Delhi High Court: In a case wherein revision petitions had been filed under Sections 397 and 401 read with Section 482 of the Criminal Procedure Code, 1973, (‘CrPC') challenging the Order passed by the Principal Judge, Family Court, Patiala House, New Delhi, whereby the grant of maintenance to both the children of the respondent, namely, Zahir Abdullah and Zamir Abdullah, under Section 125 of the CrPC was rejected; the younger child was granted maintenance of Rs. 25,000 for a limited period of three months till he attained the age of majority and the respondent's wife, Payal Abdullah was granted Rs. 75,000 as interim maintenance, Subramonium Prasad, J.*, opined that considering the financial capacity of the respondent to provide a decent standard of living to his wife and children commensurate with his income and the standard of living that the petitioners enjoyed previously, there was no reason that the maintenance amount awarded to Payal Abdullah should not be enhanced to that extent. Accordingly, this Court observed that there was limited merit in the instant petition and thus, directed the interim maintenance amount to be increased from Rs. 75,000 per month to Rs. 1,50,000 per month for Payal Abdullah. This Court further opined that even though the petitioners, Zahir Abdullah and Zamir Abdullah, being major, were not entitled to any maintenance as per the law, the respondent must pay Rs. 60,000 per month per son to Payal Abdullah for their education.
Background
In the present case, two petitions had been taken up together and Zahir Abdullah and Zamir Abdullah, were Petitioners 1 and 2 respectively, in Crl.Rev.P. 604 of 2018, and Payal Abdullah, was the petitioner in Crl.Rev.P. 605 of 2018.
The marriage between Payal Abdullah and Omar Abdullah was solemnized on 01-09-1994 under civil law in England and two children, namely, Zahir Abdullah and Zamir Abdullah were born to the couple. The respondent was the former Chief Minister of the erstwhile State of Jammu and Kashmir and had abandoned the petitioners since 2013 and had filed for dissolution of marriage under the Foreign Marriage Act read with Sections 27(1)(b) and (d) of the Special Marriage Act, 1954, on the grounds of desertion and cruelty. The Principal Judge, Family Court, Patiala House dismissed the application and thus, an appeal against the same had been filed by the respondent before this Court. Thereafter, the respondent physically threw the petitioners out of their house without any prior notice and the petitioners were rendered homeless and were forced to take refuge at various places before finding rented accommodation.
It was submitted that Payal Abdullah had single-handedly raised her two children and she was unemployed and was also a recipient of “Z” security with her children being “Z+” protectees. It was stated that Omar Abdullah had refused to maintain the petitioners despite having sufficient financial means. It was further stated that in absence of the respondent coming forward to discharge his responsibilities as a father and a husband, Payal Abdullah was constrained to file an application under Section 125 of the CrPC for maintenance of herself and the two children. The Principal Judge, Family Court, Patiala House, New Delhi, held that Zamir Abdullah, Petitioner 2 was a major at the time of filing of the application of maintenance and, therefore, was not entitled to maintenance under Section 125 of the CrPC. However, it was directed that Payal Abdullah was entitled to an interim maintenance of Rs. 75,000 by the respondent from the date of filing of the application under Section 125 of the CrPC to its disposal, and that Zahir Abdullah, Petitioner 1 in was entitled to an interim maintenance of Rs. 25,000. Thus, being aggrieved by the aforesaid Order, the petitioners herein had approached this Court, praying for a revision of the Order.
Analysis, Law, and Decision
The Court relied on Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, wherein the Supreme Court observed that “the principle underlying Section 125 CrPC was that it was in furtherance of social justice and had been enacted to ensure that women and children remain protected from a life of destitution and potential vagrancy. The object of maintenance proceedings was not to punish a person for his past neglect, but to prevent vagrancy by compelling those who could provide support to those who were unable to support themselves and who had a moral claim for support”. The Court further relied on Rajnesh v. Neha, (2021) 2 SCC 324, wherein the Supreme Court comprehensively listed all the factors that must be taken into consideration and how a careful and just balance must be drawn between. The Supreme Court had observed that “an able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children and could not contend that he was in position to earn sufficient to maintain his family. Further, the Court was required to have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high cost of living. Moreover, factors like age and employment of the parties, and the factum of the wife earning income, must also be considered. Thus, in addition to the fact that if a wife was earning some income, it did not operate as a bar from being awarded maintenance by the husband, as the applicants in a maintenance proceeding were entitled to the same standard of living as they would have enjoyed if the dispute had not occurred”.
The Court further relied on Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, wherein the Supreme Court observed that “while calculating amount of maintenance to be awarded to the parties, though the Court must consider the state of the parties and the mode of life that the wife was used to and the capacity to pay of the husband after allowing for his own expenses and obligations, this maintenance amount should permit reasonable comfort to the wife and ability to prosecute her case, yet it should not be excessive or extortionate”.
This Court opined that in the present case, the respondent was a man of means, and had access to financial privilege that evades the common man. The Court further opined that being a politician, revealing all information pertaining to financial assets might be dangerous, however, there was no iota of doubt that the respondent did have the resources to provide for his wife and children.
This Court noted that the respondent did indeed lead a lavish lifestyle and that the respondent had been travelling to Dubai and London, living in five-star and seven-star hotels and spending lakhs on such luxuries. This belies the submission that he did not have the means to live an extravagant life. The Court opined that the respondent had the financial means to provide support to his wife and children. The wife, on the other hand, was the Director of three loss making companies and she had also studied only till 12th standard.
This Court opined that considering the financial capacity of the respondent to provide a decent standard of living to his wife and children commensurate with his income and the standard of living that the petitioners enjoyed previously, there was no reason that the maintenance amount awarded to Payal Abdullah should not be enhanced to that extent. Accordingly, this Court observed that there was limited merit in the instant petition and thus, directed the interim maintenance amount to be increased from Rs. 75,000 per month to Rs. 1,50,000 per month for Payal Abdullah.
This Court opined that even though the petitioners, Zahir Abdullah and Zamir Abdullah were not entitled to any maintenance as per the law, the respondent should compensate Payal Abdullah by sharing the burden of the amount spent by her towards the expenses and upkeep of the children. Thus, the respondent was directed to pay Rs. 60,000 per month per son to Payal Abdullah for their education. Further, the period of compensation was to commence from the date when the children were enrolled in the law college and was to subsist till their graduation from the law college.
This Court stated that it was pained to note that in such acrimonious proceedings, the parents tend to make their children their pawns, thereby sidelining their children's happiness in order to vindicate themselves.
[Zahir Abdullah v. Omar Abdullah, 2023 SCC OnLine Del 5341, decided on 31-08-2023]
Advocates who appeared in this case :
For the Petitioners: Prosenjeet Banerjee, Shreya Singhal, Sarthak Bhardwaj, Advocates with Petitioners-in-person
For the Respondent: Malvika Rajkotia, Ramakant Sharma, Trisha Gupta, Prateek Awasthi, Advocates
*Judgment authored by: Justice Subramonium Prasad
Buy Code of Criminal Procedure, 1973 HERE
