Section 125 CrPC

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while addressing the present petition against the order of family Court wherein the petitioner’s maintenance petition under Section 125 CrPC was dismissed, held that,

“Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance.”

Petitioner’s counsel contended that Family Court wrongly came to the conclusion that petitioner’s testimony in absence of any documentary evidence was unreliable. It erred in not recording a finding with respect to the income of the respondent and the maintenance sought by petitioner.

Respondent’s counsel submitted that petitioner had passed the Central Teacher Eligibility Test (CTET) exam and was capable of earning. Further, it stated that the petitioner was more qualified than the respondent and could maintain herself.

High Court’s Decision

Court noted that in the maintenance petition it was mentioned that respondent used to demand a Santro car despite the fact that one motorcycle was given in dowry.  During the petitioner’s pregnancy, she was physically assaulted by the respondent and his family members that resulted in her miscarriage.

On one occasion she was physically assaulted and thrown out of the matrimonial home, hence she had to live separately as the respondent was deserted and she had no other source of income.

Family Court had disbelieved petitioner’s testimony on the ground that no documentary evidence was placed in support of her allegations.

“It is well settled by catena of judicial precedents that the provisions of Section 125 CrPC are for the welfare of the neglected wives, children and parents and that provisions should construed liberally.”

Court stated that family court failed to take into account the petitioner’s claim that she was forced to leave the matrimonial home on account of dowry demands and physical assault. And petitioner’s testimony was supported by her complaint to the CAW Cell which was proved on record.

Bench also found the averment in her petition that specifically averred that she had no source of income and was totally dependent on her father. The respondent being employed had sufficient means to maintain her.

Expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 of CrPC.

For the above, Court referred to the Supreme Court decision in, Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112. Along with this, Court also observed the decision of the Supreme Court in Sunita Kachwaha. v. Anil Kachwaha, (2014) 16 SCC 715.

Thus, in view of the above, the High Court held that impugned order is to be set aside and matter to be remanded back to the family court for fresh consideration. [Anita v. Amit, 2020 SCC OnLine Del 468, decided on 24-02-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., allowed a criminal revision petition filed by the complainant-wife challenging the order of the family court whereby the maintenance of Rs 20,000 under Section 125 CrPC was awarded to her only from the date of the order.

The wife represented by Amitabh Kumar Verma, Advocate, contended that the family court ought to have granted the maintenance from the date of the application filed under Section 125. Per contra, Charu Bharadwaj, Advocate appearing for the respondent-husband supported the order passed by the family court.

After considering the facts of the case, the High Court reiterated: “the maintenance to a wife is not a bounty but is the award so that she can survive, it is normally to be awarded from the date of the application. In the present case, the family court, while passing the final order, has not given any reasons as to why the maintenance was awarded only from the date of the passing of the order and not from the date of filing of the petition.” It was noted that Section 354(6) CrPC requires that every final order under Section 125, should contain the pints for determination, the decision thereon and the reasons for the decision. One of the points to be determined while awarding maintenance is the time from which such maintenance is to be granted. Since the final order passed by the family court did not mention any reason or justification for the award of the maintenance from the date of the order, it was set aside only to the aforesaid limited extent.

Furthermore, placing reliance on Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Vyas, (2015) 2 SCC 385; Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353; Nisha Saifi v. Mohd. Shahid, 2019 SCC OnLine Del 7902; and Bimla Devi v. Shamsher Singh, 2015 SCC OnLine Del 11553, the High Court observed: “Once the court comes to a conclusion that the wife is entitled to an award of maintenance, the assessment relates back to the date of the application and as such there have to be compelling reasons for the family court to restrict the award of maintenance from the date of the order and not from the date of the application.”

In such view of the matter, the final order passed by the family court was modified to the extent that the husband will pay the maintenance to the wife amounting to Rs 20,000 from the date of the filing of the application. The husband was further directed to clear the entire amount of arrears within a period of six months. [Asha Karki v. Rajesh Karki, 2020 SCC OnLine Del 444, decided on 29-01-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. dismissed a revision petition filed against the order of the Family Court whereby the petitioner-husband was directed to pay interim maintenance of Rs 33,005 per month to the respondent-wife and their minor child.

