Settled law is clear that the Court may not award maintenance if there is no reason for the wife to stay separate from the husband and one of such reason would be a decree of restitution of conjugal rights in favour of the husband. Surprisingly, learned Judge of the Family Court has failed to consider the position that in the present case, the decree for restitution of conjugal rights is in favour of the wife in suit filed by her and against that the petition for divorce filed by the respondent-husband is pending till date which was filed well before filing of the Criminal Misc. Application No.924 of 2008, since it was filed on 16.12.2007 being HMP No.1418 of 2007. Copy of such petition is produced on record before the trial court at Exh. 68. Such position is confirmed from the cross-examination of the respondent-husband himself. Copy of deposition of the respondent is produced on record and on going through such deposition, it becomes crystal clear that petitioner had categorically stated in cross-examination that 'yes' he has filed a divorce petition on 16.12.2007, which is proved on record at Exh.68 and there is clear admission that it is true that he has not withdrawn such divorce petition on the ground that he would like to restitute the conjugal rights with the petitioner. However, surprisingly even after such categorical statement on 9/10.11.2008 during the cross-examination before the trial court in proceeding for maintenance, the trial court has relied upon the decree dated 20.07.2011 in favour of the petitioner for refusing to award maintenance to the petitioner from such date i.e. 20.07.2011. Above referred admission by the respondent categorically proves that though there is a decree dated 20.07.2011 in favour of the petitioner whereby respondent-husband has to execute such decree by taking step to perform restitution of conjugal rights, till 9-10.11.2011 i.e. for more than two months he had neither withdrawn the petition for divorce nor had taken any steps to execute the decree of restitution which is practically against him. Hence, the trial court has erred in refusing the maintenance to the petitioner after 20.07.2011 and to that extent the impugned order needs to be modified.1
1. Heard Mr.Anil H. Soni, learned advocate for the applicant, Mr.Nehul L. Dave, learned advocate for the respondent no.1 and Ms.Jirga D. Jhaveri, learned Assistant Public Prosecutor for the respondent no.2-State.
2. This
Revision Application is preferred by the petitioner-wife challenging the judgment and order dated 26.12.2011 passed by learned Principal Judge, Family Court, Ahmedabad in Misc. Criminal Application No.924 of 2008 wherein though amount of maintenance has been awarded in favour of the present petitioner and her minor daughter, namely, Devanshi, so far as, amount of maintenance of the petitioner is concerned, it is awarded for a limited period from 17.04.2008 i.e. the date of application, till 20.07.2011 which is the date of the judgment in favour of the present petitioner-wife against the respondent-husband under Section 9 of the Hindu Marriage Act by the same Family Court in Family Suit No.612 of 2008. The petitioner by filing the present revision application challenge such part of the order submitting that she is entitled for maintenance even after 20.07.2011 and also for enhancement of amount of maintenance from Rs.5000/- to Rs.30,000/- for herself and from Rs.4000/- to Rs.15,000/- for minor daughter, namely, Devanshi from the date of filing of the Misc. Criminal Application No.924 of 2008.
