Meera v. Harbans Singh

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE ANANDA KUMAR MUKHERJEE CRR No. 5 of 2022 MEERA ... PETITIONER

Versus

HARBANS SINGH ... OPPOSITE PARTY For the petitioner : Mr. Deep Chaim Kabir, Advocate Mr. S. Ajith Prasad, Advocate For the respondent : Mr. K.M.B Jayapal, Advocate Heard on : 25.04.2022 Judgment on : 29.04.2022 ANANDA KUMAR MUKHERJEE, J.

1.

This revisional application under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the wife-petitioner against her husband, the opposite party, assailing order dated 28.01.2021 passed by learned Judge, Family Court, Andaman and Nicobar Islands, Port Blair in Misc. Case No.72 of 2019 under Section 125 of the Code of Criminal Procedure, 1973, whereby the prayer for interim maintenance to the petitioner was disallowed.

2.

The fact of the case, in brief, is that the petitioner got married to the opposite party on 02.06.1991 and their marriage

was solemnized according to the Hindu rites and customs. The petitioner gave birth to one son and one daughter out of her marriage who are now major.

3.

After living as husband and wife for almost thirty years, the matrimonial relation has broken down. The respondent no more shows interest for the petitioner and her children. In the year 2018, the petitioner found that her husband was involved in extra martial relationship with other women and on being challenged, the respondent started subjecting the petitioner to physical and mental torture. On 02.04.2019 the husband left his house and did not returned.

4.

According to the petitioner, the opposite party was a Government employee and worked as a Pump Driver under Andaman Public Works Department where his gross salary was Rs.50,000/- per month. The opposite party superannuated from service on 31.12.2020, during pendency of the instant case and is now receiving pension.

5.

The petitioner being unable to maintain herself filed a case against opposite party under section 125 of Code of Criminal Procedure on 16.10.2019 and also filed an application for grant of interim maintenance. The case has been registered as Misc. Case No.72 of 2019. The petitioner has stated that she is unemployed and a house-wife, whereas the opposite

party/husband by misrepresenting the facts before the Family Court has stated that the petitioner is not unemployed and has business. It is alleged that she runs a Fair Price Shop bearing No.691 having licence issued in her name under Section 3 of Essential Commodity Act, 1955. It has been further alleged by the opposite party/husband that the petitioner is sole proprietor of the Fair Price shop and she also runs a Transport business, having two public carrier jeeps, bearing Reg.No.AN 01 D-7405 and AN 01 C 1334. On the basis of such representation, learned Judge, Family Court disallowed the prayer for interim maintenance.

6.

Being aggrieved the petitioner has filed this revisional application for setting aside the order on the ground, inter alia, that the impugned order has been passed due mis-appreciation of law and facts and the same cannot be sustained. Learned Judge has failed to apply the judicial mind without considering the relevant materials and without considering the stipulations laid down by the Hon'ble Supreme Court and this High Court in catena of cases and without even considering that the opposite party has misrepresented the facts in order to harass and humiliate the petitioner. It is contended that the petitioner is a deserted woman and at the verge of destitution, as such a suitable amount of interim maintenance is awarded to the petitioner pending disposal of the case. It is urged that the

impugned order suffers from illegality and same is liable to be set aside and the prayer for interim maintenance to the petitioner may be allowed in accordance with her prayer. 7.

The moot question before this Court is whether the petitioner is entitled to interim maintenance. Learned advocate for the petitioner argued that after three decades of married family life the petitioner has been deserted by the husband due to his extra-marital relationship with other woman. The petitioner does not have any means of maintenance, whereas the opposite party-husband being a retired government servant receives a substantial amount of pension. Learned advocate for the petitioner further submitted that the opposite party made various misrepresentations before the Family Court and in his affidavit has stated that he purchased two vehicles in the name of the petitioner which are being used as public carrier which gives her earnings. It is also argued on behalf of the opposite party that the petitioner runs a Fair Price shop, she being the sole proprietor, having a licence in her name and that the opposite party with his own earning constructed a residential house for the petitioner.

8.

