125 CRPC

MANU/PH/1858/2011
Equivalent Citation: 2011(2)RCR(Criminal)389

IN THE HIGH COURT OF PUNJAB AND HARYANA
CRM No. M 34555 of 2008 (O and M)
Decided On: 10.02.2011
Appellants: Sudhir
Vs.
Respondent: Indu Bala and Ors.
Hon'ble
Nirmaljit Kaur, J.
Kumar
Rehani
Judges:
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Muslim Women (Protection of Rights on Divorce) Act, 1996 - Section 3; Criminal
Procedure Code (CrPC) - Sections 125 and 482
Cases
Referred:
Satish Kumar v. State of Punjab 2005 (1) RCR (Cri) 256; Noor Saba Khatoon v. Mohd.
Quasim MANU/SC/0827/1997 : 19970 RCR (Cri.) 756 (SC) : AIR 1997 SC 3280
Disposition:
Petition dismissed
JUDGMENT
Nirmaljit Kaur, J.
1. This is a petition Under Section 482 Code of Criminal Procedure. for quashing of
the impugned orders dated 16.10.2008 passed by the learned Additional Sessions
Judge, Kamal and order dated 25.08.2006 passed by the learned Chief Judicial
Magistrate, Karnal.
2. Facts, in short, are that the marriage between the Petitioner and Respondent No.
1 was solemnized on 11.12.1986 and two children were born out of the wedlock on
02.02.1988 and 30.2.1990, respectively. The matrimonial life could not survive for
very long and the parties separated by way of decree of divorce dated 15.02.1993.
However Respondent spondent wife filed an application as late as on 19.12.2005 for
grant of maintenance under Section 125 Code of Criminal Procedure The same is
still pending. Along, with the main application, Respondent wife filed an application
for grant of interim maintenance claiming an interim maintenance to the tune of Rs.
25,000/- per month. The trial Court Vide order dated 25.08.2006 awarded an interim
maintenance to the tune of Rs. 1,500/- per month to resppondent wife and Rs.
2000/- to the daughter from the date of filing of the application but the claim qua
the son was declined as he had attained the age of majority. However, in revision,
the Additional Sessions Judge, Karnal vide order dated 16.10:2008 increased the
amount of interim maintenance to the tune of Rs. 6000/- per month to the
Respondent wife, Rs. 7000/- per month to the daughter and Rs. 7000/- per month
were also granted to the son qua whom the maintenance was declined by the trial
Court Aggrieved against the said order, the instant petition has been filed.
3. While challenging the aforesaid order, learned Counsel for the Petitioner raised
two fold arguments;i) That no maintenance can be granted to a son who has attained the age of
majority; and
ii) That Respondent No. 1 is a well qualified having done B. Ed. Course and is
earning a sum of Rs. 10,000/-.
4. Learned Counsel for the Respondents has vehemently opposed the present
petition and has placed on record the salary certificate of Respondent No. 1, issued
by the School Management Committee (Rl) showing that Respondent wife is getting
consolidated salary of Rs. 1913 per month only, whereas, the Petitioner is getting
total salary of Rs. 40,538/- per month from Mazagaon Dock Limited where he is
employed. The salary certificate to the said effect related to the year 2008 and
issued by the employer of the Petitioner was placed before the Chief Judicial
Magistrate. It is further stated that the said salary of the Petitioner is bound to have
increased now. It is also stated that no doubt one of the children is major but he is
pursuing his education and has no source of income. He is totally dependent on his
parents for his basic needs and education. Therefore, he has every right to claim
maintenance from his father till such,time he is pursuing his education and starts
earning. It is also stated that till now the Respondent wife and children were living
on the mercy of her brothers and mother, who have their own family to take care of
5. Heard.
Section 125 Code of Criminal Procedure reads as under:
125. Order for maintenance of wives, children and parents.
(l) if any person having sufficient means neglects or refuses to maintain(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical. or mental
abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself,
6. There is no doubt that the said Section talks only of a child who is a major and is
unable to maintain himself on account of his being physical or mental abnormality
or injury.
7. However, this Court in the case of Satish Kumar v. State of Punjab reported
as 2005 (1) RCR (Cri) 256, while interpreting the provision of Inability to maintain"
held as under:
9. On the close reading of the above provisions, it is clear that emphasis has been
laid in all cases on the "inability to maintain" because the primary object to the
Section is the survival of the human being who is unable to maintain himself in a
Survival of fittest society.
10. In this light, Clause (c) of Section 125 of the Code is to be interpreted. No
restricted meaning can be given to the words where such child by reason of any
physical or mental abnormality or injury to maintain itself used in Section 125 of the
Code. The emphasis has been given by the legislation on the ability of the child to
maintain himself or herself. The object of this Section is to provide maintenance to
those minor children, whether legitimate or illegitimate, who are unable to maintain
themselves. Only married daughter, who has attained majority, is not entitled for
maintenance under this clause because in such a case, it is the responsibility of the
husband of such daughter to maintain her, but in case of unmarried major
daughter, the obligation of father still exists to maintain her till her marriage. This
legal obligation of a father cannot be water-towered by giving the restricted
interpretation to the words "physical or mental abnormality or injury
It was further held in para 10 as under:
For achieving the substantial justice and the object to the statute, it is necessary to
give a liberal interpretation to the words physical or mental abnormality or injury'.
In my view, if an unmarried daughter is unable to maintain herself due to her
illiteracy or unemployment, then such situation is covered by the physical or mental
abnormality. The Hon'ble Apex Court in Noor Saba Khatoon v. Mohd.
Quasim MANU/SC/0827/1997 : 19970 RCR (Cri.) 756 (SC) : AIR 1997 SC 3280, has
categorically held that the effect of a beneficial legislation like Section 125 of, the
Code cannot be allowed to be defeated except through clear provisions of a statue.
Under Section 125 of the Code, the maintenance of the children is obligatory on the
father (irrespective of his religion) and as long as he is in a position to do so and the
children have no independent means of their own. It remains his absolute obligation
to provide maintenance for them. While interpreting Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1996 the Hon'ble Apex Court held that
obligation of the father to maintain a female child is till her marriage.
8. Thus, adopting the same principle inability to maintain itself, would also apply to
a son who is major and unable to maintain himself not just because of physical or
mental abnormality or suffer from any injury but also on account of the fact that he
is still a student and is pursuing is education. He too would fall under the category
of 'unable to maintain himself and as such, entitles for the expenses incurred
towards his education.
9. It is not disputed that Respondent No. 2 is still pursuing his education of
engineering. It is proved on record that an amount of Rs. 46,000/- was incurred as
expenses only for the year 2005-06 towards his educational fee. Respondent wife is
earning only Rs. 1913A per month. She is trying to give the best of education to her
children as per their entitlement. Father must contribute his share towards the
education especially when admittedly, he is drawing salary of Rs. 40,538/- as per
annexure R-2. In fact, it is also alleged by the Respondents that the peititoner has
other source of income including savings.
10. There is another way of looking at it The Petitioner at this stage has not been
able to rebut the expenses being incurred by the Respondents towards their need
and other educational expenses. In order to bear the day to day expenses as well as
other miscellaneous expenses including the education expenses of two grown up
children,' a total amount of Rs. 20,000/- per month between the three i.e.
Respondent-wife and her two children is hardly on the higher side especially taking
into account a handsome salary being drawn by the Petitioner. The divorce was
granted Way back on l5.02.1993. The Respondent wife has filed this application
after 12 years. All these years, she was living at the mercy of her brothers and has
brought up her children single handedly with no contribution from father. It is only
when things have become more expensive arid education too is an expensive
proposition that the Respondent wife was forced to file an application for
maintenance. As such, there is no, ground to interfere in the impugned order
passed by the court below, vide which, the maintenance was granted/enhanced.
11. In view of the foregoing discussion, the present petition is dismissed being
devoid of merit.
Manupatra Information Solutions Pvt. Ltd.
MANU/PH/1744/2009
Equivalent Citation:
C.R.M. M-36381 of 2009 (O/M)
Appellants: Dharmender
Vs.
Respondent: State of Haryana and others
Hon'ble Judges:
Augustine George Masih, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. S.P. Tyagi, Advocate
Subject: Family
Catch Words
Mentioned IN
Disposition:
Petition dismissed
ORDER
Augustine George Masih, J.
1. The present petition under Section 482 Cr.P.C. has been preferred by the
petitioner, challenging the order dated 19.03.2008 (Annexure-P-1), passed the
learned Additional Chief Judicial Magistrate, Sonepat, and the order dated
08.12.2009 (Annexure-P-2), passed by the learned Sessions Judge, Sonepat.
2. An application under Section 125 Cr.P.C. was preferred by respondent No. 2/wife
and respondent No. 3/minor son of the petitioner for grant of maintenance. It is an
admitted position that Smt. Santosh/respondent No. 2 was married with the
petitioner Dharmender on January 22, 1999. Out of the wedlock, a male child was
born, who is respondent No. 3, namely, Rohit, who is now ten years old. The
mother and son, i.e. respondents No. 2 and 3 are living separately at the
matrimonial home of respondent No. 2. The father of respondent No. 2 is
employed as a peon with Food Supplies Department and her brother is a
dairyman. The birth of the male child took place at the parental home of
respondent No. 2 and all the expenses were borne by her father. Nothing has been
brought on record by the petitioner to suggest that respondent No. 2 has any
source of income. Since respondents No. 2 and 3 have no source of income and
the petitioner was the person on whom they were dependent, who was not ready
to take her as is apparent from the fact that there being strained relations
between the petitioner and respondent No. 2 since the very beginning of the
marriage and instead of filing a petition under Section 9 of the Hindu Marriage Act
for restitution of Conjugal Rites, he straight away preferred a petition under
Section 13 of the Hindu Marriage Act. This shows that the petitioner wanted to get
rid of respondent No. 2. A decree of divorce was passed in favour of the petitioner,
but on an appeal preferred by respondent No. 2/wife in the High Court, the
operation of the impugned judgment and decree passed under Section 13 of the
Hindu Marriage Act stands stayed.
3. Counsel for the petitioner contends that the learned trial Court had, vide order
dated 19.03.2008 (Annexure-P-2) granted maintenance in favour of respondents 2
and 3 at the rate of Rs. 2,000/- per month to each of two respondents from the
date of filing of the petition On a revision petition preferred by the petitioner, the
said amount of maintenance had been reduced to a sum of Rs. 1,500/- each per
month as maintenance allowance from the date of filing of the petition. He
challenges these two orders on the ground that the learned Courts below have
failed to properly assess the income of the petitioner and without assessment of
the income, no maintenance allowance could be granted to respondents No. 2 and
3. He contends that there is no property in the name of the petitioner and the
property at the hands of his father could not be taken into consideration by the
Courts below for granting maintenance to respondents No. 2 and 3. He on this

basis prays that the present petition be allowed and the orders passed by the
Courts below be set aside.
4. I have heard counsel for the petitioner and have gone through the records of
the case.
5. It is true that for grant of maintenance to respondent No. 2/wife and minor son,
income of father has to be taken into consideration. In the present case, it has
come on record that the petitioner is the sole surviving son of his father, who
owns agricultural lands at village Sukhrali in District Gurgaon and village
Aurangpur in District Jhajjar. That apart the petitioner has a couple of residential
houses, located in Gurgaon City, which have been rented out. The petitioner is
residing with his father in a joint family. In the said family, a widow and two
children of his brother are also residing. All expenses of the widow of the brother
of the petitioner and two minor children is borne out from the joint family income.
There is enough evidence on record, which points towards the petitioner being
possessed of sufficient means to take up the responsibility of maintenance of his
wife and minor son. He is a man of means and is capable of taking employment as
is apparent from the evidence that he had, as a matter of fact, worked in a
Company at Gurgaon. Apart from the agricultural income, there is rental income
as well. The orders passed by the Courts below are based on proper appreciation
of pleadings and submissions of the parties. In these days of inflation, where the
costs of living and the prices of essential commodities are soaring, the amount of
Rs. 1,500/- per month to each of respondents No. 2 and 3, is fully justified. Merely
because the lands are not in the name of the petitioner, does not mean that the
income gained from the said properties is not being shared by the petitioner when
it has come on record that he is working with his father, residing with him and
sharing kitchen and is the only surviving son of his father.
6. Chapter IX of the Code of Criminal Procedure contains Sections 125 to 128
Cr.P.C. It deals with maintenance of wives, children and parents and provides for a
mode of preventing vagrancy or at least to prevent its consequence. These
provisions are intended to fulfill the social purpose as it compels a person to
perform his moral obligation, which he owes to the Society, with respect to his
wife, children and parents. It does not provide for the wife, children and parents to
maintain standard of living, which is luxorious nor penurious, but a modest
standard consistent with the status of the family. It provides for a quick, speedy,
and simple relief to the needy, so that the person, who despite having sufficient
means, neglects or refuses to maintain his wife, minor children or the parents, is
compelled to maintain them and in the process would save them from being
driven to a life of vagrancy, immorality or crime for their survival. Chapter IX is a
beneficial piece of social legislation, which has been enacted for the benefit of
unprivileged, who are neglected and fore-saken with no source of income of their
own to support themselves. The provisions of Section 125 Cr.P.C. being social in
nature, deserve to be given a liberal interpretation, so that basic benefit is given
to the person entitled to and the relief is received by the needy.
7. It has come on record that the wife of the petitioner, i.e., respondent No. 2 has
no source of income and is fully dependent upon her father and her brother for
even day-to-day needs, what to say of educational and other expenses, which are
to be incurred on the minor son/respondent No. 3. The factum of respondent No. 2
being legally wedded wife and respondent No. 3 son of the petitioner is not in
dispute. The moral responsibility and obligation on the petitioner is paramount.
The petitioner is well off and has means to support both his wife and son. The
maintenance amount granted to the wife and minor son, when they have no
independent source of income, is in accordance with and in consonance with the
spirit of beneficial Legislation, which provides for grant of maintenance for
survival and to lead a dignified life. The wife and minor child cannot be left at the
mercy of others, where they have to beg and borrow for their livelihood to survive.
The technicalities cannot be used as a tool to deprive the benefit of liberal
interpretation and the Legislation, for which the Legislature has incorporated the
provisions. The interpretation, which supports and enhances the intention of the
Legislature deserves to be given effect to. Keeping in view the spirit of the
Legislation, the orders as passed by the Courts below, which have been impugned
herein, do not call for any interference by this Court.
8. Powers under Section 482 Cr.P.C. deserve to be exercised sparingly, especially
when Second Revision Petition is barred under the Code of Criminal Procedure.
Section 397 (3) Cr.P.C. specifically lays down that if an application under this
Section is either made to the High Court or to the Sessions Judge, no further
application by the same person shall be entertained by either of them. The
present petition is in the form of Second Revision Petition, which has been
specifically barred and in the garb of petition under Section 482 Cr.P.C., powers of
Second Revisional Court by the High Court cannot be exercised., Once a revision
petition against order of the Magistrate has been dismissed by the Sessions Judge,
Second Revision Petition before the High Court under Section 482 Cr.P.C. would
not be maintainable. However, powers under Section 482 Cr.P.C. can be exercised
by the High Court in exercise of its inherent jurisdiction only when there is an
abuse of process of Court or the interest of justice otherwise so requires. The
present case is not of the nature where this Court should use its discretionary
inherent powers.
9. Finding no merit in the present petition, the same stands dismissed.
MANU/DE/2351/2011
Equivalent Citation: 2011VAD(Delhi)493
IN THE HIGH COURT OF DELHI
Crl. Rev. P. 767/2010
Appellants: Chandni
Vs.
Respondent: Gopal Dutt Sharma
Sharma
Hon'ble
Hima Kohli, J.
Judges:
Counsels:
For Appellant/Petitioner/Plaintiff: G.A. Arife, Adv.
For Respondents/Defendant: Gita Dhingra and M.G. Dhingra, Advs.
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Hindu Marriage Act; Code of Criminal Procedure, 1973 - Sections 125, 125(2), 397,
401 and 482; Indian Penal Code - Sections 174 and 193
Cases Referred:
Ashish Aggarwal v. BSES Rajdhani Power Ltd. Crl. Rev. P No. 513/2007; Kirtikant D.
Vadodaria v. State of Gujarat MANU/SC/1159/1996 : (1996) 4 SCC 479; Harish
Cander and Anr. v. Santosh Kumari and Ors. 1 (1985) DMC 355; Southern Sales and
Services v. Sauermilch Design and Handels GMBH (2008) 14 SCC 457; T.N. Dhakkal
v. James Basnett MANU/SC/2341/2000 : (2001) 10 SCC 419; Jasbir Kaur Sehgal v.
District Judge, Dehradun and Ors. MANU/SC/0835/1997 : (1997) 7 SCC 7; Annurita
Vohra v. Sandeep Vohra MANU/DE/0166/2004 : 110 (2004) DLT 546; S.S. Bindra v.
Tarvinder KaurMANU/DE/0455/2004 : 112 (2004) DLT 813
Citing Reference:
Ashish Aggarwal v. BSES Rajdhani Power Ltd.

Discussed
Kirtikant D. Vadodaria v. State of Gujarat MANU/SC/1159/1996
Mentioned
Harish Cander and Anr. v. Santosh Kumari and Ors.

