Case BriefsHigh Courts

Calcutta High Court: Biswajit Basu, J. dismissed a revision application of the filed by a lady seeking alimony pendente lite.

The husband/respondent and the wife herein had filed a matrimonial suit seeking dissolution of their marriage by a decree of divorce, inter alia, on the grounds of cruelty. In the said suit, the wife had filed an application before the learned trial judge under Section 36 of the Special Marriage Act, 1954 praying alimony pendente lite at the rate of Rs 50,000 per month. The wife alleged that the husband is working in a reputed organization in the USA and was earning around Rs 75,00,000 per annum. Thus, she was entitled to maintenance proportionate to the income of the husband. However, after assessing her salary certificates for December 2018, January 2019 and March 2019, the learned judge opined that the present income of the wife is not less than Rs 74000 being sufficient for her support particularly when she herself assessed her requirement at Rs 50,000 in the application for alimony pendente lite.  And as Section 36 provides for temporary financial support pending any action under Chapter V or VI of the said Act “to the wife who has no independent income sufficient to maintain herself”, refused the prayer of the wife for alimony pendente lite.

The High Court dismissed the case, holding the decision of the learned trial Judge as absolutely justified.[Somdatta Chatterjee nee Raychaudhari v. Anindya Chatterjee, Civil Order No. 1972 of 2016, decided on 11-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J. contemplated a revision application under Section 19(4) of Family Courts Act, 1984 read with Sections 397 and 401 CrPC. In the instant application, the applicant was directed to pay Rs 3000 per month as maintenance under Section 125 CrPC.

Facts leading to the filing of this revision application were that respondent-wife moved an application under Section 125 CrPC against the applicant for grant of a maintenance amount, she alleged that after some time of the marriage, the applicant persistently made a demand of dowry from the respondent; and he used to harass her. Since then, she was residing in the house of her mother. She does not had any source of income thus, she found it difficult to maintain herself, whereas the applicant had 10 bighas of agricultural land and he was also engaged in the business of selling cattle, thereby earning Rs 1,00,000 per annum. Therefore, a prayer was made by the respondent/wife for grant of maintenance of Rs 10,000 per month before the Family Court. The said application was partly allowed vide the impugned order and the Family Court had directed the applicant to pay Rs 3,000 per month towards the maintenance of the respondent. Feeling aggrieved by the fixation of a maintenance amount, the applicant had preferred this revision application.

The applicant-husband contended that the marriage was solemnized in 2015 as per Muslim Rituals and Customs. It was further submitted that the respondent had earlier registered a case under Section 498-A of Penal Code, 1860 under Section 3 read with Section 4 of the Dowry Prohibition Act, 1961, but the matter was amicably settled between them but subsequently, the respondent again deserted him.

The counsel for the applicant, M.K. Sharma, submitted that the respondent was not entitled to receive any maintenance as she had deserted the applicant without any reason. It was highlighted that the respondent did not want to live in a joint family and if the applicant arranged for a separate residence she was willing to return.

Court on such contention by the applicant observed that, the Family Court had committed an error of law in allowing the application for grant of maintenance, as the case was not in favor of the respondent. The Court stated that, the respondent had accepted in her statement that earlier she lodged FIR against the applicant and his parents for the commission of the said offence. However, later on, she compromised the matter and returned back to her matrimonial house. Thereafter, she again left her matrimonial house, in her cross-examination in which she categorically stated that she was ready to live with the applicant if the applicant makes arrangement for their separate residence. The actions of the respondents were found contradictory. Hence the revision was allowed and the order was cancelled.[Aarif v. Shajida, 2019 SCC OnLine MP 1379, decided on 04-07-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a petition filed by the petitioner-wife against the order of the appellate court whereby it had dismissed her appeal for enhancement of the amount of maintenance for her and her daughter.

