Khalid Ahmad @ Khalid Ahmed, aged about 39 years, s/o Abdul Hafiz, r/o village-Khirgaon v. 1. The State of Jharkhand 2. Roohi Praveen, aged about 32 years, W/o Khalid
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 672 of 2022 Khalid Ahmad @ Khalid Ahmed, aged about 39 years, s/o Abdul Hafiz, r/o village-Khirgaon, Khan Road, PO-Sadar, PS-Sadar, District-Hazaribag ... … Petitioner Versus 1. The State of Jharkhand 2. Roohi Praveen, aged about 32 years, W/o Khalid Ahmad, D/O Mohd. Imran Khan, r/o Vill.-Giddi ‘A’, Qtr. No. 232, PO-Giddi ‘A’, PS-Giddi, District-Hazaribag 3. Saleha, aged about 2 years and 4 months, (represented through her mother i.e Respondent No.2), D/o Khalid Ahmad, r/o Village-Giddi “A”, Quarter No. 232, PO-Giddi “A”, PS-Giddi, District-Hazaribag. … ... Opposite Parties CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State For the O.P No.2 : Mr. Shravan Kumar, Advocate : Mrs. Vandana Bharti, APP : Mr. Sankalp Goswami, Advocate ------- Order No. 6 /Dated: 22nd February 2024 1. 2.
Facts
The learned counsel for the parties is present. This criminal revision petition has been filed against the judgment dated 07.05.2022 passed in Original Maintenance Case No. 23 of 2019 by the learned Principal Judge, Family Court, Hazaribag whereby a maintenance amount has been fixed for the opposite party no.2 to the extent of Rs.5000/- per month and for the minor daughter at the rate of Rs.3000/- per month till her marriage or majority ; the arrears of maintenance has been calculated from the date of filing of the case i.e from 01.02.2019 amounting to a total of Rs. 3,12,000/- out of which an amount of Rs.3 lakhs paid pursuant to order passed in A.B.A. No. 4947 of 2019 has been adjusted and the balance arrear of Rs.12,000/- has been directed to be paid in three equal installments. 3.
Legal Reasoning
while grant of anticipatory bail to the petitioner by this Court in A.B.A. No. 3 Criminal Revision No.672 of 2022 4947 of 2019 certain amount was directed to be given to the opposite party no.2. It appears that the petitioner was employed in the bank but was dismissed though the order of dismissal was not exhibited. It was also the case of the opposite party no.2 that the petitioner has some income through tuitions, house rent and cultivation but no documentary evidence was produced. It also appears that the opposite party no.2 claimed that she had no source of income. In the aforesaid background the learned Family Court after discussing the oral evidences (as no documentary evidence was produced) recorded the following findings with regards to the entitlement and the quantum of maintenance in paragraph nos. 10, 11,12 ,13 and 15 and fixed the maintenance as mentioned above and referred to the judgment passed in the case of “Rajnesh versus Neha” (supra) to fix the quantum of maintenance from the date of filing the application: - “10. POINT-II- Whether the petitioner-1 is unable to maintain herself and her son? AND -IV- Whether the OP has been voluntarily neglecting to maintain the petitioners? (a) First case of OP is that he was paying Rs. 3-5 thousand p.m. to the Petitioners prior to filing of present maintenance case. But he as OPW-1 deposed in cross-22- that he was not paying any maintenance after this case. His brother- the OPW-4 also deposed that after filing of this case, no maintenance was paid by OP to petitioners. (b) The OPWs 2 to 5 deposed that the petitioner-1-wife works in vodafone company. But the OP himself as OPW-1 did not depose so nor does he plead it in his show-cause. So this evidence of OPWs 2 to 5 seems to be exaggeration. (c) The case of petitioner-1 is that she has no source of income. All three PWs deposed in support. (d) Case of petitioners seems to be more believable. (e) Both point-II & IV thus stand adjudicated accordingly in favour of petitioners. 11. POINT-III- Whether the OP has sufficient means and what is his income? (a) First case of petitioners is that the opposite-party works as Manager in Punjab National Bank. (b) Case of OP is that he has been dismissed from service due to nuisance created by petitioner-1 and her family members at his work place. (c) Though not exhibited, but the OP did file xerox copy of his dismissal order. On perusal it appears that the OP was dismissed in February-2019, from service due to financial irregularities and that also after due departmental proceeding. (d) So the fact remains that in fact the OP is no more in service. 12. (a) Next case of the petitioner-1-wife is that the OP has got income from house rent and cultivation. 4 Criminal Revision No.672 of 2022 (b) No documentary proof has been brought on record. The petitioners only relied upon oral evidences of all three PWs. 13. (a) Ld. Advocate for petitioners argued that the OPWs admitted that the OP is neither insolvent nor has got any physical deformity. So he is supposed to earn and enough to maintain family. (b) Ld. Advocate for OP argue that presently the OP is unemployed. (c) The OP is an educated person. He is not a disable person. So he must be earning and enough to maintain self and dependents including the petitioners. (d) This point-III accordingly stands adjudicated. ……………………………………………………………………………….. 