Judgment · High Court · 2024

Order

19.11.2024 …..Petitioner(s) (s) (s) …..Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Atul Lakhanpal, Senior Ms. NehaLakhanpal, Advoc for the petitioner. nior Advocate with dvocate ***** ta, J. Nidhi Gupta, J Challenge in the present p nt petition is to the order dated

03.10.2024 pa 4 passed by the learned Principa p cipal Judge, Family Court, Camp Court, Dera B ra Bassi, whereby in a proceeding u ing under Section 125 Cr.P.C., the petitioner has has been directed to pay interim m m maintenance of Rs.60,000/- per month to the the respondents (Rs.20,000/- per m er month to respondent No.1/wife and Rs.40,000 ,000/- per month to respondent No. No.2/minor son) from the date of application.

#2. Learned Senior Counsel sel for the petitioner inter alia submits that at the impugned maintenance has has been granted on the incorrect notion that th t the petitioner is earning Rs.5,50, ,50,000/-. It is submitted that no doubt the pet petitioner works in the Merchant N ant Navy, however, the said job is on contract b ct basis. It is contended that th t the mother and sister of the petitioner had had committed suicide on 26.05 6.05.2019 due to the atrocities inflicted upon pon them by the respondent N t No.1/wife. It is submitted on SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document instructions th ns that since the death of his m s mother and younger sister on

26.05.2019, th 9, the petitioner has undertaken on n only three contracts on ship so that he is able able to repay his home loan. As such such, the maintenance granted by the learned Fa d Family Court is excessive. Howe owever, the learned Family Court has failed to t to take into account this fact at the t the time of passing of impugned order.

#3. Ld. Senior Counsel furthe rther argues that the respondent No.1 is a well well-qualified lady being Ph.D. and and B.Ed. Even now, she is taking tuitions and e nd earning handsome amount of R of Rs.30,000/- per month. In this regard, learne arned Senior Counsel also refers to t to the Affidavit of Income, Assets and Liabilities lities dated 13.07.2023 (Annexure ure P10) filed by the petitioner e before the learned Family Court, where l in these facts have been mentioned.

#4. Moreover, the petitioner is er is ready and willing to bear the entire expens enses of the minor child/respond ondent No.2. In this regard, the petitioner had had even filed an application date 11) dated 04.04.2024 (Annexure P11) seeking permi ermission to bear all the study exp d expenses, medical expenses and other miscella cellaneous expenses of minor son/r is, on/respondent No.2. Despite this, the impugned ned maintenance has been granted nted. It is accordingly prayed that the impugned ned order be set aside.

#6. No other argument is made ade on behalf of the petitioner. I have heard learned Sen Senior counsel for the petitioner and perused th ed the case file in great detail. SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document

#7. Perusal of record of the c he case shows that the petitioner was married t ed to respondent No.1 on 11.11.20 o.2 1.2016. One son/respondent No.2 was born out out of this wedlock on 05.01.2019 019 who is admittedly in the care and custody o dy of respondent No.1. As per the A he Affidavit of Income, Assets and Liabilities filed filed by the petitioner (Annexure xure P10), the parties are living separately sin since 05.06.2019. Present petition tion under Section 125 Cr.P.C. was filed by the re e respondents on 07.10.2021.

#8. As per the Affidavit of I of Income Assets and Liabilities dated 13.07.2 .07.2023 (Annexure P10) of the the petitioner, his educational qualification is on is Bachelorate in Nautical Scienc s ience; professional qualification is Masters COC f OC from Directorate General of Ship Shipping; occupation is Merchant Navy (Contrac tract Basis). It has been contende ded on behalf of the petitioner that he has a s a job only on contract basis, that that he works only for six months of the year, an r, and at present, he has no income ome. As such, he is not able to pay maintenance ce to the respondent. Perusal of t of the above said affidavit dated

13.07.2023 (A (Annexure P10) of the petitioner ner further shows that it has been mentioned in d in Column No.40 thereof that “…B “…Being in merchant navy my job is contract bas t basis and since the death of my mo y mother and younger sister (26th May 2019) I ha ) I have done only two contracts on ts on ship so that I can pay home loan. My last c last contract ended in April 2022 an 2 and since then I am not earning or doing any jo ny job.”. At the bar, it has been sta stated by learned Senior Counsel on instruction tions from the petitioner who is pr is present in person in Court, that the petitioner ner has undertaken three contract racts at sea since the death of his mother and y nd younger sister on 26.05.2019. 19. From the above, it is to be SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document gleaned that t at the third contract has been unde undertaken by the petitioner after filing of the the affidavit dated 13.07.2023, , and prior to passing of the impugned ord order on 03.10.2024. It would thu thus, appear that it is at the will and choice of e of the petitioner to undertake a ke a contract as and when he so chooses. Irres rrespective of the same, even if the r is f the argument of the petitioner is taken to be co e correct that at present, he is not not earning, the same would not constitute any any ground to deny maintenance nce to the respondents in view of the judgment ent of the Hon’ble Supreme Co v. Court in “Shamima Farooqui v. Shahid Khan” an” (SC) : Law Finder Doc Id # 661 661024, wherein it has been held as follows: – “B. Criminal Procedure Code, ode, 1973 Section 125 Grant of mainte aintenance to wife - Plea of husban sband that he was not doing job and ha d had no means to pay cannot be a be accepted - These are only bald excuse cuses - Held :- (i) If the husband is health a ealthy, able bodied and is in a position to support himself, he is he is under the legal obligation to support his wife. (ii) It is the obligation of the h - the husband to maintain his wife - He cannot be permitted to plead lead that he is unable to maintain the wife due to financial constrain straints as long as he is capable of earning.”

#9. Admittedly, the petitione ioner does not suffer from any

physical infirm firmity and is healthy and able bodi bodied. As such, he cannot escape his moral and and legal obligation to maintain his w his wife and minor child.

#10. It is also most intriguing ing and incongruous that in his Affidavit P-10 10, the petitioner has mentione tioned his income as “Presently SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document None”. Yet, de t, despite having no income, he has has shown his monthly expenses to beRs.1,05,3 05,350/- as mentioned in Columns 1 vit. ns 11 and 60 of the said Affidavit. The said ex expenses include property tax m; tax of Rs.800/- per annum; grocery/food i od items/personal care/clothing of th; g of about Rs.30,000/- per month; domestic help help about Rs.1,500/- per month; th; fuel of about Rs.15,000/- per month; gym R m Rs.2,500/- per month etc. Clear g a learly, the petitioner is leading a lavish lifestyle tyle. However, it is incomprehensib nsible that with ‘no income’ how is the petitio titioner meeting his expenses of of Rs.1,05,350/-. It would thus appear that th at the petitioner is attempting to co o conceal his income.

#11. Furthermore, as per the the record, the statement of account no. 1 o. 1822100022939 of the petitione ioner reveals that he spends huge amount every very month on liquor and he has pa ₹ s paid ₹ 1,000/- on 23.09.2020, ₹ 1,700/ on 18.0

18.06.2021 ₹ 1,200/- on 11.07.202 ₹ .2021, ₹ 1,200/- on 20.07.2021, ₹ 1,200/- on 14

14.03.2021, ₹ 1,700/- on 31.08.20 ₹ 8.2021, ₹ 730/- on 06.10.2021, ₹ 1,200/-on 08.1

08.10.2021, ₹ 1,200/- on 12.10.202 ₹ .2021, ₹ 1,200/- on 16.10.2021, ₹ 1,200/- on 23.

23.10.2021, ