Sushmita Saha And Ors vs Rajib Kumar Roy

1) Heard Mr. Samar Das, learned counsel appearing for the petitioner-wife as well as Mr. N. Majumder, learned counsel appearing for the respondent-husband.

2) This criminal revision petition has been filed challenging the order dated 08.03.2019 passed by the Judge, Family Court, Udaipur, Gomati Judicial District, in case no. C.R. Misc. 34 of 2018, wherein the maintenance allowance was enhanced to Rs. 8,000/- per month for the minor daughter.

3) It is the case of the wife-petitioner that during these hard days, it is very difficult for her to lead a life commensurate to the standard of living, her husband leads. It is an admitted position that the husband-respondent gets a salary of Rs. 85,500/- per month and after deduction, his net salary comes to Rs. 73,100/-per month. The wife and her minor daughter had claimed 1/3rd of the gross salary of the respondent-husband to meet up the expenditures that has to be incurred towards the private tutor, music teacher, yoga teacher, art teacher, fooding, clothing, transportation, etc of the minor daughter. The minor daughter at present is pursuing her studies in class III in an English Medium school at Udaipur.

4) Mr. N. Majumder, learned counsel appearing for the respondent-husband has submitted that the wife-petitioner is serving as a Teacher in a private school and she receives a salary of Rs. 19,370/- per month, and as such there is no need of further enhancement of maintenance allowance. Mr. Majumder, learned counsel has further submitted that the petitioner-wife has deserted the respondent-husband and the respondent-husband has been deprived of his conjugal life. The respondent-husband has also filed a suit for restitution of conjugal right, but, that suit has been dismissed by the trial court and challenging the said order, the respondent-husband filed a petition before this Court which is pending for disposal.

5) Mr. Majumder, learned counsel has further submitted that the minor daughter, being a student of class III, does not need much amount to pursue her studies. Mr. Majumder, has drawn my attention to the observation made by the Judge, Family Court that there is no changed circumstance which would prompt the court to enhance the maintenance allowance in favour of the petitioner-wife and her minor daughter.

6) Having regard to the submission of the learned counsel appearing for the parties, I propose to take note of some authorities, laid down by the Hon'ble Supreme Court in regard to some parameters in granting maintenance.

7) In T. Vimala and ors. Vs. Ramakrishnan Crl.R.C. (MD) No.180 of 2014 decided on 24 June 2016, the learned Judge of the Madras High Court has held that every father is bound to provide good education to his children and such obligation to meet educational expenses of his children cannot be excluded from the components of maintenance. At paragraphs 16 to 18, the learned Single Judge has observed thus:-

"16. Nowhere in Cr.P.C., what 'maintenance' means has been stated. What its contents has been, what its 'components' has been stated. But it does not mean that we cannot state, what it means. It is our duty to interpret the law. We (Court) cannot simply blame the law makers that they have poorly enacted, drafted the law. It must be interpreted in such a way that the purpose for which the law has been enacted. Otherwise, it will be frustrated.

The learned Principal Session Judge, Dindigal preferred literal interpretation than purposeful interpretation. He read Section 125 Cr.P.C. couched in English language by referring to oxford English Dictionary, but he did not look into the heart off the matter.

The very purpose of Section 125 Cr.P.C. is also to protect the children from want of roof, food, clothing and necessities of life. Education is an important aspect in children's life. Amounts need to be spent for it. Those expenses are educational expenses. Every father is bound to provide a good education to his children. No father is expected to produce a criminal or a disorderly person. Thus, he has to bear the educational expenses of his children. Children have to maintain their education by meeting the educational expenses. Even a man on the pavement will be dreaming of his children becoming a qualified person in life. Therefore, the obligation of a father to maintain, to meet the educational expenses of his children cannot excluded for the component of maintenance. Section 125 Cr.P.C is not only for food for life, it should also be for food for though. Otherwise, so far as the children are concerned, we will be doing violence to the very object of Section 125 Cr.P.C."

8) In Chaturbhuj Vs. Sita Bai Manu/SC/8141/2007: (2008) 2 SCC 316, the Hon'ble Supreme Court has held that the expression ' unable to maintain herself' in Section 125 of Cr.P.C. is required to be interpreted in a realistic manner. In an illustrative case where the wife survived by begging, it would not amount to her ability to maintain herself. The Test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagawan Dutt v. Kamla Devi MANU/SC/0205/1974 : 1975(2) SCC 386 it was observed that the wife should be in a position to maintain a standard to living which is neither luxurious nor penurious but what is consistent with status of the family. The expression 'unable to maintain herself' does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.

