1 - Dr. Kunal Mandal S/o Shri K.D. Mandal Aged About 40 Years R/o v. 1
Case Details
1 2025:CGHC:21722 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 1080 of 2023 1 - Dr. Kunal Mandal S/o Shri K.D. Mandal Aged About 40 Years R/o House No. D-4 Azad Nagar, L.I.C. Colony, Mowa Raipur, District Raipur (C.G.) --- Petitioner(s) versus 1 - Smt. Shobha Mandal W/o Kunal Mandal Aged About 39 Years C/o Shri G.C. Karmakar, Government High School, Below Over Bridge, Hemu Nagar, Bilaspur District Bilaspur (C.G.) 2 - Kriyansh Mandal (Minor) S/o Kunal Mandal Aged About 4 Years Through Natural Guardian Smt. Shobha Mandal C/o Shri G.C. Karmakar, Government High School, Below Over Bridge, Hemu Nagar, Bilaspur District Bilaspur (C.G.) (Cause title taken from Case Information System) .. Respondent For Petitioner(s) For Respondent(s) : : Mr. Anup Majumdar, Advocate Ms. Nirupama Bajpai, Advocate CRR No. 1163 of 2023 1 - Smt. Shobha Mandal Wife Of Dr. Kunal Mandal, Aged About 39 Years Resident Of C/o. G.C. Karmakar, Government High School, Below VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.06.23 20:25:54 +0530 2 Overbridge, Hemunagar, Bilaspur, Tahsil And District - Bilaspur, Chhattisgarh. 2 - Kiyansh Mandal, Son Of Kunal Mandal, Aged About 4 Years Minor, Through Legal Guardian Mother Smt. Shoba Mandal. Resident Of C/o. G.C. Karmakar, Government High School, Below Overbridge, Hemunagar, Bilaspur, Tahsil And District - Bilaspur, Chhattisgarh. ---Petitioner(s) Versus 1 - Dr. Kunal Mandal Son Of Krishna Das Mandal, Aged About 39 Years R/o. House No.D/4, Azad Nagar, L.I.C. Colony, Mowa, Raipur, Dal Dal Soni, Raipur, Police Station - Pandri, District - Raipur, Chhattisgarh. --- Respondent(s) (Cause title taken from Case Information System) For Petitioners For Respondent(s) : : Ms. Nirupama Bajpai, Advocate Mr. Anup Majumdar, Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 09/05/2025 1. These two criminal revisions have been filed by the respective parties against a common order passed by learned Family Court, Bilaspur arising out of the common proceedings, therefore both these criminal revisions are being heard and decided together. 2. The Criminal Revision No. 1080 of 2023 is listed for admission and grant of interim relief, whereas the Criminal Revision No. 1163 of 2023 is listed for hearing on admission. With the consent of the parties, both these criminal revisions are being heard finally. 3 3. 4. The Criminal Revision No. 1080 of 2023 is filed by the husband against the impugned order dated 25.08.2023, passed by learned Principal Judge, Family Court, Bilaspur, in MJC No. 57 of 2022 challenging the liability to pay and the entitlement of the maintenance amount to the wife and son. The Criminal Revision No. 1163 of 2023 is filed by the wife and minor son against the impugned order dated 25.08.2023, passed by learned Principal Judge, Family Court, Bilaspur, in MJC No. 57 of 2022 challenging the quantum of maintenance amount, which has been awarded to them and claimed the higher amount towards maintenance. 5.