The petitioner filed a petition under the Protection of Women from Domestic Violence Act, 2005 against her husband alleging that she was turned out of the matrimonial home on account of the failure of bringing enough dowry. The trial court, prima facie assessed the husband’s income at Rs 30,000 per month and awarded interim maintenance of Rs 10,000 per month to the petitioner and her daughter. The petitioner sought enhancement of the amount but the appellate court dismissed her appeal.

The petitioner, who was represented by Lal Singh Thakur and Sudhir Tewatia, Advocates, contended that the court below erred in not appreciating that the husband had several businesses and he misled the court by not disclosing his correct income. In support thereof, the petitioner placed on record several website listings showing the businesses that the husband was engaged in. Per contra, the husband, who was represented by Kunal Rawat, Advocate, submitted that his income was only between Rs 10,000 to Rs 15,000.

The High Court, after perusing the record, held that the appellate court erred in placing the burden of proof on the petitioner and erred in holding that she has not placed the details of the contract with regard to the business of the husband. The listings placed on various websites, prima facie showed a turn over of Rs 50 lakhs to Rs 1 crore per annum. It was reiterated that at the stage of assessment of interim maintenance, the court has to only form a prima facie opinion.

Furthermore, placing reliance on Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, it was held: “The rationale for grant of maintenance under Section 125 CrPC as expounded by the Supreme Court in Bhuwan Mohan Singh applies on all fours to the grant of maintenance under the DV Act.”

 In view of the matter, the Court enhanced the amount of interim maintenance from Rs 10,000 to Rs 30,000 per month.[Manju Sharma v. Vipin, 2019 SCC OnLine Del 8960, decided on 01-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Madhumati Mitra, J. dismissed an application filed by the petitioner to quash the order of the Additional Sessions Judge whereby he refused to stay the petition filed by his former wife for the execution of the maintenance order granted in her favour by the Magistrate.

By the order passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the Magistrate had directed the petitioner to pay Rs 3000 + Rs 800 per month to his former wife. Subsequent to that order, the petitioner obtained an ex-parte divorce decree against his former wife. After the said decree, the petitioner filed an application under Section 25, praying for alteration/modification or revocation of the maintenance order on the ground that he is not liable to pay to his former wife as no domestic relationship between them subsist.

Before the High Court, the petitioner was represented by Siva Prosad Ghose, Chandra Bhanu Sinha and Rohit Kumar Shaw, Advocates. Per contra, the former wife was represented by Anand Kesari and Sekhar Mukherjee, Advocates.

After referring to the relevant provisions of the DV Act along with Section 125 CrPC, and a conspectus of cases on the subject, the High Court observed: “Decree of divorce does not deprive the wife of the relief granted in her favour under the provisions of the Act of 2005. After decree of divorce, the Opposite Party 2 has become a divorced wife.”

The Court was of the opinion that our law recognises the right of a divorced wife to get maintenance till her remarriage, under Section 125 CrPC. The DV Act provides additional rights and remedies to the aggrieved person.

Finally, it was noted: “Existence of domestic relationship is not needed to execute the order granted under Section 12 of the Act of 2005 and the divorced wife who got an order of maintenance and other relief under the Act of 2005 prior to the decree of divorce is entitled to execute the same if she is unable to maintain herself and she has not remarried and for other reasons.”

In such view of the matter, the Court decided the application against the petitioner, and accordingly dismissed the same.[Krishnendu Das Thakur v. State of W.B., 2019 SCC OnLine Cal 969, decided on 28-06-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed under Section 19(1) of the Family Courts Act, 1984 against the order of the family Judge whereby the husband was directed to pay pendente lite maintenance of Rs 8000 per month to her wife.

Arijit Bhowmik, Advocate representing the appellant-husband submitted that though the appellant was an employee of ONGC having a salary of Rs 39, 649, however, he received only Rs 19,338 after various deductions. It was prayed that the maintenance allowance may be reduced. per contra, H.K. Bhowmik, Advocate appearing for the respondent-wife submitted that Rs 8,000 per month were minimum to lead a dignified life, which is one of the essential features of Article 21 of the Constitution.

