Section 125 CrPC

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed the application of the petitioner to set aside the order granting maintenance to his wife when the divorce was granted on account of adultery on the wife’s part.

The petitioner filed an application under Section 19(4) of the Family Courts Act, 1984, against the order dated passed by the Principal Judge, Family Court, Vaishali at Hajipur which directed the petitioner to pay Rs 8,000 per month as maintenance to his wife. The order was delivered ex parte and there was no valid service of notice on the petitioner during the proceeding and, thus, he was unaware of the same. The revision petition was filed within the limitation period.

The impugned order was passed under Section 125 of the Code of Criminal Procedure, 1973 which excludes a wife living in adultery from being entitled to receive any maintenance. It was submitted that in Divorce Case filed by the petitioner against the opposite party and one Sunny

Rajak, the Principal Judge, Family Court, Samastipur by judgment dated 11-10-2017, had dissolved the marriage between the petitioner and the opposite party on the ground that she was living in adultery with Sunny Rajak. It was submitted that in the said case, Sunny Rajak had contested the suit whereas the opposite party had chosen not to contest. The learned counsel submitted that once a competent Court had held the opposite party to be living in adultery with Sunny Rajak, Section 125(4) of the Code disentitles her to any maintenance from the petitioner.

The opposite party submitted that they have challenged the decree of divorce which was still pending.

The Court held that the order passed in the Maintenance Case No. 84 of 2016, could not be sustained. Section 125(4) of the Code clearly debars a wife living in adultery from receiving any maintenance from her husband. In the present case, the marriage between the parties was dissolved on the grounds that the opposite party was found to be living in adultery with one Sunny Rajak.  Further, the Court also that mere pendency of an appeal against the order dissolving the marriage, inter alia on the ground of adultery, which till date was neither disposed of nor any interim stay of such order was granted, cannot be a ground to uphold the order impugned.

In view of the above-noted facts, the instant application was allowed and the order in the Maintenance Case was set aside.[Rajesh Rajak v. Rinku Devi, 2019 SCC OnLine Pat 1521, decided on 30-08-2019]

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Punjab and Haryana High Court: Gurvinder Singh Gill, J. allowed the petition for the anticipatory bail with the condition to comply with the order of payment of maintenance to the complainant.

An application for the interim bail was made for the case registered under Sections 323, 406, 498-A and 506 of the Penal Code.

The brief facts of the case were that petitioner and other members of the families were not satisfied with the article of dowry and frequently used to harass the complainant. It was also alleged that the complainant was beaten by the accused on various occasion and was thrown out of the matrimonial house.

Shalender Mohan, counsel for the petitioner submitted that false FIR was registered against the petitioner on the account of some minor matrimonial differences between the parties. It was further added that the petitioner pursuant, to the interim directions, has already deposited an amount of Rs 1.25 lakhs and that he deserves the concession of bail.

Aditi Girdhar and Sandeep Kotla, counsels for the State and complainant respectively informed that the petitioner had joined the investigation but the gold articles comprising stridhan were yet to be discovered. It was further informed that the petitioner had not even deposited any amount towards the maintenance as under Section 125 CrPC, which is due since the last about three years.

The court thus opined that petitioner in the event of arrest be released on bail subject to furnishing the personal bond and surety bond to the satisfaction of arresting and investigating officer. The condition that the petitioner should clears payment of a least 50% of the arrears of maintenance awarded under Section 125 CrPC to the complainant within two months from today was also added by the court.[Vijay v. State of Haryana, 2019 SCC OnLine P&H 1475, decided on 19-08-2019]

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Madhya Pradesh High Court: S.K. Awasthi, J., dismissed the petition filed by the petitioner under Section 482 CrPC for quashing the maintenance order passed by the Additional Principal Judge.

The respondent filed an application under Section 125 CrPC to claim maintenance from the petitioner as she was forced to live in her parental house on account of cruelty by the husband. She had claimed that the petitioner was harassing her for the demand of dowry. She registered a criminal case against her husband and his family members for offences punishable under Sections 498-A, 294, 323 and 506 IPC. She also pleaded that she was unable to maintain herself as she does not have any source of income. The Family Court had allowed the application of the respondent and had directed the petitioner to pay interim maintenance taking into account the income of the petitioner’s father and brother.

The petitioner contended the respondent was living separately on her own will, as she did not want to live with his in-laws. He stated that this was the only reason why she left his house and lodged a complaint against him and his family members regarding the demand of dowry and harassment. He further claimed that he was still a student studying in B.Ed. and is dependent on the income of his parents, whereas the respondent was well educated and had obtained a Post Graduate Degree of M.Com., and had an independent source of income through tuition and was capable of maintaining herself. The respondent argued that the petitioner was living in a joint family and his father had agricultural land and was engaged in the business of seed and fertilizer. The petitioner was also involved in the said business and therefore had sufficient source of income to pay for the maintenance.