3. It
is submitted by learned advocate for the petitioner that since the suit for restitution of conjugal rights was filed by her and since the order is against the respondent-husband and since the respondent-husband has never bother to restitute a right even after such decree by the competent Family Court, it cannot be said that petitioner is at fault and that on such facts, it cannot be determined, as done by the Family Court in the impugned order, that petitioner is not entitled for maintenance once there is a decree for restitution of conjugal rights. It is further submitted that a litigant cannot take disadvantage of his own wrong and that in the present case practically the benefit is extended to the respondent-husband though the decree is in favour of the wife. It is further submitted that practically after such decree, it has been proved that there is no fault of the wife in staying separate from the husband and claiming maintenance since she is ready and willing to stay with her husband. Therefore, in absence of cogent evidence and steps being taken by the husband for restitution of conjugal rights, that is either by some evidence in form of invitation or in form of attempt to stay together by involving relatives or social workers, it cannot be said that respondent-husband is ready and willing to keep the petitioner-wife and, therefore, it cannot be determined that the wife is not entitled to claim maintenance. It is further submitted that practically husband never wants to keep the petitioner-wife with him, inasmuch as, he has preferred a divorce petition being HMP No.1418 of 2007 on 16.12.2007 and he has yet not withdrawn such petition though there is a decree of restitution of conjugal rights in favour of the wife. Therefore, there is a reason to believe that respondent-husband is not interested to keep the wife with him and hence the order of the Family Court restraining the maintenance till the date of such decree i.e. 20.07.2011 is not proper in any way. It is also submitted that parties had tried their level best to settle the dispute amicably even through mediator where dispute has been referred by this High Court but disputes could not be settled because husband is practically keeping relation with some other lady and both the sides have filed separate complaint and criminal cases against each other. The respondent-husband has filed a complaint under Section 500, IPC against wife and under Section 506 IPC against her near relatives whereas petitioner-wife has filed complaint under Domestic Violence Act, 2005.
4. Except
liability for the payment of maintenance and its quantum, respondent has no other defence. So far as, liability for maintenance is concerned, again respondent has no defence against the order for maintenance in favour of minor daughter whereas so far as, payment of maintenance to the wife is concerned, it is submitted by learned advocate for the respondent-husband that once there is a decree for restitution of conjugal rights, there cannot be any responsibility and liability of maintenance by the husband.
5. So
far as quantum of maintenance is concerned, it is the case of the petitioner-wife that husband is having handsome income whereas the husband is tried to conceal his real income and submitted that he does not have sufficient income to pay maintenance as claimed for. On perusal of available record and on consideration of submissions made by both the sides, it becomes clear that in such summary proceedings, more particularly, in revisional jurisdiction, the only issues require scrutiny and determination by this Court are limited as discussed hereinabove which is to the effect that:
(a) Whether
petitioner-wife is entitled for maintenance even after the decree of divorce i.e. 20.07.2011.
(b) What
should be the appropriate amount of maintenance that can be awarded in favour of the petitioner-wife and her minor daughter.
6. If
we consider the legal position, the settled law is clear that the Court may not award maintenance if there is no reason for the wife to stay separate from the husband and one of such reason would be a decree of restitution of conjugal rights in favour of the husband. Surprisingly, learned Judge of the Family Court has failed to consider the position that in the present case, the decree for restitution of conjugal rights is in favour of the wife in suit filed by her and against that the petition for divorce filed by the respondent-husband is pending till date which was filed well before filing of the Criminal Misc. Application No.924 of 2008, since it was filed on 16.12.2007 being HMP No.1418 of 2007. Copy of such petition is produced on record before the trial court at Exh. 68. Such position is confirmed from the cross-examination of the respondent-husband himself. Copy of deposition of the respondent is produced on record and on going through such deposition, it becomes crystal clear that petitioner had categorically stated in cross-examination that 'yes' he has filed a divorce petition on 16.12.2007, which is proved on record at Exh.68 and there is clear admission that it is true that he has not withdrawn such divorce petition on the ground that he would like to restitute the conjugal rights with the petitioner. However, surprisingly even after such categorical statement on 9/10.11.2008 during the cross-examination before the trial court in proceeding for maintenance, the trial court has relied upon the decree dated 20.07.2011 in favour of the petitioner for refusing to award maintenance to the petitioner from such date i.e. 20.07.2011. Above referred admission by the respondent categorically proves that though there is a decree dated 20.07.2011 in favour of the petitioner whereby respondent-husband has to execute such decree by taking step to perform restitution of conjugal rights, till 9-10.11.2011 i.e. for more than two months he had neither withdrawn the petition for divorce nor had taken any steps to execute the decree of restitution which is practically against him. Hence, the trial court has erred in refusing the maintenance to the petitioner after 20.07.2011 and to that extent the impugned order needs to be modified.