On perusing the record, the High Court found that the wife was forced to stay at her parents’ house. it was noted that there were many bald allegations levelled against her such as she was not interested in having sex with the appellant-husband and that she threatened him to commit suicide. In the Court’s opinion, the allegations were not substantiated by cogent evidence. It was said: “these are the normal wear and tear of marital life and for this, the wife should not be forced to be separated from the appellant-husband. The wife is entitled to lead a life at part the standard of the husband.”

Having considered all the aspects, the court was not inclined to interfere with the order passed by the family Judge. Resultantly, the appeal was dismissed. [Debasish Chakraborty v. Soma Bhattacharjee, 2019 SCC OnLine Tri 159, decided on 29-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Sudhanshu Dhulia and Ramesh Chandra Khulbe, JJ. entertained an appeal by the appellant-wife under Section 19 of Family Courts Act, 1984 against the impugned judgment granting divorce passed by Principal Judge of Family Court.

Facts giving rise to this appeal were, the respondent had filed a suit earlier under Section 13 of Hindu Marriage Act, 1955 which was decreed already. When the marriage was solemnized between the parties, the respondent was working as a Sepoy in the Indian Army and it was a smooth sail for both of them. Subsequently, respondent-husband filed for divorce and for dissolution of marriage on the grounds that appellant was suffering from epilepsy prior to marriage and such essential fact was not disclosed to him, the appellant also suffered from different ailments which served as a hindrance, physically and mentally in their prosperous marriage. But the actual ground on which suit was filed for divorce was cruelty and desertion.

The Court observed that parties are living separately for a long time, the issues framed by the Family Court were sufficient to grant a divorce in this particular case. It was also observed that the Family Court found that appellant suffered from epilepsy and was treated for the same in addition to it she also suffered from tuberculosis, and such physical suffering of the appellant served as mental cruelty upon the husband. The expert opinion stated that due to such ailments the appellant was not in a fit state to conceive a child. The Court appreciated that such ailments were not relevant grounds to prove cruelty and to dissolve the marriage prime facie but non-disclosure of such important facts before marriage led to cruelty which is a proper ground for divorce.

The Court stated that there was enough evidence before the court below to establish that there was cruelty on the part of the appellant/wife, such as threatening the husband to falsely implicate in criminal cases and making a complaint to the superior officers of the husband. The wife had also made unnecessary allegations against the respondent before the Commanding Officer, which lowered his esteem in the eyes of his superior officer.

Hence, the Court awarded permanent alimony and disposed the application of maintenance under Section 125 CrPC, it also found that there was no need to interfere with the Order of Family Court and setting aside the divorce decree.[Himani v. Rohit Bisht, 2019 SCC OnLine Utt 448, decided on 13-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity (APTEL): A Division Bench of Manjula Chellur, J. (Member) and S.D. Dubey, (Technical Member) passed an order for implementation of the Tribunal’s order for the payment of the sum of money due with interest.

An application for the implementation of the order was made by the appellant when after a reasonable time the respondent didn’t pay any heed towards the order against them.

Aman Anand, Aman Dixit, counsels for the appellant submitted that the order was received for the payment after increasing the recovery of interim transfer of lignite to 85 percent in place of 70 percent. It was submitted by the appellant that no appeal was pending against the said order. Hence, this application.

R.K. Mehta, Himanshi Andley, P.N. Bhandari, counsels for the respondents, submitted that the matter related to the increase in the tariff was pending in the Commission and that the appellant had rushed to the tribunal prematurely in order to prejudice the pending decision of the Commission.