The Court held that a husband is duty-bound to make arrangement for maintenance of the wife. The respondent was legally wedded wife of the petitioner and she was residing separately from him and his family members as they used to harass her for the demand of dowry. The petitioner did not deny the criminal cases pending against him. Therefore, prima facie the respondent was living separately with a reasonable cause.

Therefore the respondent was duty-bound to make arrangement for the maintenance of his wife. He has not denied the fact that he lived in a joint family with his father and brother and was also involved in the family business of seed and fertilizer, which indicated that he had sufficient source of income.[Dhruv v. Sapna, 2019 SCC OnLine MP 2079, decided on 20-08-2019]

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Jharkhand High Court: Deepak Roshan, J. disposed of an application made by the petitioner for maintenance under Section 125 CrPC.

The petitioners filed an application to challenge the order passed by a Family Court, where her petition under Section 125 was dismissed. The petitioner, Patun Bibi, was legally married to respondent 2, Hanif Mian, as per Muslim Law and a female child was born out of their wedlock. She divorced him and claimed that her marriage with respondent 2 took place at the instigation of his first wife, Zaitun Bibi who was suffering from Psytica pain. It was claimed that after one year of conjugal life and birth of her daughter, respondent 2 started torturing her at the instigation of the Zaitun Bibi and that both the mother and daughter were subjected to cruelty. Respondent 2 challenged the very maintainability of the proceeding mainly on the ground that the petitioner is already a married person and he is living with his wife-Zaitun Bibi. He asserted that he has never married the petitioner. He further stated that he had a very healthy conjugal life with his own wife-Zaitun Bibi and she is not suffering from ‘psytica pain’ as alleged.

The trial court considered the issues presented before them and based upon the evidences produced concluded that the petitioner failed to establish her status as the legally wedded wife of Hanif Mian and if the daughter is actually their legitimate child. Respondent 2 denied being ever married to the petitioner. On the other hand, the petitioner admitted that she married Yusuf (her ex-husband) about 11 years ago and divorced him about 1 ½ years ago. She was admittedly married to Yusuf and after she divorced him, she married another man, Harmuz. The Court stated that the petitioner also failed to reproduce the ‘Nikahnama’ on the grounds that it was not prepared. This was considered suspicious by the Court because, under Muslim Law, every ‘Nikah’ is reproduced in “Nikahnama” and therefore, the marriage itself cannot be proved.

The petitioner vehemently argued that even in the case of live-in relationship, maintenance can be awarded under Section 125 as decided by the Supreme Court in Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188. This present Court held that a long conjugal life/live in relation has never been proved by either of the prosecutions. On the other hand, there is evidence to prove that she was first married to Harmuz and then later to Yusuf.

The Court finally held that the petitioner has failed to point out any error in the order passed by the trial court and thus they cannot interfere. It was held that the petitioner is at liberty to take remedy of approaching the appropriate forum for Domestic Violence Act, 2005. In case the petitioner takes any step under the provision of Domestic Violence Act, 2005, the concerned forum must decide the matter in accordance with the law and without being prejudiced by the observation made by this Court.[Patun Bibi v. State of Jharkhand, 2019 SCC OnLine Jhar 997, decided on 02-08-2019]

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Delhi High Court: A Division Bench of G.S. Sistani and Jyoti Singh, JJ. allowed an appeal filed by the appellant-wife against the order of the Family Court whereby two applications filed by her against the respondent-husband were dismissed.

The appellant had filed two applications — one under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance for herself, and the other under Section 26 seeking custody of the two minor children. Both the applications were dismissed by the Family Court. The application under Section 24 was rejected on the sole ground that maintenance of Rs 2000 per month already stood fixed in proceedings arising under Protection of Women from Domestic Violence Act, 2005.

Susmita Mahal, Advocate representing the appellant challenged the order of the Family Court. Per contra, Trilok Chand, Advocate appearing for the respondent supported the same.

The High Court, on a conjoint reading of Sections 20, 26 and 36 of the Domestic Violence Act, was of the opinion: “the provisions of DV Act dealing with maintenance are supplementary in the provisions of other laws and therefore maintenance can be granted to the aggrieved person(s) under the DV Act which would also be in addition to any order of maintenance arising out of Section 125 of CrPC.” Furthermore, “On the converse, if any order is passed by the Family Court under Section 24 HMA, the same would not debar the Court in the proceedings arising out of DV Act or proceedings under Section 125 CrPC instituted by the wife/aggrieved person claiming maintenance.”