Facts
The brief facts of the case are that, the marriage between the parties have been solemnized on 21.11.2011 as per their rites and rituals. Out of their wedlock, their son Kiyansh Mandal was born on 22.01.2018. On 15.12.2021, the wife and her son have filed an application under Section 125 of CRPC for grant of monthly maintenance amount from the husband with the pleading that after some time of their marriage, her husband started developing relation with his assistant doctor, resident of Rajnandgaon and neglecting the wife and son. Whenever the wife tried to convince him, he started raising quarrel and used to beat her and the situation became aggravated by the lapse of time and the husband was not convinced. He started harassing her and when she made complaint to her in- laws, they supported their son and pressurized her for divorce. When she informed about the harassment to her parents, they came to her 4 matrimonial house on 15.11.2020 and then the husband sent her back along with her parents. On 19.12.2020, when she had gone to her matrimonial house along with her family members, the husband and his parents misbehaved with them and refused to keep her with him. Since then, she is residing at her parents’ house along with her minor son. She is a house-maker and fully dependent upon her parents. She is unable to maintain herself and having no source of her income, whereas the husband is a doctor having clinic at Devendra Nagar, Raipur and earning about Rs. 1½ - 2 lakhs per month. She claimed Rs. 50,000/- for herself and Rs. 25,000/- for her minor son as monthly maintenance from the husband. 6. Replying the application of the wife and son for maintenance, the husband denied the averment made in the application and has pleaded that after birth of their son, the behavior of the wife would become changed and she started raising quarrel on pity issues and her behavior was also not good with his parents. He denied any relation with his assistant doctor as named in the application and submits that the said assistant doctor is a physiotherapist and working as his assistant. The wife unnecessarily suspected that he is having physical relation with her. He tried to explain the situation, but she was not ready to convince. She pressurized him to reside separately from his parents and when he refused to accept her wish, she made pressure upon him by various mode and had gone to her parents’ house after raising quarrel with him. Whenever the husband tried to convince him, she stuck in residing separately from his 5 parents and not ready to reside with them. She is residing separately without any sufficient cause. He has taken every care of her and their son and used to provide clothes, toys, etc. On 24.11.2021, he transferred Rs. 13,500/- for school admission of their son in the bank account of the wife. Due to the cruel behavior of the wife, he suffered by a paralytic attack on 15.11.2020 and underwent the heart treatment. The wife is a MBA qualified lady and engaged in online clothes and real estate business. Besides this, she is also participating in the jewelry business of her father. Prior to her marriage, she was working in IndusInd Bank and even after her marriage, she is working as a counselor in AISECT company and earning sufficient amount for her livelihood. She is financially sound and by suppression of her income, she filed the application for maintenance. The husband is hardly earning Rs. 40,000-45,000/- per month, out of which he has to pay Rs. 12,000/- per month as the rent of the shop and after necessary expenses, total Rs. 20,000-25,000/- he earned for his livelihood, in which he is having liability of his old aged parents. Since, the wife is residing separately without any sufficient cause, and despite making efforts, she is not ready to come with the husband and having sufficient source of her income, she is not entitled for any maintenance. 7. The learned Family Court has framed issues and after recording evidence of the parties, on 25.08.2023 partly allowed the application filed by the wife and son and granted Rs. 10,000/- per month to the 6 8. 9. wife and Rs. 15,000/- per month to the minor son as maintenance amount, which is payable from the date of order i.e. 25.08.2023. The impugned order dated 25.08.2023 is challenged by both the parties in the present two criminal revisions as per their respective
Legal Reasoning
coordinate Bench of this Court in Criminal Revision No. 189 of 2023, which was arising out of the grant of interim maintenance. Again on 21.02.2024, the husband filed the receipts of deposition of the maintenance amount before the learned Family Court. Another application (I.A. No.1 of 2024) was filed on 29.02.2024 by the husband for taking additional documents on record, which are the medical treatment record, school fee receipts and comparative chart of the properties of the family of both the parties. Another application for taking additional documents on record was filed on 07.03.2024 along with the copy of account statement of the wife, which was filed in Criminal Revision No. 189 of 2023. In compliance of the order dated 14.11.2024, the affidavit with respect to the outstanding amount of maintenance has been filed by the wife on 26.11.2024. Section 125 of CRPC is a measure of social justice and specially enacted to protect women and children with the object to prevent vagrancy and destitution. It gives effect to fundamental rights and natural duties of a man to maintain his wife and children, when they are unable to maintain themselves. The wife and children should not 12. 