The above order was made by the Magistrate while deciding the application under Section 125 CrPC filed by the respondent wherein she alleged that she was thrown out of the matrimonial home and was living at her paternal home along with the minor child. She had stated that had no source of income and claimed Rs 80,000 per month as maintenance. The petitioner submitted that he was an Executive Chef in a hotel in Goa and his monthly salary was Rs 88,000. He stated that he was looking after his old-aged parents and had other liabilities towards loan and rent.

S.C. Vats, Advocate for the petitioner, referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and was earning well. Per contra, Rajesh Sharma, Advocate for the respondent, opposed the instant review petition.

The High Court noted that besides placing on record the bio data of the wife, which was disputed, the husband did not produce any document to prove that the wife was actually earning. Reliance was placed on Shailja v. Khobbana, (2018) 12 SCC 199, wherein the Supreme Court held that “capable earning” and “actual earning” are two different requirements. Merely because the wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.

It was noted that the petitioner’s contention, in absence of any supporting document, remains a disputed question to be tested in the trial. In the impugned order, the Family Court had recorded that any amount paid as maintenance in favour of the respondent would be liable to be adjusted.

In such view of the matter, the High Court found no illegality in the order passed by the Family Court. Resultantly, the instant revision petition was dismissed. [Arun Vats v. Pallavi Sharma, 2019 SCC OnLine Del 11817, decided on 06-12-2019]

Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ., dismissed the petition against the refusal to pay maintenance to the wife because she allegedly committed adultery.

The parties were married to each other but had three daughters out of wedlock. The husband with the help of the second daughter threw out the wife alleging that she had an extramarital affair. The wife alleged that she was mentally and physically tortured by the husband and had to live with her brother. The second daughter stated that she witnessed her mother commit adultery as she was in a room with another man. The petitioner moved the High Court when the Family Court allowed the wife’s claim of maintenance.

Advocate Gita Bista on behalf of the petitioner argued that the daughter saw her mother with another man inside a room and there is no reason as to why a daughter would depose falsely against her own mother, implying that wife left her husband on her own volition and hence is not entitled to any maintenance.

Legal Aid Counsel, Tashi Norbu Basi on behalf of the respondent contended that there is no conclusive proof that the wife committed adultery; they might be in the same room for some other purpose. He further submits maintenance can be denied if she is living in adultery, which is not the same thing as a single lapse from virtue.

The Court concluded that the wife hadn’t eloped but rather was forced out of her matrimonial home and that the allegations made by the husband of his wife having extramarital affairs were false as he did it with a number of people including her brother too. Further, the court stated that if the wife leaves the house of the husband because of torture and constant allegations, it cannot be said that there is no sufficient reason for the wife to leave her husband.

In the case of M.P. Subramaniyam v. T.T. Ponnakshiamal 1957 SCC Online Kar 18, Karnatka High Court considered the term “living in adultery” appearing in Section 488(4) of the Code of Criminal Procedure, 1898   which is also used in Section 125(4) of the CrPC. The Court concluded that it is not a stray act or two of Adultery that disentitles the wife from claiming maintenance from her husband, but it is a course of continuous conduct on her part it can be said that she is living an adulterous life that takes away her right to claim maintenance. There was no evidence of a continuous course of conduct demonstrating that the wife was living in adultery, hence, she can claim maintenance. [Suk Bir Chettri v. Jamuna Chettri, 2019 SCC OnLine Sikk 185, decided on 08-11-2019]

Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J., while disposing of a criminal revision petition filed against the order of the Additional Sessions Judge, modified the date from which the amount of maintenance was to be paid by the petitioner-husband to the respondent-wife on an application filed by her under Section 125 CrPC.

The parties were married to each other. After about 3-4 months of the marriage, the respondent left the matrimonial home on the pretext of visiting her ailing brother, and never returned. She has been living separately ever since. Subsequently, she filed an application under Section 125 CrPC, claiming maintenance from the petitioner. the case of the respondent was that starting from the very first night of marriage, she was subjected to torture by her husband and in-laws for not bringing a dowry of Rs 10,000 and other property.

The Sub-Divisional Judicial Magistrate held that the respondent was not able to prove her case and therefore, rejected her application. The Additional Sessions Judge, however, reversed that decision and directed the petitioner to pay Rs 1000 per month to the respondent. Aggrieved thereby, the petitioner filed the instant revision petition.