7. Whereas
so far as amount of maintenance is concerned, the fact remains that though primary burden is upon the petitioner-wife to prove the income of the husband so as to get the maximum amount as maintenance, practically in most of the cases such evidence would never be readily available to the wife who are generally deserted and practically leaving away from such evidence. Therefore, generally it would be for the respondent-husband to prove their real income on record so as to restrain the trial courts from taking any adverse inference or presuming some income while determining the amount of maintenance. Unfortunately, as usual here in this case also the respondent-husband has failed to brought relevant evidence on record so as to show a clear picture about his real earnings. It cannot be ignore that though the Court has to rely upon the actual evidence, it can consider the earning capacity of the person when he came forward with a story that he does not have sufficient income.
8. If
I perused the deposition of the respondent-husband at Exh.57, surprisingly, respondent-husband in his examination-in-chief stated on oath in para 14 that the contents of para 14 of the petition of the wife are not correct but it is correct that she has filed complaint before the Woman's Police Station. It is further stated that he has filed a Hindu Marriage Petition No.1418 of 2007 dated 26.12.2007 for divorce because respondent wife is not ready and willing to stay with him and not allowing their daughter to stay with him. It is further stated that though he was paying the school fee for his daughter, petitioner-wife is claiming Rs.20,000/- pressuring him to withdraw the case for divorce and, therefore, she had filed false complaint to harass him. Therefore, so far as, entitlement of the petitioner-wife to get maintenance is concerned, there is admission by the husband himself that he does not want to continue relation of marriage and filed a petition for divorce. In cross-examination, which is disclosed hereinabove, he has admitted that even after decree of conjugal rights in favour of wife, he has not withdrawn petition for divorce. Therefore, there is no reason to determine that the petitioner-wife is not entitled for maintenance after such decree of restitution of conjugal rights i.e. 20.07.2011.
9. So
far as, income of the respondent-husband is concerned, the fact remains, as admitted by the respondent himself in his examination-in-chief in HMP No.1418 of 2007 filed by wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The trial court has passed an order to pay maintenance of Rs.8000/- per month under Section 24 of the Hindu Marriage Act and such order was confirmed by the High Court of Gujarat in Special Civil Application preferred by the husband. This is the reason for the wife to file such revision application when though the order of Rs.8000/- as interim maintenance in HMP has been confirmed by the High Court, the trial court in the present case has reduced it to Rs.7000/-. Whereas to prove his income, the respondent has deposed on oath that he is serving as doctor on contract basis in Government Hospital and getting Rs.12,000/- per month and since he has to pay premium of LIC policies in the name of petitioner and his minor child, he is not in a position to pay the maintenance as claimed for.
10. So
far as, divorce petition is concerned, again it is specifically stated by the respondent-husband that he wants to withdraw the divorce petition because there was interim order to pay Rs.8000/- per month but thereby it is clear that he does not want to withdraw the petition for divorce and thereby his intention not to keep the petitioner as wife cannot be questioned. So far as his liability to pay the maintenance is concerned, it is his say that he has to pay Rs.8000/- per month to the wife and daughter and he has to pay different premium of policies and, therefore, it is not possible for him to make the payment as per such award. It is also stated that his service is temporary and on contract basis on fixed salary and, therefore, it is difficult to him to cop up with such demand of maintenance. However, though he stated in his examination-in-chief that his salary is Rs.12,000/- only, he has to admit that even in the month of July, 2010 he was getting Rs.29,157/- as a salary since such amount was credited in his bank account and that his total balance in his account book as per the entry in the account book, which is proved on record by bank statement at Exh.30, shows total credited amount was Rs.45,580,28.72 and total withdrawal was Rs.45,524,58.81. Thereby it becomes clear that during such 93 months there was transactions of money to the tune of Rs.49,000/- per month. Even if we do not enter into other details like what the respondent husband has received from his father either through Will or as a part of maintenance, considering the fact that his mother was also getting maintenance from his father, the fact remains that there was transaction both debited and credited are more than Rs.4,50,000/- in the bank account of the petitioner within 93 months and that he was having several fixed deposits and Bank lockers, it cannot be said that respondent-husband is not able to maintain the petitioner-wife or not able to make the payment as claimed for by the petitioner-wife. The record also shows that petitioner has proved at Exh.25 in HMP No.1418 of 2007 the detail of investment made by the respondent which confirms that respondent has invested at least Rs.10 lac in Equity-Shares, Mutual Funds, Bond etc. and he is holding LIC policies of approximately Rs.5 lac. Therefore, it cannot be believed that respondent-husband is not having sufficient income to pay maintenance to the wife and minor daughter. The fact remains that though respondent-husband has agreed in his cross-examination about several facts which he has either not disclosed or has made wrong or false statement in his reply and in examination-in-chief and, therefore, now he is not entitled to claim that he is not suppose to make the payment of maintenance as claimed for.
