Vidya Mundekkat vs Akhilesh Jayaram

A. Badharudeen, J.

This Revision Petition has been filed under Section 19(4) of the Family Court Act read with Section 397 and 401 of the Code of Criminal Procedure. Revision petitioner is the 1st petitioner in M.C.No.52/2016 on the files of the Family Court, Kozhikode and the respondent herein is the sole respondent in the above M.C. The revision petitioner and her minor daughter, aged 13 years, had approached the Family Court and claimed maintenance @ Rs.20,000/- and Rs.10,000/- each. According to the revision petitioner, the revision petitioner had no job or income to maintain herself and the minor child, and the respondent had been working as Senior Consultant, Infosis, Onsight at Manchester, U.K and had been earning Rs.1,50,000/- per month. As such he was capable of maintaining them.

The respondent filed counter and resisted the claim. Filing of M.C.No.31/2016 before the Judicial First Class Magistrate Court-I, Kozhikode under the Protection of Women from Domestic Violence Act and grant of interim maintenance @ Rs.7,000/- and Rs.3,000/- under Section 23(2) of the Act was highlighted. The further contention raised was that the revision petitioner had been working as Sales Consultant at M/s.Vision Honda, Calicut and had been getting Rs.20,000/- per month. It was stated further that the respondent was working at Infosis, Chennai and his approximate take home salary would come to Rs.85,000/-. He had loan payment to the tune of Rs.26,133/- and also other expenses.

The Family Court recorded the evidence in this M.C along with O.P.No.574/2017. PW1 examined and Exts.A1 to A3 were marked on the side of the respondent in M.C, ie. petitioner in O.P.No.574/2017. RW1 examined and Exts.B1 and B2 were marked on the side of the respondent in the O.P and the petitioner in M.C. The Family Court, in fact, passed common judgment/order in O.P.No.574/2017 along with M.C. As per the order in M.C, while denying maintenance to the revision petitioner, the Family Court ordered maintenance @ Rs.10,000/- per month to the 2nd petitioner, minor daughter, w.e.f 18.02.2016 (date of petition).

Now the revision petitioner is aggrieved in the matter of non grant of maintenance to the revision petitioner. It is argued by the learned counsel for the revision petitioner that the Family Court denied maintenance to the revision petitioner on the ground that the revision petitioner has been doing voluntary service in Amruthapuri, being a devotee of Matha Amruthanandamayi and the parents of the revision petitioner have also been residing in Amruthapurai in a flat. The learned Family Court Judge opined that the revision petitioner, being a person doing voluntary service in a reputed ashram like Amruthapuri, would not incur any personal expenses for food or accommodation. It was observed further that no documents were produced by the revision petitioner to show that she had been availing any rented accommodation at Vallikkavu, as contended.

The learned counsel for the revision petitioner zealously argued that maintenance allowance envisaged under Section 125 Cr.P.C is the outcome of benevolent piece of legislation to provide day to day essentials of the aggrieved and the same cannot be denied on flimsy grounds. He argued further that the revision petitioner was forced to find shelter at the Ashram since she has been in penury. He has placed decision of the Apex Court reported in [(2015) 5 SCC 705 : (2015) 3 SCC(Civ) 274], Shamma Farooqui v. Shahid Khan in support of this contention. Paragraph 18 of the above decision reads as follows:

“18. 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 woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels 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. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.”

Similarly, the learned counsel for the revision petitioner has placed another decision of the Apex Court reported in [(2014) 16 SCC 715], Sunita Kachwaha & Ors. v. Anil Kachwaha to contend that merely because the wife was earning money, it would not be a ground for rejecting maintenance to her.

Per contra, it is argued by the learned counsel for the revision petitioner that maintenance allowance intended under Section 125 Cr.P.C is nothing but absolute living expenses of the person claiming maintenance. The same includes expenses for food, shelter and clothing. In this matter, admittedly, the revision petitioner, who is educationally qualified has been doing free service in Amrita Ashram and she has been staying there as an inmate. As such, all essential requirements of the revision petitioner shall be met by the Ashram. Therefore, she did not require the above 3 essentials and accordingly the Family Court rightly rejected the claim for maintenance to the petitioner.

