1. Heard learned counsel for the parties.
2. By way of present revision petition, the petitioner has challenged the order dated 2nd December, 2014 passed by learned Principal Judge, Family Court, Ranchi in connection with Maintenance Case No.62 of 2014 by reasons of which the present petitioner (opposite party before the Family Court) has been directed to pay Rs.10,000/- per month to the Opposite Party No.2 (Petitioner No.1 before the Family Court) and Rs.4,000/- per month to the minor daughter of Opposite Party No.2 (Petitioner No.2 before the Family Court); total of Rs.14,000/- per month as the amount of maintenance under Section 125 Cr.P.C. It has also been ordered that the minor daughter of the Opposite Party No.2 shall get the maintenance to be paid by the petitioner till she gets married. The said order of maintenance has been made effective from the date of the order i.e. 2nd December, 2014.
3. The background of the case is that Opposite Party No.2 filed a case in the court of learned Principal Judge, Family Court, Ranchi, being Maintenance Case No.62 of 2014, against the petitioner, praying, inter alia, that the Opposite Party No.2-Deepika and her minor daughter-Palak Singh @ Gargi should be paid maintenance under Section 125 Cr.P.C. by the petitioner-Madhusudan, who happens to be the husband of Opposite Party No.2 and the father of minor girlPalak Singh.
4. The factual aspect of the case, as detailed in the petition filed under Section 125 Cr.P.C., is that the marriage of the petitioner was solemnized with Opposite Party No.2 on 1st June, 2009 in Ranchi in accordance with Hindu rites in presence of the family members, relatives and guests of both the parties and other guests. It was also stated, inter alia, that at the time of marriage, father of the Opposite Party No.2 had given valuable articles, including gold and silver ornaments to the husband and after the marriage, the Opposite Party No.2 went to her matrimonial home and lived there peacefully for sometime. Out of the said wedlock, a female child, namely, Palak Singh was born on 4th December, 2011, but soon thereafter, the petitioner started demanding additional amount of dowry of Rs.2.00 lacs. The Opposite Party No.2 expressed her inability to fulfill the demand, as a result, she was subjected to mental and physical torture and she was driven out of the matrimonial home on 27th May, 2013 and, thereafter, she took shelter in her parental home in Ranchi, where she was unable to maintain herself and her minor daughter. The Father of the Opposite Party No.2 was unable to maintain the petitioner and her minor daughter, as during the said period, he was having three unmarried daughters and one unmarried son to maintain. The Opposite Party No.2, who is physically challenged lady, has practised as an Advocate at High Court of Jharkhand at Ranchi till 27th May, 2013, but due to mental trauma, she left practising as an Advocate as she has to look after her minor daughter, who was suffering from a serious disease called "Front-OrbitEncephalocele", which is a congenital ailment and her treatment was going on at a hospital, namely, Park Clinic, Gorky Terrace, Kolkata.
The Opposite Party No.2 has also
stated that the said treatment was very expensive. So far as
the present petitioner is concerned, it has been stated by the
Opposite Party No.2 in the petition filed before the Principal
Judge, Family Court, Ranchi that he is a practising Advocate of
Jharkhand High Court and his monthly income is about
Rs.70,000/- to Rs.80,000/- per month. Moreover, he derives
monthly income of Rs.20,000/- per month from the landed
property. It has also been stated, inter alia, that the father of
the petitioner is a retired Engineer-in-Chief and he owns eight
units of flats from which the petitioner also derives income. In
sum and substance it was stated by the Opposite Party No.2
that total monthly income of the petitioner comes to rupee
one lac approx and as such she prayed for Rs.40,000/- per
month as maintenance and Rs.20,000/- as litigation cost.
5. It appears from the impugned order that though the
notice was issued to the present petitioner, he did not choose
to appear before the Family Court despite service of notice
and, therefore,the Court proceeded ex-parte vide order dated
28th August, 2014.