Learned advocate for the petitioner argued that the husband has not been able to quantify any income of the petitioner. Simply purchasing some property in the name of the wife and having a licence of a Fair Price shop in the name of

wife does not establish that the petitioner wife has any independent earning. It is further contended that the opposite party has leased out the Fair Price shop business licence to some other person and the wife has no earning from such business. It is argued on behalf of the petitioner that at the time of considering the prayer for maintenance the court should take into an account the guidelines laid down in the case of Rajnesh vs. Neha and others (Criminal Appeal No. 730 of 2020), wherein Hon'ble Supreme Court has laid down a procedure to streamline the proceedings in case where maintenance is claimed by the wife who has no other source of income.

It has been laid down that the party claiming maintenance either as a spouse, or as a parent should be required to file a concise application for interim maintenance with limited pleadings along with affidavit of disclosure of assets and liabilities before the concerned court, as a mandatory requirement. On the basis of pleading filed by both parties an affidavit of disclosure, the court could be in a position to make an objective assessment of an approximate amount to be awarded towards the maintenance at the interim stage.

avoid either of the 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. It was further argued that where wife is earning some income, it cannot operate as a bar from being awarded maintenance by the husband. 9.

Learned Advocate for the petitioner relied upon a decision reported in Geeta Chatterjee -vs- Prabhat Kumar Chatterjee (AIR CAL 83) where a distinction were drawn between having property and having income for the purpose of determining in terim maintenance. In the referred case the husband very seriously opposed the wife's prayer for pendent lite maintenance on the ground that the wife owns two pieces of valuable lands in Calcutta, but it was held that she cannot be regarded to have independent income sufficient for her support. 10.

Learned advocate for the petitioner also relied upon a decision in the case of Chaturbhuj - vs - Sita Bai; 2007 (13) SCALE 402, where it is laid down that in a case for maintenance under Section 125 of Cr.P.C the burden is placed in the first place upon the wife to show that the means of her husband are sufficient and that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. In such a case if the wife was earning some income,

that is not sufficient to rule out application of Section 125, Cr.P.C. It has to be established that with the amount she earned the wife was able to maintain herself. 11.

Learned advocate for the petitioner in support of his argument relied upon another decision in the case of Swapan Kumar Banerjee -vs - The State of West Bengal and others; AIR 2019 SC 4748 where it was held that it is for the wife to decide when she wants to file a petition for maintenance. She may have felt comfortable with whatever earning she had upto that time. It was further held that it is for the husband to lead such evidence to show what is the income of the wife in the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself. 12.

Learned advocate for the petitioner also relied upon a decision of the Hon'ble Single Bench of the Calcutta High Court, in the case of Dipali Mindal (Kar) vs. Dr. Sanat Kumar Mondal; (CRR 2041 of 2015 with CRR 1849 of 2016), where the husband had gifted immovable property in the name of the wife and the husband was a doctor, Hon'ble Single Bench enhanced the interim maintenance @ 1⁄4th of the income as admitted by the husband.

13.

Learned advocate for the petitioner argued that the husband/respondent did not indicate the quantum of income of

the petitioner from the property he allegedly transferred or purchased in her name. Therefore, the petitioner/wife should be allowed some interim maintenance so that she is not reduced to destitution or vagrancy.

14.

Learned advocate for the opposite party submitted that the husband has retired from his service on the other hand the petitioner has transport business as well as earning from rents of tenanted premised and a Fair Price shop which was run by the petitioner. Learned advocate urged that there is no merit in the application for interim maintenance and the same requires to be dismissed.

15.

Considered the arguments advanced by learned advocates for the petitioner and the opposite party. Also considered the application for revision and the impugned order. It is undisputed that the petitioner is the legally married wife of the opposite party and she is residing in her husband's house. It is also admitted that after twenty nine years of marriage the respondent/opposite party left the company of his wife on 02.04.2019 and did not returned. From the averments made in the application, the petitioner on affidavit had stated that the opposite party was earning a gross salary of Rs. 50,000 per month while working as a pump operator at Andaman Public Works Department and has been superannuated from service on 31.12.2020. While considering the prayer for interim

maintenance of the petitioner/wife learned Judge, Family Court, Port Blair in the impugned order dated 28.01.2021 has taken into consideration the contents of the petition as well as the written objection filed by the respondent/husband. The petitioner has claimed interim maintenance of Rs. 20,000 per month from the respondent/opposite party on the ground that she is unable to maintain herself as well as her children. 16.