13. 9 be left in a helpless state of distress, destitution and starvation. With the above said view, this Court is examining the evidence available on record with respect to grant of maintenance to the wife and son. 14. The wife has examined herself as AW-1 and proved the documents (exhibit P-1 to P-4). The AW-2 Yuvraj Naidu, AW-3 G.C. Karmkar (Gaurchand) have been examined in favour of the wife. The husband himself examined as NAW-1 and has proved his income tax return for the assessment year 2022-23 (exhibit D-1). 15. The wife (AW-1) has stated in her examination-in-chief as per her application and stated that she is dependent upon her parents. Her husband is having extramarital affair with his assistant doctor and due to which, he harassed her and left her. When she had gone to her matrimonial house, her husband and in-laws sent her back and not kept her with the husband. Her husband is a medical doctor and running a clinic and earing Rs. 1 ½ - 2 lakhs per month and paying income tax. Looking to the present cost of living and living status of the husband, Rs. 75,000/- per month may be awarded to them towards monthly maintenance. In cross-examination, she admitted that she knew the husband from his childhood and both of them were in love affair and they performed arrange marriage with the consent of both the families. She made all her allegations in writing to the Parivar Paramarsh Kendra and lodged FIR against the husband, in which charge sheet has been filed. She also filed the domestic violence case and claimed monetary relief in that case also. She is still ready and willing to reside with her husband. She admitted that 10 she is having the qualification of B.Com. and P.G.D.M.M. (Marketing Management). She had worked with IndusInd Bank, Bhartiya Insurance Company, Made Life India Insurance and AISECT Computer. She also admitted that her parents are in jewelers’ business. She also admitted that after the marriage, she was doing online clothes’ business with the consent of the husband. She denied that her online cloths’ business is still continue. She also denied any severe ailment of the husband. On 15.11.2020, she was sent back by her husband to her parents’ house and has not taken back. She admitted the transfer of the amount of Rs. 13,500/- in her bank account by the husband. She denied that she pressurized her husband to reside separately from his old aged parents. In further cross-examination, she stated that the document of exhibit P-4 is also submitted by her in pen drive, which is article-1 and the same is the copy taken out from her mobile phone. From the cross- examination of AW-1, the allegation that the husband is having extramarital affair with his assistant doctor, could not be rebutted and could not specifically challenged in her cross-examination. 16. AW-1, Yuvraj Naidu is the family friend of the wife, who stated that the applicant/wife informed him about the extramarital affair of her husband, and when she objected, her husband beat her and left her to her parents’ house. He also supported the allegation leveled by the wife against her husband. In cross-examination, he stated that he and the applicant/wife are batch-mate. He admitted that he had not 11 tried for their reconciliation. Nothing specific has come in his evidence, which supported the case of the wife or the husband. 17. AW-3, G.C. Karmkar is the father of the applicant/wife, who also supported the case of the applicant/wife and the allegations leveled by her against her husband. He also stated in his evidence that his son-in-law is having extramarital affair with his assistant doctor, due to which her daughter was being harassed by her husband and left her to his house and has not taken her back. Despite their efforts to convince him, the matter could not be resolved. In cross- examination, he admitted that, when he came to know about the dispute between the parties, he had a telephonic talk to the father of the husband. He admitted that his daughter had worked at Pune. He also admitted that his daughter is still engaged in online business. He voluntarily stated that she engaged in business for her livelihood. 18. NAW-1, husband is also stated in his examination-in-chief as per his reply to the application and denied his liability and financial status as shown in the maintenance application by the wife and filed the documents of his income tax return (exhibit D-1). He stated in his evidence that, the wife is still residing with her father and she does not want to reside with him. She pressurized him to reside separately from his old aged parents. She is not having any extramarital affair with his assistant doctor or anyone. Due to the cruel behavior of the wife, he suffered by heart attack and paralytic attack. Despite that his wife has returned back to her parents’ house. His wife is a qualified educated and working woman and earning sufficient amount for her 12 livelihood. She was earlier working with various companies and still working as counselor and also engaged in online business. He is having very limited income of Rs. 20,000 – 25,000/- per month. His old aged parents are dependent upon him, yet the learned Family Court has granted higher amount towards maintenance to the applicant/wife and son, which is liable to be