Partly allowed

Divyanshu Jaiswal v. Ankita Jaiswal

Chhattisgarh HC12 Jun 2024CRR/771/2023

Case brief

AI extract

What is this about?

Cross revisions against a common Family Court order granting the wife Rs.18,000/- monthly maintenance under Section 125 CrPC. Holding the husband's affidavit disclosing Rs.1,20,000/- income sufficient proof, the court applied the 25% benchmark, enhanced maintenance to Rs.30,000/- per month from the date of application.

What did the court decide?

Wife held entitled to Rs.30,000/- per month maintenance from date of application; amounts already paid to be adjusted; parties free to seek modification on change of circumstances.

Divyanshu Jaiswal Vs Ankita Jaiswal — Maintenance and Alimony | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Revision NO. 771 OF 20 23

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Divyanshu Jaiswal S/o Shri Virendra Kumar Jaiswal Aged About 40 Years R/o Flat No. 2b, Second Floor, Shrinivas Residency, Near Balaji Mandir, Pasan, Pune (Maharasthra) Permanent Address - Lakhanpur, Police Station - Lakhanpur, District Surguja (Chhattisgarh) (Non - Applicant Before Family Court)

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… Applicant

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Versus

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Ankita Jaiswal W/o Divyanshu Jaiswal Aged About 32 Years, D/o Shri Jagdish Jaiswal, R/o Block Road, In Front Of Veterinary Hospital, Takhatpur, Police Station - Takhatpur, District Bilaspur (Chhattisgarh) Presently Residing At - Through Dr. R.P. Tondon, House No. 47, Gitanjali Vihar, Nehru Nagar, Bilaspur Police Station - Civil Lines, District Bilaspur (Chhattisgarh) (Applicant Before Family Court)

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… Respondent

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Criminal Revision NO. 847 OF 20 23

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Smt. Ankita Jaiswal W/o Divyanshu Jaiswal, D/o Shri Jagdish Jaiswal, Aged About 32 Years, R/o Block Road, In Front Of Pashu Chikitsalaya Takhatpur, P.S.- Takhatpur, District Bilaspur (Chhattisgarh) Present Address- Davara Dr. R.P. Tandon, House No. 47 Geetanjali Vihar Nehru Nagar, Bilaspur, P.S. Civil Lines, District Bilaspur (Chhattisgarh)

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… Applicant

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Versus

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Divyanshu Jaiswal S/o Shri Virendra Kumar Jaiswal, Present Address- Flat No. 2-B, Second Floor, Shriniwas Residency, Behind Balaji Mandir, Pasan Pune (Maharashtra) Permanent Address- Lakhanpur, P.S. Lakhanpur, Distt. Surguja (Chhattisgarh)

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… Respondent

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For Applicant-Husband : Shri Akash Shrivastava, Advocate. For Respondent-Wife : Shri Palash Tiwari, Advocate.

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Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board

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13.06.2024

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1. These two criminal revisions have been filed against the common order dated 07.06.2023 and therefore both revisions are being heard and decided together by this common order. For the sake of

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convenience, the status of the parties in both the revisions are shown as Husband and Wife respectively.

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2. Criminal Revision No.771/2023 has been filed by the Husband against grant of maintenance amount to wife @ 18,000/- per month from the date of order whereas, Criminal Revision No.847/2023 has been filed by the wife against grant of less amount towards monthly maintenance of Rs.18000/- from the date order.

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3. Brief facts of the case, as emerges from the pleadings made by the wife, is that marriage between the parties were solemnized on 03.01.2015 by Hindu Rights and Customs. Soon after marriage, the behaviour of her in laws became change and they started harassing her for demand of dowry. Her ornaments were taken by her in laws and the Husband as well as her in laws started beating her. In the month of July, 2017 the husband left her in her parent’s house. In the month of November, 2017, when husband came to her parent’s house to brought her back, there also he assaulted her, but have not taken her back and since then she is residing with her parents. The wife is not having any source of income and is not capable to maintain herself, whereas, her husband is working as Software Engineer at Infosys company, Pune, from where he is getting monthly salary of Rs.1,50,000/-. He is also earning Rs.3,00,000/-per year from his agricultural land and therefore she claimed Rs.70,000/- per month towards monthly maintenance amount. She filed her maintenance application under Section 125 CrPC before the Second Additional Principal Judge, Family Court Bilaspur on 19.02.2018.

