Rohit Bhardwaj And Anr vs Sameeksha (Bhardwaj) And Anr

This common order shall govern the disposal of Cr.R.No.3903/2018 and Cr.R.No.5755/2018 as both the Criminal Revisions arise out from the order dated 15/05/2018 passed by II Additional Principal Judge, Family Court, Bhopal in MJC No.357/2011.

In the order henceforth the word 'applicant' shall stand for husband-Rohit Bhardwaj and the word 'non-applicant' shall stand for wife-Sameeksha Bhardwaj.

Cr.R. No.3903/2018 has been filed by the applicant Rohit Bhardwaj under Section 397/401 of the Cr.P.C., while Cr. R.No.5755/2018 has been filed by non-applicant Sameeksha Bhardwaj under Section 397 of the Cr.P.C. against the same order dated 15/05/2018 passed by II Additional Principal Judge, Family Court, Bhopal in MJC No.357/2011, whereby learned Principal Judge allowed the application of non-applicant/wife Sameeksha Bhardwaj filed under Section 125 of the Cr.P.C. and directed the applicant/husband to pay maintenance of Rs.25,000/- per month to the non-applicant.

Brief facts of the case which are relevant for disposal of these petitions are that the non-applicant Sameeksha Bhardwaj filed an application before the II Additional Principal Judge, Family Court, Bhopal under Section 125 of the Cr.P.C. averring that her marriage was solemnized with applicant Rohit Bhardwaj on 13/04/2011 according to Hindu rituals at Bhopal and thereafter she lived with the applicant. But the behaviour of the applicant was not good and he demanded dowry and used to misbehave with her. The applicant also had illicit relation with other women. On 12/05/2011, applicant expelled her from his house and since then she has been living with her parents. She is unable to maintain herself, while the applicant was working at Reliance Retail Pvt. Ltd. Navi Mumbai on the post of Business Analyst and gets a salary of Rs.1 lac per month, so the applicant be directed to pay the maintenance of Rs.50,000/- per month to her.

In his reply applicant opposed the prayer and averred that the non-applicant filed the application on false and frivolous grounds. Non-applicant stayed with the applicant just for 30 days after the marriage and thereafter she deliberately left the applicant's house, so she is not entitled to get any maintenance. It is further averred that the applicant was working as Business Analyst in Reliance Retail Pvt. Ltd., Navi Mumbai and was earning only Rs.35,000/- per month, while non-applicant is well-qualified LLB graduate and is able to earn as much as Rs.70,000/- per month as per the latest placement record of her college and the non-applicant was working as a Professor at CLAT Coaching Institute (Achievers Gild) before marriage and earned Rs.50,000/- per month. She is able to earn and maintain herself. Non-applicant has deliberately chosen to sit idle at home to extract maintenance from the applicant. So the application be rejected.

Learned Trial Court after recording the evidence of both the parties ordered the applicant to give Rs.25,000/- per month as maintenance to non-applicant observing that the marriage of non-applicant was solemnized with the applicant Rohit Bhardwaj on 13/04/2011 according to Hindu rituals at Bhopal and thereafter she lived with the applicant. At present, she is living separately and has sufficient cause to live separately from the applicant and is not able to maintain herself. The applicant is able to maintain non-applicant and is denying to maintain her without sufficient cause. Being aggrieved from that order applicant/husband Rohit Bhardwaj filed Cr.R.No.3903/2018 for reduction of the amount of maintenance and non-applicant/wife Sameeksha Bhardwaj filed Cr.R.No.5755/2018 for enhancement of the amount of maintenance.