In this matter, the income of the revision petitioner is concerned, the same is not established as admittedly she is doing free service in Amrithapuri. It is true that while giving evidence as RW1, during cross examination, she stated that the respondent herein had been staying at her own house near N.G.O Quarters and she had been staying at Amruthapuri Ashram, Vallikkavu for the last 5-6 months. She also had given evidence that her stay was not in a house attached to the Ashram. At the same time, she stated that she did not know the address of the house. Then she stated the address of the flat where she had been residing. She also admitted that she had completed BBM and MBA (Finance and Marketing). She deposed many things, inclusive of difference of opinion between them on the allegation that the respondent herein maintained `over friendship' with one Ratna Subhashini and there arose issues out of the said relationship. She also admitted that filing of M.C.No.31/2016 before the Judicial First Class Magistrate Court-I, Kozhikode and grant of interim maintenance to the tune of Rs.10,000/- (7000 + 3000) per month. But the said case was dismissed later for non-prosecution.

According to the learned counsel for the respondent, during cross examination, the revision petitioner admitted that there existed normal difference of opinion between the spouses and, therefore, the revision petitioner has been staying separately after deserting the respondent, and on that ground also, the revision petitioner does not require maintenance.

In this matter, it is argued by the learned counsel for the revision petitioner that the revision petitioner was forced to reside at Amruthapuri ashram because her daughter has been studying there and also the revision petitioner did not have sufficient money to live separately by arranging a rented house.

As regards to the legal position, in the matter of grant of allowance of maintenance under Section 125 of Cr.P.C, the law is well settled.

As early in [(1978) 4 SCC 70], Captain Ramesh Chander Kaushal v. Mrs.Veena Kaushal & Ors.. the Apex Court held that the same falls within the constitutional sweep of Article 15(3) reinforcing Article 39 of the Constitution of India.

In [(1997) 7 SCC 7], Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. the Apex Court held as under:

“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 [(2005) 3 SCC 636], Chaturbhuj v. Sita Bai the Apex Court held that Section 125 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.

In [(2021) 2 SCC 324], Rajnesh v. Neha & anr., the Apex Court had dealt with the relevant factors for determination of maintenance and held that, if wife is earning, it cannot operate as a bar from being awarded maintenance by husband. In a marriage of long duration, where parties have endured relationship for several years, it would be a relevant factor to be taken into consideration. On termination of relationship, if wife is educated and professionally qualified, but had to give up her employment opportunities to look after needs of family being primary caregiver to minor children and elder members of family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependent wife to get an easy entry into workforce after a break of several years. Living expenses of child would include expenses for food, clothing, residence, medical expenses, education of children. Serious disability or ill health of a spouse, child/children from marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.

The legal position is not in dispute that merely because the wife is earning money, it could not be a ground to reject the claim for maintenance. The rationale is that the amount she would earn, if not sufficient to maintain the wife, then also the husband is bound to maintain his wife and to give her sufficient sum for her sustenance.

Merely because the wife was staying in Amruthapurai ashram for certain reasons, that by itself is not a ground to deny maintenance to her. That apart, the husband's liability to pay fair amount to the wife towards allowance of maintenance cannot said to have absolved merely on the ground that wife found shelter in an Ashram or Asylum. When wife decided to have capsulise in an Ashram for certain reasons, the same shall not be a ground to deny reasonable maintenance allowance.

In this matter, admittedly, the respondent was having a take home salary of Rs.85,000/-. In such a case, there is no justification to non-suit the revision petitioner, in the matter of maintenance. Therefore, I am of the view that maintenance @ Rs.5,000/- can be granted to the revision petitioner also, apart from grant of maintenance @ Rs.10,000/- to the minor.

Accordingly, the order impugned stands modified. It is ordered that the respondent shall pay maintenance to the revision petitioner/1st petitioner @ Rs.5,000/- (Rupees Five thousand only) from the date of the petition and Rs.10,000/- (Rupees Ten thousand only) to the minor 2nd petitioner also with effect from the date of petition. The respondent is directed to deposit the entire arrears within 30 days.

This Revision Petition accordingly stands allowed.