15. POINT-VI- Whether both the petitioners are entitled of maintenance from OP and if yes then quantum? (a) On the basis of the discussions made above it is held, found and adjudicated that the both the petitioners are entitled of maintenance from OP. (b) So far as the quantum of maintenance is concerned, keeping in view all above and economic conditions of parties, it is hereby - O R D E R E D that this maintenance case is allowed on contest. The opposite-party Khalid Ahmad, is directed to pay: - Payable to Roohi Praveen-petitioner-1-wife 5,000/- xxxx Saleha, - petitioner-2-daughter Total-Rs. EIGHT thousand per month Condition Rs. 3,000/- Till marriage or majority Towards maintenance. (c) As per judgment of Hon'ble Apex court in Rajneesh -vs- Neha, this order will be w.e.f. the date of application. (d) This maintenance case was filed on 01/02/2019. Till 30/4/2022, the arrear comes to 39 x 8,000/- Rs. 3,12,000/- only. (e) As per order of Hon'ble Jharkhand High court passed in ABA- 4947 of 2019, the sum of Rs. 3 lac paid through DD, by the OP to petitioner-1, as ad-interim victim compensation, has to be adjusted towards maintenance, if any or full and final settlement, if any between the parties. (f) In compliance thereof, the sum of Rs. 3 lac paid through DD, by the OP to petitioner-1, is adjusted in arrear. Thus the balance arrear remains at Rs. 12,000/- only which has to be paid in 03 equal installments. (g) Maintenance and arrear are to be paid by 01st of every calender month commencing from next month. (h) the aforesaid awarded amount of maintenance will be received by the petitioner-1-Roohi Praveen towards maintenance for self and petitioner-2. The petitioner no.1-wife shall be at liberty to open a S.B. Account with any Nationalized Bank or Post office and if she is having any such account, she may furnish the account details to the opposite-party so that he can deposit the awarded maintenance amount therein.” 8. This Court finds that although the learned Family Court has referred to the judgment passed in the case of “Rajnesh versus Neha” (supra) but the directions passed in the said judgment have not been followed with regards to fixation of quantum of maintenance upon disclosures of income, assets and 5 Criminal Revision No.672 of 2022 liabilities by both the parties in terms of the enclosures to the said judgment and such disclosures were directed to be filed even in pending proceedings. The important guideline and directions issued in the case of “Rajnesh versus Neha” (supra) which are relevant for the present case are as under:- before proceedings “72. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India: 72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending the Family Court/District Court/Magistrate’s Court concerned, as the case may be, throughout the country; 72.2. (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets; 72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the affidavit, and seeks more than two adjournments for this purpose, the court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings. On the failure to file the affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record; 72.4. (d) The above format may be modified by the court concerned, if the exigencies of a case require the same. It would be left to the judicial discretion of the court concerned to issue necessary directions in this regard. 72.5. (e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the court concerned may pass appropriate orders in respect thereof. 72.6. (f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the court to serve interrogatories, and seek production of relevant documents from the opposite party under Order 11 CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the Evidence Act, 1872, if it considers it necessary to do so. The income of one party is often not within the knowledge of the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned. 72.7. (g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended/supplementary affidavit, which would be considered by the court at the time of final determination. 72.8. (h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the court may consider initiation of proceeding under Section 340 CrPC, and for contempt of court. 6 Criminal Revision No.672 of 2022 72.9. (i) In case the parties belong to the economically weaker sections (“EWS”), or are living below the poverty line (“BPL”), or are casual labourers, the requirement of filing the affidavit would be dispensed with. 72.10. (j) The Family Court/District Court/Magistrate’s Court concerned must make an endeavour to decide the IA for interim maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court. 72.11. (k) A professional Marriage Counsellor must be made available in every Family Court. …………………………………………………………… (c) Where wife is earning some income 90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The courts have provided guidance on this issue in the following judgments: 90.1. In Shailja v. Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival. 90.2. In Sunita Kachwaha v. Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. 90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha, held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. 90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court. 90.5. This Court in Shamima Farooqui v. Shahid Khan cited the judgment in Chander Parkash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife. ………………………………………………….. VI. Final Directions 127. In view of the foregoing discussion as contained in Part B — I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India. (a) Issue of overlapping jurisdiction 128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is 7 Criminal Revision No.672 of 2022 before proceedings uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that: 128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding. 128.2. (ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding. 128.3. (iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding. (b) Payment of Interim Maintenance 129. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including the Family Court/District pending Court/Magistrates Court concerned, as the case may be, throughout the country. (c) Criteria for determining the quantum of maintenance 130. For determining the quantum of maintenance payable to an applicant, the court shall take into account the criteria enumerated in Part B — III of the judgment. The aforesaid factors are however not exhaustive, and the court concerned may exercise its discretion to consider any other factor(s) which may be necessary or of relevance in the facts and circumstances of a case. (d) Date from which maintenance is to be awarded 131. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B — IV above. (e) Enforcement/Execution of orders of maintenance 132. For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28-A of the Hindu Marriage Act, 1955; Section 20(6) of the DV Act; and Section 128 of CrPC, as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21. 133. Before we part with this judgment, we note our appreciation of the valuable assistance provided by the learned Amici Curiae Ms Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior Advocates in this case. 134. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation.” 9. This Court finds that in the aforesaid judgment passed by the Hon’ble Supreme Court, it has been, inter alia, directed that the Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of the judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the Family Court/District 8 Criminal Revision No.672 of 2022 Court/Magistrates Court concerned, as the case may be, throughout the country. 10. This Court finds that the aforesaid directions issued by the Hon’ble Supreme Court including the requirement to file Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of the judgment, as may be applicable, have not been complied and consequently the quantum of maintenance has not been fixed in the light of the guidelines issued by the Hon’ble Supreme Court in the aforesaid judgment. 11. Considering the fact that the directions issued by the Hon’ble Supreme Court in “Rajnesh versus Neha” (Supra) have not been complied, and consequently the assets and liabilities of the parties have not been brought on record as per the requirement of law laid down by the Hon’ble Supreme Court, the impugned order cannot be sustained in the eyes of law and calls for interference in revisional jurisdiction of this Court and the matter is required to be remanded for fresh consideration by the learned Family Court to come to a correct finding regarding the assets and liabilities and for fixing the
Arguments
The learned counsel for the petitioner has submitted that the impugned order passed by the learned Family Court calls for interference inasmuch as the learned Family Court has not properly considered the fact that the petitioner has been dismissed from the services of the bank and therefore the petitioner has no source of income. The learned counsel has also submitted that the opposite party no.2 has enough source of income to sustain herself and therefore also the impugned order calls for interference. 2 Criminal Revision No.672 of 2022 4. The learned counsel appearing on behalf of the opposite party no.2 while opposing the prayer has submitted that the factum of dismissal of the petitioner from service has been taken into consideration while passing the impugned order. The learned counsel has also submitted that the petitioner did not produce any document to show that the opposite party no.2 had independent source of income. The learned counsel has further submitted that the petitioner was having his additional income through tuitions as has been mentioned in the impugned order. The learned counsel has submitted that the petitioner is under an obligation to maintain his wife and it is not material as to whether the petitioner is employed or not employed. The fact that the petitioner is an able-bodied person he has an obligation to maintain. This aspect of the matter has been considered by the learned Family Court which suffers from no perversity and therefore no interference is called for. The learned counsel has also submitted that in the judgment passed by the Hon’ble Supreme Court in the case of “Rajnesh versus Neha & Anr.” (2021) 2 SCC 324 it has been clearly held that merely because wife has some means of livelihood, the same by itself is not a ground to deny maintenance to the wife. The learned counsel submits that it has been taken into consideration that the obligation of the husband to maintain his wife is on a higher pedestal. 5. However, upon going through the judgment passed by the Hon’ble Supreme Court in the case of “Rajnesh versus Neha” (supra) and upon a query put by this Court to the learned counsel for the parties, it has been fairly submitted that the direction for filing disclosures by the respective parties in terms of the aforesaid judgment has not been complied before the learned Family Court and consequently actual income and liabilities of either parties have not been brought on record. 6. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the relationship between the petitioner and the opposite party no.2 as husband and wife is not in dispute. It is further not in dispute that they have a minor daughter who is residing with the opposite party no.2. 7. It is not in dispute that the petitioner and the opposite party no.2 are in litigating terms; the opposite party no. 2 has instituted a criminal case and
Decision
quantum of maintenance. Consequently, the impugned order is set-aside and the matter is remanded for fresh consideration. 12. However, the petitioner would continue to pay the maintenance amount as fixed by the learned Family Court by the impugned order amounting to Rs.8000/- per month by way of interim maintenance till fresh order is passed by the learned Family Court after considering the affidavits of disclosures to be filed by both the parties and such payment would be subject to the final outcome of the decision of the learned Family Court. 13. The affidavits of disclosure of the petitioner and the opposite party no.2 in terms of the judgment passed in “Rajnesh versus Neha” (supra) be filed by the parties before the learned Family Court on 18.03.2024. 14. Upon filing of such affidavits, the final decision be passed by the learned Family Court within a period of three months from 18.03.2024. 15. This criminal revision petition is accordingly disposed of. 16. Let a copy of the order be communicated to the Court concerned forthwith. Amit (Anubha Rawat Choudhary, J.)