11. Therefore,
now it is clear that the trial court has failed to appreciate the citations referred with reference to the effect of decree of restitution of conjugal rights and also failed to appreciate the attitude of the husband to say false details on oath before the Court to avoid payment of maintenance.
12. In
view of above facts and circumstances of the case, there is no option but to interfere and modify the judgment and order dated 26.12.2011 passed in Misc. Criminal Application No.924 of 2008 by the Family Court, Ahmedabad thereby petitioner would be entitled for maintenance even after 20.07.2011 whereas so far as quantum of maintenance is concerned, considering the monthly income of the petitioner at least Rs.40,000/-, though the bank account shows average monthly transaction at Rs.45,000/-, it would be reasonable to enhance the maintenance of wife from Rs.5000/- per month to Rs.8000/- per month and maintenance in favour of minor daughter, namely, Devanshi from Rs.4000/- per month to Rs.6000/- per month.
13. In
support of such determination, I am relying upon following decision of the Apex Court:
(I) In
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, Hon'ble Apex Court has observed that purpose of maintenance to wives, children and parents under Section 125 of Cr.P.C. is to prevent vagrancy and destitution and as a measure of social justice thereby in all such cases strict proof of certain things may not be available and, therefore, may not be required.
(II) In
Shabana Bano V. Imran Khan, (2010) 1 SCC 666, Hon'ble Apex Court has held that provisions of Chapter IX relating to order for maintenance of wives, children and parents in Criminal Procedure is beneficial legislation and thereby even divorced women would be entitled to claim maintenance from their husband.
(III) In
Bhushan Kumar Meen V. Mansi Meen, (2010) 15 SCC 372, Hon'ble Apex Court has dealt with the issue of interim maintenance and when take home salary of the husband was only Rs.9000/- per month, Hon'ble Apex Court has fixed the interim maintenance at the sum of Rs.5000/- per month.
(IV) In
Sipra Bhattacharyya V. Dr.Aparesh Bhattacharyya, (2009)4 SCC 366, Hon'ble Apex Court has enhanced the interim maintenance from Rs.4000/- to Rs.7000/-.
(V) In
Chaturbhuj V. Sita Bai, (2008) 2 SCC 316, Hon'ble Apex court has observed that maintenance proceeding is not to punish a person for his past negligence but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves.
The
overall effect of all such cited cases would be that practically it is for the husband to prove his income since he is the person who is in possession of such evidence. It is further held that amount of maintenance, though should be proper, so as to maintain a person, there should not be a punishment to the husband, since he has also to live his life.
14. In
view of above facts and circumstances of the case, this Revision Application is partly allowed thereby the judgment and order dated 26.12.2011 is hereby modified to the following extent:
(I) The
respondent-husband has to pay Rs.8000/- per month as maintenance to the petitioner-wife right from 17.04.2008 till such order is modified by competent court in competent proceedings or till life of the petitioner.