6. Learned court below examined three witnesses, namely, P.W.1-Jai Prakash Singh (father of Opposite Party No.2), P.W.2- Usha Singh (mother of Opposite Party No.2) and P.W.3- Deepika (Opposite Party No.2 herself). Few documents were also exhibited on behalf of Opposite Party No.2, which were photostat copies of medical prescriptions and letters written by Opposite Party No.2 to her parents-in-law as Exhibits-1 to 1/M and the photographs of the minor child as Exhibits-2 to 2/ B. All the three witnesses, who deposed on behalf of Opposite Party No.2, consistently stated about the monthly income of the petitioner to be Rs.80,000/- approx through practice as well as Rs.20,000/- approx per month through landed property. They have also deposed that the father of the petitioner also owns eight units of flat from which he derives monthly income of Rs.7,000/- from each unit.
7. The petitioner has put challenge to the order dated 2nd December, 2014 passed by the learned court below on various grounds. Some of the important grounds of challenge made out by the petitioner is that there had been criminal case and counter criminal case filed by both the parties against each other, particularly, relating to the alleged occurrence of 27th May, 2013 in which certain mediation took place during pendency of anticipatory bail application of the petitioner before this Court. Learned counsel for the petitioner submits that the fact of monthly income of the petitioner to be Rs.01.00 lac approx, as stated by the Opposite Party No.2, is totally incorrect, as he is a struggling Advocate practising in the Jharkhand High Court and his father does not have any landed property as claimed by Opposite Party No.2. The learned counsel for the petitioner, however, submits that the conciliation report was also prepared with the consent of both the parties, wherein the petitioner had agreed for payment of Rs.10,000/- per month to the Opposite Party No.2 despite his financial difficulties.
8. The learned counsel for the petitioner further submits that the amount of maintenance fixed by the Family Court, Ranchi to be paid to the Opposite Party NO.2 as well as the minor daughter is arbitrary and excessive. The petitioner was not given due opportunity to present his case and the impugned order was passed ex-parte by the court below. There is no material on record to show that the petitioner has neglected the Opposite Party No.2. On the contrary, the Opposite Party No.2 is a legal practitioner and has sufficient means to maintain herself. Therefore, the order of the Principal Judge, Family court, Ranchi dated 2nd December, 2014, being bad in law, may be set aside.
9. A counter affidavit has been filed on behalf of the Opposite Party No.2, supporting the impugned order passed by the learned court below. In the said counter affidavit, the facts stated before the learned court below by the Opposite Party No.2 have been reiterated.
10. Irrespective of the rival contentions made on behalf of the petitioner and the Opposite Party No.2, the admitted facts emerging out of the pleadings of both the parties are that the petitioner as well as the Opposite Party No.2 are living separately at present and their minor daughter is staying with Opposite Party No.2. There had been a criminal case against the petitioner lodged by Opposite Party No.2 under Section 498A of the Indian Penal Code and during pendency of the anticipatory bail application of the petitioner before this Court, the mediation/conciliation was done between the parties, wherein it was mutually agreed that the petitioner shall pay Rs.10,000/- per month to the Opposite Party No.2. The said fact has been stated by the petitioner himself in Paragraph 26 of the present revision application.
11. It appears from the perusal of the impugned order dated 2nd December, 2014 passed by the learned court below that in the maintenance case, notice was issued upon the petitioner by the Family Court, but despite service of notice, the petitioner chose not to appear before the said Court and, therefore, the Family Court did not have any option but to proceed ex parte. Therefore, in my view, the impugned order which may be ex parte in nature but cannot be said to be illegal. Moreover, it was a case filed by the Opposite Party No.2 under Section 125 Cr.P.C. for payment of maintenance to her and her ailing minor daughter, which itself was urgent in nature and the learned Family Court could not have waited for indefinite period for the appearance of the petitioner as per his wish and convenience.
12. The learned counsel for the petitioner, while questioning the justifiability of the impugned order, submits that the petitioner is a struggling Advocate and he does not have the income as stated by the Opposite Party No.2 and, therefore, the order of the Family Court for payment of maintenance of Rs.10,000/- per month to Opposite Party No.2 and Rs.4,000/- to minor daughter is excessive.