The Court also clarified: “However, it cannot be laid down as a proposition of law that once an order of maintenance has been passed by any Court then the same cannot be re-adjudicated upon by any other Court. The legislative mandate envisages grant of maintenance to the wife under various statutes such as HMA, Hindu Adoption and Maintenance Act, 1956, Section 125 CrPC as well as Section 20 of DV Act. As such various statutes have been enacted to provide for the maintenance to the wife and it is nowhere the intention of the legislature that once any order is passed in either of the proceedings the intention of the legislature that once any order is passed in either of the proceedings, the said order would debar re-adjudication of the issue of maintenance in any other Court.”

In such view of the matter, the impugned order rejecting maintenance to the appellant under Section 24 HMA was set aside. The second part where custody of children was rejected, was also quashed. The Family Court was directed to reconsider the applicants in terms with the law. The appeal was disposed of in terms above.[RD v. BD, 2019 SCC OnLine Del 9526, decided on 31-07-2019]

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Madhya Pradesh High Court: Vivek Rusia, J. dismissed the revision petition and directed the applicant to pay Rs 3000 as maintenance to the respondents.

In the pertinent case, the applicant filed the present revision being aggrieved by the order passed by Family Court, Dhar whereby maintenance of Rs 3000 per month has been assessed with a direction to the applicant to pay it to the respondents.

The facts, in brief, are that the applicant and respondent are husband and wife. 7-8 years back the dispute arose between them due to the consumption of liquor and petty issues. Thereafter the respondent/wife has started living with her son, who is also married and working as labourer. The respondent/wife is also doing the work of maid in the houses of others and earning for herself. The applicant and respondent have a joint account in the State Bank with an amount of Rs 6 lakhs. Wife filed an application under Section 125 CrPC seeking maintenance from the applicant. The applicant submitted that he is not having any source of income and he is residing in the old aged home. The Family Judge after examining the record came to the conclusion that the applicant is earning and can maintain his wife.

High Court dismissed the revision petition and held that the respondent is surviving by doing the work of maid in the houses of other and she cannot be permanently dependent on her son who is also married and not having a permanent job. Further, the applicant has received the lump sum amount by selling the house and is lying in the bank and the wife is also a joint account holder but she is deprived of to use the said amount. Being her husband the applicant is liable to maintain his wife. Also, the amount of Rs 3000 per month cannot be said to be on the higher side.[Ashok v. Meenabai, 2019 SCC OnLine MP 1893, decided on 05-08-2019]

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]

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Punjab and Haryana High Court: A Division Bench of Rakesh Kumar Jain and Harnaresh Singh Gill, JJ. allowed an appeal asking for entitlement to permanent alimony in terms of Section 25 of the Hindu Marriage Act, 1955.

The marriage of the parties was solemnized on 11-6-2012 as per Hindu Sikh rites and rituals. The respondent-husband was a widower whereas the appellant wife who had claimed herself to be a spinster was already married. A petition was filed by the respondent-husband under Section 11 of the Act for annulment of marriage alleging that the factum of earlier marriage was not disclosed to him at the time of their marriage was on 11-6-2012. The learned trial court concluded that at the time of marriage by the appellant with the respondent, she was already having a spouse and, therefore, a decree under Section 11 of the Act was passed against her declaring her marriage null and void.

Anil Chawla, learned counsel for the appellant, submitted that the appellant is entitled to permanent alimony in terms of Section 25 of the Act. He basically relied upon the decision of the Supreme Court in the case of Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33 in which it was held that the jurisdiction of the Court to grant alimony was not restricted to judicial separation or divorce and encompassed all kind of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

Whereas, learned counsel for the respondent, Veneet Sharma, submitted that once the marriage of the appellant with the respondent had been held to be null and void after the decree had been passed under Section 11 of the Act, the question of award of permanent alimony did not arise at all. To further his arguments, the learned counsel cited Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, 1988 (1) HLR 375. Relying on Savitaben Somabhai Bhaitya v. State of Gujarat, 2005 (2) R.C.R. (Criminal) 190, he contended that in the said case though, the dispute was in regard to the award of maintenance under Section 125 of the Code of Criminal Procedure, 1973 but it was held by the Supreme Court that marriage of a woman in accordance with the Hindu rites with a man having a living spouse was a complete nullity in the eyes of law and she was therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act.