(II) The
respondent-husband has to pay Rs.6000/- per month as maintenance to the minor daughter, namely, Devanshi right from 17.04.2008 till such order is modified by competent court in competent proceedings or till she gets married.
(III) Respondent-husband
has also pay Rs.10,000/- towards cost of this litigation to the petitioner-wife.
(IV) Respondent-husband
is further directed to pay Rs.25,000/- per month till arrears is wiped out and then to continue monthly maintenance as per order of (I) and (II) above.
15. It is made clear that there cannot be two set of maintenance even if we consider the requirement of maintenance including all benefits and facilities like shelter, cloths, medicines, study and other amenities in life. Therefore, respondent-husband would be entitled to ask the competent court to consider such amount as maintenance while granting final maintenance in any other litigation, only if respondent-husband has paid all the arrears as per such order.
(S.G.SHAH, J.)
Print Page
Gujarat High Court
Sejalben Bhavikbhai Vohoti vs Bhavikbhai Amrutlal Vihoti on 22 July, 2013
Bench: S.G.Shah
Citation;2013 CR LJ4077 gujarat1. Heard Mr.Anil H. Soni, learned advocate for the applicant, Mr.Nehul L. Dave, learned advocate for the respondent no.1 and Ms.Jirga D. Jhaveri, learned Assistant Public Prosecutor for the respondent no.2-State.
2. This
Revision Application is preferred by the petitioner-wife challenging the judgment and order dated 26.12.2011 passed by learned Principal Judge, Family Court, Ahmedabad in Misc. Criminal Application No.924 of 2008 wherein though amount of maintenance has been awarded in favour of the present petitioner and her minor daughter, namely, Devanshi, so far as, amount of maintenance of the petitioner is concerned, it is awarded for a limited period from 17.04.2008 i.e. the date of application, till 20.07.2011 which is the date of the judgment in favour of the present petitioner-wife against the respondent-husband under Section 9 of the Hindu Marriage Act by the same Family Court in Family Suit No.612 of 2008. The petitioner by filing the present revision application challenge such part of the order submitting that she is entitled for maintenance even after 20.07.2011 and also for enhancement of amount of maintenance from Rs.5000/- to Rs.30,000/- for herself and from Rs.4000/- to Rs.15,000/- for minor daughter, namely, Devanshi from the date of filing of the Misc. Criminal Application No.924 of 2008.
3. It
is submitted by learned advocate for the petitioner that since the suit for restitution of conjugal rights was filed by her and since the order is against the respondent-husband and since the respondent-husband has never bother to restitute a right even after such decree by the competent Family Court, it cannot be said that petitioner is at fault and that on such facts, it cannot be determined, as done by the Family Court in the impugned order, that petitioner is not entitled for maintenance once there is a decree for restitution of conjugal rights. It is further submitted that a litigant cannot take disadvantage of his own wrong and that in the present case practically the benefit is extended to the respondent-husband though the decree is in favour of the wife. It is further submitted that practically after such decree, it has been proved that there is no fault of the wife in staying separate from the husband and claiming maintenance since she is ready and willing to stay with her husband. Therefore, in absence of cogent evidence and steps being taken by the husband for restitution of conjugal rights, that is either by some evidence in form of invitation or in form of attempt to stay together by involving relatives or social workers, it cannot be said that respondent-husband is ready and willing to keep the petitioner-wife and, therefore, it cannot be determined that the wife is not entitled to claim maintenance. It is further submitted that practically husband never wants to keep the petitioner-wife with him, inasmuch as, he has preferred a divorce petition being HMP No.1418 of 2007 on 16.12.2007 and he has yet not withdrawn such petition though there is a decree of restitution of conjugal rights in favour of the wife. Therefore, there is a reason to believe that respondent-husband is not interested to keep the wife with him and hence the order of the Family Court restraining the maintenance till the date of such decree i.e. 20.07.2011 is not proper in any way. It is also submitted that parties had tried their level best to settle the dispute amicably even through mediator where dispute has been referred by this High Court but disputes could not be settled because husband is practically keeping relation with some other lady and both the sides have filed separate complaint and criminal cases against each other. The respondent-husband has filed a complaint under Section 500, IPC against wife and under Section 506 IPC against her near relatives whereas petitioner-wife has filed complaint under Domestic Violence Act, 2005.
