Misc. Case No. 41 of 2011 · The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Seema Das Cr. Revision No. 1443 of 2018 …… Petitioner Kishore Kumar Das Versus with ……. Opp. Party Cr. Revision No. 1549 of 2018 Kishore Kumar Das …… Petitioner Versus 1. The State of Jharkhand 2. Seema Das --------- ……. Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State For the O.P. No.2 ---------- : Ms. Amrita Banerjee, Adv. (Cr.Rev.1443/18) : Mr. A. K. Kashyap, Sr.Adv. (Cr.Rev.1549/18) : Mr. Supriya Dayal, Adv : APP : Mr. A. S. Dayal, Adv. (Cr.Rev.1443/18) : Mr. Supriya Dayal, Adv. : Ms. Amrita Banerjee, Adv. (Cr.Rev.1549/18) ----------- Judgment 16/Dated:22nd March, 2024 Both the Criminal Revision No.1443 of 2018 and Criminal Revision No.1549 of 2018 have been heard together and are being disposed of together as they arise of the common judgment dated 26.07.2018 passed in Mint. Alt. Case No.11 of 2016 filed under Section 127 Cr.P.C by Kumari Ranjana Asthana then learned Additional Principal Judge, Additional Family Court, Dhanbad by which the learned Additional Principal Judge has allowed the petition filed by the petitioner- Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) by directing the opposite party-Kishore Kumar Das (i.e. opposite party in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision 2 No.1549 of 2018) to pay Rs.15,000/- per month to the petitioner-Seema Das and Rs.10,000/- per month to their daughter Anjali till she is willfully married or gainfully employed for maintenance by modifying the order dated 02.02.2015 passed in Cr. Misc. Case No.41 of 2011 from the date of passing of the order. 2. The brief facts of the case is that the wife-Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) has filed a petition under Section under Section 127 Cr.P.C against the husband-Kishore Kumar Das (i.e. petitioner in Cr. Revision No.1549 of 2018 and opposite party in Cr. Revision No.1443 of 2018) for enhancement of maintenance amount from Rs.20,000/- to Rs.41,000/- per month or 60% of the gross salary of the petitioner-husband on the ground that she was granted maintenance of Rs.7,000/- per month for herself and Rs.6,500/- per month each to her two minor children vide order dated 02.02.2015 passed in Cr. Misc. Case No.41 of 2011. It has further been stated that now the son of the petitioner, Himanshu is grown up and the O.P. No.2 got him admitted in Engineering College at Pune and his educational expenses is now additional expenses. It has further been stated that besides this as per the prevailing market price there is increase in food, residence, medicine and other maintenance. It has further stated that the petitioner-husband (i.e. petitioner in Cr. Revision No.1549 of 2018 and opposite party in Cr. Revision No.1443 of 2018) may be directed to pay Rs.41,000/- per month or 60% of the gross salary to the O.P. No.2-wife and her children as maintenance allowance. 3
Legal Reasoning
3. Heard Ms. Amrita Banerjee, learned counsel, who has appeared on behalf of the petitioner in Cr. Revision no.1443 of 2018 and O.P. No.2 in Criminal Revision no. 1549 of 2018 and Mr. A.S. Dayal, learned counsel, who has appeared on behalf of the petitioner in Criminal Revision no.1549 of 2018 and opposite party in Criminal Revision no.1443 of 2018. Argument by Petitioner in Cr. Revision no.1443 of 2018:- 4. It is submitted that the impugned judgment passed by the learned Court below is illegal and not sustainable in law and as such it is fit to be modified. It is submitted that the learned Court below has not appreciated the facts and circumstances of this case and the learned Court below has also not considered the evidence of the petitioner and has ignored the provision of Section 127 of the Cr.P.C. It is submitted that the learned Court below has failed to appreciate that though the son has become major but he is still pursuing Marine Engineering Course and he needs financial assistance from his father. It is submitted that while computing the income of the opposite party, the learned court below has failed to include the earlier maintenance amount of Rs.20,000/- and arrears of maintenance of Rs.11,630/- in the take home salary. It is submitted that the learned Court below has failed to consider the petition for alteration under Section 127 Cr.P.C by refusing the maintenance to the son who is fully dependent upon his father. It is submitted that the learned Court below has failed to take into account the growth in salary of opposite party-husband, which was Rs.32,401/- then enhancement in maintenance for Rs.5,000/- only for petitioner- wife is not justified as the petitioner-wife has full liability of one son studying in 3rd year of Marine Engineering Court with 4 Annual expenses of approx., Rs.3,60,000/- (i.e. Rs.30,000/- per month) and of one daughter in 1st year of BBA course with annual expenses of Rs.1,50,000/-, and on the other hand the opposite party is free from any liability as his mother is getting family pension and his brothers are gainfully employed. It is submitted that though the son is still a student pursuing his Marine Engineering course at MANET, PUNE and is financially dependent upon the maintenance earlier awarded by the Court, the learned Court below did not choose to grant maintenance to the son. It is submitted that the learned Court below committed a grave mistake and even considered the maintenance awarded to the opposite party as his deduction and the same were not considered while calculating the maintenance amount for the claimant petitioner. It is submitted that the learned Court below has failed to appreciate that the opposite party-husband does not treat his son as his liability whereas he says in his deposition that his 28 years old brother is his liability. It is submitted that the impugned judgment dated 26.07.2018 passed by the learned Additional Principal Judge, Addl. Family Court, Dhanbad in the Mint. Alt. Case No.11 of 2016 has caused serious miscarriage of justice and hence the judgment passed by the learned Court below may be modified. Argument by Petitioner in Cr. Revision no.1549 of 2018:- 5. It is submitted that the impugned judgment passed by the learned Court below is illegal and not sustainable in law. It is submitted that the petitioner-husband is paying Rs.20,000/- per month along with Rs.11,000/- per month towards the arrear of maintenance of Rs.3.14 Lakh. It is submitted that the O.P. No.2- wife has not shown any valid cause for enhancement of 5 maintenance amount nor she has filed any document to show as to how she is spending Rs.31,000/- given by the petitioner- husband as maintenance and arrears of maintenance. It is submitted that earlier the O.P. No.2-wife had filed maintenance case against him in the year 2002 against which the learned Court below directed him to pay Rs.3,000/- per month to the O.P. No.2-wife and their children as maintenance, thereafter she had filed Crl. Misc. Case No.35/2005 for enhancement of maintenance amount which was allowed and maintenance amount was enhanced from Rs.3,000/- per month to Rs.6,000/- per month. It is submitted that the O.P. no.2-wife again filed Crl. Misc. Case No.41 of 2011 under Section 127 Cr.P.C which was also allowed and the petitioner-husband was directed to pay Rs.20,000/- per month to the O.P. No.2-wife and her children as maintenance and now the O.P. No.2-wife had filed the present case for enhancement of maintenance amount for the third time. It is submitted that for the last 15 years, the petitioner-husband was not allowed to meet with his children and he is under suspicion whether the maintenance amount which he is paying to his children is properly received by his children or not. It is submitted that the petitioner-husband is paying Rs.20,000/- per month along with Rs.11,000/- per month towards the arrear of maintenance of Rs.3.14 Lakh. It is submitted that the O.P. No.2- wife has not shown any valid cause for enhancement of maintenance amount nor she has filed any document to show as to how she is spending Rs.31,000/- given by the petitioner- husband as maintenance and arrears of maintenance. It is submitted that the O.P. No.2-wife has been examined as P.W-1 and during her cross-examination she has stated that she is regularly receiving Rs.20,000/- per month from the petitioner- 6 husband and she has also deposed that she has not seen any paper with regard to salary of her husband i.e. the present petitioner. It is submitted that the learned Court below ought to have considered that the O.P. No.2 has claimed the enhancement of maintenance on the basis of information received through RTI showing the petitioner’s salary to be Rs.78,000/- per month. It is submitted that the learned Court below has failed to consider that the take home salary of the petitioner after all the deductions is only Rs.41,314/-. It is submitted that the learned Court below did not consider properly that the father, mother and also the younger brother (unemployed) are dependent upon the petitioner and hence the impugned judgment may be set aside. 6. On the other hand, learned APP for the State has submitted that the impugned judgment passed by the learned Court below is fit and proper and no interference is required. It is submitted that the learned Court below has considered all the aspects. It is submitted that the son of the petitioner-Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) has become major and as such learned Court below has rightly disallowed the maintenance to the son. It is submitted that P.W-1 and P.W-2 namely, Seema Das and Ramnath Lal Das have fully supported the case of the petitioner-Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018). It is submitted that opposite party-Kishore Kumar Das (i.e. opposite party in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018) is bound to maintain his wife and 7 child and hence the evidence of O.P.W-1 and O.P.W-2 cannot be relied upon. 7. Perused the Lower Court Records and considered the submission made on behalf of both the sides. 