Learned counsel for the applicant-Rohit Bhardwaj submitted that the non-applicant left her matrimonial house along with her all ornaments and clothing on 12/05/2012 at her own will. This fact has been admitted by the non-applicant during her cross-examination in RCT No.4850/2015 (State of M.P. Vs. Rohit Arya & Others) pending before the learned JMFC, Bhopal under Section 498-A of the IPC and since then the non-applicant has been residing with her parents. The non-applicant has deserted the applicant without any sufficient cause and is residing separately from the applicant since 12/05/2012 on her own will just to take responsibility of her parents. At the time of her marriage applicant was employed with Hindustan Services Pvt. Ltd., Mumbai from where he was drawing Rs.49,896/- per month against basic salary and due to the pendency of several cases filed by the non-applicant against the applicant and his family members, the applicant had to leave the job and he recently joined High Go Info Solution Pvt. Ltd., Mumbai, from where he is drawing Rs.35,100/- per month. There is no material on record to prove the applicant's income. The non-applicant neither produced any independent witness in support of her claim nor proved the alleged income of applicant by any documentary evidence. Learned trial Court only on the basis of assumption found that the applicant earned Rs.1 lacs per month. He further submitted that from the evidence it is also apparent that the non-applicant is a highly qualified lady and earlier she was engaged in taking coaching classes and cannot be permitted to remain idle, just to claim maintenance amount from the applicant. In support of his contention learned counsel placed reliance on a judgment passed by this Court in the case of Mamta Jaiswal (Smt.) Vs. Rajesh Jaiswal, 2000(2) Vidhi Bhaswar 76, wherein this Court held that the party having capacity of earning - choosing to remain idle - cannot be allowed any alimony and expenses. On the strength of aforesaid learned counsel submitted that the revision filed by the applicant be allowed and the amount of maintenance awarded by the learned trial Court be reduced accordingly.

Learned counsel for non-applicant-Sameeksha Bhardwaj submitted that at the time of filing of application applicant was working in Reliance Company and had earned Rs.1 lakhs per month. During the pendency of the case applicant left that job and joined service in the Hindustan Services Pvt. Ltd., Mumbai from where he was getting Rs.3,95,000/- per month as salary. This fact is also proved from the salary slip of the applicant produced by the non-applicant in her evidence. Although, the applicant deposed in his statement that he had left the job of the Hindustan Service Company and started two companies namely Fargo-Cargo and Yellow Grass by obtaining a loan from the bank, but he did not disclose his income and the details about the companies. He also did not produce his income tax return to suppress his actual income. Learned trial Court also held that the applicant was trying to hide his income and also making an effort to hide the evidence regarding his income for ulterior motives. In these circumstances, an adverse inference should be drawn against the applicant and it can safely be assumed that at present the applicant is earning Rs.3,95,000/- per month or more from these companies. Learned trial Court without considering these facts wrongly granted maintenance of Rs.25,000/- per month, which is on the lower side. Even, as interim maintenance there was an order to pay Rs.40,000/- per month, but finally the trial Court reduced the maintenance to Rs.25,000/- per month without assigning any reason, whereas there was ample evidence to show that the non-applicant is earning a handsome amount from salary. So the amount of the maintenance be enhanced minimum to Rs.50,000/- per month.

This Court has gone through the records and arguments put forth by the learned counsels of both the parties.

It is undisputed that marriage of the applicant Rohit Bhardwaj was solemnized with the non-applicant Sameeksha Bhardwaj on 13/04/2011 according to Hindu rituals at Bhopal and thereafter she lived with the applicant up to 12/05/2011 and since then she has been living with her mother. It is also undisputed that during the pendency of this case non-applicant got divorced from the applicant. So, there is no need to consider the point that whether non-applicant has sufficient reason to live separately from the applicant. It is also undisputed that at present non-applicant is not doing any work and she is unable to maintain her.