4. Except
liability for the payment of maintenance and its quantum, respondent has no other defence. So far as, liability for maintenance is concerned, again respondent has no defence against the order for maintenance in favour of minor daughter whereas so far as, payment of maintenance to the wife is concerned, it is submitted by learned advocate for the respondent-husband that once there is a decree for restitution of conjugal rights, there cannot be any responsibility and liability of maintenance by the husband.
5. So
far as quantum of maintenance is concerned, it is the case of the petitioner-wife that husband is having handsome income whereas the husband is tried to conceal his real income and submitted that he does not have sufficient income to pay maintenance as claimed for. On perusal of available record and on consideration of submissions made by both the sides, it becomes clear that in such summary proceedings, more particularly, in revisional jurisdiction, the only issues require scrutiny and determination by this Court are limited as discussed hereinabove which is to the effect that:
(a) Whether
petitioner-wife is entitled for maintenance even after the decree of divorce i.e. 20.07.2011.
(b) What
should be the appropriate amount of maintenance that can be awarded in favour of the petitioner-wife and her minor daughter.
6. If
we consider the legal position, the settled law is clear that the Court may not award maintenance if there is no reason for the wife to stay separate from the husband and one of such reason would be a decree of restitution of conjugal rights in favour of the husband. Surprisingly, learned Judge of the Family Court has failed to consider the position that in the present case, the decree for restitution of conjugal rights is in favour of the wife in suit filed by her and against that the petition for divorce filed by the respondent-husband is pending till date which was filed well before filing of the Criminal Misc. Application No.924 of 2008, since it was filed on 16.12.2007 being HMP No.1418 of 2007. Copy of such petition is produced on record before the trial court at Exh. 68. Such position is confirmed from the cross-examination of the respondent-husband himself. Copy of deposition of the respondent is produced on record and on going through such deposition, it becomes crystal clear that petitioner had categorically stated in cross-examination that 'yes' he has filed a divorce petition on 16.12.2007, which is proved on record at Exh.68 and there is clear admission that it is true that he has not withdrawn such divorce petition on the ground that he would like to restitute the conjugal rights with the petitioner. However, surprisingly even after such categorical statement on 9/10.11.2008 during the cross-examination before the trial court in proceeding for maintenance, the trial court has relied upon the decree dated 20.07.2011 in favour of the petitioner for refusing to award maintenance to the petitioner from such date i.e. 20.07.2011. Above referred admission by the respondent categorically proves that though there is a decree dated 20.07.2011 in favour of the petitioner whereby respondent-husband has to execute such decree by taking step to perform restitution of conjugal rights, till 9-10.11.2011 i.e. for more than two months he had neither withdrawn the petition for divorce nor had taken any steps to execute the decree of restitution which is practically against him. Hence, the trial court has erred in refusing the maintenance to the petitioner after 20.07.2011 and to that extent the impugned order needs to be modified.
7. Whereas
so far as amount of maintenance is concerned, the fact remains that though primary burden is upon the petitioner-wife to prove the income of the husband so as to get the maximum amount as maintenance, practically in most of the cases such evidence would never be readily available to the wife who are generally deserted and practically leaving away from such evidence. Therefore, generally it would be for the respondent-husband to prove their real income on record so as to restrain the trial courts from taking any adverse inference or presuming some income while determining the amount of maintenance. Unfortunately, as usual here in this case also the respondent-husband has failed to brought relevant evidence on record so as to show a clear picture about his real earnings. It cannot be ignore that though the Court has to rely upon the actual evidence, it can consider the earning capacity of the person when he came forward with a story that he does not have sufficient income.