Mentioned
Southern Sales and Services v. Sauermilch Design and Handels GMBH
Mentioned
T.N. Dhakkal v. James Basnett MANU/SC/2341/2000
Discussed
Jasbir Kaur Sehgal v. District

Judge, Dehradun and Ors. MANU/SC/0835/1997
Discussed
Annurita Vohra v. Sandeep Vohra MANU/DE/0166/2004

S.S. Bindra v. Tarvinder Kaur MANU/DE/0455/2004
Discussed
Discussed
Disposition:
Petition allowed
Case
Note:
Criminal - Maintenance - Metropolitan Magistrate had directed
Respondent who was father of Petitioner to pay Petitioner's mother sum
of maintenance 1,000/- p.m. from 24th September 2001 to 31st March,
2005 and sum of 1,500/- p.m. from 1st April, 2005 to 22nd August, 2007 Hence, this Revision Petition - Whether, Petitioners were entitled to
enhance amount of compensation - Held, it was found that for purposes of
calculating maintenance payable to Petitioner, accurate figures of
Respondent's monthly income and deductions were required to be
calculated - Though, it was found that in month of February 2011,
Respondent retired from his service as Principal Director from Ministry of
Defence - Moreover, it was cleared from figures of Respondent's monthly
income furnished by Respondent himself for relevant period were found to
be somewhat ambiguous and incoherent and misled Metropolitan
Magistrate into excluding all deductions, both voluntary and statutory
from his income and due to this error, maintenance granted was not
proportionate to real income of Respondent - Thus, as per salary
statement of Respondent furnished by his employer, amounts of
maintenance were required to be revised and payable by Respondent to
Petitioner as maintenance for relevant blocks of time period - Hence,
order of maintenance passed by Magistrate was modified with costs
quantified at 5,000/- - Revision Petition allowed.
Ratio Decidendi:
"Accurate figures of monthly income of spouse are required to be
calculated for purposes of calculating maintenance payable to other
party."
JUDGMENT
Hima Kohli, J.
1. The present revision petition is filed by the Petitioner, through her mother who is
her natural guardian, under Sections 397/401 read with Section 482 of the Code of
Criminal Procedure praying inter alia for revising the order dated 13.02.2009,
passed by the learned Metropolitan Magistrate directing the Respondent herein,
father of the Petitioner, to pay her a sum of ` 1,000/- p.m. from 24.9.2001 to
31.3.2005 and a sum of ` 1,500/- p.m. from 1.4.2005 to 22.8.2007, as maintenance.
2. The brief relevant facts of this case are that the Petitioner's mother had alleged
that she had got married to the Respondent on 3.12.1988, and from this union, the
Petitioner was born 22.8.1989. However, the fact of the marriage was denied by the
Respondent, who subsequently got married to another lady. The Respondent further
denied being the father of the Petitioner. Since the Petitioner was a minor, hence a
petition for maintenance under Section 125 Code of Criminal Procedrue was filed on
her behalf by her mother and natural guardian, Ms. G.A. Arife. By the impugned
order dated 13.2.2009, the said petition was disposed of by the learned MM, in the
aforementioned manner.
3. It is mentioned in the impugned order that by an earlier order dated 5.5.1993
passed by the learned MM, the Petitioner was awarded interim maintenance at the
rate of ` 300/- p.m. Later on, the matter came up before the High Court and as the
Respondent disputed being the father of the Petitioner, he was directed to undergo
a DNA test, to determine the paternity of the Petitioner, which test confirmed the
fact that the Respondent was the father of the Petitioner. In the aforesaid case
registered as Crl. MM No. 3029/1993, the High Court vide order dated 29.4.2003
awarded to the Petitioner, interim maintenance at the rate of ` 500/- p.m. The
difference of ` 200/- per month was paid by the Respondent in three installments.
Till 24.9.2001, the highest amount of maintenance that could have been awarded
under the statute was ` 500/-. The said provision came to be amended w.e.f
24.9.2001, as a result of which, the monetary limit placed on the amount of
maintenance that could be awarded, was removed. The Petitioner filed an
application for enhancement of maintenance on 8.12.2003. In the impugned order,
the learned MM observed that since the Petitioner had attained majority on
22.8.2007, hence the period for which maintenance was required to be determined
in the petition was for the period from 24.9.2001 till 22.8.2007. The same period
concerns this Court for determination of maintenance, in the event an enhanced
sum is found to be due and payable to the Petitioner. The learned MM also observed
that the Respondent had not disputed the report of the DNA test for the purposes of
the petition by the Petitioner filed seeking maintenance. On the basis of the
materials placed on record and the testimonies of the Petitioner's mother and the
Respondent, maintenance was granted to the Petitioner at the rate of ` 1,000/- p.m.
from 24.9.2001 to 31.3.2005 and at the rate of ` 1,500/- p.m. from 1.4.2005 to
22.8.2007, while directing that the interim maintenance already paid to her be
deducted from the amount so awarded.
4. The Petitioner, appearing through her mother, Mrs. G.A. Arife has challenged the
impugned order on the limited point of quantum of maintenance granted to her and
has sought an enhancement thereof. In the course of arguments, the mother of the
Petitioner further expressed that she did not wish to press the relief, with regard to
the non-disposal of an application filed by the Petitioner before the court below, for
action to be taken against the Respondent under Sections 174 and 193 IPC, which
submission was duly recorded in the order of this Court dated 15.2.2011. Ms. Arife
had also brought to the notice of this Court the order of the Supreme Court dated
13.12.2010, requesting that the present revision petition be disposed of on or
before 31.01.2011. As the petition came to be listed before this Court only two days
before 31.1.2011, i.e. on 28.1.2011, that date could not be met. However, the
matter has been heard and disposed of with reasonable despatch.
5. The argument advanced on behalf of the Petitioner was that the Respondent had
failed to disclose his correct income before the learned MM and consequently, the
maintenance that was granted under the impugned order was erroneous and
inadequate. It was further urged that the maintenance granted was not
proportionate to the actual monthly income earned by the Respondent during the
relevant time period. It was also stated that the income that was disclosed by the
Respondent was after deductions had been made from it towards income tax, home
and car loans, provident fund, etc., which was not permissible. It was contended
that since these did not qualify as statutory deductions, they should not have been
permitted to be deducted from the income of the Respondent, for the purposes of
calculating the maintenance payable to the Petitioner.
6. On the other hand, the counsel for the Respondent refuted the arguments
advanced on behalf of the Petitioner, and laid much stress on the fact that the
Respondent had, on his part, disclosed his correct income before the learned MM,
who had taken into consideration the deductions and granted maintenance
accordingly, hence the amount awarded should not be enhanced. Counsel for the
Respondent further challenged the maintainability of the revision petition on the
grounds inter alia that the scope of a revision petition is limited and also that the
revision petition was filed with a delay of 425 days, with no explanation for the
same forthcoming from the Petitioner. She relied upon a decision in the case of
Ashish Aggarwal v. BSES Rajdhani Power Ltd. in Crl. Rev. P No. 513/2007 decided on
20.8.2007, to urge that where the petition is filed with a delay, each day's delay
would have to be explained, for the same to be condoned. The locus standi of the
mother of the Petitioner to file the revision petition on behalf of the Petitioner was
also questioned and it was asserted that as the Petitioner has attained majority, it
was for her to file such a petition in her own right.
7. This Court has heard both the Petitioner's mother and the counsel for the
Respondent. At the outset, the question of maintainability of the revision petition is
required to be dealt with. The argument urged on behalf of the Respondent that the
mother of the Petitioner could not have appeared on behalf of the Petitioner, who is
now a major, in the absence of a power of attorney executed in her favour, does not
find favour with this Court as it is to be noticed that the interests of Ms. Arife, the
mother and natural guardian of the Petitioner, are not antithetical to her interests.
In fact the mother has not sought any maintenance from the Respondent for herself
and her sole interest lies in getting maintenance for the wellbeing of the Petitioner.
Further, records reveal that the maintenance petition was being contested by the
mother of the Petitioner in the court below, even after the Petitioner had attained
majority and a perusal of the order dated 13.12.2010 passed by the Supreme Court,
shows that in the said proceedings also the Petitioner was being represented by her
mother, and she was permitted to do so. In light of the facts and circumstances of
this case, the argument advanced, on behalf of the Respondent regarding locus
standi of the mother of the Petitioner, cannot be accepted and is turned down.
8. Insofar as the maintainability of the present petition, filed with a delay of 425
days, without any specific explanation offered in the application for condonation of
delay is concerned, a pointed query was directed towards the Petitioner's mother
regarding the explanation for the delay in filing of the petition. Ms. Arife explained
that delay occurred in filing due to the protracted litigation between her and the
Respondent in the divorce proceedings initiated by her, under the Hindu Marriage
Act. She stated that the petitions filed by her, for seeking divorce and permanent
alimony respectively, were rejected by the learned ADJ vide order dated 9.4.2010.
The two matrimonial appeals filed by her in the High Court also came to be
dismissed, vide a common order dated 13.08.2010. She submitted that the SLP
preferred by her to the Supreme Court, was dismissed on 13.12.2010. Ms. Arife
further stated that she had been personally pursuing the aforesaid cases, as she
could not afford to engage a counsel, therefore she was able to file the present
petition only on 8.12.2010. Keeping in mind the fact that the mother of Petitioner
has been appearing in all proceedings in person, without engaging the services of a
counsel, this Court considers the explanation, offered for the delay, just and
sufficient and in exercise of its inherent powers, deems it appropriate to condone
the delay of 425 days, as prayed for, thus deciding the question of maintainability
of the petition, on the ground of limitation, in favour of the Petitioner.
9. Counsel for the Respondent also challenged the very basis of the maintenance
being granted to the Petitioner, by stating that the purpose of granting maintenance
is to prevent vagrancy and destitution of the dependant. She canvassed that at the
present time, the Petitioner, who is now a major and has pursued her studies in
engineering, is quite capable of supporting herself and is no longer in a state of
vagrancy or destitution to claim any maintenance . This argument of the counsel for
the Respondent is found to be untenable and cannot be accepted as the
Respondent being the father of the Petitioner cannot be permitted to shirk his
responsibility towards her, merely because her mother somehow managed to eke
out the resources to support the Petitioner's education. Further, the decision of the
Supreme Court in the case of Kirtikant D. Vadodaria v. State of Gujarat reported
as MANU/SC/1159/1996 : (1996) 4 SCC 479 and of this Court in the case Harish
Cander and Anr. v. Santosh Kumari and Ors. reported as 1 (1985) DMC 355, relied
on by the counsel for the Respondent, cannot come to the aid of the Respondent as
these judgments do not lay down a mandatory negative prescription, i.e., where
destitution or vagrancy is not shown, maintenance cannot be granted. Rather,
based on the facts and circumstances of a case, where existence of destitution or
vagrancy would be a dominant factor for consideration, maintenance can be
granted.
10. Furthermore, the fact that the Petitioner attained majority, while maintenance
proceedings were pending, cannot prejudice her rights qua the Respondent, as the
application for enhancement of maintenance was filed by her mother as early as on
8.12.2003 when the Petitioner was still a minor, and the order of the learned MM
dated 13.02.2009 was subsequent to the Petitioner attaining majority on
22.08.2007. It is also significant to note that there are decisions of the Supreme
Court, where maintenance has been awarded to unmarried daughters till the date of
their marriage, even after their having attained majority. Without going into the
question of entitlement of the Petitioner to any future maintenance subsequent to
the attainment of majority, the scope of the present petition is confined to the
period, before the Petitioner attained majority. This Court is, therefore, firmly of the
opinion that nothing would turn on the factum of the Petitioner attaining majority
during the pendency of the present proceedings, so as to disentitle her from
claiming an enhanced maintenance from the Respondent.
11. Counsel for the Respondent also contended that the learned MM had
erroneously directed the Respondent to pay maintenance to the Petitioner from the
date of the amendment made in Section125 of the Criminal Procedure Code, 1973
i.e. from 24.9.2001, by taking into consideration the fact that the original
application for maintenance was filed prior to the amendment, and hence
maintenance beyond the statutory limit of ` 500/- would be paid from the date of
the amendment. She urged that such a view would be incorrect as the relevant date
was 8.12.2003, on which date an application for enhancement of maintenance was
filed by the Petitioner, and it would be this date from which the Respondent would
be required to pay maintenance, and not prior thereto, as awarded in the impugned
order. At the outset, it may be noted that such an argument would not lie in the
mouth of the Respondent, as it is not he who has come in revision to this Court
against the impugned order, but the Petitioner, who has filed the present petition. If
the Respondent was aggrieved by the impugned order, he had a legal remedy
available to him, which he has failed to avail of, and furthermore, he has complied
with the impugned order by paying to the Petitioner, the maintenance for the
periods as fixed by the learned MM, thus clearly accepting the said order, and
waiving his right to contest the same.
12. Furthermore, not only on the point of lack of locus of the Respondent, but also
on merits, the aforesaid argument is found to be devoid of merits. A perusal of
Section 125(2) of Code of Criminal Procedure shows that the provision envisages
that maintenance would be paid either from the date of application or from the date
of the order, if so ordered. It has to be seen that the date of institution of the
maintenance proceedings before the learned MM was 28.9.1990, and the said
matter was still pending and had yet not been finally adjudicated upon, when the
provision was amended. Had the application for enhancement been filed
subsequent to the final order on the maintenance petition but before the
amendment had taken place, then the argument of the counsel for the Respondent
could perhaps have cut some ice. But in the facts of the present case, no benefit
can be claimed on this count by the Respondent.
13. The final argument advanced by the counsel for the Respondent was that the
scope of a revision petition preferred under the Code of Criminal Procedure is very
limited and unless a palpable illegality or irregularity or perversity can be
demonstrated on the face of the record, this Court should not interfere with the
order of the court below. It was vehemently argued that that no such illegality or
irregularity or perversity has been shown by the Petitioner in the impugned
judgment to deserve interference. In support of her submission, learned Counsel for
the Respondent relied on a decision of the Supreme Court in the case of Southern
Sales & Services v. Sauermilch Design & Handels GMBH reported as (2008) 14 SCC
457.
14. There is no gainsaying the fact that the scope of revisionary power of this Court
is indeed limited and should be exercised with restraint. However, it has also been
held by the Supreme Court in the case of T.N. Dhakkal v. James Basnett reported
as MANU/SC/2341/2000 : (2001) 10 SCC 419, that such a power is discretionary in

nature and is to be exercised to correct miscarriage of justice and further, whether
or not, there is justification for the exercising such power, would depend upon the
facts and circumstances of each case. In the present case, it is quite clear that the
calculation of the income of the Respondent, for the purposes of determination of
maintenance payable to the Petitioner, was done erroneously by excluding all
deductions, both statutory and voluntary in nature. It is to correct this material
irregularity that this Court proposes to exercise its powers of revision to enhance
the maintenance granted to the Petitioner, on the basis of the correct income of the
Respondent, for the relevant period.
15. Coming to the merits of the case, the mother of the Petitioner has sought
interference in the impugned order, for enhancement of the quantum of
maintenance, on the ground that the Respondent misled the learned MM into
excluding all deductions, both voluntary and statutory, from his income, and due to
this error, the maintenance granted in the impugned order was not proportionate to
the real income of the Respondent. She argued that only those deductions that are
statutory in nature could have been excluded from the income of the Respondent
such as income tax, and not the voluntary deductions such as monthly installments
towards the house and car loans or the provident fund, as the Respondent would
eventually benefit from such deductions. This Court is inclined to accept the
Petitioner's argument that in calculating the net income of the Respondent, while
the deductions towards income tax being statutory deductions can be excluded,
however voluntary deductions such as house building allowance cannot be
excluded. Furthermore, it has to be seen that the voluntary deductions are of such a
nature which would eventually benefit the Respondent and his family. There is no
good reason as to why the Petitioner should be prejudiced in this regard, at the
stage of determination of maintenance, just because she does not happen to be a
part of the Respondent's family. Based on such reasoning, vide order dated
21.2.2011, this Court had calculated the net income of the Respondent for the
month of December 2002 to be `13,300/- (as the gross monthly income of the
Respondent was admittedly ` 24,470/- excluding income tax of ` 7,869/- while
retaining the component of house building allowance), and not ` 5,614 as
erroneously calculated in the impugned order. In the light of the above, the
submission made on behalf of the Petitioner for enhancement of the maintenance
fixed in the impugned order, is accepted and it is held that the same is liable to be
revised.
16. For the purposes of calculating the maintenance payable to the Petitioner,
accurate figures of the Respondent's monthly income and deductions were required.
In the month of February 2011, the Respondent retired from his service as the
Principal Director, Integrated Headquarters, Ministry of Defence (Navy). As the
figures of his monthly income furnished by the Respondent himself for the relevant
period were found to be somewhat ambiguous and incoherent, the Deputy Director
(Claims), Naval Headquarters, Ministry of Defence, the former employer of the
Respondent, was summoned and called upon to furnish a summary of the pay and
allowances of the Respondent for the relevant period. The statement so furnished,
with an advance copy to both sides, was taken on record on 4.4.2011.
17. As observed in the decision of the Supreme Court in the case of Jasbir Kaur
Sehgal v. District Judge, Dehradun and Ors. reported as MANU/SC/0835/1997 :
(1997)7 SCC 7, it is settled law that no set formula can be laid down for fixing the
amount of maintenance payable and the calculation of the same would always
depend upon the facts and circumstances of each case. In the facts of the present
case, the methodology adopted in the cases of Annurita Vohra v. Sandeep Vohra
reported as MANU/DE/0166/2004 : 110(2004) DLT 546 and S.S. Bindra v. Tarvinder
Kaur reported asMANU/DE/0455/2004 : 112(2004) DLT 813 has been found to be a
useful tool to determine the monthly salary of the Respondent, in order to calculate
maintenance payable to the Petitioner. In the aforesaid cases, after taking into
account the compulsory deductions from the salary, the remaining income was
divided equally by the court between all the family members entitled to
maintenance, with one extra portion/share being allotted to the earning spouse
solely for the extra expenses that would necessarily occur. In the present case,
other than the Petitioner and the Respondent himself, there are three dependants
entitled to maintenance, i.e. Petitioner's wife and two children. Therefore, no extra
portion needs to be allotted to the Respondent as all extra expenses can be
accommodated in the separate allotments made to the three dependants and the
Respondent himself. As a result, the net monthly salary of the Respondent for the
relevant years, would be liable to be divided in five equal portions, with one-fifth
part of the salary going to the share of the Petitioner towards maintenance.
18. As per the salary statement of the Respondent furnished by his employer, the
following amounts are found to be payable to the Petitioner towards maintenance
for the relevant blocks of time period, arrived at on the basis of the upward revision
of the emoluments received by the Respondent from time to time:
S. No.
Blocks of time period
No.
of Monthly
Salary
for Maintenance to
Months in Salary less the
block petitioner for the
the block Income
less income block (d) = 1/5th
(a)
Tax
tax
of c (`)
deducted deducted (c)
(b) (`)
= a X b (`)
1.
24.9.2001
31.12.2002
15
19,560
2,93,400
58,680
2.
1.1.2003
28.2.2003
19,560
39,120
7,824
3.
1.3.2003
29.2.2004
12
22,461
2,69,536
53,907
4.
1.3.2004
28.2.2005
12
24,106
2,89,266
57,853
5.
1.3.2005
28.2.2006
12
30,116
3,61,389
72,278
6.
1.3.2006
28.2.2007
12
37,973
4,55,673
91,135
7.
1.3.2007
22.8.2007
40,615
2,43,688
48,738
Total
3,90,415
19. The aforesaid revised amount as calculated would be payable by the