8. It appears from the pleading that earlier the petitioner- Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) had filed maintenance case against opposite party-Kishore Kumar Das (i.e. opposite party in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018) in the year 2002 against which the learned Court below directed him to pay Rs.3,000/- per month to the petitioner-Seema Das and her children as maintenance. Thereafter she had filed Crl. Misc. Case No.35/2005 for enhancement of maintenance amount which was allowed and maintenance amount was enhanced from Rs.3,000/- per month to Rs.6,000/- per month. 9. It also transpires that the petitioner-Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) again filed Crl. Misc. Case No.41/2011 under Section 127 Cr.P.C which was also allowed and the opposite party-Kishore Kumar Das was directed to pay Rs.20,000/- per month to the petitioner-wife and her children as maintenance and now the petitioner-Seema Das has filed the present Maintenance Alteration case for enhancement of maintenance amount. 10. It transpires that the present Mint. Alt. Case No.11 of 2016 /Crl. Misc. Case No.41/2011 was filed on behalf of the petitioner-Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) on 8 17.05.2016. It has been stated by the petitioner-Seems Das that Crl. Misc. Case No.41/2011 was filed under Section 127 Cr.P.C
Decision
for enhancement of maintenance amount which was disposed of after four years in the year 2015 by altering the maintenance amount on the basis of gross salary from Rs.6,000/ to Rs.20,000/- (i.e. Rs.7,000/ for the petitioner-wife and Rs.6500/- each for her two children) . She has given details of expenses towards her house rent, fooding, electricity, school fee, transportation, miscellaneous expenses/medical etc. and asserted that she has to spend Rs.41,000/- per month in para-7 of her application filed under Section 127 Cr.P.C. She has prayed that quantum of monthly maintenance be allowed in terms of at least 60% of gross salary and also on the ground that T.M.S Case No.334/2001 has already been dismissed by Family Court, Bokaro on 01.03.2013 yet the O.P.-husband is not maintaining her two children who are now reading in higher classes in reputed educational institution and hence maintenance amount should be fixed @ 60% of gross salary which must not be less than Rs.41,000/- at present stage. 11. The opposite party-husband (i.e. opposite party in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018) has appeared and filed show cause (Maintenance Alteration Case No.11/2016) stating therein that the Court has already directed for paying maintenance amount of Rs.3,000/- per month vide order dated 29.09.2003. Thereafter she has filed Crl. Misc. Case No.35 of 2005 and the Court below in the order passed in July, 2011 has enhanced the maintenance amount from Rs.3,000/- to Rs.6,000/-. Thereafter it has been enhanced to total Rs.20,000/- per month pursuant to order dated 9 02.02.2015passed in Crl. Misc. Case No.41/2011. He has further pointed out that the son of the applicant has become major aged around 19 years and hence maintenance amount is not payable to him. However, he has shown his grievance that since last 15 years he has not been allowed to meet even with his children. 12. In support of her case, the petitioner Seema Das (Cr. Revision No.1443/2018) has got examined two witnesses, who are as follows:- (i) P.W-1 is Seema Das, the wife-O.P. No.2 herself and (ii) P.W-2 is Ram Nath Lal, father of the O.P. No.2-wife. 13. It transpires that the learned Court below got marked the exhibits i.e. Exhibit-1, Exhibit-2, Exhibit-3 and Exhibit-4 respectively on 25.07.2018 as follows:- (i) Ext.-1 is photo copy of c/c order dated 29.09.2003 passed in M.P. Case No.44/2002, (ii) Ext-2 is photo copy of c/c order dated 02.07.2011 passed in Crl. Misc. Case No.35/2005, (iii) Ext-3 is photo copy of c/c order dated 02.02.2015 passed in Crl. Misc. Case No.41/2011, (iv) Ext-4 is photo copy of salary slip and allowance dated 21.02.2018 of Kishore Kumar Das (i.e. O.P- husband) which was obtained through R.T.I. 14. It transpires Kishore Kumar Das (i.e. petitioner in Cr. Revision No.1549/2018 and O.P. No.2 in Cr. Revision No.1443/2018) has got examined two witnesses in support of his case, who are as follows:- (i) O.P.W-1 is Kishore Kumar Das i.e. (i.e. O.P. No.2 in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018) (ii) O.P.W-2 is Suresh Lal Das. 10 15. So far as oral evidence is concerned, P.W-1 is Seema Das, who has stated during her evidence that she has filed the present case for enhancement of maintenance amount as she is getting Rs.20,000/- per month for herself and for her son and daughter. She has further stated that her son Himanshu has taken admission in Engineering College at Pune and his monthly expenses is around Rs.35,000/- and hence the maintenance amount may be enhanced to Rs.50,000/- per month for their maintenance. Her husband is getting approx salary of Rs.80,000/- per month. She has further stated that she has been getting Rs.20,000/- per month out of salary of Rs.42,000/- to 43,000/- per month from the salary of her husband i.e. to the extent of approx 50%. 