8. If
I perused the deposition of the respondent-husband at Exh.57, surprisingly, respondent-husband in his examination-in-chief stated on oath in para 14 that the contents of para 14 of the petition of the wife are not correct but it is correct that she has filed complaint before the Woman's Police Station. It is further stated that he has filed a Hindu Marriage Petition No.1418 of 2007 dated 26.12.2007 for divorce because respondent wife is not ready and willing to stay with him and not allowing their daughter to stay with him. It is further stated that though he was paying the school fee for his daughter, petitioner-wife is claiming Rs.20,000/- pressuring him to withdraw the case for divorce and, therefore, she had filed false complaint to harass him. Therefore, so far as, entitlement of the petitioner-wife to get maintenance is concerned, there is admission by the husband himself that he does not want to continue relation of marriage and filed a petition for divorce. In cross-examination, which is disclosed hereinabove, he has admitted that even after decree of conjugal rights in favour of wife, he has not withdrawn petition for divorce. Therefore, there is no reason to determine that the petitioner-wife is not entitled for maintenance after such decree of restitution of conjugal rights i.e. 20.07.2011.
9. So
far as, income of the respondent-husband is concerned, the fact remains, as admitted by the respondent himself in his examination-in-chief in HMP No.1418 of 2007 filed by wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The trial court has passed an order to pay maintenance of Rs.8000/- per month under Section 24 of the Hindu Marriage Act and such order was confirmed by the High Court of Gujarat in Special Civil Application preferred by the husband. This is the reason for the wife to file such revision application when though the order of Rs.8000/- as interim maintenance in HMP has been confirmed by the High Court, the trial court in the present case has reduced it to Rs.7000/-. Whereas to prove his income, the respondent has deposed on oath that he is serving as doctor on contract basis in Government Hospital and getting Rs.12,000/- per month and since he has to pay premium of LIC policies in the name of petitioner and his minor child, he is not in a position to pay the maintenance as claimed for.
10. So
far as, divorce petition is concerned, again it is specifically stated by the respondent-husband that he wants to withdraw the divorce petition because there was interim order to pay Rs.8000/- per month but thereby it is clear that he does not want to withdraw the petition for divorce and thereby his intention not to keep the petitioner as wife cannot be questioned. So far as his liability to pay the maintenance is concerned, it is his say that he has to pay Rs.8000/- per month to the wife and daughter and he has to pay different premium of policies and, therefore, it is not possible for him to make the payment as per such award. It is also stated that his service is temporary and on contract basis on fixed salary and, therefore, it is difficult to him to cop up with such demand of maintenance. However, though he stated in his examination-in-chief that his salary is Rs.12,000/- only, he has to admit that even in the month of July, 2010 he was getting Rs.29,157/- as a salary since such amount was credited in his bank account and that his total balance in his account book as per the entry in the account book, which is proved on record by bank statement at Exh.30, shows total credited amount was Rs.45,580,28.72 and total withdrawal was Rs.45,524,58.81. Thereby it becomes clear that during such 93 months there was transactions of money to the tune of Rs.49,000/- per month. Even if we do not enter into other details like what the respondent husband has received from his father either through Will or as a part of maintenance, considering the fact that his mother was also getting maintenance from his father, the fact remains that there was transaction both debited and credited are more than Rs.4,50,000/- in the bank account of the petitioner within 93 months and that he was having several fixed deposits and Bank lockers, it cannot be said that respondent-husband is not able to maintain the petitioner-wife or not able to make the payment as claimed for by the petitioner-wife. The record also shows that petitioner has proved at Exh.25 in HMP No.1418 of 2007 the detail of investment made by the respondent which confirms that respondent has invested at least Rs.10 lac in Equity-Shares, Mutual Funds, Bond etc. and he is holding LIC policies of approximately Rs.5 lac. Therefore, it cannot be believed that respondent-husband is not having sufficient income to pay maintenance to the wife and minor daughter. The fact remains that though respondent-husband has agreed in his cross-examination about several facts which he has either not disclosed or has made wrong or false statement in his reply and in examination-in-chief and, therefore, now he is not entitled to claim that he is not suppose to make the payment of maintenance as claimed for.