set-aside. In cross- examination, he admitted that he was having love affair with the applicant wife and with the consent of their family members, their marriage was solemnized. He further stated that whenever, he was not present in the clinic, his assistants are running the clinic. In the year 2020, he underwent the Angioplasty of his heart. The behavior of the wife was not good with his parents. He denied the photograph (exhibit P-4), but admitted that the photograph is looking like him and the girl may be of his assistant doctor. He admitted that before his assistant doctor, another lady assistant was working in his clinic. He also admitted that the said lady assistant had lodged a complaint against him at Mahila Ayog, Raipur. He denied that in the income tax return in between 2015 to 2020, his income was higher and he suppressed the same to avoid his liability. He admitted that the copies of income tax return prior to 2022-23 have not been filed by him in the present case. He shown his ignorance as to whether his income tax is higher than the income of the year 2022-23 or not. From his cross-examination, it also reflects that he is enjoying the luxurious life and having luxury car with him and his father. His father is a retired officer from LIC and getting pension. 13 19. From the document (exhibit D-1), which is the copy of income tax return of the year 2022-23 filed by the husband, it reveals that in the assessment year 2022-23, the total income of the husband was Rs. 2,95,789/-. In para 21 of his evidence, he stated that he has not filed the income tax return of the previous years. The present application for maintenance is filed by the applicant/wife on 15.12.2021. For the reason best known to the husband, he has not filed the copy of income tax return for the previous years to prove that his consistent annual income is about Rs. 3 lakhs per year. In the present Criminal Revision No. 1080 of 2023, when he produced the copy of income tax return for the years 2022-23 and 2023-24, he could also produce the copy of income tax return for the previous years to show his bona fide, but it is not done by him. 20. Be that as it may, there is allegation and counter allegation against each other regarding their behaviour, but the fact remains that the relationship between the parties are not in dispute and the wife and son are residing separately from the husband since 15.11.2020. It is the husband’s moral and legal duty to maintain his wife and son. 21. The scope and object of Section 125 of CRPC has been considered by the Hon'ble Supreme Court in the case of ‘Anju Garg and Another v. Deepak Kumar Garg’ 2022 SCC Online SC 1314, the Hon'ble Supreme Court in Para 9 and 10 of its judgement has held that:- 14 “9) At the outset, it may be noted that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, as observed by this Court in Bhuwan Mohan Singh vs. Meena & Ors. 1. This Court in the said case, after referring to the earlier decisions, has reiterated the principle of law as to how the proceedings under Section 125 Cr.P.C have to be dealt with by the Court. It held as under: “In Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC 624 : 1987 SCC (Cri) 237] the Court opined that : (SCC p. 631, para 16) 16. “… Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.” 8. A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) [(1991) 2 SCC 375 : 1991 SCC (Cri) 442] , while discussing about the basic purpose under Section 125 of the Code, opined that : (SCC p. 378, para 3) 3. “Section 125 of the Code of Criminal Procedure is meant to achieve a social 15 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.” 1 (2015) 6 SCC 353 9. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat [(1996) 4 SCC 479 : 1996 SCC (Cri) 762] , while adverting to the dominant purpose behind Section 125 of the Code, ruled that : (SCC p. 489, para 15) 15. “… While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should 16 not be left in a helpless state of distress, destitution and starvation.” 10. In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] , reiterating the legal position the Court held : (SCC p. 320, para 6) 6. “… 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 [(1978) 4 SCC 70 : 1978 SCC (Cri) 508] falls within 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 [(2005) 3 SCC 636 : 2005 SCC (Cri) 787] .” 11. Recently in Nagendrappa Natikar v. Neelamma [(2014) 14 SCC 452 : (2015) 1 SCC (Cri) 407 : (2015) 1 SCC (Civ) 346] , it has been 17 stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children”. 10) This Court had made the above observations as the Court felt that the Family Court in the said case had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under Section 125 of the Code. Such an impression has also been gathered by this Court in the case on hand. The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj vs, Sita Bai2, it has been held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. As settled by this Court, Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India.” 