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4. Denying all the allegations made by the wife, the husband has contested the case and has pleaded in his reply that wife was pressuring him to reside separately from his parents and regularly given threatening to rope in a false case. He or his family members never assaulted or treated her with cruelty. Rather, her behaviour with his parents was not good. Due to the behaviour of wife as also the harassment given by her to him, he filed an application for grant of divorce. Although, the husband has admitted that he was working as Software Engineer at Pune, but he further submits that his wife is also an educated lady having B.Ed degree and is employed as a Teacher in a private school and running her own tuition classes. She herself started residing separately from her husband without any sufficient reason. His monthly income was Rs.60,000/- but due to harassment of the wife as also making complaint by her in his office, he gave resignation from his job and presently he is unemployed and therefore the application of wife be dismissed.

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5. Learned counsel appearing for the husband would submit that the order passed by the Family Court is erroneous on the ground that wife herself is residing with her parents without any sufficient reason. She was pressurizing her husband to live with her at her parents house and to left his old aged parents. The Family Court has not considered the evidence of harassment and cruelty suffered by him by the conduct and behaviour of wife. The Family Court should have considered that the application for grant of maintenance was filed by the wife only after receiving the notice of divorce petition filed by husband. The capability of wife also has not been considered properly by the Family Court. She

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is an educated lady and working as a Teacher and therefore she is not entitled for any maintenance amount.

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6. On the other hand, the counsel appearing for the wife submits that due to harassment given by the husband and her in laws she constrained to reside separately from her husband. The Husband never tried to take her back. Strong allegations of harassment has been made by wife to which the husband has failed to rebut. Therefore, sufficient cause for residing separately from her husband has been shown/proved by the wife. The relationship of husband and wife is not in dispute. In Criminal Revision No.847 of 2023, on 06.02.2024 the coordinate Bench of this court has directed the Husband to submit his affidavit in view of observations made in Rajnesh Vs. Neha, 2021 (2)SCC 324 . In compliance thereof, he submitted his affidavit on 08.04.2024 in which he disclosed his monthly income as Rs.1,20,000/-. He would further submit that as per various judgments passed by the Supreme Court, the wife is entitled for atleast 25 percent of the income of the husband as monthly maintenance amount. Therefore, in view of the disclosure of his monthly income of Rs.1,20,000/- by way of an affidavit by the husband, the maintenance amount awarded by the Family Court is on lower side which needs to be enhanced suitably. Further, the maintenance amount has been granted from the date of order whereas, in view of judgment in case of Rajnesh (Supra), the maintenance amount should have been granted from the date of application.

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7. I have heard the counsel for the parties and perused the records of the trial court.

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8. Perusal of pleadings made by the parties it appears that there are allegations and counter allegations made against each other, however, the relationship of husband and wife between the parties is not denied. From the evidence of wife PW-1, it appears that in the years, 2016 a community meeting was held between the parties for getting the dispute resolved between them where she was ready to live with her husband at Pune. Thereafter, in the year, 2018 the husband has filed an application for grant of divorce on 16.01.2018 at Family Court Ambikapur. Thereafter, on 19.02.2018 the wife moved her application for grant of monthly maintenance. In rebuttal of this, the husband has stated that though her wife again started residing with him from the month of March, 2017, but her behaviour was not changed and she again went to her parents house in the month of April, 2017 itself and since then she is residing there with her parents. He has not taken any legal steps against the act of the wife and as she was not coming back to her matrimonial house, he moved an application for grant of divorce on 16.01.2018.

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9. From the nature of evidence led by the parties and upon perusal of allegations/counter allegations made by the parties, it cannot be said that wife is residing separately without any sufficient reason. There may be some instances of unusual behaviour either by the husband or by wife, but once the parties agreed to reside together in a community meeting held in the year 2016 and they buried their disputes/mistakes committed prior to 2016 and again started living together, there is no specific instances averred by the husband to prove that wife is again

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residing separately without any sufficient cause from the month of March, 2017.

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10. The Hon’ble Supreme Court in case of Anju Garg and Another Vs.