Respondent to the Petitioner as maintenance, after deducting the maintenance
amount already received by the Petitioner from the Respondent in compliance with
the impugned order. The said amount shall be paid by the Respondent to the
Petitioner within six weeks from today. Failure to pay the maintenance, as calculated
above, shall attract simple interest at the rate of 10% p.a. The revision petition is
allowed and the impugned order is modified as indicated above, with costs
quantified at ` 5,000/-.
MANU/DE/1874/2011
CM (M) 1503/2007
Appellants: Preeti
Vs.
Respondent: Ravinder
Hon'ble
G.S. Sistani, J.
Judges:
Counsels:
For Appellant/Petitioner/Plaintiff: Sonia Arora, Adv.
For Respondents/Defendant: Mohd. Kausar Perwel, Proxy Adv. andParty-in-Person
Subject: Constitution
Subject: Family
Catch Words
Mentioned IN
Acts/Rules/Orders:
Hindu Marriage Act - Sections 24 and 26; Criminal Procedue Code (CrPC) - Section
125; Constitution of India - Articles 14 and 16
Cases
Referred:
Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors. MANU/SC/0835/1997 :
(1997) 7 SCC 7; Bharat Hegde v. Saroj Hegde MANU/DE/1518/2007 : 140 (2007) DLT
16
Citing
Jasbir Kaur Sehgal (Smt.) v. District
Reference:
Judge, Dehradun and Ors. MANU/SC/0835/1997
Discussed
Bharat Hegde v. Saroj Hegde MANU/DE/1518/2007
Discussed
Disposition:
Petition allowed
Case
Note:
Family - Enhancement of maintenance - Additional District Judge, on
application by Petitioner, seeking enhancement of maintenance for herself
and her minor son, enhanced amount of maintenance - Hence, this
Petition - Whether, order of Trial Court, enhancing amount of
maintenances was reasonable - Held, it was settled position of law that
wife was entitled to live in similar status as was enjoyed by her in her
matrimonial home - Details of assets of Respondent / husband showed
that he was man of means and possessed movable and immovable
property - Further, it was improbable that Respondent gave his land on
lease and permitted Mr. Chaju Lal to run petrol pump and in return he was
paid `4000/-, per month - Respondent failed to place any document on
record to clear air and to show arrangement between him and Mr. Chaju
Lal - Moreover, it was impossible for nationalized Bank to grant loan to
person to tune of ` 14.00 lakhs and ` 2.00 lakhs, respectively, without

material to bank to show his ability to repay loan - Needs of wife and
minor child were genuine and maintenance fixed was unreasonable Amount of maintenance was enhanced from 7000/-, per month, to 15,000/per month - Petition allowed.
Ratio
Decidendi:
"Quantum of compensation shall be fixed, considering status and mode of
life of party, which she used to have when she lived with her husband."
JUDGMENT
G.S. Sistani, J.
1. Present petition is directed against the order dated 3.10.2007 passed by learned
Additional District Judge, Delhi, on an application filed by the Petitioner (wife),
seeking enhancement of maintenance for herself and her minor son, who was two
years of age at the time of passing the order.
2. Learned Counsel for the Petitioner wife submits that learned trial court had
initially awarded a sum of ` 4500/-, per month, as maintenance, to the Petitioner
and her minor son on an application filed by the Petitioner under
Sections 24 & 26 of the Hindu Marriage Act. The amount was later enhanced
to ` 7000/-, per month, which amount is also stated to be insufficient. Counsel
further submits that learned trial court has failed to take into consideration the
status of the parties; the fact that Petitioner is a housewife; has a minor school
going son; she has no source of livelihood; and she is only dependent on the
Respondent (husband) for maintenance and support. Counsel also submits that the
amount awarded by the trial court is extremely unreasonable in view of the fact that
Petitioner has to pay for the school fee, bus fee, uniform, transport and for extracurricular activities besides other day-to-day expenses of the minor five years old
son. Counsel next submits that trial court has completely lost track of the fact that
Petitioner is entitled to enjoy the same standard of living as she was enjoying in her
matrimonial home.
3. Leaned counsel for the Petitioner submits that the Respondent is a man of means
and he is owner of immovable properties. Further it is submitted that the
Respondent has concealed his income. In support of this plea, counsel for the
Petitioner has drawn the attention of the Court to an affidavit filed by the Petitioner
at page 61 of the paper book, along with which copy of an affidavit which was to be
furnished along with the nomination papers, which was filed by Respondent before
the Returning Officer at the time of contesting election to Delhi Legislative
Assembly, 2008. It is submitted by the counsel for the Petitioner that the
Respondent had himself deposed in the affidavit and the annexures thereto that
Respondent has a cash balance of `1.00 lakhs in his saving bank account No. 3783
in Bank of Maharashtra, Bapdola Branch, Delhi. Further, the counsel submits.
4. that besides the savings of ` 1.00 lakh, the Petitioner has admitted that he pays
LIC premium of ` 76,728/-, annually; owns three motor cycles; and is also the owner
of a land measuring 1800 sq. yds. situated at Rohtak. Further, it is submitted by the
counsel for the Petitioner that a perusal of the affidavit would also show that the
Respondent had taken a loan in the sum of ` 14.00 lakhs from ICICI Bank and ` 2.00
lakhs from Bank of Maharashtra. Counsel submits that the stand taken by the
Respondent that he earns only ` 4000/-, per month, cannot be believed as it cannot
be expected that any bank would grant loan to the tune of ` 14.00 lakhs and ` 2.00
lakhs, respectively to a person, who earns only ` 4000/-, per month.
5. Counsel for the Petitioner next submits that this affidavit also shows that
Respondent is the owner of non-agricultural land, measuring 1800 sq. yards,
situated at Village Ghillour Kalan, Tehsil and District Rohtak, Haryana, on which,
admittedly, a petrol pump is being run, of which, the Petitioner is the owner and has
substantial share in it.
6. Learned Counsel for the Respondent has opposed the present petition for
enhancement on the ground that Respondent (husband) is not the owner of petrol
pump, known as M/s Kissan Filling Station, which belongs to one Mr. Chaju Lal; and
the Petitioner is working as a Manager in this petrol pump and is being paid
only ` 4000/-, per month. Counsel for the Respondent further submits that there is
no written agreement between Mr. Chaju Lal and the Respondent, except that he is
paid ` 4000/-, per month. Counsel also submits that there is no need for
enhancement as the Petitioner has concealed the fact that she is working as a
Teacher in a computer institute and she is able to maintain herself and the child.
Counsel for the Petitioner disputes the same and submits that Petitioner is only
pursuing computer course from the said institute.
7. I have heard counsel for the parties and also perused the documents placed on
record. The basic facts are not in dispute that marriage between parties was
solemnized on 11.2.2005. A male child was born out of their wedlock on 9.11.2005.
Parties started residing separately from 23.3.2006 onwards.
8. It is settled position of law that a wife is entitled to live in a similar status as was
enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it
should not be a case that one spouse lives in a life of comfort and luxury while the
other spouse lives a life of deprivation, poverty. During the pendency of divorce
proceedings the parties should be able to maintain themselves and should be
sufficiently entitled to be represented in judicial proceedings. If in case the party is
unable to do so on account of insufficient income, the other spouse shall be liable to
pay the same.
9. In the case of Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors.,
reported at MANU/SC/0835/1997 : (1997) 7 SCC 7, it has been held as under:
8. The wife has no fixed abode of residence. She says she is living in a Gurudwara
with her eldest daughter for safety. On the other hand the husband has sufficient
income and a house to himself. The Wife has not claimed any litigation expenses in
this appeal. She is aggrieved only because of the paltry amount of maintenance
fixed by the courts. No set formula can be laid for fixing the amount of
maintenance. It has, in the very nature of things, to depend on the facts and
circumstance of each case. Some scope for liverage can, however, be always there.
Court has to consider the status of the parties, their respective needs, capacity of
the husband to pay having regard to his reasonable expenses for his own
maintenance and of those he is obliged under the law and statutory but involuntary
payments or deductions. The amount of maintenance fixed for the wife should be
such as she can live in reasonable comfort considering her status and the mode of
life she was used to when she lived with her husband and also that she does not
feel handicapped in the prosecution of her case. At the same time, the amount so
fixed cannot be excessive or extortionate. In the circumstances of the present case
we fix maintenance pendente lite at the rate of Rs. 5,000/- per month payable by
Respondent-husband to the Appellant-wife.
10. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported
at MANU/DE/1518/2007 : 140 (2007) DLT 16 had culled out following 11 factors,
which can be taken into consideration for deciding the application under
Section 24 of Hindu Marriage Act, relevant portion of which reads as under:
8. Unfortunately, in India, parties do not truthfully reveal their income. For self
employed persons or persons employed in the unorganized sector, truthful income
never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this
country. Therefore, in determining the interim maintenance, there cannot be
mathematical exactitude. The court has to take a general view. From the various
judicial precedents, the under noted 11 factors can be culled out, which are to be
taken into consideration while deciding an application under Section 24of the Hindu
Marriage Act. The same are:
(1) Status of the parties.
(2) Reasonable wants of the claimant.
(3) The independent income and property of the claimant.
(4) The number of persons, the non applicant has to maintain.
(5) The amount should aid the applicant to live in a similar life style as he/she
enjoyed in the matrimonial home.
(6) Non-applicant's liabilities, if any.
(7) Provisions for food, clothing, shelter, education, medical attendance and
treatment etc. of the applicant.
(8) Payment capacity of the non-applicant.
(9) Some guess work is not ruled out while estimating the income of the nonapplicant when all the sources or correct sources are not disclosed.
(10) The non-applicant to defray the cost of litigation.
(11) The amount awarded under Section 125, Code of Criminal Procedure is
adjustable against the amount awarded under Section 24 of the Act.
11. Further it has been noticed by the Courts that the tendency of the spouses in
proceedings for maintenance is to not truthfully disclose their true income.
However, in such cases some guess work on the part of Court is permissible.
12. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also
recognized the fact that spouses in the proceedings for maintenance do not
truthfully disclose their true income and therefore some guess work on the part of
the Court is permissible. Further the Supreme Court has also observed that
"considering the diverse claims made by the parties one inflating the income and
the other suppressing an element of conjecture and guess work does enter for
arriving at the income of the husband. It cannot be done by any mathematical
precision".
13. Although there cannot be an exhaustive list of factors, which are to be
considered in guessing the income of the spouses, but the order based on guess
work cannot be arbitrary, whimsical or fanciful. While guessing the income of the
spouse, when the sources of income are either not disclosed or not correctly
disclosed, the Court can take into consideration the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of marriage and the manner in which marriage
was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit cards;

(viii) Bank account details;
(ix) Club Membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel/ holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children are studying when parties were residing
together;
(xix) Amount spent on fees and other expenses incurred;
(xx) Amount spend on extra-curricular activities of children when parties were
residing together;
(xxi) Capacity to repay loan.
14. These are some of the factors, which may be considered by any court in
guesstimating or having a rough idea or to guess the income of a spouse. It has
repeatedly been held by the Courts that one cannot ignore the fact that an Indian
woman has been given an equal status under Articles 14 and 16 of the Constitution
of India and she has a right to live in dignity and according to the status of her
husband. In this case, the stand taken by the Respondent with respect to his
earning is unbelievable.
15. I have perused the affidavits filed by the Respondent before the Returning
Officer, copies of which have been placed on record by the Petitioner. As per the
affidavits filed by the Respondent before the Returning Officer he has disclosed the
following assets:
A DETAILS OF MOVABLE ASSETS
Sl. Description
No.
Self
Spouse(s Dependen Dependen Dependen

)
t-1 Name t-2 Name t-1 Name
(i)
Cash
Rs.1,00,000
Smt.
Preeti
(Living
separatel
y)
(ii)
Deposits
in With SB A/c No.3783, N.A.
Banks,
Bank of Mahrashtra,
Financial
Bapdola
Branch,
Institutions
Delhi having balance
and
Non-
Akshit
N.A.
(living
with
his
mother)
N.A.
N.A.
N.A.
N.A.
Banking
Financial
Companies.
Rs.1. lac
(iii) Bonds,
N.A.
Debantures
and Shares in
companies.
N.A.
N.A.
N.A.
N.A.
(iv) Other financial LIC

Policy N.A.
instruments,
No.331782026 of LIC
NSS,
Postal Branch
District
Savings,
LIC Centre,
JanakPuri,
Policies, etc.
New Delhi and the
premium
of
the
same is being paid
at Rs.76,728/- p.a.
N.A.
N.A.
N.A.
(v)
N.A.
N.A.
N.A.
(vi) Jewellery (give Gold

ornaments N.A.
details
of worth
Rs.45,000/weight
and weighing 45 gms.
value)
Appx.
N.A.
N.A.
N.A.
(vii) Other Assets
No.
No.
No.
Motor Vehicles
1. Hero Honda N.A.
(details of
Passion, Regn.
make, etc.)
No.DL 3S AJ 1969
Model,
2001.
2.Royal Enfield.
Sl. Description
No.
No.
Self
No.
Spouse( Dependen Dependen Dependen

s)
t-1 Name t-2 Name t-1 Name
(i) ..
(ii) Non-Agricultural A
plot
area N.A.
Land - Location(s) measuring
1800
Survey sq.
yds.
-Number(s)
atVillaeGhilord,
-Extent
(Total Distt.
Rohtak,
Measurement)
Haryana
Having
Current
Market worth
Value
Rs.10,00,000/Approx.
N.A.
N.A.
N.A.
16. The details of the assets of the Respondent as disclosed by him, would show
that he is a man of means. He possesses both movable and immovable property. He
has also availed of loan facility from two banks in the total sum of `16.0 lacs. As per
the stand of the Respondent he has given on lease his land to Mr. Chaju Lal to run a
petrol pump. It is most improbable that Respondent would give his land on lease
and permit Mr. Chaju Lal to run a petrol pump and in return he would only be paid
`4000/-, per month. The Respondent has failed to place any document on record to
clear the air and to show the arrangement between him and Mr. Chaju Lal. To my
mind, this amounts to willful concealment of relevant material and the Court must
draw an adverse inference against the Respondent. I also find it unbelievable that
salary of Respondent is only ` 4000/-, per month, which is below the minimum
wages. It is impossible for any nationalized Bank to grant loan to a person to the
tune of ` 14.00 lakhs and ` 2.00 lakhs, respectively, without a person giving
material to the bank to show his ability to repay the loan.
17. In this case, grant of loan to the Respondent to the tune of ` 14.00 lakhs
and ` 2.00 lakhs, respectively; Respondent owning motorcycle; immovable property
in the name of Respondent; and, admitting that Chajju Lal is running a petrol pump
on the land of the Respondent - are important factors to be considered for guessing
the income of the Respondent. Besides, as already observed, it is neither realistic
nor probable that the Respondent would allow Mr. Chaju Lal to run a petrol pump on
his land and the Respondent would work as a Manager for a meagre salary
of ` 4000/- in the absence of a written agreement. Further, the Respondent has
failed to satisfy this Court that Petitioner has any independent source of income to
maintain herself and the minor child. The Petitioner is bringing up her five year old
minor school going son and her demand for sufficient maintenance is fair and just in
view of the fact that Petitioner has to spend on the school fee, transport, uniform,
extra-curricular activities of the minor child and other day-to-day expenses. While
this Court is conscious of the observations made by the Apex Court in the case of
Jasbir Kaur (Smt.) (supra) that "the amount of maintenance fixed for the wife should
be such as that she can live in reasonable comfort, considering the status and mode
of life she was used to, when she lived with her husband and also that she does not
feel handicapped in the prosecution of the case. same time, the amount so fixed
cannot be excessive or exorbitant", I am satisfied that the needs of the wife and the
minor child are genuine and the maintenance fixed in this case is extremely
unreasonable. Consequently, the order of the trial court is modified. The amount of
maintenance is enhanced from ` 7000/-, per month, to ` 15,000/-, per month, to be
paid by Respondent (husband) to the Petitioner and her minor son.
18. Petition stands allowed, in above terms.
MANU/PH/0894/2007
Equivalent Citation: (2008)149PLR36
Appellants: Rupinder
Vs.
Respondent: Avtar Singh
Kaur
and
Anr.
Hon'ble
Ranjit Singh, J.
Judges:
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
CODE OF CRIMINAL PROCEDURE, 1973 - Section 125,482; GENERAL CLAUSES ACT
1897 - Section 6
Citing
Reference:
Nagappa v. Gurudayal Singh MANU/SC/1107/2002
Discussed
Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj

Developers and Ors.
Discussed
Case
Note:
Criminal - Maintenance - Petitioner filed application under Section 125
Code of Criminal Procedure praying for grant of maintenance of Rs. 500/per month - Judicial Magistrate, granted a sum of Rs. 1,200/- per month as
maintenance to the child - Respondent impugned the said order by filing a
revision before Additional Sessions Judge (Adhoc), Fast Track Court, who
had reduced this maintenance amount to Rs. 500/- per month on the
ground that the applicant had claimed the maintenance at this rate in his
application - Order passed by Additional Sessions Judge (Adhoc), Fast
Track Court was impugned in the petition filed under Section 482 Cr.P.C. Held, There would not be any restriction on the Tribunal or the court to
award compensation exceeding the amount claimed - Main function of the
court or the Tribunal was to award just and reasonable compensation on
the basis of the evidence produced - Provisions of Section 125 Cr.P.C. were
amended with effect from 24.9.2001 - Court was competent to award
compensation more than Rs. 500/- as could be awarded before the
amendment - Provision of the amended section would apply to the case Petition allowed [ para 5, 6, 8, 9 ]
Disposition:
Petition allowed
JUDGMENT
Ranjit Singh, J.
1. Mandeep Singh, petitioner No. 2 is a minor son born out of wedlock between
Rupinder Kaur petitioner No. 1 and Avtar Singh, sole respondent. The marriage
between petitioner No. 1 and respondent got into trouble and led to their
separation. They are now divorced. Rupinder Kaur filed application under
Section 125 Cr.P.C. on 25.5.1996 praying for grant of maintenance of Rs. 500/- per
month. She pleaded that she did not have any source of income, whereas
respondent (her husband) was working at a Petrol Pump and earning Rs. 4,000/- per
month. As per the averment, he is also keeping buffaloes and is having agriculture
income as well. Relying upon the evidence and the material produced before him,
Judicial Magistrate, 1st Class, Ludhiana granted a sum of Rs. 1,200/- per month as
maintenance to the child, petitioner No. 2, which was the only demand raised in the
application as petitioner No. 1 Rupinder Kaur has remarried in the meantime. While
awarding this amount of maintenance, Judicial Magistrate observed that even a
daily wager would be able to earn a sum of Rs. 3,000/- per month and having regard
to the fact that respondent is cultivating his own land, the above referred sum was
awarded as maintenance for the child.
2. The respondent impugned the said order by filing a revision before Addl. Sessions
Judge (Adhoc), Fast Track Court, Ludhiana, who has reduced this maintenance
amount to Rs. 500/- per month on the ground that the applicant had claimed the
maintenance at this rate in his application and as such Magistrate could not have
competently awarded maintenance at the rate of Rs. 1,200/- per month.
3. This order passed by Addl. Sessions Judge (Adhoc), Fast Track Court, Ludhiana is
impugned in the present petition filed under Section 482 Cr.P.C. Notice was issued in
this case and reply on behalf of the respondent has been filed.
4. The counsel for the petitioners, by referring to the case of Kamaldeep Kaur and
Anr. v. Balwinder Singh 2005(3) R.C.R 258 (P&H) has urged that court can
competently award maintenance more than the amount claimed by the applicant in
the maintenance application. In this case, this Court has observed that there is no
specific restriction under Section 125 Cr.P.C. that the Magistrate can not award more
than the amount claimed in the application and that section rather imposes duty to
award compensation, which the court would think just and reasonable.
5. As has been averred in the petition, the provisions of Section 125 Cr.P.C. were
amended w.e.f. 24.9.2001. Accordingly, the court is now competent to award
compensation more than Rs. 500/- as could be awarded before the amendment. In
Kamaldeep Kaur's case (supra), this Court noticed that this amendment was with
objects and reasons and that in view of the price rise and cost of living retaining a
maximum ceiling at Rs. 500/- is not justified. It was further noticed that this
amendment is a social piece of legislation and is brought in to achieve a social
object. It is accordingly required to be interpreted liberally. In this regard, reliance
has also been placed on the case of Ramfool Moolchand Mina v. Smt. Jagrati
Ramfool Mina 2001 (2) R.C.R 143 (MJP.).
6. There cannot be much dispute that provision, like Section 125 Cr.P.C. is a social
piece of legislation. The purpose of such like provision is to grant just maintenance.
In such like cases, it would not be fair to impose restriction in the grant of
maintenance, specially so when the said provision stands amended removing the
restriction, if any, as was the provision originally enacted. It is rather difficult for any
child or wife to maintain herself with dignity in the sum as was provided in section
as a maximum for the purpose of grant of maintenance.
7. The revisional court had reduced the sum granted by the trial Magistrate from Rs.
1,200/- to Rs. 500/- only on the ground that this was the sum claimed in the
application. This consideration would not be a valid reason to reduce the sum when
viewed in the background that this provision is a social piece of legislation and so
should not be bound in such like parameters. Precedent in this regard can be seen
in the case of Nagappa v. Gurudayal Singh MANU/SC/1107/2002 : AIR2003SC674 ,
wherein the Hon'ble Supreme Court held that there would not be any restriction on
the Tribunal or the court to award compensation exceeding the amount claimed
under the Motor Vehicles Act. In such like cases, the main function of the court or
the Tribunal is to award just and reasonable compensation on the basis of the
evidence produced. There is no valid justification on the part of the counsel for the
respondent to submit that such enhanced compensation would be awardable only
from the date of the amendment and not from any date prior thereto. The
Magistrate in this case has awarded maintenance from the date of application.
Since on the date of amendment the application filed by the petitioners was
pending, no reasons can be advanced to reduce the maintenance as awarded by
the Magistrate at least from the date of amendment. In the case of Kamaldeep Kaur
(supra) this court, relying upon the case of Ramfool Moolchand Mina (supra) has
held that the amendment would apply to all pending cases as well.
8. The counsel for the respondent, however, by relying upon Section 6 of the
General Clauses Act would say that the provision of the amended section would not
apply to the present case. In support of his submission, he has referred to the case
of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors. 4 2003
(2) R.C.R. 676 (S.C.). In my view, the ratio Lald down in this judgment would not
apply to the facts of the present case. What all was held in this case is that where a
provision of statute is unconditionally omitted without a saving clause in favour of
pending proceedings, all actions must stop where the omission finds them and if
final relief has not been granted before the omission and there is no scope of
granting it afterwards. It was further held that in case of replacement by new
provision without a saving clause, it can be reasonably inferred that the intention of
the legislature was mat pending proceedings shall continue but fresh provision for
the same purpose may be initiated under the new provision. It is to be noticed that
here is not a case of any omission of a provision from the statute. Here only some
words have been omitted from the provision which otherwise is retained. The
purpose is rather obvious and that is to remove restriction for awarding the
quantum of maintenance, which was earlier restricted to a sum not exceeding Rs.
500/-. The provision continues to exist on the statute. Section 6 of General Clauses
Act, while providing the effect of repeal says:
Where this Act or any Central Act or Regulation made after commencement of this
Act repeals any enactment hitherto made or hereafter to be made, then, unless, a
different intention appears, the repeal shall notxxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx
So where from the repeal a different intention is appearing then the effect of this
provision will not follow.
No intention is seen for which it can be said that omission was not to effect rights or
obligations.
In this background, Section 6 of the General Clauses Act cannot strictly apply to
have any effect on the omission in this case. This amendment is meant to achieve a
social purpose in view of rising cost of living index and hence required to be
interpreted liberally.
In addition to other factors, the courts were required to inform themselves that
application for maintenance in this case was made by a minor child. A father cannot
be allowed to shirk from the responsibility to maintain the child and to bring him up
in the best possible manner. He can be expected to voluntarily come forward to
maintain the child rather than taking him to the court by impugning the order
granting maintenance. The enhanced maintenance, as such, could not have been
denied to the child at least from the date of amendment.
The impugned order passed by Addl. Sessions Judge (Adhoc), Fast Track Court,
Ludhiana is set-aside. Child is to live with dignity in his formative years. Inflation has
made the sum of Rs. 1,200/- as awarded look rather meager for the needs of the
child. Having regard to the material on record, petitioner No. 2 Mandeep Singh,
minor son of respondent Avtar Singh, would be entitled to receive maintenance at
the rate of Rs. 1,500/- per month from the date of amendment as a sum of Rs.
1,200/- awarded in this case by the Magistrate is rather on the lower side. Of
course, the child would receive maintenance at the rate of Rs. 500/- from the date
of application to the date of amendment.
9. The present petition accordingly is allowed in the above mentioned terms and the
orders impugned shall stand modified in terms of the present order.
MANU/DE/8713/2006
Equivalent Citation: 132(2006)DLT300
RFA No. 475/2005
Appellants: Sh. Rajiv Kapoor
Vs.
Respondent: Smt. Seema Kapoor and Anr.
Hon'ble Judges:
Swatanter Kumar and S.L. Bhayana, JJ.
Counsels:
For Appellant/Petitioner/plaintiff: Sanjeev K. Tiwari, Adv
For Respondents/Defendant: N. Pandey, Adv.
Subject: Family
Catch Words
Mentioned IN
Acts/Rules/Orders:
Hindu Adoption and Maintenance Act, 1956 - Sections 3, 14(1), 18 and 20; Hindu
Adoption and Maintenance (Amendment) Act, 1959; Civil Procedure Code (CPC) Section 96; Criminal Procedure Code (CrPC) - Section 125; Indian Penal Code Sections 406 and 498A
Cases
Referred:
Dr.R.K.Sood v. Usha Rani Sood 1996 (3) Vol 114 486; Jasbir Kaur Sehgal v. District
Judge Dehradun (1997) 7 SCC 7; Radhika Narang and Ors. v. Karun Raj Narang and
Anr. CS(OS) No. 1225/2003;Kirtikant D.Vadodaria v. State of Gujarat (1996) 4 SCC
479; Mangat Mal (Dead) and Anr. v. Punni Devi (Smt) (Dead) and Ors. (1995) 6 SCC
88; Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors. (1997) 7 SCC 7
Citing Reference:
Dr.R.K.Sood v. Usha Rani Sood
Discussed
Jasbir Kaur Sehgal v. District Judge Dehradun
Discussed
Radhika
Narang and Ors. v. Karun Raj Narang and Anr. CS(OS) No.
Kirtikant D.Vadodaria v. State of Gujarat
Discussed
Mentioned
Mangat Mal (Dead) and Anr. v. Punni Devi (Smt) (Dead) and Ors.
Mentioned
Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors.
Mentioned
Case
Note:
Family - Maintenance - Section 96 of Code of Civil Procedure, 1908 (CPC)
and Section 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 This appeal has been filed under Section 96 of CPC by appellant-husband
against order whereby maintenance under Sections 18 and 20 of Act has
been awarded in favour of respondent-wife and their minor child - Held,
there is no cogent evidence on basis of which Court could conclude that
appellant was earning more than the amount as concluded by Trial Court No details of properties or source of income of appellant was stated Parties were married and they lived together as husband and wife for two
years - Respondent-wife would certainly know in that period exact source
of income of her husband but she failed to disclose exact source of income
of appellant - Version of appellant that he was earning certain amount is
also equally unbelievable where it cannot be said with some certainty that
income of husband was as alleged by wife - Appellant himself has
admitted in his affidavit that he was working with his father earlier at a
salary of sum per month which itself may not be true reflection of money
that he is receiving from concern of his father and it can reasonably be
expected that he was earning more than sum per month and he must pay
at least 60% of his income for welfare and upbringing of his minor child as
maintenance - Therefore, decree of Trial Court is modified to extent that
appellant shall be liable to pay maintenance to both at rate lower than the
rate as awarded by Trial Court - Hence, appeal partially allowed in above
terms
JUDGMENT
Swatanter Kumar, J.
1. Vide judgment and decree dated 20.5.05, the learned Additional District Jude,
Delhi partially allowed the petition filed by Smt.Seema Kapoor and the minor child
against her husband Sh.Rajeev Kapoor under Section 18 and 20 of the Hindu
Adoption and Maintenance Act, 1956 (hereinafter referred to as the 'Act') granting
Rs. 3,500/- per month each to both the petitioners as monthly maintenance. The
legality and correctness of this judgment is questioned by Sh Rajeev Kapoor in this
Regular First Appeal under Section 96 of the Code of Civil Procedure on the following
grounds ;
(a) The Court has awarded the above amounts to the respondents in this appeal
without assessing income of the appellant, on the basis of no cogent and proper
evidence.
(b) The Court has fallen in error of law in awarding a sum of Rs. 7,000/- per month
to the respondents. Awarding this maintenance is unreasonably excessive and is not
in consonance with the principles enunciated in various pronouncements of this
Court.
2. Respondent No. 1 was married to the appellant on 26.11.92 according to Hindu
rites and customs. Master Vaibhav was born from this wedlock on 20.11.93. It
appears that the matrimonial relations between the husband and the wife got
strained and according to the respondent No. 1, she was thrown out of the
matrimonial home and is presently residing with her parents. The appellant is stated
to have neglected to maintain the respondents and since 7.6.94, nothing was paid
to them towards maintenance. In regard to means of the appellant, it was the case
of the respondent that he was carrying on the business under the name and style of
M/s Kapoor Agencies from his residence and his employees or servants were
maintaining scooters and he has a income of Rs. 40,000/- per month. It was stated
that the appellant was maintaining a car. Master Vaibhav is stated to be studying in
a school and the respondents needs at least Rs. 5,000/- per month for taking an
accommodation on rent so that they can reside comfortably. On these scores, a sum
of Rs. 25,000/- per month was claimed as maintenance by the wife and son of the
appellant.
3. The factum of marriage was not disputed nor paternity of the child, however, it
was stated that the wife was guilty of desertion and neglect and had no reason to
claim any maintenance. A petition under Section 125 of the Criminal Procedure
Code was filed and in that petition, vide order dated 24.2.97 the husband was
directed to pay a sum of Rs. 1,000/- per month to the petitioners. In fact, the
grievance of the appellant was also that he was being deprived of the company and
affection of his son. Another stand taken by the appellant was that a false complaint
was lodged and case was registered under Section 498-A and 406 of the Indian
Penal Code against the appellant and his parents by the respondent No. 1. It was
specifically denied that the appellant was carrying on business under the above
named firm from his residence, in fact, it is stated that he was employed with M/s
Kapoor Agencies and was getting a salary of Rs. 6,000/- per month and in these
circumstances, he pray for the dismissal of the petition filed before the Trial Court
on the ground that sufficient maintenance had already been awarded in terms of
the provisions of Section 125Cr.P.C. The Court had framed the following issues:
1. Whether the petitioners are entitled to interest, if so, at what rate and for which
date
2. Relief.
4. From the evidence produced by the parties, which in any case was very limited,
the learned Trial Court recorded the following findings:
It may be pointed out that in opposition to the claim of the petitioner that the
monthly income of the respondent was Rs. 40,000/-, the respondent had taken up a
specific plea in the written statement that he was merely serving with M/s Kapoor
Agencies, a firm exclusively owned by his father at a monthly salary Rs. 6000/- per
month. Asked to produce documentary evidence in support of his above stand, the
respondent had failed to produce one. Perhaps led by the thought that it may be
taken as a circumstance against him, the respondent had tried his hands at creating
evidence of his employment with another firm or else might have taken up an
appointment to a lower position to wriggle out of the situation in which he finds
himself in. In his testimony on oath, he sprang a surprise and came up with the plea
that he had left his job with M/s Kapoor Agencies and had taken up a job with M/s
Adips Laboratories Ltd. At a much lower salary. The reason; he had developed
differences with his father who had rather disowned him. This reason/explanation
has been found to be false. The respondent has, himself admitted that his father is
supporting him and is appearing as a witness in his favor in the divorce petition filed
by him against petitioner No. 1 in the Matrimonial Court. It is, Therefore, clear that
the respondent has tried to conceal things and to suppress the truth. Conspicuously
enough, the respondent did not amend the written statement to incorporate the
fact that he had left the services with M/s Kapoor Agencies and had taken up a job
at a lower salary. There is no evidence worth the salt except for the bare statement
of the defendant about the said employment. Since he has not averred in the
written statement that he has taken up the job with M/s Adips Laboratories Ltd., he
cannot be allowed to lead evidence in the said regard. But assuming for the sake of
arguments that the respondent has actually taken up the job with M/s Adips
Laboratories, there is every possibility that the said job has been taken up only with
an intention to defeat payment of adequate maintenance to the petitioners. I am,
Therefore, in agreement with the Ld. Counsel for the petitioners, that the
respondent has concealed his real income. Keeping in view the observations of the
Hon'ble Supreme Court in the case of Jasbir Kaur Sehgal (Supra) and also keeping in
view the facts and circumstances of the case, the status of the parties, I assess the
income of the respondent at Rs. 15,000/- per month.
5. To prove that the appellant was earning a sum of Rs. 40,000/- per month
primarily lay on the respondents in the appeal. In fact, no documentary evidence
was placed on record by the appellant on the other hand, the appellant had
examined himself as well as Mr.Ravi Kumar Arora and had placed on record salary
slips Ex RW1/3 and letter of appointment Ex RW1/2 to state that the appellant was
employed with M/s Adips Laboratories as a Depot Manager w.e.f 1.8.2003 at a