18 22. The Hon'ble Supreme Court in the matter of ‘Sunita Kachhawaha and Others v. Anil Kachhawaha’ AIR 2015 SC 554, has observed in Para 8 of its order that:- “8. The proceeding under Section 125 Cr.P.C. is summary in nature. In a proceeding under Section 125 Cr.P.C., it is not necessary for the court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant-wife and the respondent and observing that the appellant-wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of appellant-wife and the factual findings, as recorded by the Family Court. ” 23. While deciding the case, the learned Family Court after considering the status of the parties and earning capacity of the husband as well as the wife and also the evidence produced by the parties with respect to their financial position, granted Rs. 25,000/- per month to the wife and son. 24. Considering the present cost of living, the amount awarded to the wife and son cannot be said to be exorbitant or excessive. It is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of marriage and not as a 19 punishment to the other spouse. The sufficiency of the quantum has to be adjudged, so that the wife is able to maintain herself with reasonable comfort. In the matter of ‘Rajnesh v. Neha’ 2021 (2) SCC 324, the Hon'ble Supreme Court has held in Para 78 to 84 that: “78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. 79. In Manish Jain v Akanksha Jain 34 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. 20 The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. 80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. 81. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor 21 should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort. 82. Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source. 83. Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and/or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home. 84. The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid down the following factors to be considered for determining maintenance : “1. Status of the parties. 2. Reasonable wants of the claimant. 22 3.The independent income and property of the claimant. 4. The number of persons, the non-applicant has to maintain. 5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home. 6. Non-applicant’s liabilities, if any. 7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant. 8. Payment capacity of the non-applicant. 9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed. 10. The non-applicant to defray the cost of litigation. 11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.” 25. So far as the income tax return of the husband and his yearly income shown in the copy of said income tax return, it is held by the Hon'ble Supreme Court that the income tax return is not the conclusive proof of yearly income of the husband for grant of maintenance amount 23 and it is not an accurate guide of real income. In the matter of “Kiran Tomar and Others v. State of U.P. and Another” 2022 SCC Online SC 1539, in Para 10 of its judgement, the Hon'ble Supreme Court has held that:- “10. On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is a tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met.” 26. Therefore, taking into consideration all these facts and the law laid down by the Hon'ble Supreme Court, this Court is of the opinion that the learned Family Court has not considered the application of the wife and son in its right perspective and granted monthly maintenance of Rs. 25,000/- to them, which is payable from the date of order, is based on correct proposition of law and looking to the financial condition and status of the parties. 27. As this Court has found that the income shown in the income tax return is not the accurate guideline to determine the quantum of 24 monthly maintenance and the monthly income of the husband is more than the income shown in the income tax return, from the entire evidence, it can be considered that the monthly income of the husband is at least not less than one lakh, but more than that. However, for consideration of granting maintenance to the wife, in view of the evidence available on record, Rs. 1 lakh per month can be considered to be the income of the husband. 28. In the matter of “Kalyan Dey Chowdhury v. Rita Dey Chowdhury, Nee Nandy” 2017 (14) SCC 200, the Hon'ble Supreme Court has held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the wife. 29. From the aforesaid consideration as well as the law laid down by the Hon'ble Supreme Court with respect to grant of maintenance and its quantum, as has been held in the case of “Anju Garg”, “Rajnesh v. Neha”, “Kiran Tomar” and “Kalyan Dey Chowdhury” (supra), this Court is of the opinion that the maintenance granted to the wife and son are proper and based on the evidence available on record and this Court does not find any scope of interference either to set-aside the order of maintenance or to enhance the maintenance amount granted to the wife and son. 30. In the case of “Rajnesh v. Neha” (supra) the Hon'ble Supreme Court has considered the issue and comes into conclusion in para 113 that:- 25 “113. It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.” 31. In view of the judgment of “Rajnesh v. Neha”, the maintenance amount is payable from the date of application, but in the present case, the maintenance amount is awarded from the date of order i.e. from 25.08.2023. Therefore, this Court is of the view that the learned Family Court is fall in error to grant maintenance amount to the wife and son from the date of order i.e. 25.08.2023, but they are entitled for maintenance from the date of the application i.e. 15.12.2021. 32. 33. The amount of maintenance, which has already been paid by the husband in the present case, is liable to be adjustment on the total amount of maintenance.