The Tribunal after submission by the parties held that although the matter is pending in the Commission the payment due is for the previous year and thus the same is to be made by the respondent as per the order of the Tribunal. It was further reiterated that, the said order was passed by this Tribunal at the premise of financial hardship to the generator which was being allowed considerably at less transfer price than they actually claimed. The Court concluded that, the maintenance of judicial discipline is a part of our judicial process. Thus, the order was made for the implementation of the order of the Tribunal in its true spirit.[Barmer Lignite Mining Co. Ltd. v. Rajasthan Electricity Regulatory Commission, 2019 SCC OnLine APTEL 27, decided on 17-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a revision petition and set aside the order of the Appellate Court whereby it had dismissed the appeal filed by the petitioner (husband) on the ground that he failed to deposit the entire arrears of maintenance despite several opportunities.

The husband was directed by the trial court to pay a monthly maintenance amount of Rs 35,000 to his wife. He, however, failed to pay the amount and coercive steps were taken by the trial court. Challenging the said order, the husband filed an appeal before the Appellate Court which was dismissed by the impugned order.

Mani Mittal and Pratush Mittal, Advocates, appeared for the husband before the High Court. Per contra, the wife was represented by Bharti Sharma and S.K. Sharma, Advocates.

The High Court noted that the difference of opinions on the subject — as was evident from the decisions rendered by Single Judges in Rajeev Preenja v. Sarika, 2009 SCC OnLine Del 458 — attained finality by a decision of the Division Bench in Sabina Sahdev v. Vidur Sahdev, 2018 SCC OnLine Del 9747. In Sabina Sahdev Case, it was held that “appeal or revision cannot be dismissed solely on the ground of failure to pre-deposit the maintenance amount and the same would have been decided on merits.” Accordingly, the Court held in the present case that the Appellate Court took a contrary view which was not sustainable. Therefore, the impugned order was set aside and the appeal was restored to its original number. [Sourav Sharma v. Neetu Sharma, 2019 SCC OnLine Del 8480, decided on 14-05-2019]

Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J. dismissed a revision petition filed against the order of the family court whereby the petitioner was directed to pay a monthly sum of Rs 2000 each to his wife and child towards their maintenance under Section 125 CrPC.

The wife had left petitioner’s home due to alleged torture inflicted upon her and thereafter she filed an application under Section 125 claiming maintenance which was allowed by the family court in the terms above. The petitioner was a Government Servant earning a monthly salary of about Rs 22,000.

The High Court noted that while the wife was staying at her parental house, she was not provided maintenance which amounted to negligence in the sense that the petitioner was bound to maintain the wife and the child, which is a settled legal position. It was also noted that the allegation that the wife was working in a school and earning money could not be established by the petitioner and no specific evidence to that effect was laid by him. It was observed: “In the absence of any specific evidence, it cannot be held that the wife/respondent was earning sufficient amount to maintain herself. That being so, in the absence of any specific evidence as to the income of the respondent/wife, the petitioner/husband is bound to maintain his wife and the child fathered by him.”

In that view of the matter, the Court did not find any reason to interfere with the order of the family court. The revision petition was accordingly dismissed. [Jotirmoy Kalita v. Jonamoni Kalita, 2019 SCC OnLine Gau 2245, Order dated 07-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. was hearing an application under Section 482 of the Code of Criminal Procedure, 1973 which sought quashing of Family Court’s order whereby applicant-husband was directed to pay maintenance to his wife (2nd respondent herein).

At the outset, this Court called for a report from the Family Court, in the present matter. The said report stated that the applicant, till date had not complied with Family Court’s order to pay maintenance. At this juncture, learned counsel for the applicant Mr Dineshwar Prasad Singh submitted that he may be permitted to withdraw the application.

The Court opined that the applicant could not be allowed to simply withdraw the application, when his mala fide conduct stood exposed. It was observed that strict order was required to ensure payment of maintenance to the 2nd respondent, moreso, when there was a judicial order to that effect. The Court, under its inherent power under Section 482 CrPC is also required to pass an order for securing the ends of justice.