salary of Rs. 4640/-. On the basis of the above findings, the learned Trial Court
declined to believe the version of the appellant and pointed out apparent suspicious
circumstances which justified the finding that the appellant had withheld the best
evidence in his power and possession. Though the primary onus was upon the
respondent and may be that she could not fully discharge her onus but the onus
was also placed upon the appellant to produce reasonable evidence and,
particularly, the evidence in his power and possession to bring before the Court true
and correct income which he was earning. In the written statement, the plea taken
was that he was working with his father at a salary of Rs. 6,000/- per month and
suddenly after the institution of the petition had got himself employed with M/s
Adips Laboratories at a lower salary. This contention of the appellant was unnatural
and to say the least was even unfair. The attempt was to withhold the best evidence
from the Court. Effort on the part of the appellant to produce income tax returns of
the deptt. where he was working and particularly the business of his father would
lead to draw an adverse inference against this appellant. At this stage reference can
be made to the judgment of the Punjab and Haryana High Court in the case of
Dr.R.K.Sood v. Usha Rani Sood 1996 114 486
Hindu Marriage is not yet looked at or recognised in our society and law, as a pure
and simple contract like other contracts. This bond is considered more as a
religious, moral and social bond of mutual duties and obligations giving marriage a
religious and meaningful basis keeping in view the rituals performed at the
marriage and consequent solemnization of marriage between the parties. Under the
Hindu Law father not only has a moral but even a statutory obligation to maintain
his infant children. The scope of his duty is to be regulated directly in relation to the
money, status, that the father enjoys. The right of maintenance of a child from his
father cannot be restricted to two meals a day but must be determined on the basis
of the benefit, status and money that the child would have enjoyed as if he was
living with the family, including his mother and father,. Irrespective of the
differences and grievances which each spouse may have against the other, the
endeavor of the Court has to be to provide the best to the child in the facts and
circumstances of each case and more so keeping the welfare of the child in mind for
all such determinations. Liability to maintain one's children is clear from the text of
this statute as well as the various decided cases in this regard. The statutory
obligation is paramount to the wish to the father and he cannot be permitted to
limit this claim of the child on filmsy and baseless grounds.
6. Further it is the duty of the appellant to look after the minor child besides his
wife. The learned Trial Court while relying upon the judgment of the Supreme Court
in the case of Jasbir Kaur Sehgal v.District Judge Dehradun MANU/SC/0835/1997 :
AIR1997SC3397 rightly pointed out that there was no straight jacket formula for
determining the amount of maintenance payable to the claimants. Each case would
have to be decided on its own facts keeping in view the status and capacity of the
parties. The Court was really not concerned with the allegations made against the
wife that the wife had deserted the husband and as such she was not entitled to
maintenance in any case would be of no consequence as far as the claim of the
child was concerned. The obligation of the husband to maintain his wife and
children arises not only in law even on social and moral grounds. Exceptions apart,
it is expected by the parties to the proceedings to place before the Court evidence
in their power and possession and, in fact, to put in all possible endeavor in
accordance with law to ensure that the controversies raised between the parties are
decided fully and finally. The obligation of the husband was well explained in the
judgment of this Court in the case of Radhika Narang and Ors. v. Karun Raj Narang
and Anr. in CS(OS) No. 1225/2003 decided on 16.2.06 as under:
Thus, it would be unnecessary for this Court to go into the details of this legal
aspect of the case. However, in order to put the matter beyond controversy,
usefully reference may be made to the judgment of the Supreme Court in the case
of Kirtikant D.Vadodaria v. State of Gujarat, MANU/SC/1159/1996 : (1996)4SCC479 ,
wherein the ambit and scope of maintenance payable to the wife under the
provisions of this Act was discussed. The relevant portion of the judgment reads as
under:
8.We have given serious thought and consideration to the submissions made above
by the learned Counsel for the appellant and notice that Dhayalal Hirachand, the
husband of Respondent 2 Smt. Manjulaben, has been found to be a person of
sufficient means and income. It is also true that there are 5 natural born sons of
Respondent 2 besides 2 daughters, who are all major. It is also a fact that Dalip one
of the sons had contested the Municipal Election and two other sons are carrying on
various businesses. According to the law of the Land with regard to maintenance,
there is an obligation of the husband to maintain his wife which does not arise by
reason of any contract - express or implied - but out of jural relationship of husband
and wife consequent to the performance of marriage. Such an obligation of the
husband to maintain his wife arises irrespective of the fact whether he has or has
no property, as it is considered an imperative duty and a solemn obligation of the
husband to maintain his wife. The husband cannot be heard saying that he is
unable to maintain due to financial constraints so long as he is capable of earning.
In the case of Mangat Mal (Dead) and Anr. v. Punni Devi (Smt) (Dead) and Ors.
MANU/SC/0040/1996 : AIR1996SC172 , the Supreme Court held as under :
19. Maintenance, as we see it, necessarily, must encompass a provision for
residence. Maintenance is given so that the lady can live in the manner, more or
less, to which she was accustomed. The concept of maintenance must, Therefore,
include provision for food and clothing and the like and take into account the basic
need of a roof over the head. Provision for residence may be made either by giving
a lump sum in money, or property in lieu thereof. It may also be made by providing,
for the course of the lady's life, a residence and money for other necessary
expenditure. Where provision is made in this manner, by giving a life interest in
property for the purposes of residence, that provision is made in lieu of a preexisting right to maintenance and the Hindu lady acquires far more than the vestige
of title which is deemed sufficient to attract Section14(1).
20 xx xx xx xx xx xx xx
21. The Hindu Adoption and Maintenance Act, 1959, was enacted to amend and
codify the law relating to adoptions and maintenance among Hindus, and it defines
maintenance in Section 3(d) to include (i) in all cases, provision for food, clothing,
residence, education and medical attendance and treatment.
(emphasis supplied)
In the case of Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors.
MANU/SC/0835/1997 : AIR1997SC3397 , while accepting the proposition that it may
not be possible to lay down a straight jacket formula to determine the quantum of
maintenance, which the Court would award to the wife and the children claiming
maintenance, it was specifically noticed that wherever there is an attempt on the
part of the husband to withhold his correct income and information in regard to his
property from the Court, the Court would draw adverse inference and fix
appropriate maintenance. The Supreme Court in that case held as under :
No set formula can be laid for fixing the amount of maintenance. It has, in the very
nature of things, to depend on the facts and circumstances of each case. Some
scope for leverage can, however, be always there. The court has to consider the
status of the parties, their respective needs, the capacity of the husband to pay
having regard to his reasonable expenses for his own maintenance and of those he
is obliged under the law and statutory but involuntary payments or deductions. The
amount of maintenance fixed for the wife should be such as she can live in
reasonable comfort considering her status and the mode of life she was used to
when she lived with her husband and also that she does not feel handicapped in the
prosecution of her case. At the same time, the amount so fixed cannot be excessive
or extortionate.
In this case attempt has been made by Respondent 3 husband to conceal his true
income which leads the Court to draw an adverse inference against him about his
income that it is much more than what is being disclosed to the Court. Having
regard to all the facts of the case it can be held that the annual income of the
respondent-husband is even on a modest estimate to be Rs. 2,40,000 which would
come to Rs. 20,000 per month. Considering the diverse claims made by the parties,
one inflating the income and the other suppressing, an element of conjecture and
guesswork does enter for arriving at the income of the husband. It cannot be done
by any mathematical precision.
The time has changed. The law has developed and to contend today that the relief
for grant of maintenance has to be based on bare need or to meet the ends of food,
would be a contention without substance and contrary to legislative intent.
Quantum of maintenance must essentially have a bearing and relation to the
income of the husband/father, facilities available to him, facilities or perks available
to him, standard of living and the social and financial status that he is enjoying. The
expression 'matrimonial home', by very nature of things, would include the facilities,
benefits and status involved to such a home. This concept cannot be dissected
under two different heads of matrimonial home and the standard of living in the
matrimonial home. They would always have to be determined and construed
together. The conduct of the husband has not been quite fair in these proceedings.
Firstly, he has failed to disclose the true and correct income and there is no whisper
in the pleadings of the fact that he has interest in different companies. These facts
were admitted by him only during his examination before the Court under Order 10
CPC.
plaintiff No. 1 and defendant No. 1 are obliged to provide good standard of living to
the children and at least at parity with the status they are enjoying and their
differences cannot be permitted to be the reason for disadvantageous living of the
children. It is not a commercial transaction but the obligation of the father to
maintain his children and for a husband to maintain his wife springs from law and
moral both. Non-applicant ought to have disclosed all correct facts without
reservations so as to make it convenient for the Court to determine the extent of
maintenance, which should be granted by the Court to the applicants. Truthfulness
of a party is not only a pre-requisite for claiming a relief in equity but is the very
essence of any legal proceedings. The conduct of the party in such proceedings is
another relevant factor which has to be taken into consideration by the court. The
defendant has withhold his true income and has not correctly stated the facts which
were within his personal knowledge. A clear attempt has been made not to disclose
varied interests of the husband in various companies. The immovable property
owned by the family where the husband and wife were living together and their
standard of living in that place are sufficient indication of the standard of living and
status which the parties enjoyed before departure of the wife from the matrimonial
home. In the circumstances appearing from the record, the court would have to
apply some guess work in even prima facie judging the income of the husband.
7. Once the version put forward by the husband suffers from patent infirmity and
the appellant is responsible for withholding the best evidence, the findings of the
Court below can hardly be faulted with. No doubt, there is no direct and cogent
evidence on the basis of which the Court could conclude that the appellant was
earning more than Rs. 15,000/- per month. Reliance by the learned Counsel
appearing for the appellant was placed upon the order dated 13.1.04 passed by the
Court in Civil Revision Petition No. 7710/03 wherein the Court had granted Rs.
5,000/- per month maintenance pendente lite in accordance with the orders passed
under Section 125 of the Criminal Procedure Code. DW-1 the wife made vague
statements in her affidavit which was tendered by way of evidence. No details of
the properties or source of income of the husband was stated. There is no dispute to
the fact that the parties were married on 26.11.92 and they lived together as
husband and wife till the year 1994. She would certainly know in that period the
exact source of income of her husband. of course, the version of the appellant that
he was earning Rs. 4060/- is also equally unbelievable where it cannot be said with
some certainty that the income of the husband was Rs. 40,000/- as alleged by the
wife. Some kind of guess work has to be applied by the Court in such cases where
one party has failed to discharge the onus placed upon it in proving the income
while the other party has withheld the best evidence which was in his power and
possession.. Thus, in the facts and circumstances of the case, the appellant himself
has admitted in his affidavit that he was working with his father earlier at a salary of
Rs. 6,000/- per month which itself may not be true reflection of the money that he is
receiving from the concern of his father and it can reasonably be expected that he
was earning more than Rs. 12,000 to 13,000/- per month and he must pay at least
60% of his income for the welfare and upbringing of his minor child as maintenance.
Thus, we modify the decree of the Trial Court to the extent that he shall be liable to
pay maintenance to both @ Rs. 3,000/- each totaling to Rs. 6,000/- per month. The
appeal is partially allowed in the above terms. The parties are left to bear their own
costs.
MANU/DE/0116/2009
Equivalent Citation: 159(2009)DLT158
FAO (OS) 139/2006
Appellants: Radhika Narang and Ors.
Vs.
Respondent: Karun Raj Narang and Anr.
Hon'ble
Mukul Mudgal and Manmohan, JJ.
Judges:
Counsels:
For Appellant/Petitioner/plaintiff: Y.P. Narula, Sr. Adv. and Sanjay Ghose, Adv
For Respondents/Defendant: K.T.S. Tulsi, Sr. Adv., Shailen Bhatia and Rohit K.
Aggarwal, Advs.
Subject: Family
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure (CPC) - Section 9 - Order 10; Hindu Adoption and
Maintenance Act, 1956 - Sections 3, 14(1), 18, 20, 23, 24 and 25; Hindu
Marriage Act, 1955 - Sections 24 and 25; Indian Divorce Act, 1869 - Section
36; Companies Act, 1956
Cases
Referred:
Padmja Sharma v. Ratan Lal Sharma AIR 2000 SC 1398; Rajesh Burmann v. Mitul
Chatterjee (Burman) bearing SLP (C) No. 14183/2007; Pradeep Kumar Kapoor v.
Ms. Shailja Kapoor AIR 1989 Delhi 10; Atul Sashikant Mude v. Niranjana Atul
Mude AIR 1998 Bombay 264; S.S.Bindra v. Tarvinder Kaur AIR 2004 Delhi
442; Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors. 1997 (7) SCC
7; Annurita Vohra v. Sandeep Vohra reported in 110 (2004) DLT 546; Neelam
Malhotra v. Rajinder Malhotra and Ors. AIR 1994 Delhi 234; Dev Dutt Singh v.
Smt. Rajni Gandhi 1984 Delhi 320; Dr. Kulbhushan Kunwar v. Raj Kumari AIR
1971 SC 234; Mt. Ekradeshwari v. Homeshwar AIR 1929 PC 128; Mangat Mal v.
Punni Devi (1995) 6 SCC 88; Maharani Kesarkunverba v. I.T. Commissioner AIR
1960 SC 1343; Jagdish Prasad Tulsan v. Smt. Manjula Tulsan AIR 1975 CAL
64; Komalam Amma v. Kumara Pillai Raghavan Pillai and Ors. SLP(C) No.
3670/2005
Citing
Reference:
Discussed
Mentioned
Case
Note:
Family Quantum of Maintenance Court below allowed application of
Appellant under Section 9 of Code of Civil Procedure read with Section 18
and 20 of Hindu Adoption and Maintenance Act, 1956 for maintenance
against Respondents/in-laws on ground she had been thrown away from
her matrimonial house Court below discarded status of wife which she
was having in her matrimonial house and granted maintenance
considering her and her children basic requirement Appeal was filed
disputing quantum of maintenance Held, Appellant before her
departure from her matrimonial home enjoyed life of luxury and had high
standard of living Appellant was enjoying position of Director in one of
family owned companies, and was being paid salary of Rs. 1,25,000/p.m. Payment from company owned by Respondent No. 1/Husbands
family, where Respondent No. 1 was only son and whose only sister was
married, was really day-to-day maintenance then provided to Appellant
wife, at company expense Without any professional skill, qualification
or expertise Appellant was being paid directors fees There could be no
other reason for this payment except for meeting day to day expenses of
Appellant Respondent No. 1 had withheld correct status of his income
and assets from Court Appellant wife cannot be put in position where
she and her children are suddenly deprived of lifestyle and comfort they
were used to merely because of separation from husband Purpose of
providing maintenance, is meant to secure to wife/spouse claiming
maintenance, as far as possible, status and facilities enjoyed by her prior
to her separation from her husband when her maintenance claim is
finally determined Award of only Rs. 40, 000/- per month by Court
below was wholly inadequate after taking into account social and
financial status of Respondent No. 1 and his family, because fact that he
was only son whose share in various family properties was not denied
Maintenance was enhanced to 1.25 lakh p.m. not 1.75 lakh p.m. as
claimed by wife, alongwith other facilities like car, petrol, driver and
house to be provided by Respondent no.1 Appeal partly allowed.
JUDGMENT
Mukul Mudgal, J.
1. This appeal by the wife and her two minor children who were the plaintiffs in a
maintenance claim by her against her husband, Respondent No. 1, has been filed
against the judgment dated 16th February, 2006 passed by the learned Single
Judge in suit No. 1225 of 2003 wherein the interlocutory application bearing No.
IA No. 6493/2003 seeking pendente lite maintenance was disposed of and this
appeal only questions the quantum of maintenance granted to her by the learned
Single Judge.
2. The brief facts of the case as per the Appellants are that: (a) The Appellant No.
1 is the wife and Appellants No. 2, 3 and 4 are the children of Respondent No. 1
and the members of the Hindu Joint Family whose Karta or Manager is the
Respondent No. 2. (b) As per the details given by the Appellant No. 1 of the
description of the matrimonial home of the Appellants, the Respondents have a
house at Dr. G.C. Narang Marg which is in 1.75 acres (Approx.) of land and the
remaining portion of the land is being used primarily for the business purposes by
the Narang Family. The huge house on Dr. G.C. Narang Marg has a swimming pool
(30x10 metres) and a Billiards room with the Billiards table being an antique
Lazarus piece. There is also a state of the art health club with a Jacuzzi, steam
and massage room and gymnasium with the latest work stations and other
equipment. The interiors of the house have unique collectible items each of which
is priceless. There are about 22 servants at every given time in the said house.
(c) However, on account of extreme cruelty at the hands of the Respondents, the
Appellants were thrown out from the matrimonial home at 3-5 Dr. G.C. Narang
Marg and were compelled to take shelter in the house of the mother of the
Appellant No. 1. (d) The Appellants thereafter filed a civil suit bearing CS(OS) No.
1225 of 2003 under Section 9 of the Code of Civil Procedure read with
Section 18 and 20 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter
refer to as the Act ) primarily for maintenance and separate residence.
3. The Appellants in suit No. 1225 of 2003 prayed for a decree of maintenance.
The Appellant No. 1 is the mother claiming maintenance of 3 minor children one
of whom has become major. Along with the suit, an application under
Section 23 of the Act was filed by the Appellants against the Respondents praying
for interim directions to the Respondents to pay interim maintenance @ Rs. 1.75
lakhs per month and also to make provisions for living of Appellants and other
amenities as per the status of the family they were used to prior to the institution
of the suit.
4. The learned Single Judge by way of the impugned judgment had categorically
recorded the following findings:
(a) The Appellant was neither employed nor had any sufficient means of income
from other sources which would suffice to maintain herself and her children.
(b) The conduct of the husband had not been quite fair in all these proceedings.
The Respondent No. 1 had withheld his income and had not stated correctly the
facts which were within his personal knowledge. A clear attempt had been made
not to disclose his varied interests in various companies.
(c) The Immovable property owned by the family where the husband and wife
were living together and their standard of living in that place was sufficient
indication of the standard of living and status which the parties enjoyed before
the departure of the wife from the matrimonial home.
(d) The wife who was being given Rs. 1,25,000/- p.m. as salary plus perks while
working as Director in one of the Company owned by the Respondents was
suddenly deprived of that benefit without any plausible reason. There appeared to
be a calculated attempt on the part of the husband to withhold correct
information from the court.
(e) The Appellant No. 1 was receiving remuneration of Rs. 1.25 lakhs in addition
to various perks, car, petrol, etc. prior to the matrimonial dispute, but after the
Appellant No. 1 had left the matrimonial home, she was unceremoniously
deprived of these benefits and services .
5. The learned Single Judge by his judgment dated 16th February, 2006 granted
the interim maintenance to the Appellant in the following terms:
(a) The defendant No. 1 shall pay to the plaintiff Nos. 1,3 and 4, a sum of Rs.
40,000/- per month. The amount shall be paid by 7th of each succeeding month.
Defendant No. 1 shall be liable to pay the said amount from the date of the
application i.e. 20th May, 2003. The arrears would be paid in six equal
installments. The first installment shall be paid by 7th March, 2006.
(b) The defendant No. 1 shall provide to the wife and children, a house minimum
of two bedroom-cum-drawing cum dinning with an extra room in any of the
colonies in South Delhi, the distance of which would not be more than 5 to 7 kms.
from the school of the children in Vasant Vihar where they are studying.
(c ) The defendant No. 1 shall reimburse all medical expenses of his wife and
children and any amount spent by the mother during her or her children sickness,
shall be paid to them within 15 days from the date such bills are given by plaintiff
No. 1 to defendant No. 1 or his counsel.
(d) The defendant No. 1 shall also provide a car to plaintiff No. 1 for the
convenience of the wife and the children particularly for going to school etc.
(e) Since it is conceded position that defendant No. 1 also gets petrol from the
company, he shall provide petrol expenses to the extent of Rs. 5,000/- per month
to the wife.
(f) During the course of hearing, the learned Counsel appearing for the parties
have agreed that the elder brother shall visit his younger brother and sister in the
flat where they are living on every Sunday at 11 a.m. and spend the day with
them at the house of the mother. The father would be at liberty to pick up the
children from the house of the mother on every alternative Saturday and the
grand children would be at liberty to go and meet their grandparents at the house
of the grandparents.
6. The Counsel for the Appellants contended that what is disputed in the present
appeal is only the quantum of maintenance claimed and not fully granted to the
Appellants. The senior counsel for the Appellant Sh. Y.P. Narula contended that
the interim maintenance as awarded by the learned Single Judge in the present
case of Rs. 40,000/- p.m. was wholly inadequate keeping in view the income of
the Respondent No. 1 and his assets and also the life style to which both the
parties had been used to during the period they were together. The interim
maintenance as provided by the learned Single Judge is much less than the status
and financial capacity of the Respondent No. 1. He further gave a descriptive
detail of the income and assets of the Respondent No. 1 and his family, as given
in the plaint wherein the lavish life style of Respondent No. 1 has been described
in detail. The Appellants have also given the details of the companies owned by
the Respondents.
7. It was submitted that the Respondent No. 1 has not provided for the proper
house and the appropriate car as was ordered to be given to the Appellants by
the learned Single Judge. The medical expenses, as per the actual cost incurred
by the Appellants had also not been paid. The Respondent No. 1 in mock
compliance of the Single Judge s order sent a Wagon R Car (Maruti) to the
Appellants without a driver which is not as per the status of the Appellant who
had a chauffeur driven Honda Accord before leaving the matrimonial home.
Similarly, the Respondent No. 1 had only offered to the Appellants, a one or two
bed room DDA Flat for providing residence to them, contrary to the direction of
the learned Single Judge, which is not as per the status and life style, to which
they had been used to and is also against the interim directions issued by the
learned Single Judge.
8. It was also stated that the Respondent No. 1 throughout the proceedings was
evasive about his income and it was only when he was examined under Order X of
the Code of Civil Procedure did the following factors emerge that:
(a) The company was making profit and he had interest in other company as well.
(b) He was getting a salary of Rs. 1,25,000/- p.m. with other perks from this
company.
(c) In 2002 and 2003 the turnover of the company was Rs. 60 to 70 crores
(approximately).
(d) He was Managing Director of the company and was living with his father when
his wife went away and even today he was living with his father.
(e) The property in
(approximately).
which they are
living measured merely 1.7
acres
9. It was also submitted that the very purpose of an interim maintenance was
defeated as for about 3 years save for two payments of Rs. 1 lakh and Rs.
40,000/- to be made to the Appellant as directed on 30.10.2003 and 10.12.2003
the Appellant was without sustenance. The delay was also largely due to the
following applications filed by the Respondent Husband, his father and mother:
(a) IA No. 8558/03 filed on 19.08.2003 by Respondent No. 1 for seeking further
time to file written statement.
(b) IA No. 8559/03 filed on 19.08.2003 by Respondent No. 2 to strike off
Respondent No. 2.
(c) IA No. 8560/03 filed on 15.09.2003 by Respondent No. 2 for rejection of plaint
qua Respondent No. 2.
(d) IA No. 9381/03 filed on 15.09.2003 by Respondent No. 2 s wife for deletion of
Madhav Narang.
(e) IA No. 11517/03 filed on 04.12.2003 by Respondent No. 2 to direct Appellant
to withdraw affidavit dated 16.09.2003.
(f) IA No. 11518/03 filed on 04.12.2003 by Respondent No. 2 for taking Written
Statement on record.
(g) IA No. 11516/03 filed on 06.12.2003 by Respondent No. 1 for taking counter
on record.
(h) IA No. 24/04 filed on 17.12.2003 by Respondent No. 2 for modification of
order dated 10.12.2003 to record alleged statement of Appellant s counsel that
he is not seeking interim relief against Respondent No. 2.
(i) IA No. 699/04 filed on 03.02.2004 by Respondent No. 1 for transfer of custody
case to High Court.