Non-applicant admitted in her cross-examination that she is Law graduate and was working as a Professor at CLAT Coaching Institute (Achievers Gild) before marriage and earned Rs.50,000/- per month. On that basis learned counsel of the applicant submitted that non-applicant is able to earn and maintain herself. She deliberately has chosen to sit idle at home to extract maintenance from the applicant. So she is not entitled to get maintenance. In this regard he also placed reliance on a judgment passed by this Court in the case of Mamta Jaiswal (Smt.) Vs. Rajesh Jaiswal, 2000(2) Vidhi Bhaswar 76, wherein this Court held that the party having capacity of earning - choosing to remain idle - cannot be allowed any alimony and expenses. But in that case the only point to decide before the High Court was whether during the pendency of divorce proceedings the applicant/wife is entitled to get travelling expenses of one adult attendant who is to come with her for attending the proceedings of the divorce case. The issue was not that whether the wife having the capacity of earning is entitled to get maintenance or not. So that judgement does not help the applicant much.

On the contrary Hon'ble Apex Court in the case of Shailja Vs. Khobbanna, (2018) 12 SCC 199 held "whether appellant 1 is capable of earning or she is actually earning are two different requirements. Merely because appellant 1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court. In the light of the above-mentioned judgement of the Hon'ble Apex Court, it is clear that a person only on the basis that his wife is capable of earning cannot deny to give her maintenance. If she has no income. In these circumstances the non-applicant/ex-wife of applicant having no income becomes entitled to get maintenance from applicant.

What is the correct amount of maintenance, which non-applicant is entitled to get from the applicant, on that point learned counsel of the non-applicant submitted that when the applicant worked in the Hindustan Services Pvt. Ltd., Mumbai he got Rs.3,92,000/- per month as salary. But from the salary slip produced by the non-applicant herself, this fact does not appear to be correct. Although in the salary slip of the month of April 2014 (Ex.P/4) the net salary of the applicant is mentioned as Rs3,91,266/-, but in that total salary the variable pay of Rs.2,79,120/- is also included. There is no evidence on record to show that said variable pay of Rs.2,79,120/- was received by the applicant every month. On the contrary from the documents (Ex.P/53, Ex.P/56 & Ex.P/60) produced by the non-applicant herself, it appears that the variable pay was given once in a year according to performance. In the salary slip (Ex.P/4) also the basic salary of the applicant is mentioned only as Rs.49,896/- and total annual salary & perks are mentioned Rs.16,24,872/-, in which House Rent Allowance of Rs.37,250 x 12 = 4,47,000/- is also included. After deducting that amount the actual annual salary comes to Rs.11,77,872/- and from that income, the income tax of Rs.2,95,350/- as mentioned in the slip is also to be deducted. Thereafter the applicant's actual average monthly income comes around Rs.75,000/- per month. Likewise, in the income tax statement (Ex.P/65) for the year 2013-14 total income of applicant is shown as Rs.20,39,246. After deduction of income tax Rs.4,23,355/-net annual income comes to Rs.16,15,891/- and from that income, the House rent allowance and other allowances as mentioned in the slip is also to be deducted. Thereafter, applicant's actual average monthly income comes around Rs.1,00000/- per month. Because applicant did not disclose his present income and neither did he produce any document in this regard even from his statement, it appears that he is deliberately suppressing the facts regarding his present income. So, on the basis of his earlier income it can safely be assumed that presently applicant is earning minimum Rs.1,00,000/- per month. Otherwise he would not have left his job.

Hon'ble Apex Court in the case of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy, (2017) 14 SCC 200 on relaying its earlier decision passed in Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129, held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife.

In this case, the net income of the applicant as estimated is Rs.1,00,000/- per month. It is also considerable that non-applicant had lived with the applicant for only one month. She has her own house to live as she admitted in her cross-examination that she is the only offspring of her father and after the death of her father his double storied house will be inherited by her and her mother jointly. The applicant is also capable of earning. So in the Considered opinion of this Court the amount Rs.25,000/- per month as awarded by the trial Court as maintenance to non-applicant is just and proper and there is no need to interfere in that order.

Accordingly, both the petitions have no force and are hereby rejected.

A copy of this order be placed in the record of Cr.R.No.5755/2018.