9) In Shamina Farooqui Vs. Shahid Khan MANU /SC/0380/2015 : (2015) 5 SCC 705, the Hon'ble Supreme Court has held that inherent and fundamental principle behind Section 125 of Cr.P.C. is for the amelioration of the financial state of affairs as well as the 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. This principle of sustenance gets more heightened when the children are with her. Sustenance does not mean mere survival. A women who is constrained to leave matrimonial home, should not be allowed to feel that she has fallen from grace and move hither and thither for arranging sustenance. As per law, she is entitled to lead a life in similar manner as she would have lived in the house of her husband. Maintenance under Section 125 of Cr.P.C. 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. At Paragraph 19, the Hon'ble Supreme Court observed thus:

"19. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the women leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be 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. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowances".

10) In Badshah Vs. Urmila Badshah Goshse and Anr. MANU/SC/1084/2013 : (2014) 1 SCC 188, the Hon'ble Supreme Court has commended purposive interpretation to the provisions of law which deal with maintenance. The purpose is to achieve 'social justice'. In interpreting provisions relating to maintenance, the court is expected to bridge the gap between law and the society. Provisions relating to maintenance fall in category of legislation which is aimed at empowering the destitute and achieving the social justice, equality and dignity of the individual. In dealing with such cases there is necessity for drift from the 'adversarial litigation' to 'social context adjudication which is the need of the hour. The Hon'ble Supreme Court has observed that law regulates relationship between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law to achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most case, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purpose of the law.

11) In Kulbhushan Kumar Vs. RajKumari reported in (1970) 3 SCC 129, the Apex Court has held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the Court would be justified in molding the claim for maintenance passed on various factors.

12) In the case of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury NEE Nandy reported in (2017) 14 SCC 200, the Apex Court was dealing with the case of maintenance and found that the net income of the husband was of Rs.95,000/- per month and following the case of Kulbhusan Kumar(Supra), the Supreme Court has awarded Rs.20,000/- per month as maintenance to the wife and son.

13) In the present, the petitioner was subjected to torture, forced by the respondent to stay separately along with the girl child who has a long life to go. They have been the victim of unconducive circumstances created by the respondent. So, they have the right to lead a life in the same way they would have been lived in the house of the respondent.

14) I am further fortified by an observation of the Apex Court in Bhuwan Mohan Singh Vs. Meena and ors. reported in (2015) 6SCC 353, wherein the Apex Court dealing with the similar issue in paragraph 2, has held as under:-

"2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

15) Keeping in mind the long line of authorities, as outlined above, I have taken note of the fact that the respondent-husband has to incur expenditure for an amount of Rs. 20,000/- per month towards maintenance of his old aged parents. The net salary of the respondent-husband is Rs. 73,500/-. It is the duty of the children to look after the parents, particularly, when they become old and dependant on children. So, in my considered opinion, a deduction of Rs. 20,000/- has to be made, since the same is being spent for the purpose of maintenance of his old aged parents. Now, the remaining salary of the respondent-husband comes to Rs. 53,500/-.

16) In the case in hand, the wife-petitioner is earning Rs. 19,370/- per month. Though, it is settled law that the income of the wife-petitioner will not come in the way of granting proper and adequate maintenance, still in my considered view, justice would be met if the maintenance allowance is enhanced to Rs. 15,000/- per month, in favour of the wife-petitioner and the minor daughter.

17) A girl child always needs more care and attention. She has the right to lead a life, which must be of a dignified character, as enshrined under Article 21 of the Constitution of India. Both the wife-petitioner and her minor daughter, are entitled, under law to lead a life in the similar manner, as they would have been lived in the house of the respondent.

18) As such, both the wife-petitioner and the minor daughter are entitled to get maintenance allowance @ Rs. 15,000/- per month from the respondent-husband. The DDO of the respondent-husband is directed to deduct an amount of Rs. 15,000/- per month from the salary of the respondent-husband and remit the same to the Savings Bank account of the petitioner-wife bearing no. 20124733450 lying with the State Bank of India, Udaipur Branch within the 10th day of every English calendar month.

19) The petitioner-wife shall supply a copy of this order to the competent authority/DDO of Tripura State Electricity Corporation Limited for compliance of the direction passed today in the instant petition.

20) With the aforesaid observation and direction, the instant criminal revision petition is allowed, to the extent, as indicated above. The criminal revision petition is disposed of.