13. For consideration of the aforesaid contention raised on behalf of the petitioner, it would be relevant to refer to the ratio laid down by the Hon''ble supreme Court in this regard. The Hon''ble Supreme Court, while deciding the issue of payment of maintenance by the husband to the wife under Section 125 Cr.P.C., in the case of Shamima Farooqui Vs. Shahid Khan, reported in (2015)5 SCC 705, in Paragraph Nos.14, 15 & 16 has held as under:-
"14. .......In today''s world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2000 per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife''s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.15. While determining the quantum of maintenance, this Court in Jasbir Kaur Sehgal V. District Judge, Dehradun [(1997)7 SCC 7, Para 8] has held as follows:"....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."16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj V. Sita Bai [(2008)2 SCC 316, Para 6], it has been ruled that:".....Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal V. Veena Kaushal falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya V. State of Gujarat."
14. The Hon''ble Supreme Court, while considering the various aspects of payment of maintenance by the husband to the wife, has clearly held in the aforesaid judgment rendered in the case of Shamima Farooqui (Supra) that it is the solemn obligation of the husband to maintain his wife. The husband cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. The Hon''ble Supreme Court in the said judgment has also held that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many comforts. Sometimes her faith in life reduces. Sometimes, she feels as if she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort to the wife. That is the only soothing legal balm for the wife and she cannot be allowed to resign to her destiny.
15. The Hon''ble Apex Court in another judgment rendered in the case of Bhuwan Mohan Singh Vs. Meena & Ors., reported in (2015)6 SCC 353, has also held that sustenance does not mean animal existence but signifies leading life in similar manner as she would have lived in house of her husband. The husband has bounden duty to enable wife to lead her life with dignity according to her social status and strata. It is the obligation of the husband to see that the wife does not become destitute, a beggar. It is the sacrosanct duty of the husband to render financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route for the husband to deny maintenance to his wife and minor children to pay sufficient/reasonable maintenance unless the situation warrants the Court to hold otherwise.
16. Coming back to the facts of the present case, it would appear that admittedly the petitioner and the Opposite Party No.2 are staying separately. Minor daughter-Palak Singh is staying with Opposite Party No.2, who though earlier practised before the High Court of Jharkhand, but left practising after May, 2013 due to mental trauma. Her father is having four unmarried daughters and one unmarried son and, thus, he may not in position to properly render her financial support. The contention raised on behalf of the petitioner that he is a struggling advocate and he does not have the source of income is also not worth consideration in view of the law laid down by the Hon''ble Supreme Court in the aforesaid judgments rendered in the cases of Shamima Farooqui (Supra) and Bhuwan Mohan Singh(Supra), wherein it has been clearly held that it is the sacrosanct duty of the husband to render his financial support to the wife even if the husband is required to earn with physical labour. Moreover, irrespective of the income of the husband, he has to maintain his wife and dependent ailing child with proper dignity if the husband is healthy, able-bodied and he is in position to support himself. The husband cannot be permitted to plead that he is unable to maintain the wife due to his financial constraints as long as he is capable of earning.
17. Thus, in my considered view, the petitioner being an Advocate of Jharkand High Court cannot take a plea that he cannot maintain his wife and his ailing minor daughter since he is a struggling Advocate. It is his sacrosanct duty to ensure that the Opposite Party No.2 and the minor daughter, namely, Palak Singh @ Gargi should not live in destitution and vagrancy.
18. In view of the discussions made herein above, I am not inclined to interfere with the impugned judgment dated 2nd December, 2014. The revision petition is, accordingly, dismissed.
19. Interim order, if any, stands vacated.
20. The petitioner is directed to pay the arrear amount of maintenance as directed by the learned Family Court with effect from 2nd December, 2014 till December, 2016 to the Opposite Party No.2 in ten equal monthly installments. The petitioner shall also go on paying the current monthly maintenance amount with effect from January, 2017 by seventh day of each succeeding month.
21. Ordered accordingly.