(j) IA No. 890/04 filed on 10.02.2004 by Respondent No. 2 for hearing IA 24/04
first.
(k) IA No. 1338/04 filed on 27.02.2004 by Respondent No. 1 for one month to
pay Rs. 50,000/(l) IA No. 4956/04 filed on 04.08.2004 by Respondent No. 2 s wife for
substitution of Appellant as guardian of Madhav Narang.
(m) IA No. 8039/04 filed on 25.09.2004 by Respondent No. 1 for striking out
pleadings relating to Respondent No. 2.
(n) IA No. 981/05 filed on 05.02.2005 by Respondent No. 2 for preparation of
decree in terms of order dated 16.11.2004
(o) IA No. 1308/06 filed on 03.02.2006 by Respondent No. 1/husband for
directions to subject the Appellant/wife to certain conditions such as:
(i) Withdrawal of case (ii) No liquor, night parties (iii) Appellant s sister and brother
in law cannot be permitted to visit (iv) Appellant must remain a house wife.
10. The learned Senior Counsel for the Respondent Shri K.T.S. Tulsi, on the other
hand submitted that though the Appellants had based their case on the existence
of joint family property in the hands of Respondent No. 2, yet all maintenance is
only to be paid by Respondent No. 1. If the allegations of the Appellants are
correct that there is joint family property, then maintenance is to be paid by
Respondent No. 2 and not Respondent No. 1. Relying upon the judgment of the
Hon ble Supreme Court in the case of Padmja Sharma v. Ratan Lal Sharma
MANU/SC/0207/2000 : [2000]2SCR621 , he further submitted that the landed
property is not to be considered for maintenance. He further submitted that the
Respondent No. 1 does not own the company M/s. Eastern Medikit Ltd. and profit
and loss of the said company is not of the Respondent No. 1. Though these
pleadings were raised in the appeal but they were not urged before us,
presumably in view of the order dated 16th November, 2004 passed by the
Learned Single Judge deleting Respondent No. 2, the father, as a party to the suit.
This order dated 16th November 2004 has been challenged by the Appellant in
the companion proceedings FAO(OS) No. 270/2004 which is being dealt with
separately, therefore, we do not deem it necessary in this appeal to go into the
merits of these pleadings and the status of the erstwhile Respondent No. 2 the
father of Respondent No. 1.
11. The Counsel for the Respondent No. 1 contended that in compliance of the
order passed by the learned Single Judge, the Respondent is making a total
payment of Rs. 72,180/- inclusive of Rs. 40,000/- as monthly amount of
maintenance. The Respondent No. 1 is presently having a salary of Rs. 1 lakh and
his personal expenses amounts to Rs. 33,950/-. He also makes some payment to
his elder son who is in college and living with his paternal grand-mother, and
therefore, any increase in the grant of maintenance would be harsh on the
Respondent No. 1. The Appellant has not taken the house on rent as provided by
the Respondent in spite of repeated requests.
12. The learned Single Judge, in our view, had rightly come to the conclusion that
interim maintenance is required to be paid by the Respondent No. 1 to the
Appellants. However, inspite of recording his finding that the Appellant was
neither employed nor had sufficient needs to maintain herself and her children
and was suddenly deprived of the benefit without any plausible reason, the
learned Single Judge ought not to have restricted her interim maintenance only to
Rs. 40,000/-. While affirming the other findings of the learned Single Judge, we
find ourselves unable to sustain the quantum and quality of maintenance granted
to the Appellant wife.
13. The term Maintenance as defined in the Advanced Law Lexicon, 3rd Edition
2005 as published by Wadhwa Nagpur includes in all cases, provision for food,
clothing, residence, education and medical attendance and treatment. As per
Bouvier Law Dictionary Maintenance is also the means of subsistence, supply of
necessaries and conveniences; aid, support, assistance; the support which one
person who is bound by law to do so, gives to another for his living. The Hon ble
Supreme Court in the case of Rajesh Burmann v. Mitul Chatterjee (Burman)
bearing SLP (C) No. 14183/2007 decided on 4th November, 2008 held as follows:
24. The term `maintenance' is defined in Black's Law Dictionary, (6th Edn.
pp.953-54) thus;
The furnishing by one person to another, for his or her support, of the means of
living, or food, clothing, shelter, etc., particularly where the legal relation of the
parties is such that one is bound to support the other, as between father and child
or husband and wife.
25. Likewise, the word `support' as defined in the said Dictionary (p. 1439) reads
as under;
That which furnishes a livelihood; a source or means of living; subsistence,
sustenance, maintenance, or living. In a broad sense the term includes all such
means of living as would enable one to live in the degree of comfort suitable and
becoming to his station of life. It is said to include anything requisite to housing,
feeding, clothing, health, proper recreation, vacation, traveling expense, or other
proper cognate purposes; also proper care, nursing and medical attendance in
sickness and suitable burial at death.
26. The Court below also considered some of the decisions cited before them. In
Pradeep
Kumar
Kapoor
v. Ms.
Shailja
Kapoor
MANU/DE/0234/1988 :
AIR1989Delhi10 , the High Court of Delhi interpreted `maintenance' and
`support' under Section 24 of the Hindu Marriage Act, 1955 and observed;
``Under Section 24 of the Act, the court has to see if the applicant who may
either be wife or husband has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, and then award expenses
of the proceeding and such sum every month, having regard to the applicant's
own income and the income of the Respondent which may seem to the court to
be reasonable. This section may be contrasted with Section 25 of the Act which
deals with permanent alimony and maintenance. Under Section 25, the court may
order the Respondent to pay to the applicant for her or his maintenance and
support, till her or his lifetime, either a lumpsum amount or such monthly or
periodical sum, having regard to the respondent's own income and other property,
if any, and the income and other property of the applicant, the conduct of the
parties and other circumstances of the case, which the court might deem just. It
may be noticed that heading of Section 24 of the Act is ``Maintenance pendente
lite and expenses of proceedings'`. The section, however, does not use the word
``maintenance'`, but, to me, it appears that the words ``support'` and
``maintenance'` are synonymous, ``Support'` means ``to provide money for a
person to live on'`, like ``he supports a family'` or ``he supports his old
mother.'` Maintenance is ``an act of maintaining'`, i.e. to support with money.
For example, ``he is too poor to maintain his family'`. It may be useful at this
stage to refer to the definition of ``maintenance'` as given in the Hindu
Adoptions and Maintenance Act, 1956 (for short 'the Act of 1956'). Under
Section 3 of that Act, ``maintenance'` includes-(i) in all cases, provision for food,
clothing, residence, education and medical attendance and treatment ; (ii) in the
case of an unmarried daughter also the reasonable expenses of and incident to
her marriage. I would, therefore, think that when we talk of maintenance and
support, the definition of ``maintenance'` as given in the Act of 1956 should be
adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and
gives the circumstances under which a Hindu wife is entitled to live separately
from her husband without forfeiting her claim to maintenance'`.
27. In Atul Sashikant Mude v. Niranjana Atul Mude MANU/MH/0340/1998 :
AIR1998Bom264 , the Court considered the provisions of the Hindu Adoptions and
Maintenance Act, 1956 and held that a Court is empowered to pass interim and
ad-interim orders of maintenance. It was held that the inclusive definition of the
`maintenance' under the Act would include food, clothing, residence, education,
medical attendance and treatment. Thus, as found above by the Hon ble Supreme
Court in the case of Rajesh Burmann (supra), that maintenance amounts provide
the daily necessities of life, we are of the view that the urgency in passing an
order of maintenance is self- evident. In the case of Atul Shashikant Mude
v. Niranjana Atul Mude MANU/MH/0340/1998 : AIR1998Bom264 it was held that
the maintenance under Section 18 of the Act is the support to life having
provision for food, clothing, residence, education, medical attendance and
treatment and shelter which when denied, are required immediately to be granted
and cannot await the duration of long trial. The urgency becomes more
pronounced when an order of interim maintenance is sought. The order of interim
maintenance brooks no delay as is evident from the following passage from the
judgment of the learned Single Judge of this Court, Justice Vikramajit Sen in
S.S.Bindra v. Tarvinder Kaur MANU/DE/0455/2004 : AIR2004Delhi442 . The
normal expectation is that an application would be decided within one month of
its being filed. This, however, is an impossibility keeping in perspective the
present strength of Judicial Officers. It would be unfair, therefore, to restrict a
prayer for maintenance in a mindless manner to what has been made not just
several months but years earlier Orders should be passed keeping the present in
perspective and with a view to bringing about justice between the parties. The
Court does not grant exactly what is prayed for, but usually much less. By that
very yardstick it is not precluded to grant more, if the circumstances call for it.
14. We fully agree with and reiterate the above view that in matrimonial disputes,
the interim maintenance and custody issues deserve the most expeditious
disposal. We are further of the view that maintenance and custody cases must
take precedence over matters of property or money claims. The learned Single
Judge in the above judgment had rightly recorded the expectation that period for
award of interim maintenance to be one month from the date of filing the
application. However, in view of the pressure of work on matrimonial courts due
to proliferation of matrimonial disputes and considerable shortage of judicial
manpower, a more realistic time frame has to be prescribed. In our view the
interim maintenance applications in matrimonial disputes ought to be disposed of
with dispatch and certainly should not take in any event more than 1 year at the
highest. The very purpose of interim maintenance is defeated if it takes about 3
years, as in the present case as an interim application for maintenance filed on
23rd May, 2003 came to be disposed of only on 16th February, 2006. We
therefore direct that all the Courts in Delhi, therefore, must keep the need for
urgent disposal of such applications in mind, and ensure the disposal of the
interim maintenance applications within one year from the date of filing of such
applications in matrimonial matters.
15. We, however, must also take into account the spate of interim applications
largely filed by the Respondent No. 1 husband, his father and mother and the
concealment of the Appellant s income and the disclosures eventually in the
proceedings under Order X of CPC.