Accordingly, the application was disposed of as withdrawn, directing the Family Court to take all coercive measures against the applicant for ensuring compliance of its order directing payment of maintenance.[Sanjay Yadav v. State of Bihar, 2019 SCC OnLine Pat 601, Order dated 03-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. partly allowed a revision petition against the order of the trial court passed under Section 125 CrPC holding that the trial court erred in equalising the effort of both parents in the upbringing of their child.

The petitioner and the respondent got divorced in 2007. The petitioner filed an application under Section 125 CrPC claiming maintenance for herself and the minor child born from the wedlock. The trial court did not grant any maintenance to the petitioner holding that she was employed with an MNC and could maintain herself. It, however, directed the respondent to pay a sum of Rs 10,000 per month towards the maintenance of the child. Aggrieved thereby, the petitioner filed for the revision of the trial court’s order.

The High Court agreed with the finding of the trial court as far as the petitioner was concerned. It held that the petitioner could maintain herself. However, in regard to the maintenance of the child, it was held that the trial court’s approach of holding both parents equally liable to pay towards the maintenance of the child was not right. It was observed: “It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child… No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two.”

It was further held that the trial court should have awarded the maintenance from the date of filing of the application rather than the date of the order. Resultantly, the amount of maintenance to be paid by the respondent for maintenance of the child was increased to Rs 20,000 per month, payable from the date of filing of the application under Section 125 CrPC.[Lopamudra Bhuyan v. Surajit Singh, 2019 SCC OnLine Del 8267, dated 30-04-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of M.G. Giratkar, J., partly allowed a criminal revision application by modifying the maintenance amount being provided to the wife in respect of the husband’s pension.

In accordance, the present case, the learned counsel of applicant/husband, P.K. Mishra, submitted that before retirement, the husband was getting the salary of Rs 1, 53,000 per month and after retirement, his pension was Rs 72,000 per month. Further, it was stated that the husband was not in a position to pay Rs 30,000 per month as maintenance to his wife, the reason being an exorbitant amount. He added that “As per Section 11 of the Pensions Act, 1871, the pension cannot be attached.”

Hence, the High Court on considering the facts and circumstances of the case stated that maintenance amount at Rs 30,000 per month granted by learned Magistrate appears to be exorbitant. Pending disposal of domestic violence proceedings before learned Magistrate, at this stage amount of Rs 20,000 per month towards interim maintenance appears to be proper. “Maintenance allowance granted to wife cannot be considered as debt – She is not a creditor hence exemption under Section 11 cannot be granted to husband.” Also, pensions can be attached to recover the amount of maintenance.  Therefore,

  • The criminal revision application is partly allowed.
  • Order of interim maintenance is maintained. However, the amount at Rs 30,000 per month is modified.
  • Instead of Rs 30,000 per month, the applicant shall pay Rs 20,000 per month towards interim maintenance to his wife during the pendency of D.V. Act proceedings.
  • The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month.

In view of the above, the criminal revision application stands disposed of. [Bhagwant v. Radhika, 2019 SCC OnLine Bom 607, Order dated 05-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., reiterated that proceedings under the Protection of Women from Domestic Violence Act, 2005 and under Section 125 CrPC are independent of each other and have different scope.

The parties, though married, were living separately. The wife had filed an application under Section 125 CrPC wherein she was granted interim maintenance of Rs 1.20 lakhs per month. Subsequently, she filed an application under Section 23 of the DV Act seeking, inter alia, monetary relief under Section 20. However, her application was rejected by the trial court on the ground that she had already been granted maintenance under Section 125 CrPC and all her claims were considered by the family court while granting the same. The wife filed an appeal against the order of the trial court, which was allowed and the Appellate Court remanded the matter back to the trial court for fresh consideration. Aggrieved thereby, the husband filed the present petition.

