Dismissed

Jokhu Gaud v. State of U.P. and 2 Others

Allahabad HC3 May 2023CRLR/1839/2023

Case brief

AI extract

What is this about?

In a criminal revision challenging an order awarding maintenance under Section 125 Cr.P.C., the Allahabad High Court dismissed the appeal. The revisionist argued that a compromise disposing of the dispute existed and maintenance was no longer required, but the court found no merit in the plea.

What did the court decide?

The criminal revision was dismissed at the stage of admission.

Jokhu Gaud Vs State of U.P. and 2 Others — Maintenance and Alimony | Allahabad HC (2023)

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Court No. - 89Neutral Citation No. - 2023:AHC:104752

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Case :- CRIMINAL REVISION No. - 1839 of 2023

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Revisionist :- Jokhu Gaud Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Alok Singh,Phool Chandra Singh Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Shri Alok Singh, learned counsel for the revisionist and Shri Karunakar Singh, learned A.G.A. for the State are present.

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Present criminal revision has been preferred to set aside the order dated 16.2.2023 passed by the Principal Judge, Family Court, Sant Kabir Nagar by which the application under Section 125, Cr.P.C. has been allowed and Rs. 3,000/- per month has been awarded to opposite party No. 2 and Rs. 2,000/- per month has been awarded to opposite party No. 3 from the date of application till the attaining of majority.

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Learned counsel for the revisionist submits that the impugned order has been passed without considering the facts and circumstances of the case. The parties have settled their dispute amicably vide compromise 28 Ka. It is further submitted that one application has been filed by the opposite party No. 2 for denying the compromise.

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After perusal of the judgement, it appears that the present judgment and order dated 16.2.2023 was passed by Principal Judge, Family Court, Sant Kabir Nagar after hearing both the parties on 13.2.2023 and the present revisionist has filed written arguments before the court. The marriage of the revisionist with the opposite party No. 2 was solemnized on 21.4.2015. Out of this wedlock, opposite party No. 3 born out on 17.5.2017. After the birth of opposite party No. 3, demand of additional dowry was started and the opposite party Nos. 2 & 3 are living separately in the parental house of opposite party No. 2 since 25.6.2018.

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The main thrusts of the arguments of the learned counsel for the revisionist is that in the present case, excessive maintenance was awarded from the date of application. The dispute between the parties have been

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compromised and without considering the compromise, impugned order has been passed. As per compromise, opposite party Nos. 2 & 3 are residing with him in his house and there is no dispute between the parties, as such payment of maintenance is not required.

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In this regard the law has been laid down by the Apex Court in Rajnesh Vs. Neha and another (2021) 2 Supreme Court Cases 324 and the relevant extract of the said decision is reproduced hereinbelow:

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“77. The objective of granting interim/permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

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The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

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In Manish Jain v Akanksha Jain (2017) 15 SCC (Civ) 712 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

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On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of

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maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is ablebodied and has educational qualifications.

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A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

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Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source.

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Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

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The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde, 2007 SCC OnLIne Del 622 laid down the following factors to be considered for determining maintenance : (SCC OnLine Del para 8)

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“1. Status of the parties.

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Reasonable wants of the claimant.

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3.The independent income and property of the claimant.

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The number of persons, the non-applicant has to maintain.

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The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

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Non-applicant’s liabilities, if any.

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Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

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Payment capacity of the non-applicant.

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Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

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The non-applicant to defray the cost of litigation.

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The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. ”

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Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.

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The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislation, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependent spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependent from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.”

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The application under Section 125, Cr.P.C. has been filed on 8.1.2021. The opposite party No. 2 left her matrimonial house on 25.6.2018. One application has been filed by the opposite party No. 2 for denying the compromise.

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In view of the above facts and circumstances, there is no merit in the present criminal revision and is liable to be dismissed.

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Accordingly, present revision is dismissed at the stage of admission. Order Date :- 3.5.2023 T. Sinha

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Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad

Jokhu Gaud v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Jokhu Gaud v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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