16. For computing maintenance the following test have been laid down by the
Hon ble Supreme Court in Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors.
MANU/SC/0835/1997 : AIR1997SC3397 , wherein it has been observed that
No set formula can be laid for fixing the amount of maintenance. It has, in the
very nature of things, to depend on the facts and circumstances of each case.
Some scope for leverage can, however, be always there. The court has to consider
the status of the parties, their respective needs, the capacity of the husband to
pay having regard to his reasonable expenses for his own maintenance and of
those he is obliged under the law and statutory but involuntary payments or
deductions. The amount of maintenance fixed for the wife should be such as she
can live in reasonable comfort considering her status and the mode of life she was
used to when she lived with her husband and also that she does not feel
handicapped in the prosecution of her case. At the same time, the amount so
fixed cannot be excessive or extortionate.
A learned Single Judge of this Court, Justice Vikramajit Sen, in the case of
Annurita
Vohra
v. Sandeep
Vohra
reported
in
MANU/DE/0166/2004 :
110(2004)DLT546 , while applying the above judgment laid down the following
principles of law for ascertaining the quantum of maintenance: In other words the
court must first arrive at the net disposable income of the Husband or the
dominant earning spouse. If the other spouse is also working these earnings must
be kept in mind. This would constitute the Family Resource Cake which would
then be cut up and distributed amongst the members of the family. The
apportionment of the cake must be in consonance with the financial requirements
of the family members, which is exactly what happens when the spouses are one
homogeneous unit. Ms. Geeta Luthra, learned Counsel for the Respondenthad
fervently contended that normally 1/5th of the disposable income is allowed to
the Wife. She has not shown any authority or precedent for this proposition and
the only source or foundation for it may be traceable to Section 36 of the Indian
Divorce Act, 1869. This archaic statute mercifully does not apply to the parties
before the Court, and is a vestige of a bygone era where the wife/woman was
considered inferior to the husband as somewhat akin to his chattels. The law has
advanced appreciably, and for the better. In the face of Legislatures reluctant to
bring about any change over fifty years ago the Courts held that the deserted wife
was entitled to an equal division of matrimonial assets.
I would be extremely loath to restrict maintenance to 1/5th of the Husband's
income where this would be insufficient for the Wife to live in a manner
commensurative with her Husband's status or similar to the lifestyle enjoyed by
her before the marital severance. In my view, a satisfactory approach would be to
divide the Family Resource Cake in two portions to the Husband since he has to
incur extra expenses in the course of making his earning, and one share each to
other members. We are in respectful agreement with the felicitous reasoning of
the learned Single Judge and reiterate the same.
17. While dealing with the issue whether interim maintenance could be granted
under Section 18 of the Act, a learned Single Judge of this Court Justice D.K. Jain
(as he then was) in the case of Neelam Malhotra v. Rajinder Malhotra and Ors.
MANU/DE/0505/1993 : AIR1994Delhi234 observed as follows:
That being the position in law, when it is imperative for the husband to maintain
his wife, it does not stand to any reason that during the pendency of the suit for
grant of maintenance, which may take decades to attain finality, the wife in the
first instance be forced to face starvation and then subsequently is granted
maintenance from the date of the filing of the suit, if she is fortunate enough to
survive till then. I feel that such a view will be against the very intent and spirit of
Section 18 of the Act. On the question of interim maintenance and the assets of
joint family, the learned Single Judge held as follows:
(10) The next question which remains to be considered is as to what should be
the amount of interim maintenance particularly when, based on professional
accounts of defendant No. 1, it is strenuously urged on his behalf that he does not
have sufficient means to pay any amount to the plaintiff.
(11) There can be no precise or settled formulae to assess the quantum of interim
maintenance. Each case depends upon its own facts, in Dev Dutt Singh v. Smt.
Rajni Gandhi 1984 Delhi 320, Avadh Behari, J. (as he then was), while considering
the question of grant of maintenance pendente lite under Section 24 of the Hindu
Marriage Act, 1955 observed that the Section is not a code of rigid and inflexible
rules, arbitrarily ordained to be blindly obeyed; it does not enact any
mathematical formulae; it gives wide power, flexible and elastic to do justice in a
given case and leaves everything to the Judge's discretion. Both Section 18 of the
Act as also Sections 24 and 25 of the Hindu Marriage Act, deal with grant of
maintenance allowance and in the absence of any set procedure for determining
maintenance in proceedings under Section 18 of the Act, the aforesaid
observations in Dev Dutt Singh's case (supra), in my view, hold good.
(12) It is urged by Ms. Geeta Mittal, learned Counsel for the plaintiff that coupled
with the fact that defendant No. 1 is admittedly having a joint kitchen with other
members of the family, the statement of his account in the books of account of
the said firm leaves little room for doubt that the business of the said concern is
being carried on by the brother of defendant No. I for the benefit of the entire
family, including defendant No. I and, therefore, the income of the said firm
should be taken into account not only to determine the social status of defendant
No. 1 but also for fixing the quantum of interim maintenance.
We are in respectful agreement with the view taken by the learned Single Judge
which holds the importance of interim maintenance and the wide powers of the
matrimonial judge under Section 24 of the Act including the power to take into
account the income of the firm of the husband s family.
18. We find force in the contention of the learned Counsel for the Appellant. The
Hon ble Supreme Court in the case of Dr. Kulbhushan Kunwar v. Raj Kumari
MANU/SC/0349/1970 : [1971]2SCR672 approved the principle enunciated in Mt.
Ekradeshwari v. Homeshwar AIR 1929 PC 128 that Maintenance depends upon a
gathering together of all the facts of the situation, the income of the parties, a
survey the conditions and necessities, regard being had to the scale and mode of
living, and to the age, habits wants and class of life of the parties. The Hon ble
Supreme Court in the case of Mangat Mal v. Punni Devi MANU/SC/0040/1996 :
AIR1996SC172 held as follows Maintenance, necessarily must encompass a
provision for residence. Maintenance is given so that the lady can live in the
manner, more or less, to which she was accustomed. The concept of maintenance
must, therefore, include provision for food and clothing and the like and take into
account the basic need of a roof over the head. The Hon ble Supreme Court in the
case of Maharani Kesarkunverba v. I.T. Commissioner MANU/SC/0149/1960 :
[1960]39ITR283(SC) , held that Maintenance must vary according to the position
and status of a person. It does not only mean food and raiment.
19. The Appellant before her departure from her matrimonial home indisputably
enjoyed a life of luxury and had a high standard of living. The Appellant was
enjoying the position of the Director in one of the family owned companies, M/s.
Eastern Medikit Ltd. (for short EML ) and was being paid a salary of Rs.
1,25,000/-. The terms of the remuneration of the Appellant as a Director of EML
are as under:
I. SALARY Salary of Rs. 1, 25,000/- p.m.
II. PERQUISITIES In addition to the above, she shall be entitled to the following
perquisites.
a. Housing : House Rent Allowance @ Rs. 75,000/- (Rupees Seventy Five
Thousand Only) per month or in the alternative arrange residential
accommodation for her subject to the amount not exceeding 60% of the salary.
b. Medical Reimbursement : Expenses incurred for self and her family members to
a ceiling of one month s salary in a year or three months salary over a period of
three years.
c. Leave Travel Concession : For self and family members once in a year incurred
in accordance with the rules specified by the company. PART-C Car and
Telephone : Provision of car with driver and telephone at residence for official
business of the company.
III. Commission: Commission @ 2% of the net profits provided further that the
aggregate of remuneration payable to her shall not exceed 5% of the net profits
in a financial year. i. Resolved further that in the event of loss of inadequacy of
profits in any financial year the remuneration payable to the Mrs. Radhika Narang
as a whole time director (Marking Division) shall be regulated in accordance with
schedule II of part II of Schedule XIII of the Companies Act, 1956. ii. The Board
of Directors of the company be and is hereby authorized to vary and or modify
terms and conditions related to remuneration, perquisites and yearly increment to
be provided to Mrs. Radhika Narang as a whole time Director (Marketing Division)
of the Company, in accordance with the provisions of the Companies Act, 1956
including schedule XIII for the time being in force or as amended/modified from
time to time by the Central Government. The agreement may be terminated by
either side giving three months notice in advance.
20. We specifically asked the learned Senior Counsel for the Respondent/husband
Sh. K.T.S. Tulsi whether the Appellant had any professional/managerial/financial
expertise which led to her being appointed as a Director and he stated that the
Appellant did not possess any of such qualifications. This would prima facie show
beyond doubt, that the aforesaid payment from a company owned by the
Respondent No. 1 s family, where the Respondent No. 1 was the only son and
whose only sister was married, was really the day-to-day maintenance then
provided to the Appellant wife, at company expense. This is demonstrated
eloquently by the statement of the learned Senior Counsel for the Respondent
that Appellant No. 1 was possessed of no special skill or qualification. The control
of the respoondent s family over the said company Eastern Medikit Ltd. is evident
from the fact that his wife the Appellant, without any qualifications could be
appointed as a Director with such monthly remuneration of Rs. 1.25 lakhs and
handsome perquisites. Thus without any professional skill, qualification or
expertise the Appellant was being paid a director s fees. Thus, there could be no
other reason for this payment except for meeting the day to day expenses of the
Appellant.
21. Moreover, the most important aspect of this case is that the conduct of the
Respondents has been found by the learned Single Judge to be evasive in these
proceedings. The Respondent No. 1, his father and mother had filed numerous
applications in the various proceedings being IA Nos. 8558/03,8559/03, 8560/03,
9381/03,9753/03, 11517/03, 11518/03, 11516/03, 24/04, 699/04, 890/04,
1338/04,4956/04, 8039/04, 981/05, 1308/06 which led to the passage of about 3
years time before the interim maintenance came to be awarded to her.

22. It has also been found by the learned Single Judge that the Respondent No. 1
had withheld his income and had not stated correctly the facts which were within
his personal knowledge. A clear attempt had been made not to disclose his varied
interests in various companies. The Respondent No. 1 had withheld the correct
status of his income and assets from the court. These findings of the learned
Single Judge have not been challenged by the Respondent. Thus, the intention of
Respondent No. 1 can be clearly seen from the fact that he has shown his
monthly income to be Rs. 1 lakh only inspite of the fact that one of the companies
EML in which he is the Managing Director, had an approximate turnover of about
60 to 70 crores which has been substantially increasing annually. However, on the
other hand he has shown a decline in his salary which clearly demonstrates that
the intention of the Respondent No. 1 was to escape the liability thrust upon him
by way of grant of interim maintenance. The High Court of Calcutta in the case of
Jagdish Prasad Tulsan v. Smt. Manjula Tulsan MANU/WB/0010/1975 :
AIR1975Cal64 observed as follows:
Even if it is so, the Appellant did not disclose this property nor any papers or
documents in support of the statement now made before us. The Appellant has also
not produced the Income Tax return relating to his income from his properties and
assets at the material time. It is, however, contended that Income Tax papers are
no longer confidential documents and the Respondent could have caused those
papers to be produced from the authorities concerned. We think, in the facts and
circumstances revealed in this case, it is not for the Respondent but for the
Appellant to produce the relevant papers including the Income Tax assessment of
relevant periods to show his income. The Appellant has also failed to produce, a
noticed by the trial Court, his Bank accounts or books of accounts and other
material documents relating to all his properties and income thereof So, from the
conduct of the Appellant it would be perfectly legitimate to draw an adverse
inference against him for his failure to produce the above papers from his custody.
Thus, as observed above, we also reiterate the view that a party which tries to
conceal his income not only deserves to have an adverse inference drawn against
him, which the learned Single Judge did, but also at this interim stage must be
made to pay for it, which in our view the learned Single Judge did not adequately
do.
23. Apart from the reasons as stated above it is also to be seen that the Appellant
does not admittedly have any professional qualifications and is not employed
anywhere. The only source of her income from the time the suit and application
for maintenance was filed in the year 2002 is the fixed deposit in one of the Banks
which has also reduced drastically since then. The Respondent No. 1, on the
contrary, is the owner of innumerable assets and has been living his life in the
manner when the parties were together.
24. The Hon ble Supreme Court in the case of Komalam Amma v. Kumara Pillai
Raghavan Pillai and Ors. in SLP(C) No. 3670/2005 decided on 14th November,
2008 has laid down the following proposition of law with regard to maintenance:
9. Maintenance, as we see it, necessarily must encompass a provision for
residence. Maintenance is given so that the lady can live in the manner, more or
less, to which she was accustomed. The concept of maintenance must, therefore,
include provision for food and clothing and the like and take into account the basic
need of a roof over the head. Provision for residence may be made either by
giving a lump sum in money, or property in lieu thereof. It may also be made by
providing, for the course of the lady`s life, a residence and money for other
necessary expenditure. Where provision is made in this manner, by giving a life
interest in property for the purposes of residence, that provision is made in lieu of
a preexisting right to maintenance and the Hindu lady acquires far more than the
vestige of title which is deemed sufficient to attract Section 14 (1).

25. In accordance with the law laid down by the Hon ble Supreme Court in the
abovementioned case of Komalam Amma (supra) and also in accordance with the
law laid down by the Hon ble Supreme Court in the case of Mangat Mal (supra)
and Maharani Kesarkunverba (supra), we are also of the view that the Appellant
wife certainly cannot be put in a position where she and her children are suddenly
deprived of the lifestyle and comfort they were used to merely because of the
separation from the husband. The payment of maintenance to an estranged
spouse provides means for sustenance so as to ensure that so far as possible, the
same living standards, obtaining prior to the breakup of spouses, are retained.
Even the interim maintenance order, in the present case took about 3 years to be
pronounced, aided in no small measure by the repeated filing of various
applications by Respondent No. 1, his father and his mother. The wife claiming
interim maintenance can therefore not be put to a severely disadvantaged
position of a drastic reduction in the quality of her life on the premise that she
would
get
the
appropriate
maintenance
at
the
final
award
of
maintenance/alimony. The existence and survival of an estranged wife seeking
interim maintenance cannot be treated akin to a suit for rendition of accounts on
recovery of money, where at the final hearing of the suit accounts can be
adjusted and parties re-compensated by costs and interest. A human life is far
more precious than a ledger, particularly when lives of children living with the wife
are also involved. It would be no solace to the wife to be given adequate
maintenance three years later, as about six valuable years of her life and
formative years of her children would have passed then under a stage of
deprivation of the appropriate lifestyle. We have taken the time span of six years
after taking into account the period of 3 years occasioned by a spate of interim
applications mostly by the Respondent and his father which led to a three year
delay in the award of interim maintenance.
26. Thus, after considering the above position of law, it is evident that the
following principles emerge from the above judgments:
a. Maintenance depends upon the summation of all the facts of the situation as
laid down in Dr. Kulbhushan Kunwar v. Raj Kumari MANU/SC/0349/1970 :
[1971]2SCR672 .
b. For granting maintenance, the scale and mode of living, the age, habits, wants
and class of the life of the parties has to be regarded as laid down in Dr.
Kulbhushan Kunwar v. Raj Kumari (supra).
c. Maintenance being such that the wife could live in a reasonable comfort;
considering her status and mode of life which she was used to while living with
her husband as laid down in Jasbir Kaur Sehgal v. District Judge, Dehradun and
Ors. MANU/SC/0835/1997 : AIR1997SC3397 .
d. During the pendency of the suit for maintenance, which may take a
considerable time to attain finality, the wife cannot be forced to face starvation till
she is subsequently granted maintenance from the date of the filing of the suit as
laid
down
in
Neelam
Malhotra
v. Rajinder
Malhotra
and
Ors.
MANU/DE/0505/1993 : AIR1994Delhi234 .
e. Maintenance must necessarily encompass a provision for residence.
Maintnenace is given so that the lady can live in the manner, more or less, to
which she was accustomed. as laid down in Komalam Amma v. Kumara Pillai
Raghavan Pillai and Ors. SLP (C) No. 3670/2005 decided on 14th November,
2008.
f. Maintenance, necessarily must encompass a provision for residence.