Senior Advocate Geeta Luthra, appearing for the husband, submitted that the Appellate Court erred in passing the impugned order as maintenance was already granted to the wife. Per contra, it was submitted on behalf of the wife that she suffered domestic violence and was thus entitled to monetary relief. The wife was represented by Madhav Khurana and Trisha Mitta, Advocates.

Noting that the scope of Section 20 of the DV was much wider than that of Section 125 CrPC, the High Court observed: “While Section 125 CrPC talks only of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person.”

It was categorically stated: “an order under Section 20 DV Act is not restricted by an order under Section 125 CrPC.” As such, the trial court was held to have erred in not appreciating the distinction between the two provisions. In such view of the matter, the High Court did not find infirmity in the order of the Appellate Court. Resultantly, the petition was dismissed. [Shome Nikhil Danani v. Tanya Banon Danani, 2019 SCC OnLine Del 8016, decided on 11-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J.dismissed a petition filed against the order of the trial court whereby it had recalled its earlier order and restored the petition for maintenance filed by the respondent-wife.

The wife had filed a petition for maintenance under Section 125 CrPC. The trial court had initially awarded interim maintenance of Rs 2000 per month. The proceedings pending from 2003-2012. On 08-10-2012, the wife was not present before the trial court, Her father prayed for exemption on the ground that she was an asthma patient and therefore couldn’t come to the court. However, the trial court rejected the prayer and closed her evidence. Since there was no evidence on record to prove the factum of marriage between the respondent and the petitioner, the trial court dismissed the wife’s petition. She filed an application seeking a recall of the said order which was allowed by the trial court and her petition was restored. Aggrieved thereby, the husband filed the present revision petition.

Abhimanyu Kampani and Samarth Teotia, Advocates appeared for the husband. Per contra, the wife was represented by Manika Tripathy Pandey, Ashutosh Kaushik and Brahm Kumar Pandey, Advocacies.

As per the High Court, the trial erred in not appreciating that there was no dispute about factum of marriage between the parties. Perusing the grounds mentioned in the present revision petition the Court observed: “The averments in the Revision Petition itself establishes that there is no dispute with regard to factum of marriage. Even if assuming there is no evidence on record, Trial Court can still pass an order of maintenance, if there are admissions on record. In the present case, Trial Court has dismissed the petition only on the ground that factum of marriage has not been proved.” 

In the Court’s opinion, to accept at this stage, the plea of the husband and the wife should have filed an appeal, would amount to gross harassment of the wife as the Judgment of the trial court would anyway be set aside for the asking. Also, referring to the wife’s medical records, the Court was of the view that she had sufficient cause for being not able to appear before the trial court. Therefore, the present revision petition was dismissed. [Surender Singh Arya v. Meenu Arya, 2019 SCC OnLine Del 7998, decided on 05-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., modified the trial court’s order awarding maintenance to the petitioner-wife and directed the respondent-husband to the pay the maintenance from the date of filing of the application under Section 125 CrPC.

The petitioner impugned the trial court’s order whereby maintenance of Rs 4,000 per month was awarded to her. It is pertinent to note that by the impugned order, the respondent was directed to pay maintenance from the date of the order. Nitin Rai Sharma and Sanjeet, Advocates for the petitioner submitted that the trial court erred in note awarding maintenance from the date of filing of the application.

After discussing the nature of maintenance awarded under Section 125 CrPC, the High Court relied on Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632 and Jaiminiben Hirenbhai Vyas v. Hirenbhai Ramesh Chandra Vyas, (2015) 2 SCC 385, and observed: “When the trial court comes to the conclusion that the wife is entitled to an award of maintenance, the assessment, in fact, relates back to the date of the application. When the assessment relates back to the date of the application then there have to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the application.” Noting that the trial court did not record any reason to award maintenance from the date of the order, the High Court modified the impugned order and directed the respondent to pay the maintenance from the date of the application filed by the petitioner. [Nisha Saifi v. Mohd. Shahid, 2019 SCC OnLine Del 7902, decided on 03-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal (CESTAT): This appeal was filed before Sulekha Beevi, J. and Madhu Mohan Damodhar, Member (Technical).                                                                    

Facts of the case were that appellants were manufacturers of Camshaft Assembly Segments for Diesel Locomotives and were holding service tax registration. During verification of records of the appellant, it was found that they were providing work of reconditioning to Railways from June 2005 on agreements entered with railways.