16. During cross-examination, she has stated that her son Himanshu is aged around 19 years but she does not remember the age of her daughter Anjali. Though she can read and write but cannot say as to how many times the enhancement amount has been increased. She is withdrawing the maintenance amount from Allahabad Bank. Prior to this case, she has got enhanced the maintenance amount. However, she has not seen any paper of salary of her husband and earlier also she had not seen the salary slip of her husband. 17. Thus, from scrutinizing the evidence of P.W-1 (i.e. petitioner-Seema Das), it would appear that she is mother of two children and her son has taken admission in Engineering College at Pune whereas her daughter is also studying and she has got increased the maintenance amount three times before filing this case. Although she failed to produce the salary slip of the opposite party-Kishore Kumar Das (i.e. opposite party in Cr. 11 Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018). However, P.W-1 has fully supported her case. 18. P.W-2 is Ram Nath Lal Das, who is father of the petitioner-Seema Das and has stated that his daughter is getting Rs.20,000/- per month from her husband in the light of the order passed in Crl. Misc. No.41 of 2011 for herself and her two children. He also stated that Himanshu i.e. son of the petitioner is admitted in Engineering College and hence she should be given maintenance amount of Rs.40,000/- per month. He further demanded that proportionate recovery be made from the salary of the Opposite Party-Kishore Kumar Das (i.e. the husband) so that she may not have to come in the Court again and again. 19. During cross-examination, he stated that he has retired from the post of Branch Manager of Bihar State Minor Industry Corporation. He admitted for lodging FIR against his son in- law, Kishore Kumar Das and his family members and in which all the accused persons had gone to jail. However, he had not given any evidence in that case and had thought that accused may not go to jail and his son in-law may get some wisdom to solve the way and all persons of his family had given evidence in that case except him and due to his non-examination as a witness all the accused persons were acquitted. He admitted to have worked in Non-Banking Company-Hoffland but had denied the suggestion that no case was instituted upon him. He further admitted that his daughter is getting Rs.20,000/- per month as maintenance and also getting Rs.11,000/- per month out of arrears of Rs.3,14,000/- in monthly installment. Himanshu is aged around 19 years and he will take decision, if 12 he wishes to go with his father. He had also contributed by depositing money at the time of his admission. He denied the suggestion for torturing his son in-law for making him as his Jamai. However, he stated further that if the opposite party- Kishore Kumar Das is ready to take her daughter even today then he has no objection but life of her daughter is in danger. He denied the suggestion that mother and brother of Kishore Kumar Das-opposite party (i.e. the husband) are dependent upon him because mother of Kishore Kumar Das-opposite party is getting pension and his brother is major. 20. Thus, from scrutinizing the evidence of P.W-2, it is evident that he has also supported the case of the petitioner and stated that maternal grandson is studying in Engineering College but he is aged about 19 years and his monthly expenses is around 32,000/- per month. However, he has shown apprehension on the life of his daughter, if she is allowed to go in the house of her husband. 21. Exhibit-1 is photo copy of the certified copy of the order dated 29.09.2003 passed in M.P. Case No.44 of 2002 passed by then learned Principal Judge, Family Court, Dhanbad by which the learned Principal Judge had directed for payment of Rs.1500/- per month for the maintenance of the petitioner- Seema Das (Cr. Revision No.1443/2018) and Rs.750/- per month each for her two children up to their attaining of majority against the O.P. No.2-Kishore Kumar Das (Cr. Revision No.1443/2018). Exhibit-2 is photo copy of certified copy of the order dated 02.07.2011 passed in Crl. Misc. Case No.35/2005 by then learned Principal Judge, Family Court, Dhanbad by which the 13 maintenance amount was enhanced to Rs.6,000/- by directing O.P. No.2-Kishore Kumar Das (Cr. Revision No.1443/2018) to pay Rs.3,000/- per month to the petitioner-Seema Das (Cr. Revision No.1443/2018) and Rs.1500/- per month each to two children. Exhibit-3 is photo copy of certified copy of the order dated 02.02.2015 passed in Crl. Misc. Case No.41/2011 by then learned Principal Judge, Family Court, Dhanbad by which the maintenance amount was enhanced from Rs.3,000/- to Rs.7,000/- in favour of the petitioner Seema Das and Rs.6,500/- each per month to the minor son and minor daughter of Seema Das, till the son attaining of his majority and the daughter is married or gainfully employed i.e. a total sum of Rs.20,000/- per month. Exhibit-4 is photo copy of the pay slip of Kishore Kumar Das (i.e. O.P No.2 in Cr. Revision No.1443/2018) which reveals that gross