Maintenance is given so that the lady can live in the manner, more or less, to
which she was accustomed. The concept of maintenance must, therefore, include
provision for food and clothing and the like and take into account the basic need
of a roof over the head. [as laid down in Mangat Mal v. Punni Devi
MANU/SC/0040/1996 : AIR1996SC172 .
g. Maintenance must vary according to the position and status of a person. It
does not only mean food and raiment. as laid down in Maharani Kesarkunverba
v. I.T. Commissioner MANU/SC/0149/1960 : [1960]39ITR283(SC)
27. The purpose of providing maintenance, in our view, is thus meant to secure to
a wife/spouse claiming maintenance, as far as possible, the status and facilities
enjoyed by her prior to her separation from her husband when her maintenance
claim is finally determined. The determination of maintenance not being governed
by any rigid or inflexible rule gives wide power and discretion to the Court to do
justice.
28. Thus, keeping in view the facts and circumstances of the case coupled with
the conduct of the Respondent No. 1, in concealing the true facts from the court,
we are of the view that award of only Rs. 40, 000/- per month by the learned
Single Judge was wholly inadequate after taking into account the social and
financial status of the Respondent No. 1 and his family, because the fact that he
was the only son whose share in the various family properties was not denied. A
query to the father of the Respondent No. 1 i.e. erstwhile Respondent No. 2 s
counsel in FAO(OS) No. 420/2007 failed to evoke a response as to the extent of
the share of the Appellant in the joint family property.
29. Thus, in light of the above principles of law and the factual matrix of this
appeal we hold that the Appellant would be entitled to the following interim
maintenance in addition/modification of the maintenance granted by the learned
Single Judge: a. In substitution of the sum of Rs. 40, 000/- per month awarded
by the learned Single Judge, to the Appellant in respect of a claim of Rs. 1.75
lakhs per month made by her, she would be entitled to interim maintenance at Rs.
1.25 lakhs per month from the date of the application and all arrears as per this
order are required to be paid on or before 31st March, 2009. b. We direct the
Respondent to provide for the use of the Appellant, a new car of Honda City make
and provide the same facilities of petrol and driver provided along with the car
which were provided by the company M/s Eastern Medikit Ltd. as a director to the
appellant. c. We also affirm and reiterate the directions of the learned Single
Judge that the Respondent is to provide to the Appellant a house minimum of two
bed rooms-cum-drawing cum dining with an extra room in any of the colonies in
South Delhi, the distance of which would not be more than 5 to 7 kms from the
school of the children. In our view, the offer of a DDA Flat by the Respondent to
the Appellant does not in any way comply with the directions of the learned Single
Judge. We, therefore, direct that the order of the learned Single Judge qua the
house, which we affirm, shall be complied within 60 days from the date of
pronouncement of this judgment. d. The rest of the directions of the learned
Single Judge such as the reimbursement of medical expenses etc. shall be
followed as provided for by the learned Single Judge.
30. There is no doubt that the courts have to be cautious and ascertain the true
facts and circumstances of a given case in granting maintenance in case of
matrimonial dispute. However, in cases where the income of the husband is
concealed and it is difficult to ascertain the correct current position, the court may
fix the amount of maintenance based on factors which were in existence before
the souring of the relation as we have done in the present case.
31. Consequently, the appeal is partly allowed in the above terms with costs of
Rs. 30, 000/- payable on or before 30th January, 2009.
Go to top
MANU/PH/0449/2005
Equivalent Citation: 2005CriLJ4164, 2005(3)RCR(Criminal)258
Cril. Misc. No. 10279-M of 2003
Appellants: Kamaldeep Kaur and Anr.
Vs.
Respondent: Balwinder Singh
Hon'ble
Satish Kumar Mittal, J.
Judges:
Subject: Criminal
Catch Words
Mentioned IN
Acts/Rules/Orders:
Motor Vehicles Act ;Code of Criminal Procedure, 1973 - Section 125, Code of
Criminal Procedure, 1973 - Section 482, Code of Criminal Procedure, 1973 Section 488, Code of Criminal Procedure, 1973 - Section 489, Code of Criminal
Procedure, 1973 - Section 490; Code of Criminal Procedure (CrPC) (Amendment)
Act, 2001 - Section 125
Cases
Referred:
Ramfool Moolchand Mina v. Smt. Jagrati Ramfool Mina, (2001) 2 Rec Cri R 143 :
2001 Cri LJ 920;Nagappa v. Gurudayal Singh, (2002) 10 JT (SC)
144
:MANU/SC/1107/2002;Bhagwan
Dutt
v.
Smt.
Kamla
Devi, MANU/SC/0205/1974 : 1975 Cri LJ 40;Captain Ramesh Chander Kaushal v.
Mrs. Veena Kaushal,MANU/SC/0067/1978 : 1979 Cri LJ 3
Citing
Discussed
Disposition:
Reference:
Petition allowed
Case
Note:
Family Quantum of Maintenance Applicability of Section 125 of Code
of Criminal Procedure, 1973 (Cr.PC) Respondent and petitioner no. 1
were husband and wife respectively - Petitioner No. 2 was their daughter
Petitioner no. 1 filed application for maintenance under Section 125 of
Cr. P.C. Application allowed Against said order, respondent as well as
petitioners filed separate revisions Revision filed by petitioners was
dismissed whereas revision filed by respondent was allowed wherein
amount of maintenance was reduced Amount of maintenance was
reduced on two grounds, firstly, that petitioners cannot be granted more
amount of maintenance what they had claimed in their claim application
and, secondly, that respondent is facing criminal trial launched at
instance of petitioner No. 1, therefore, payment of heavy amount of
maintenance will cause undue hardship to him Hence, present petition
by petitioners Whether Court can decline to grant maintenance more
than amount claimed in maintenance application? Held, petitioners had
not claimed said amount in their application Though words "just and
reasonable" have not been used in Section 125 of Cr. P.C., but aforesaid
words can be read in expression as Magistrate thinks fit Once discretion
has been given to Court to award an amount of maintenance, it will
always be just and reasonable, in facts and circumstances of case - There
is no specific restriction under Section 125 of Cr. P.C. that Magistrate
cannot award more than amount claimed in application Rather, duty
has been imposed on Magistrate to award compensation which he thinks
fit Therefore Magistrate is not debarred from awarding compensation
exceeding claimed amount Revisional Court can not decline to grant
maintenance more than amount claimed in maintenance application
Hence,
petition
allowed
Constitution Amendment Code of Criminal Procedure (Amendment)
Act, 2001 and Section 125 of Code of Criminal Procedure, 1973 Whether
amendment made in Section 125 of Cr. P.C., 1973 vide Gazette
Notification is applicable on pending proceedings? Held, before
amendment made in 2001, Magistrate could have awarded maximum Rs.
500/- to an applicant under Section 125 Cr. P.C. Vide Act, 2001, words
"not exceeding five hundred rupees in the whole" were omitted with
effect Aforesaid amendment was made with objects and reasons that in
view of price rise and cost of living, retention of a maximum ceiling is not
justified Therefore, it was decided to remove ceiling of maximum
amount This amendment is a social piece of legislation and has been
made to achieve a social object Therefore, it should be interpreted
liberally
ORDER
Satish Kumar Mittal, J.
1. Smt. Kamaldeep Kaur wife of Balwinder- Singh and her minor daughter have
filed this petition under Section 482 in Cr. P.C. for quashing of the order dated 61-2003 passed by the Additional Sessions Judge, Patiala vide which the amount of
maintenance awarded to them at the rate of Rs. 1500/- and Rs. 1000/-,
respectively, by the Judicial Magistrate 1st Class, Patiala under Section 125 Cr.
P.C. has been reduced to Rs. 500/- each.
2. In this case, the marriage of petitioner No. 1 was solemnised with the
respondent on 9-5-1977. From this wedlock, a female child (petitioner No. 2) was
born on 5-3-1998, who is now aged about 7 years. Petitioner No. 1 was a
housewife while the respondent was working as stenographer in the office of
Punjab State Electricity Board, Patiala. It is the case of the petitioners that after
the marriage, the respondent husband and his family members started harassing
petitioner No. 1 and gave beating to her on account of demand of dowry. In this
regard, a criminal case was also registered against the respondent. It was alleged
that after giving merciless beating to petitioner No. 1 she was thrown out of her
matrimonial home along with the minor child on 17-5-1999, and since then she is
living with her parents at their mercy. The petitioners were unable to maintain
themselves as they have no source of income and the respondent has refused to
maintain them. It was pleaded that the respondent is owning a residential house
at Patiala and is getting monthly salary of more than Rs. 6000/- per month.
3. The respondent husband contested the aforesaid petition on the ground that
petitioner No. 1 herself has deserted the respondent. She herself went to her
parents house along with the child. It was denied that the husband or his family
members ever gave any beating to petitioner No. 1. It was further averred that
petitioner No. 1 is doing tailoring work and earning Rs. 3000/-per month.
Therefore, it cannot be said that she is not able to maintain herself and her child.
4. The Judicial Magistrate 1st Class, Patiala, after considering the evidence led by
the parties allowed the application filed by the petitioners and awarded Rs. 500/per month to each of the petitioners from the date of filing of the petition till 249-2001 (the date when amendment under Section 125 Cr. P.C. was made and the
words Rs. 500/- were omitted) and Rs. 1500/- per month to petitioner No. 1 and
Rs. 1000/- per month to petitioner No. 2 from 24-9-2001 onwards. The aforesaid
amount of maintenance was fixed keeping in view the fact that petitioner No. 1
was having no source of income and was deserted by the respondent who was
drawing net monthly salary of Rs. 4930/- after deductions.
5. Against the aforesaid order passed by the Judicial Magistrate 1st Class, the
respondent as well as the petitioners filed separate revisions. The revision filed by
the petitioners was dismissed whereas the revision filed by the respondent was
allowed by the Additional Sessions Judge, and the amount of maintenance was
reduced to Rs. 500/- to each of the petitioners payable from the date of
application.
6. The amount of maintenance was reduced on the following two grounds.
7. Firstly, that the petitioners had claimed only Rs. 500/- each in their application,
therefore, they cannot be granted more amount of maintenance what they had
claimed in their claim application. It has also been observed that merely because
the provisions of Sections 125 Cr. P.C. have been amended during the pendency
of the petition. It is not the bounden duty of the Court to grant maintenance to
the wife beyond the earlier upper limit of Rs. 500/-. Secondly, that the respondent
is facing criminal trial launched at the instance of petitioner No. 1, therefore, the
payment of heavy amount of maintenance will cause undue hardship to him.
8. The aforesaid order has been challenged by the petitioners in this revision.
9. I have heard the arguments of the learned counsel for the petitioners and
perused the reply filed by the respondent.
10. Counsel for the petitioners submits that in this case both the Courts below
have found that the respondent husband has deserted petitioner No. 1. She is
living along with her minor child with her parents at their mercy. She has a
reasonable excuse for living separately and is unable to maintain herself and her
child. It is also held that the allegations of the husband that petitioner No. 1 was
earning Rs. 3000/- per month by doing tailoring work, were not established. It
has been found that the husband is owning a house at Patiala and is working as a
Stenographer in Punjab State Electricity Board and is drawing net carry home
monthly salary of Rs. 4930/-. He further contends that by now the salary of the
respondent might have been further increased as the aforesaid figure is based on
document Ex. R. 2 submitted by him in the year 2002.
11. Counsel for the petitioner further submitted that in her statement. Petitioner
No. 1 has categorically stated that she needs Rs. 3000/- per month for leading
the life in a dignified manner. He further submits that Section 125 Cr. P.C. is
intended to fulfil the social object and the Court is duty bound to award just
maintenance to the deserted wife. , He submits that the amount of maintenance
should be sufficient for a decent and dignified life of the wife and her child. He
also submits that the legislation, keeping in view the fact that Rs. 500/- was such
a meagre amount which would not be sufficient to maintain a person decently,
and also keeping in view the social necessity and the legal and moral obligation of
the husband or any other person, as mentioned in Section 125 Cr. P.C., in its
wisdom, omitted the maximum limit of Rs. 500/- .from the said Section, leaving it
open for the Courts to award just and reasonable maintenance to the applicant/s,
He submits that the benefit of the amended provisions will be applicable on all the
pending proceedings, and the learned Additional Sessions Judge has taken a
wrong view that such an amendment will not be applicable on the pending
proceedings. In this regard, counsel for the petitioners placed reliance upon a
decision of the Madhya Pradesh High Court in Ramfool Moolchand Mina v. Smt.
Jagrati Ramfool Mina, MANU/MP/0155/2001.
12. Counsel for the petitioners further submitted that when the Court is required
to award just maintenance or just compensation as in case of Motor Vehicles Act,
then the Court can award compensation exceeding the claim made in the
application. In this regard, counsel for the petitioners referred to the decision of
the Apex Court in Nagappa v. Gurudayal Singh, MANU/SC/1107/2002 :
AIR2003SC674 , wherein it was held that there is no restriction under the Motor
Vehicles Act that the Tribunal or Court cannot award compensation exceeding the
claimed amount. The functions of the Tribunal or Court is to award just
compensation which is reasonable on the basis of evidence produced on the
record.
13. Counsel for the petitioners submits that in this case the Additional Sessions
Judge has wrongly reduced the amount of compensation from Rs. 1500/- and Rs.
1000/- per month to Rs. 500/- per month, as the amount of Rs. 500/- per month
is not just and reasonable amount as from this amount both the petitioners
cannot sustain themselves and cannot have both time meals.
14. Though no one is present on behalf of the respondent yet in the reply filed by
the respondent by way of affidavit, it has been stated that the amended
provisions cannot be operated retrospectively until and unless it has been
specifically made retrospective by specific expression. It has been further stated
that the Additional Sessions Judge has rightly awarded maintenance to the
petitioners at the rate of Rs. 500/- per month to each as they had claimed the
said amount in their petition. It has also been stated that the Courts below have
wrongly ignored the evidence led by the respondent that petitioner No. 1 is
earning Rs. 3000/-per month from stitching and tailoring work. It has been
further stated that maintenance of Rs. 500/- per month awarded to each of the
petitioners is sufficient as both the petitioners are living in the house of parents of
petitioner No. 1 and they are not required to spend anything in the said house.
15. Two questions are arising for consideration in this petition : (i) whether the
amendment made in Section 125 Cr. P.C. vide Gazette Notification dated 24-9-
2001 is applicable on the pending proceedings; and (ii) whether the Court can
decline to grant maintenance more than the amount claimed in the maintenance
application ?
16. In Bhagwan Dutt v. Smt. Kamla Devi, MANU/SC/0205/1974 : 1975CriLJ40 ,
the Apex Court while interpreting the unamended Sections 488, 489 and 490 Cr.
P.C., has observed that the provisions are intended to fulfil a social purpose. Their
object is to compel a man to perform the moral obligation which he owes to
society in respect of his wife and children. By providing a simple, speedy but
limited relief. They seek to ensure that the neglected wife and children are not left
beggared and destituted on the scrap-heap of society and thereby driven to a life
of vagrancy, immorality and crime for their subsistence. With this object, the
jurisdiction was conferred on a Magistrate under Section 125 Cr. P.C. which
confers power upon the Magistrate to pass an order directing a person against
whom an application is made, to pay a reasonable sum by way of interim
maintenance.
17. Before the amendment made in 2001, the Magistrate could have awarded
maximum Rs. 500/- to an applicant under Section 125 Cr. P.C. Vide Code of
Criminal Procedure (Amendment) Act, 2001, the words "not exceeding five
hundred rupees in the whole" were omitted with effect from 24-9-2001. The
aforesaid amendment was made with objects and reasons that in view of the price
rise and cost of living, retention of a maximum ceiling is not justified. Therefore, it
was decided to remove the ceiling of the maximum amount. This amendment is a
social piece of legislation and has been made to achieve a social object.
Therefore, it should be interpreted liberally.
18.
In
Captain
Ramesh
Chander
Kaushal
v. Mrs.
Veena
Kaushal,
MANU/SC/0067/1978 : 1979CriLJ3 , a question arose whether the Magistrate can
award monthly maintenance for wife, child, mother and father together and the
ceiling of monthly allowance not exceeding Rs. 500/- "in the whole" mean that the
total award cannot exceed Rs. 500/-. Answering the question, the Hon'ble Apex
Court has held as under (Para 9) :"This provision is a measure of social justice and specially enacted to protect
women
and
children
and
falls
within
the
constitutional
sweep
of
Article 15(3) reinforced by Article 39. We have no doubt that Sections of statutes
calling for construction by Courts are not petrified print but vibrant words with
social functions to fulfil. The brooding presence of the constitutional sympathy for
the weaker sections like women and children must inform interpretation if it has to
have social relevance. So viewed, it is possible to be selective in picking out that
interpretation out of two alteratives which advances the cause - the cause of the
deralicts."
19. In Ramfool Moolchand Mina's case MANU/MP/0155/2001 (supra), a similar
question came up for consideration before the Madhya Pradesh High Court as by a
local amendment, the State of Madhya Pradesh had amended Section 125 Cr. P.C.
and enhanced the amount of Rs. 500/- to Rs. 3000/-. The question arose before
the Madhya Pradesh High Court whether the aforesaid amendment would be
prospective or retrospective in the sense that it will be applicable on the pending
proceedings. It was held that since the aforesaid amendment is a social piece of
legislation, therefore, the same will be applicable to all the pending proceedings
decided after the said date. It was further held therein as under ( Cri LJ 923) :"...in the light of the Statement of Objects and Reasons the aforesaid amendment
should be applicable on the pending proceedings and in the cases where the orders
are passed after 30th May, 1998 the Magistrate has powers to enhance the amount
of maintenance from Rs. 500/- up to Rs. 3.000/-. The language used in the
Statement of Objects and Reasons clearly intends that this amendment is

applicable on the pending proceedings. The reason, since the existing amount of
maintenance allowance has become insufficient in the present day circumstances,
and the amendment further says that in view of the above it has been decided to
amend Section 125 of the Code of Criminal Procedure, 1973. Therefore, from the
plain reading of Statement of Objects and Reasons it is clear that the intention of
the legislature is to consider the present day circumstances in which the amount of
maintenance allowance of Rs. 500/- has become insufficient and to provide benefit
to the destitutes and when the legislature wants to take into consideration the
present day circumstances, it would clearly mean that the amendment shall be
applicable though .prospectively with effect from 30th May, 1998 when it was first
published in the Madhya Pradesh Gazette (extraordinary) but would amount to be
applicable on the present day pending proceedings. The intention of the Madhya
Pradesh Legislature is very clear to provide benefit to the members of the weaker
section of the society like wife, children or the old parents who are not having any
source of income and are unable to maintain themselves. Having regard to this
social object the amended provisions have to be given a liberal construction to fulfil
and achieve this intention of the Legislature because dominant purpose behind the
benevolent provisions, is that the wife, child and parents should not be left in
helpless state of distress, destitution and starvation. Therefore, looking to the
intention spelled out by the Statement of Objects and Reasons, this Court is of the
view that the amendment is applicable to the pending proceedings and the
Magistrates have power to enhance the amount of maintenance in the cases in
which the orders are passed after 30th May, 1998."
20. In view of the aforesaid proposition, I am of the opinion that the amendment
made in Section 125 Cr. P.C. is a social piece of legislation and it is applicable on
all the pending cases and the Court is competent to award the maintenance of
more than Rs. 500/- even on those applications which were filed prior to the said
amendment.
21. Now the question which requires determination is whether the Magistrate is
competent to award the maintenance more than the amount claimed by the
applicant in his maintenance application. Section 125 Cr. P.C. provides that a
Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay
the same to such person as the Magistrate may from time to time direct
(emphasis supplied). Under this provision, it is the duty of the Magistrate to
provide just maintenance to the deserted wife or destitute child. The amount of
maintenance should be such that a wife is able to maintain herself decently and
with dignity. If after considering the material placed before the Magistrate, the
Magistrate thinks that a particular amount is a reasonable amount, he is required
to award the said amount as maintenance, and in my opinion, he cannot refuse to
grant the said amount merely because the claimant has not claimed such an
amount in her application. Once the legislation has cast duty on the Court to
award just and reasonable amount of maintenance in the facts and circumstances
of a case, the same cannot be denied on mere technicalities i.e. the claimants had
not claimed the said amount in their application. Though the words "just and
reasonable" have not been used in Section 125 Cr. P.C., but in my opinion, the
aforesaid words can be read in the expression as the Magistrate thinks fit". Once
discretion has been given to the Court to award an amount of maintenance, it will
always be just and reasonable, in the facts and circumstances of a case. There is
no specific restriction under Section 125 Cr. P.C. that the Magistrate cannot award
more than the amount claimed in the petition. Rather, duty has been imposed on
the Magistrate to award compensation which he thinks fit. In such situation, the
Court is not debarred from Awarding compensation exceeding the claimed
amount.
22. Thus, in my opinion, the reasoning given by the learned Additional Sessions
Judge that the trial Court has committed illegality while awarding maintenance
beyond the amount claimed by the petitioners after the amendment is wholly
wrong and unjustified. In the facts and circumstances of the case, the trial Court
was fully justified in awarding Rs. 1500/- and Rs. 1000/ - per month to each of
the petitioners keeping in view the income of the respondent and the present
rising prices. In my opinion, the aforesaid amount will not be excessive at all for
survival of a person in the survival of fittest society' and to live in a dignified
manner, particularly keeping in view the income of the respondent which might
have been increased by now.
In view of the aforesaid, this petition is allowed and the impugned order dated -12003 passed by the Additional Sessions Judge, Patiala is set aside and the order
dated 24-5-2002 passed by the Judicial Magistrate 1st Class, Patiala is restored.
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MANU/PH/1858/2011

Equivalent Citation: 2011(2)RCR(Criminal)389

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Courts below for granting maintenance to respondents No. 2 and 3. He on this

Ashish Aggarwal v. BSES Rajdhani Power Ltd.

Harish Cander and Anr. v. Santosh Kumari and Ors.

Jasbir Kaur Sehgal v. District

Annurita Vohra v. Sandeep Vohra MANU/DE/0166/2004

as MANU/SC/2341/2000 : (2001) 10 SCC 419, that such a power is discretionary in

Blocks of time period

19. The aforesaid revised amount as calculated would be payable by the

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Judge, Dehradun and Ors. MANU/SC/0835/1997

Bharat Hegde v. Saroj Hegde MANU/DE/1518/2007

person to tune of ` 14.00 lakhs and ` 2.00 lakhs, respectively, without

(vii) Credit cards;

Spouse(s Dependen Dependen Dependen

(iv) Other financial LIC

(vi) Jewellery (give Gold

(vii) Other Assets

Spouse( Dependen Dependen Dependen

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Nagappa v. Gurudayal Singh MANU/SC/1107/2002

Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj

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Dr.R.K.Sood v. Usha Rani Sood

Jasbir Kaur Sehgal v. District Judge Dehradun

Jasbir Kaur Sehgal (Smt) v. District Judge, Dehradun and Ors.

employed with M/s Adips Laboratories as a Depot Manager w.e.f 1.8.2003 at a

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which they are

living measured merely 1.7

case to High Court.

proceedings under Order X of CPC.

years time before the interim maintenance came to be awarded to her.

vestige of title which is deemed sufficient to attract Section 14 (1).

f. Maintenance, necessarily must encompass a provision for residence.

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Statement of Objects and Reasons clearly intends that this amendment is

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