The definition of Maintenance or Repair Service was amended according to which appellant was liable to pay service tax under the category of Maintenance or Repair Service. They failed to discharge the service tax on the services and appellant wrongly availed abatement which he was not eligible to avail. Show cause notice was issued invoking the extended period proposing to demand service tax along with interest and also for imposing penalties. The demand under Maintenance and Repair Services along with interest and imposed penalty was confirmed and was upheld by the Commissioner. Hence, this appeal was filed.

Ms S. Sridevi on behalf of appellant contended that they have provided reclamation and reconditioning of Camshaft Assembly Segments to the Railways based on work orders issued earlier. But as per the Railways, the same were not taxable since done before the specified date due to which appellant did not pay service tax for the taxable values received for the contract. For the period post the specified date, they paid service tax after availing the benefit of abatement. The same was denied by the department stating that the appellant has not fulfilled the condition of the notification barring the availment of CENVAT credit. Appellant further contended that mere non-disclosure of particulars cannot be concluded as willful suppression in order to invoke the extended period.

It was submitted by Shri B. Balamurugan that appellant had not discharged the service tax although they had provided services to the Railways. Further, they had availed the benefit after availing credit on inputs and input services.

Tribunal on finding no ingredients in the present case for invocation of the extended period set aside this impugned order. [Ceeyes Metal Reclamation (P) Ltd. v. Commissioner (GST), 2019 SCC OnLine CESTAT 31, Order dated 08-03-2019]

Case BriefsHigh Courts

Gauhati High Court: A Bench of A.S. Bopanna, CJ and Sanjay Kumar Medhi, J. dismissed an appeal filed by the appellant-husband against family court’s order granting alimony of Rs 2.5 lakhs to the respondent-wife.

Undisputed facts of the case are that the parties were formerly married to each other. Some marital disputes arose and the husband filed a petition seeking divorce which was granted by the family court. Subsequent to the divorce decree, the wife filed a petition under Section 25 of the Hindu Marriage Act, 1955 seeking permanent alimony of Rs 15 lakhs. Partly allowing the wife’s application, the family court awarded her alimony of Rs 2.5 lakhs. Aggrieved thereby, the husband filed the present appeal.

Dipika Kalita and Rumi Kalita, Advocates for the husband told the Court that during the pendency of the husband’s divorce petition, the parties entered into an agreement whereby the wife conceded to the prayer for divorce. Further, she also agreed that there would be no claim between the parties against each other. It was contended that the family court’s order was not justified.

Regarding the alleged agreement, the family court observed and the High Court noted that what was submitted in the divorce proceedings was a photocopy of the said agreement. The family court took note of the same and concluded that it was not enforceable. The High Court observed, “the law is well settled that the maintenance or the alimony to be granted is to enable the party who seeks the same subsequent to the dissolution of the marriage to maintain herself. At that stage, what would be relevant is as to whether the party seeking for such maintenance or alimony is able to maintain herself.” As such, the High Court was of the opinion that the family court rightly held that the wife was entitled to receive alimony. Also, no error was found with the quantum of alimony so granted. Holding it to be devoid of merits, the Court dismissed the appeal. [Utpal Das v. Rinki Sarkar, 2019 SCC OnLine Gau 1048, dated 08-03-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., while dismissing a criminal revision petition, held that the magistrate has a power to pass an order granting interim maintenance under Section 23 of the Protection of Women from Domestic Violence Act, 2005, with effect from the date of filing of the substantive petition under Section 12.