The respondent in his written objection has stated that petitioner is not unemployed. She runs business and has a Fair Price shop bearing No. 691 and in the license allotted under Section 3 of the Essential Commodities Act, she figures as sole proprietor. It is further stated that the petitioner has a transport business where she runs two public carrier jeep between Tushnabad to Bhathubasti. Furthermore the petitioner is enjoying a lavish life and he has constructed a pucca house for her, where she now resides. In his written objection the opposite party has stated that the petitioner has also rented a shop room in the ground floor of her residential building to a beauty parlour and a portion to a family. According to the opposite party the petitioner earns Rs.40,000 per month from her business where as he superannuated from service and receives some pension. It appears from the impugned order that in her claim for maintenance the petitioner is silent about letting out any part of the residential house to a beauty parlour or to any

other family for rent nor did she mention anything about owing a public transport business, having two registered vehicles in her name or running a Fair Price shop.

17.

In the impugned order learned Judge Family Court has stated that both the son and the daughter of the petitioner are major at the time of filing of the case, but it appears that the petitioner has claimed maintenance for her children as well. The petitioner is residing separately from the opposite party since 02.04.2019 but the documents annexed with application for revision indicates that the registration certificate of the vehicles are in the name of the petitioner and permit of the vehicle has been renewed on 26.11.2021 in the name of the petitioner i.e. after the opposite party left the house of the petitioner. 18.

In absence of quantification of the earning of the petitioner from her property and business, it is unconscionable to shift the burden upon the husband to deliver such particulars before the Court when the properties are under the control of the wife.

19.

Learned advocate for the petitioner has relied upon the judgement of Rajnesh - Vs - Neha (supra) which lays down particular as to how the affidavit of disclosure of assets and liabilities shall be filed by the parties in all maintenance proceeding including proceedings before the concerned Family

Court, District Court and Magistrate Court, as the case may be throughout the country and that quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B - III which is laid down in paragraph 100. In the instant case having considered the affidavit of disclosure of assets the learned Judge Family Court has held that the petitioner wife has sufficient means to maintain herself.

20.

Considering the facts and circumstance of the case and the source of earning of the petitioner as disclosed by the husband with relevant particulars, I am of the view that the petitioner has adequate means to maintain herself and by not allowing any interim maintenance there is no possibility for her to run into vagrancy or destitution.

21.

Learned advocate for the petitioner had strenuously argued that having property at the disposal of the petitioner does not quantify the income of a person. It is true that a person holding some property may not have earning out of it. In the instant case the particulars furnished by the husband indicate that the petitioner holds property which generates income and they are not simply immovable property like land and building. It is also to be borne into mind during pendency of this application of interim maintenance, the respondent/husband who served as a pump operator has

superannuated from his service. The earning of the respondent therefore, has been reduce to less than half of his monthly salary. At this stage before evidence is adduce by the parties it would not be appropriate to allow any interim maintenance to the petitioner wife as the financial condition of the petitioner and opposite party is poised. Only after evidence is led and adduced by both the parties the status of living and the income of the wife and the opposite party can be adjudicated. 22.

The decisions relied upon on behalf of the petitioner lay down some broad principles for adjudicating wife's claim for maintenance but facts and circumstances of this case being different from the cited decisions, they are distinguishable and do not have application to the present case.

23.

The impugned order passed by the learned Judge, Family Court in my considered view does not suffer from any illegality, irregularity or impropriety as such, same calls for no interference. The revisional application praying for setting aside the order dated 21.01.2021 passed by the learned Judge, Family Court, Andaman and Nicobar Islands, Port Blair in Misc. Case No.72 of 2019 under Section 125 of Cr.P.C is dismissed. Interim application if any stands disposed of. 24.

Let a copy of this judgement be transmitted to the learned Judge, Family Court, Port Blair for information.

25.

Urgent certificate copy of this judgement, if applied for, may be supplied to the parties upon compliance of usual formalities.

(ANANDA KUMAR MUKHERJEE, J.)