ,,,0

"$% &'

%()*)&+ , , 0, 0 1 2 ,,, ./0 # "

,,,0

" +

3!2 ,

0 0 !

0 !

2 1.

This order of mine shall dispose of these two criminal miscellaneous petitions impugning the same order dated 26.09.2017 passed by learned Sub Divisional Judicial Magistrate, Mahendergarh vide which petitioner-husband has been directed to pay maintenance to the tune of Rs. 7,000/- per month to respondent-wife and also against order dated 25.01.2018 passed by learned Additional Sessions Judge, Narnaul, vide which the appeal filed against the order of SDJM, Mahendergarh has been dismissed. 2.

For the sake of brevity, facts are borrowed from

, with the consent of learned counsel(s) for the parties. 3.

The marriage between the petitioner-husband and respondent-wife

is admitted. However, matrimonial dispute ensued between the couple and respondent-wife filed a petition under Section 125 Cr.P.C. seeking maintenance. Petitioner-husband contested the claim made by respondent-wife and filed reply to the said petition. Vide order dated 09.02.1977 Court had directed the petitioner-husband to make payment of Rs. 150/- per month as maintenance allowance. Thereafter the said amount was increased to Rs. 350/-, Rs. 500/- Rs. 800/- per month vide orders of different dates. Thereafter, vide order dated 26.09.2017, learned Sub Divisional Judicial Magistrate, Mohindergarh directed the petitioner-husband to pay monthly maintenance to the tune of Rs. 7000/- per month and the appeal filed against the said order has been dismissed by learned Additional Sessions Judge, Narnaul vide order dated 25.01.2018. Aggrieved by the same, both the husband and wife have preferred these revision petitions.

Learned counsel for the petitioner-husband inter alia contends that learned SDJM, Mohindergerh fell into grave error by enhancing the maintenance to Rs. 7000/- per month to respondent-wife as in the year 2014, the petitioner was getting monthly pension to the tune of Rs. 14,000/- only and if at all, any enhancement has to be made, it has to be made after taking into consideration the said amount of pension drawn by the petitioner-husband, rather pension of the petitioner was taken as Rs. 21,000/- per month. Learned counsel further contends that enhancement from Rs. 800/- directly to Rs. 7000/- per month is approximately tenfold enhancement in one go, which is very harsh for the petitioner as he is also in the later years of his life and suffering from various ailments.

Per contra, learned counsel for the respondent-wife opposes the prayer made by learned counsel for petitioner-husband on the ground that

petitioner has admitted his monthly pension to Rs. 21,000/- per month. Therefore, the amount of maintenance is liable to be enhanced to Rs. 8,000/- per month.

I have heard the learned counsel for the parties and gone through the case file with their able assistance.

The object and purpose behind granting maintenance is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of failure of marriage. At the same time, a just and careful balance must be struck to ensure that this provision does not degenerate into a weapon to punish the other spouse. The Courts are required to conduct the maintenance proceedings while being alive to the legislative intent behind the provision under Section 125 Cr.P.C in its true spirit, which is to provide speedy assistance and social justice to women, children and infirm parents. The provisions of Section 125 Cr.P.C. were enacted as a measure to further social justice and protect dependent women, children and parents, which also fall within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.

A three-Judge Bench of the Hon'ble Supreme Court in Vimala (K.) v. Veeraswamy (K.) (1991) 2 SCC 375, speaking through Justice Fatima Beevi, opined that as follows:

"3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife."

A two-Judge Bench of the Hon'ble Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479, speaking through Justice Faizan Uddin, opined as follows:

"15. ... While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation."

Another objective the legislature has sought to achieve by this provision is to provide maintenance pendente lite to the applicant spouse during proceedings emerging out of matrimonial disputes so that the she/he can maintain herself/himself, have sufficient funds to pursue the litigation, and not suffer at the instance of the affluent spouse. 10.

There is a general tendency on the part of the wife to amplify her needs and the husband to conceal his actual income, making it difficult to determine the earning capacity of the rival claimants with exactitude. The rival claimants must scrupulously bring on record their actual respective earning capacities in order for the Court to arrive at quantum of maintenance which is just and fair in terms of principle of equistatus. The quantum of maintenance must be justifiable and realistic to provide succour to the dependent spouse and also to avoid occurrence of the two extremes of the maintenance being either paltry or extravagant, ensuring that neither of the two is reduced to a life of penury. The adequacy of the maintenance allowance has to be determined by the yardstick of the dependent spouse being able to lead a life of reasonable comfort.

11.

While dealing with the issue of maintenance in extenso, a two Judge bench of the Hon'ble Supreme Court in Rajnesh v. Neha and another

(2021) 2 SCC 324, laid down the criteria for determining quantum of maintenance and issued the following directions: "VI Final Directions 130.

In view of the foregoing discussion as contained in Part B -1 to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India: (a) Issue of overlapping jurisdiction 131.

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding:

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding (b) Payment of Interim Maintenance 132.

The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country. (c) Criteria for determining the quantum of maintenance 133.

For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B III of the judgment.

134. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case. (d) Date from which maintenance is to be awarded 135.

We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B-IV above. (e) Enforcement/Execution of orders of maintenance 136.

For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C may be applicable. The arder of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC more particularly Sections 51, 55, 58, 60 r.w. Order XXI." 12.

Having heard learned counsel for the parties and perusing the record, it transpires that learned Sub Divisional Judicial Magistrate has rightly enhanced the monthly maintenance to Rs. 7,000/- per month after taking into consideration the monthly pension of the petitioner-husband as Rs. 21,000/- per month and also the rise in the cost of living index. Learned counsel for the petitioner(s) has not been able to indicate any perversity in the impugned order which warrants interference by this Court. Accordingly, both these petitions are hereby dismissed being bereft of any merit.

12.

Pending CRM(s), if any, are also disposed of accordingly.

0 !

($&5%6 7 "

$% &'() *)+ $% &,- *)+