salary of the petitioner-Kishore Kumar Das (Cr. Revision No.1549/2010) was Rs.78,335.69 in February 2018 issued by Punjab and Sindh Bank. 22. O.P.W-1 is Kishore Kumar Das (i.e. opposite party in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018) and on the date of deposition, he was Manager in Punjab and Sindh Bank at New Delhi. During evidence he stated that Seema Das is the wife and he has got two children and his son Himanshu Ranjan is aged around 19 years whereas his daughter Anjali is aged around 18 years. However, Seema Das has filed the present case for enhancement of her maintenance amount. Presently as per direction a sum of Rs.20,000/- per month and Rs.11,000/- per month towards arrear 14 i.e. total Rs.31,000/- is being deducted from his salary and which is being received by his wife and children. After this deduction, he gets remaining amount of Rs.34,000/- in his salary account and from which he is maintaining himself, his old aged mother and his younger brother. His younger brother Sandeep Kumar is aged around 28 years and is dependent upon him and even his children has become major and hence they are not entitled for maintenance. 23. During cross-examination, O.P.W-1 has stated that he does not remember his salary of that period when the maintenance amount was increased to the extent of Rs.20,000/-. He also could not say about his gross salary when he was confronted on the point of his present salary. However, he can deposit his salary slip by the order of the Court. 24. He further stated that his younger brother is liability whereas his son is liability of his wife and for which he is giving maintenance. His father was doing agricultural work. He denied the suggestion that his mother is getting pension as his father was in service. He had filed a case in Bokaro for custody of his children but plaint was returned to him on the issue of jurisdiction and thereafter he had not filed any case for custody of his children and he was also not allowed to meet with his children. He also admitted for filing the case of divorce in Bokaro Court. Firstly, he had filed divorce case but thereafter he has filed the case for custody of his children. He also denied the suggestion for giving writing at Mahila P.S at Lucknow for keeping his wife properly. However, he admitted for giving in writing in the Gorakhpur P.S that he will not assault upon his wife. 15 On being asked about his salary in the month of April, 2016, he could not remember that his salary was Rs.73,000/- in the month of April, 2016. 25. Thus, from scrutinizing the evidence of O.P.W-1, it is evident that he has disputed the claim of his wife and children for grant of maintenance. It is surprising that on the one hand he admitted that his younger brother Sandeep aged around 28 years, who is studying, is dependent upon him and on the other hand he has fixed the liability of his daughter and son, Himanshu at the shoulder of his wife Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018). It also appears from his cross-examination that his father was in service and thus there is circumstance that his mother is getting certain amount of pension. However, it is also an admitted fact that P.W-2 namely Ram Nath Lal Das, who is father of Seema Das, had instituted a case under Section 498-A of IPC in which this O.P.W-1 (i.e. the husband) had gone to jail. However, his grievance is also seen that he is not even allowed to meet with his children. Thus, the evidence of OPW-1 is not convincing and cannot be relied upon as he has merely given evidence to deny his liability that even his wife and daughter are not entitled to maintenance apart from his son. 26. O.P.W-2 is Suresh Lal Das, who is a retired Government Servant and has stated that Kishore Kumar Das is his brother in- law and Sri R.L. Das, father of petitioner-Seema happens to be his nephew in relation. He further stated that earlier Kishore was paying maintenance amount of Rs.3,000/- per month to Seema 16 and which was enhanced to Rs.6,000/- per month and presently the respondent-husband-Kishore is paying Rs.20,000/- per month to Seema and her two children. 27. He further stated that Seema had instituted a case under Section 498A of IPC and in which Kishore Kumar Das (i.e. the husband) and his family members have been acquitted. He was ‘Agua’ i.e. Negotiator in the marriage and was acquainted with both the side. Hence, he tried to get the matter settled after institution of the case but there was no compromise between the parties. He further stated that father of the girl i.e. Seema desired that Kishore Kumar Das should live in his Sasural. However, he is not aware that what work is being done by Sri R.L. Das. He further stated that apart from the salary of Kishore Kumar Das, the family of Seema Das has no other source of income. 