Arguments
claims. Ms. Nirupama Bajpai, learned counsel appearing for the wife in Criminal Revision No. 1163 of 2023 would submit that her husband is earning more than Rs. 1,00,000/- per month and living in a luxurious life, whereas the wife is having no source of her income and fully dependent upon her parents. The husband has completely neglected her and her son and has not provided any basic need to them. The amount awarded by the learned Family Court is on very lower side and the wife and son are also entitled for the same status as her husband is enjoying. She would also submit that from the evidence of the husband, it clearly reveals that he is having income of more than lakhs of rupees and able and capable to pay the maintenance amount higher than the amount awarded by the learned Family Court. From the income tax return of the husband, it reflects that he is having sufficient income. Even otherwise the income tax return is not the exact proof of his income and in the evidence available on record, it can be considered that he is having more income than the income shown in the income tax return. The husband is a medical doctor. She would also submit that, the husband has developed physical relation with his assistant doctor, who is working with him and neglected the wife and son, for which she is residing with her 7 parents and having sufficient cause to reside separately from the husband. It is also submitted by her that looking to the present cost of living at status of the husband Rs. 25,000/- per month is very meager amount for the wife and son for their maintenance and the wife and son are entitled for higher amount of maintenance. 10. Mr. Anup Majumdar, learned counsel appearing for the husband would submit that the learned Family Court has not considered the evidence available on record. Due to his poor health, the husband could not run his medical practice properly and his clinic is not functioning well. The husband is not having any relation with his assistant doctor, as the allegation leveled by the wife. It is only a suspicion and not the correct position. The wife is taking WhatsApp chat of the husband, which has been taken as a tool by the wife to harass him. Without any certificate under Section 65-B of the Evidence Act, the same has been considered by the learned Family Court, which is erroneous. The husband has shown his income through the income tax return, which shows that the total yearly income of the husband for the assessment year 2022-23 is Rs. 2,95,789/- and thus, his monthly income would be Rs. 25,000/- per month. The learned Family Court without any basis considered the monthly income of the husband as Rs. 50,000-70,000/- per month and has granted Rs. 25,000/- per month as maintenance to the wife and son, which is in the higher side. The wife is a working woman and having sufficient source of her income and is not in need of any maintenance amount. 8 11. I have heard learned counsel for the parties and perused the record of the Family Court. In the Criminal Revision No. 1080 of 2023, the husband has filed the copy of income tax return of assessment years 2022-23, 2023-24 and his medical treatment document along with the covering memo dated 22.01.2024. On 01.02.2024, he also filed the copies of the deposition and order dated 14.06.2023, passed by
Decision
In view of the above, the Criminal Revision No. 1080 of 2023 filed by the husband is dismissed, and the Criminal Revision No. 1163 of 2023 filed by the wife and son is partly allowed. 34. Consequently, all the pending applications in Criminal Revision No. 1080 of 2023 are disposed of. 26 35. 36. The parties are at liberty to claim enhancement/ modification / alteration/ set-aside the order of maintenance in changed circumstances, if the occasion so arises. The record of the Family Court be sent back along with a copy of this order. ved Sd/- (Ravindra Kumar Agrawal) Judge