11. Therefore,
now it is clear that the trial court has failed to appreciate the citations referred with reference to the effect of decree of restitution of conjugal rights and also failed to appreciate the attitude of the husband to say false details on oath before the Court to avoid payment of maintenance.
12. In
view of above facts and circumstances of the case, there is no option but to interfere and modify the judgment and order dated 26.12.2011 passed in Misc. Criminal Application No.924 of 2008 by the Family Court, Ahmedabad thereby petitioner would be entitled for maintenance even after 20.07.2011 whereas so far as quantum of maintenance is concerned, considering the monthly income of the petitioner at least Rs.40,000/-, though the bank account shows average monthly transaction at Rs.45,000/-, it would be reasonable to enhance the maintenance of wife from Rs.5000/- per month to Rs.8000/- per month and maintenance in favour of minor daughter, namely, Devanshi from Rs.4000/- per month to Rs.6000/- per month.
13. In
support of such determination, I am relying upon following decision of the Apex Court:
(I) In
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, Hon'ble Apex Court has observed that purpose of maintenance to wives, children and parents under Section 125 of Cr.P.C. is to prevent vagrancy and destitution and as a measure of social justice thereby in all such cases strict proof of certain things may not be available and, therefore, may not be required.
(II) In
Shabana Bano V. Imran Khan, (2010) 1 SCC 666, Hon'ble Apex Court has held that provisions of Chapter IX relating to order for maintenance of wives, children and parents in Criminal Procedure is beneficial legislation and thereby even divorced women would be entitled to claim maintenance from their husband.
(III) In
Bhushan Kumar Meen V. Mansi Meen, (2010) 15 SCC 372, Hon'ble Apex Court has dealt with the issue of interim maintenance and when take home salary of the husband was only Rs.9000/- per month, Hon'ble Apex Court has fixed the interim maintenance at the sum of Rs.5000/- per month.
(IV) In
Sipra Bhattacharyya V. Dr.Aparesh Bhattacharyya, (2009)4 SCC 366, Hon'ble Apex Court has enhanced the interim maintenance from Rs.4000/- to Rs.7000/-.
(V) In
Chaturbhuj V. Sita Bai, (2008) 2 SCC 316, Hon'ble Apex court has observed that maintenance proceeding is not to punish a person for his past negligence but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves.
The
overall effect of all such cited cases would be that practically it is for the husband to prove his income since he is the person who is in possession of such evidence. It is further held that amount of maintenance, though should be proper, so as to maintain a person, there should not be a punishment to the husband, since he has also to live his life.
14. In
view of above facts and circumstances of the case, this Revision Application is partly allowed thereby the judgment and order dated 26.12.2011 is hereby modified to the following extent:
(I) The
respondent-husband has to pay Rs.8000/- per month as maintenance to the petitioner-wife right from 17.04.2008 till such order is modified by competent court in competent proceedings or till life of the petitioner.
(II) The
respondent-husband has to pay Rs.6000/- per month as maintenance to the minor daughter, namely, Devanshi right from 17.04.2008 till such order is modified by competent court in competent proceedings or till she gets married.
(III) Respondent-husband
has also pay Rs.10,000/- towards cost of this litigation to the petitioner-wife.
(IV) Respondent-husband
is further directed to pay Rs.25,000/- per month till arrears is wiped out and then to continue monthly maintenance as per order of (I) and (II) above.
15. It is made clear that there cannot be two set of maintenance even if we consider the requirement of maintenance including all benefits and facilities like shelter, cloths, medicines, study and other amenities in life. Therefore, respondent-husband would be entitled to ask the competent court to consider such amount as maintenance while granting final maintenance in any other litigation, only if respondent-husband has paid all the arrears as per such order.
(S.G.SHAH, J.)
No comments:
Post a Comment