28. During cross-examination, he stated that he learned about the amount paid to Seema Das from her husband Kishore. The accused persons were acquitted in dowry torture case as they failed to prove the charges. He denied the suggestion that Seema Das had not given evidence in that case as she did not desire that Kishore Das be sent to jail. He further stated that Ram Nath Lal Das was working in Bihar Cottage Industry at the time of marriage of Seema but he does not know that he has got his own house in Housing Colony, Dhanbad. He admitted that Ram Nath Lal Das is getting pension. 29. Thus, from scrutinizing the evidence of O.P.W-2, it is evident that though he has tried to support the case of the husband-Kishore Kumar Das but he also admitted that due to dispute after lodging the case under Section 498-A IPC, he had tried for settlement but could not succeed. However, the accused 17 persons were acquitted. It also appears that the petitioner-Seema Das and his father Ram Nath Lal Dad had not given evidence in that case also. He has also not stated about the income of the opposite party-husband. 30. It transpires that evidence of O.P.W-1-Kishore Kumar Das was concluded on 30.11.2017 whereas evidence of O.P.W-2- Suresh Lal Das was concluded on 07.02.2018. 31. It transpires that Himanshu Ranjan i.e. son of the petitioner Seema Das has already attained the age of majority on 31.03.2016 hence, he is not entitled to maintenance and the petitioner-Seema Das (i.e. petitioner in Cr. Revision No.1443 of 2018 and O.P. No.2 in Cr. Revision No.1549 of 2018) is still getting maintenance of Rs.65,00/- per month which was allowed in Crl. Misc. Case No.41/2011 for her son. 32. From perusal of Exhibit-4, it reveals that gross salary of the petitioner-Kishore Kumar Das (Cr. Revision No.1549/2018) is Rs.78,335.69 and his deduction is Rs.41,314/- (which include deduction of Rs.31,630/- and which also include Rs.20,000/- + Rs.11,630/-) towards maintenance amount and arrears of maintenance amount paid to the wife-Seema Das and her children. 33. It transpires that the learned Court below has directed for payment of Rs.15,000/- per month to the petitioner-Seema Das (Cr. Revision No.1443/2018) and Rs.10,000/- to her daughter, Anjali which has been enhanced from Rs.7,000/- to Rs.15,000/- and Rs.65,00/- to Rs.10,000/- in the year 2018. It is well settled that the wife is entitled to maintenance to 34. the extent of 1/4th amount of the Net Salary of her husband. 18 35. It has been held in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in the daughters, while her maintaining herself and husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.” 36. It has been held in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy reported in 2017 Vol (14) SCC 200 at paragraph 15, as follows:- 19 is stated “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant to be Rs 95,527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was 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 to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23.000 to Rs 20.000 per month as maintenance to the respondent wife and son. the capacity of the spouse 37. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 that there is not straight jacket formula for deciding quantum of maintenance and it has to be decided on the basis of evidence of the parties in each case separately after the evidence is led by the parties. 38. It is well settled that it is the duty of the husband to maintain his wife and child if they are unable to maintain themselves and in the present case there is nothing on record that the O.P. No.2 is able to maintain herself. 20 39. The Hon’ble Supreme Court in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 has held at Para-77, 78, 79, 80, 112 and 113, as follows:- “Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. Para-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. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] is conditional on interim maintenance Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] 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 the of 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. 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. 21 Para-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 is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] if he Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13) “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.” Para-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 court concerned. The right to claim maintenance must date back to the date of filing the 22 since application, the maintenance proceedings remained pending is not within the control of the applicant.” the period during which 40. Although the opposite party-husband (i.e. opposite party in Cr. Revision No.1443 of 2018 and petitioner in Cr. Revision No.1549 of 2018) is not bound to pay any maintenance amount but still he has to look after and take care of his son also, who has become major and was studying in Engineering College in the year 2018 and is dependant on his father and it is desirable that opposite party-husband should take care and meet expenses of his son, if he is further studying in any higher course. However, if the son has completed his B.Tech course or Engineering Courses then he is not required to pay anything. 41. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-56, 59, 60 and 61 which are as follows:- indicates “Para-56:-Similarly, in Tanushree & Ors. v A. S. Moorthy, the Delhi High Court was considering a case where the Magistrate’s Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of that while considering an the D.V. Act application u/S. 12 of the D.V. Act, the Court would take into account an order of maintenance passed under Section 125 Cr.P.C., or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate under Section 125, Cr.P.C. and the D.V. Act. With respect to the overlap in both statutes, the Court held : (SCC Online Del para 5) “5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent 23 of each other and have different scope, though there is an overlap. Insofar as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section 125 Cr.P.C. shall be taken into account.” (emphasis supplied) Para-59:- In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C., and under HMA. In the Section 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial proceedings under HMA, and was not to be given over and above the same. Directions on overlapping jurisdictions the same to disclose Para-60:- It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to the proceedings, pay maintenance under each of in a previous the relief granted independent of proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal in a subsequent obligation proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil the court/family court instituted maintenance awarded proceeding, and determine the maintenance payable to the claimant. Para-61:- To overcome issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed in any previously into account shall take the 24 in therein, so that the Court would take into consideration the previous the maintenance already awarded proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.” 42. However, the learned Court below should have granted the maintenance amount to the wife and the child i.e. the O.P. No.2 from the date of filing of the application under Section 125 Cr.P.C instead of from the date of the order. Hence, the petitioner Seema Das (Cr. Revision No.1443/2018 and O.P. No.2 in Cr. Revision No.1549/2018) will be entitled to enhanced maintenance order from the date of filing of application under Section 125 Cr.P.C. 43. It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99, at para 27 to 31, which are as follows:- “Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Hindu 20(3) of Para-28:- Section Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to 25 is unable maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried to maintain herself. The daughter, who obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20. Para-30:- We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, which was a case under Section 125 Cr.P.C. A Muslim wife with her two daughters and a son filed an application under Section claiming maintenance 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision, which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court held that minor children for maintenance under Section were not 125, Cr.P.C. A special filed leave questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. This Court held that there is no conflict between the two provisions. to appeal was entitled Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 26 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) “7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial like Section 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 Cr.P.C where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act.” (emphasis in original) legislation 44. Considering the law laid down by Hon’ble Supreme Court and also considering the evidence of both the sides, the Cr. Revision No.1549 of 2018 is devoid of merit and is hereby dismissed. 45. Considering the fact that the wife-Seems Das (Cr. Revision No.1443 of 2018) is maintaining both her son and daughter and the enhancement made by the learned Additional Principal Judge, Dhanbad appears to be on lower side and hence in the peculiar facts and circumstances of this case, the maintenance amount of wife is enhanced further from Rs.15,000/- to Rs.20,000/- and the maintenance amount of daughter, Anjali is enhanced from Rs.10,000/- to Rs.15,000/- i.e. 27 total amounting to Rs.35,000/- from the date of filing of the application under Section 127 of the Cr.P.C as the petitioner is the Manager of Punjab and Sindh Bank. The petitioner is directed to pay arrears of maintenance amount within six months. 46. However, considering the plight of the O.P. No.2-Kishore Kumar Das (Cr. Revision No.1443/2018 and petitioner in Cr. Revision No.1549/2018), it will be desirable that he may be permitted to meet his son and daughter to end the communication deadlock among the parties as despite all circumstances, he is paying maintenance amount to his wife and children and has maintained his family members. 47. Thus, this Cr. Revision No.1443 of 2018 is allowed in part. Saket/- AFR (Sanjay Prasad, J.)