The wife filed a petition under Section 12 against the husband on 10-09-2014. Subsequently, on the wife’s petition under Section 23, by the impugned order the Magistrate awarded interim maintenance of Rs 15,000 for the wife and Rs 15,000 for the minor daughter payable monthly by the husband (appellant). The maintenance was ordered to paid from the date of filing of the substantive petition under Section 12.

Ranjan Bajaj, Advocate for the husband submitted that the trial court was in error in awarding maintenance from the date of filing of petition under Section 12. Per contra, Varun Chawla, Advocate appearing for the wife, supported the impugned order.

The High Court perused the entire record and held that the trial court passed the order of maintenance after proper analysis of all the relevant material. As for the submission of the husband mentioned above, the Court observed, “Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.” In such view of the matter, the court did not find any merit in the petition which was thus dismissed. [Gaurav Manchanda v. Namrata Singh, 2019 SCC OnLine Del 7353, dated 27-02-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., dismissed a revision petition filed by a husband against the order of the family court whereby the monthly amount payable by him towards the maintenance of his son was increased from Rs 2,000 to Rs 5,000.

A petition between the parties was disposed of by the family court whereby the husband was directed to pay monthly maintenance of Rs 2,500 to his wife and Rs 2,000 to their minor son. Subsequently, the parties got divorced under Section 13 of the Hindu Marriage Act, 1955. The husband paid a permanent alimony of Rs 5 lakhs to the wife. After the divorce, the wife filed a petition under Section 127 CrPC for enhancement of maintenance allowance to the minor son which was allowed by the family court in the terms mentioned above. Aggrieved thereby, the husband filed the present petition.

K.M. Haloi, B. Das and R. Sarkar, Advocates for the husband submitted that the enhancement of 300% was on a higher side and he had other liabilities to discharge. Per contra, K. Bhattacharjee, S. Das, J.C. Barman, D. Banerjee and S. Dey, Advocates appearing for the wife contended that the objection raised by the husband was not maintainable.

After taking the husband’s salary into consideration, the High Court was of the view that the enhancement of the maintenance by the court below did not require interference. The observed, “in the context of liability, the maintenance always carries the meaning that it should be adequate to the needs of a person and according to the status and income of the person concerned. The child of the petitioner who was enrolled in an English Medium School cannot be stopped to carry on such education by showing inability by his parents. It is bounded duty of a father to upbringing the child in a befitting manner without hindering his mental health as well as physical one. If the father denies such required amount, it will be nothing but denial of such mandatory requirement of a child for proper upbringing.” In such view of the matter, the revision petition was dismissed and the husband was directed to pay Rs 5,000 per month maintenance for the minor son. [Rupak Chowdhury v. State of Assam, 2019 SCC OnLine Gau 933, dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. disposed of a petition filed in a matrimonial dispute by allowing the petitioner (wife) to prove additional documents in the matter of an application seeking maintenance from the respondent (husband) under Section 125 CrPC.

Earlier, the trial court had dismissed the wife’s application on the ground that she was not able to establish that she withdrew from the society of her husband for a reasonable cause. The trial court noticed that no evidence was placed on record to substantiate the allegations of cruelty against the husband made by the wife.

R.K. Narang, Advocate for the wife prayed to prove copies of several complaints made to various authorities and also medical records showing injuries caused by the husband. It was submitted that these documents, which were not available with the wife during the trial, had now been obtained from the authorities concerned. Per contra, Akhilesh Kr Singh, Advocate appearing for the husband submitted that the complaints were false and frivolous.

Keeping in view the entirety of the case, the High Court set aside the impugned judgment of the trial court. The wife was granted an opportunity to file and prove the additional documents before the trial court. She was also permitted to summon the record from the authorities where original of such documents may be available. As, consequently, trial court’s order fixing interim maintenance stood received. [Beena Kumari v. Manoj Kumar, 2019 SCC OnLine Del 7237, dated 21-02-2019]