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Deepak Kumar Garg, 2022 SCC Online SC 1314 has held in para 9

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& 10 as under:

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“9. At the outset, it may be noted that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, as observed by this Court in Bhuwan Mohan Singh vs. Meena & Ors. 1. This Court in the said case, after referring to the earlier decisions, has reiterated the principle of law as to how the proceedings under Section 125 Cr.P.C have to be dealt with by the Court. It held as under:

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“In Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC 624 : 1987 SCC (Cri) 237] the Court opined that : (SCC p. 631, para 16)

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“...… Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.”

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A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) [(1991) 2 SCC 375 : 1991 SCC (Cri) 442] , while discussing about the basic purpose under Section 125 of the Code, opined that : (SCC p. 378, para 3)

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“Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife.” 1 (2015) 6 SCC 353

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A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat [(1996) 4 SCC 479 : 1996 SCC (Cri) 762] , while adverting to the dominant purpose behind Section 125 of the Code, ruled that : (SCC p. 489, para 15)

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“… While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.”

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In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] , reiterating the legal position the Court held : (SCC p. 320, para 6)

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“… Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by

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this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC 636 : 2005 SCC (Cri) 787] .”

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Recently in Nagendrappa Natikar v. Neelamma [(2014) 14 SCC 452 : (2015) 1 SCC (Cri) 407 : (2015) 1 SCC (Civ) 346] , it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children”.

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This Court had made the above observations as the Court felt that the Family Court in the said case had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under Section 125 of the Code. Such an impression has also been gathered by this Court in the case on hand. The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj vs, Sita Bai, it has been held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. As settled by this Court, Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India.”

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11. The Hon’ble Supreme Court in the matter of Shailja and Another Vs.

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Khobbanna, 2018(12)SCC199 has held “we find that the High Court has proceeded on the basis that the appellant No.1/wife was capable of earning and that is one of the reason for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.”

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12. In Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy, 2017(14) SCC 200, the Hon’ble Supreme Court has held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.

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13. From the evidence of the parties and material produced in the case by the parties, as also from the affidavit submitted by the husband in Criminal Revision No.847 of 2023 as well as the affidavit submitted by the wife before the Family Court as per the observations made by Supreme Court in case of Rajnesh (Supra), it is evident that the husband is working as a Software Engineer at Pune and earning Rs.1,20,000/- per month, although salary slip is not filed, but for consideration of monthly maintenance amount to the wife, the income disclosed by the husband by way of his affidavit can be considered to be a sufficient proof of his monthly income. Further, considering the monthly income disclosed by the husband as also the qualification of wife, in view of ratio of law laid down by the Supreme Court in cases of Kalyan Dey (supra) and Rajnesh (supra), 25 percent of the salary of the husband would be just and proper to be awarded as monthly maintenance to wife from the date of application itself and not from the date of order. It is ordered accordingly.

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14. In view of the aforesaid discussions and also in view of the factual and legal aspects, this court is of the view that the order impugned dated 07.06.2023 with respect to quantum of monthly maintenance amount to wife is liable to be and is modified by enhancing the same. Thus, the

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prayer for enhancement of maintenance amount made by wife is partly allowed and she is held entitled for Rs.30,000/-per month as maintenance amount from husband from the date of maintenance application filed before the Family Court. The monthly maintenance amount shall be paid by the husband to wife regularly. The amount of monthly maintenance already paid to wife shall be adjusted in the total outstanding amount of maintenance as ordered by this court.

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15. Accordingly, Criminal Revision No.771 of 2023 filed by the husband being sans merit rejected, however, Criminal Revision No.847 of 2023 filed by wife seeking enhancement of monthly maintenance amount is partly allowed to the extent that now she is entitled for a monthly maintenance amount of Rs.30,000/- from the date of application instead of Rs.18,000/- as awarded earlier by the Family Court.

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16. The parties are at liberty to claim modification/enhancement/reduction/ setting aside of the maintenance order, if situation arises in change of circumstances.

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17. Trial court record be sent back along with copy of this order for compliance and necessary action.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Divyanshu Jaiswal v. Ankita Jaiswal

Case brief

What is this about?

What did the court decide?

Divyanshu Jaiswal v. Ankita Jaiswal

Case brief

What is this about?

What did the court decide?

What the court decided

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