The Court observed that the judgment in the case of Ramesh Chandra, (2005) 2 SCC 33was deciding a specific issue as to whether Section 25 of the Act would be applicable in the decree passed under Section 11 of the Act which was not the issue before the Supreme Court in the case of Savitaben Somabhai Bhatiya (supra) in which Section 125 CrPC was in issue before the Supreme Court

Citing Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407, in which it was held that the binding nature of a decision would extend to only observation on the point raised and decided by the Court, the Court held that the present case was governed by the Ramesh Chandra case.

In view of the above, the Court allowed the present appeal only to the extent that the question of law which was framed by the Court holding that the appellant would be entitled to permanent alimony under Section 25 of the Act irrespective of the fact that the decree has been passed under Section 11 of the Act. The Court accordingly remanded the matter back to the trial court to decide the application under Section 25 of the Act, to be filed by the appellant before it for the purpose of seeking permanent alimony. [Sukhbir Kaur v. Sukhdev Singh, FAO-M No. 35 of 2016 (O&M), decided on 06-05-2019]

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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]

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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]

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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]

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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]

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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]

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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]

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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]

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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]

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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]

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Delhi High Court: The Bench of Sanjeev Sachdeva, J. dismissed a revision petition filed by the husband against the judgment of the trial court whereby his application under Order 7 Rule 11 CPC impugning the proceedings filed by the wife on the ground of territorial jurisdiction was rejected.

Sanjay S. Chhabra with Satish Chaudhary, Advocates for the petitioner argued that the present application by the wife under Section 125 CrPC was not maintainable at Delhi because in all proceedings except the present one she had mentioned her residential address at Aligarh, U.P. Per contra, it was submitted on behalf of the wife by Saurabh Soni with Mannat Singh, Advocates that she was residing in Delhi with her brother since 2008.

The High Court perused Section 126(1) CrPC which deals with the place of the institution of proceedings under Section 125. It was observed, “Section 126(1) does not contemplate permanent place of residence. Even a place where the wife is for the time being residing would confer jurisdiction on such a court, where she is residing. However, residence temporarily acquired solely for conferring jurisdiction would not satisfy the requirements of Section 126(1).”In view of the law that wife can maintain a petition under Section 125 at any place where she is residing and the fact that she placed on record proof that reflected her address at Delhi, it was held that the trial court did not commit any error in rejecting husband’s application. The petition was dismissed for being without merit.[Sachin Gupta v. Rachna Gupta, 2019 SCC OnLine Del 6632, dated 21-01-2019]

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Delhi High Court: The Bench of Sanjeev Sachdeva, J. directed the parties to appear before the trial court for fresh consideration of an application under Section 125 CrPC filed by the wife, son and daughter of the respondent.

Earlier the application for grant of maintenance was rejected by the trial court. In regard to son and daughter, the rejection was on the ground that they were major. While in regard to the wife, rejection was on the ground that she was employed and earning. This finding was based on the report of one Bajaj Detective Agency employed by the respondent which stated that the wife was employed as a Lab Assistant in Safdarjung Hospital.

Umesh Sinha and Anil Kumar Singh, Advocates for petitioners contended that even daughters are entitled to maintenance till their marriage and thus challenged the rejection of the application by the trial court.

The High Court noted the admitted position that at the time filing the application, the son was a minor. The daughter was 23 years but the fact whether she was earning and able to maintain herself was not considered. Furthermore, in regard to the wife, perusal of the detective’s report showed that the above-mentioned finding was not based on any foundational document, fact or evidence. it was also noted that the parties had not filed their income affidavit before the Court. On such facts and circumstances, the Court held that the impugned order was not sustainable and the matter was remitted back to the trial court for fresh consideration. The parties were directed to file their affidavit of income and expenditure in the format laid down in Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793. [Kamlesh Sharma v. State, 2019 SCC OnLine Del 6529, decided on 16-01-2019]

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Punjab and Haryana High Court: The Bench of H.S. Madaan, J., allowed an application seeking transfer of Petition under Section 9 of the Hindu Marriage Act, 1955 to the Court of competent jurisdiction at Gurugram.

The facts of the case are there was a divorce proceeding going on between the parties. The petitioner contended that she was aged about 23 years and was to take care of infant child of four months and that she did not have any source of income and had filed an application under Section 125 CrPC against her husband-respondent seeking maintenance. Under such circumstances, she contended that it was difficult for her to travel from Gurugram where she was residing with her parents to Ferozepur Cantt to attend the dates of hearing in the Court there.

Respondent contended that the personal appearance of the petitioner was not required in the petition under Section 9 of the Hindu Marriage Act and she could be represented through counsel there, therefore, the application should be dismissed.

That Court, in view of the facts and circumstances of the case, allowed the application. [Ekta Nagpal v. Yashveen Kumar, 2019 SCC OnLine P&H 17, decided on 08-01-2019]