On perusal of the record, the High Court noted: “While there is an allegation of torture on the wife/respondent by the petitioner/husband, the fact remains that she was not driven out by her husband and she left on her own. This fact is not denied by the petitioner/husband and as such remained intact. This Court is also mindful of the fact that the respondent/wife left the company of the petitioner/husband within 2/3 months of their marriage and in the back of her mind, the fact that she was subjected to torture was always playing and the fact of torture evidently is not denied by the petitioner in his evidence.”

On such facts, the Court observed: “Although the respondent/wife left the house tangibly on her own yet the circumstances, as appears from the evidence, are such that the wife/respondent had to leave the house of the petitioner/husband under compelling reasons due to the torture meted out to her although such fact was not disclosed in so many words in her petition. No attempt by the petitioner/husband to take her back and also not providing maintenance during her separate stay for a long time is indicative of lack of persuasion on his part although an effort to persuade would have been the course usually adopted by any husband.”

In the circumstances aforesaid, the High Court was of the opinion that the finding in the impugned order that the respondent was entitled to maintenance was correct. It was, however, held that the petitioner would pay the amount of maintenance as directed, not from the date of application before the Sub-Divisional Judicial Magistrate; but only from the date of order passed by the Additional Sessions Judge. Order was made accordingly. [Pradip Das Sarkar v. Uma Sarkar, 2019 SCC OnLine Gau 5017, decided on 07-11-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. set aside the maintenance awarded to the respondent under Section 125 CrPC as the respondent is able to maintain herself.

In the pertinent case, the petitioner moved to this Court against the impugned order wherein Rs 3,000 per month maintenance was awarded in favour of the respondent, the ex-wife of the petitioner and Rs 2,000 per month each in favour of their children. The counsel for the petitioner submitted that the respondent has already been divorced by him and she herself is a teacher earning sufficiently to maintain herself. He also contended that the application was under Section 125 of the CrPC, is invoked by the Court only when the wife is unable to maintain herself, and in the present case, the wife herself earning sufficient amount is able to maintain herself, and, thus, the application under Section 125 of the Code was not fit to be allowed in her favour. 

The counsel for the respondent submitted that the respondent is a contractual teacher and payments are not made on a regular basis and, thus, she also requires financial support.

High Court held that the maintenance allowed in the favour of the respondent under Section 125 of the Code requires to be interfered with as the same is to be awarded to a wife, which includes a woman who has been divorced, only if she is unable to maintain herself and in the present case, the respondent is able to maintain herself hence, the same not being fulfilled, the Court set aside the order awarding Rs 3,000 per month as maintenance to the respondent.

The Court did not interfere with the award of maintenance of Rs 2000 per month to the children. [Masud Ahmed v. State of Bihar, 2019 SCC OnLine Pat 1880, decided on 14-10-2019]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. dismissed a revision petition filed by the petitioner challenging the order passed by the Family Court whereby it had allowed the application under Section 125 CrPC (order for maintenance of wife, children and parents) filed by the respondent and directed the petitioner to pay her Rs 7500 per month as interim maintenance.

The petitioner, represented by Satish Chand, Advocate, contended that he was never married to the respondent, though he used to visit the tea stall owned by her. It was submitted that the respondent has taken undue advantage of friendly relations with the petitioner.

Per contra, the respondent, represented by A. Banerjee, Advocate, submitted that the petitioner was married to the respondent, but neglected to maintain her. The respondent opposed the instant petition.

Perusing the record, the High Court was of the opinion that the fact of the marriage of the petitioner with the respondent is a matter of trial. Reference was made to Lalita Toppo v. State of Jharkhand, 2018 SCC Online SC 2301 and Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, wherein the Supreme Court has held that even an estranged wife or live-in-partner would be entitled to maintenance under Section 125 CrPC.

In such view of the matter, the Court did not find any infirmity or illegality in the impugned order passed by the Family Court. Consequently, the present revision petition was dismissed.[Vijay Pal v. Shobha Devi, 2019 SCC OnLine Del 10224, decided on 20-09-2019]

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

Case BriefsHigh Courts

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]

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]

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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]

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]

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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]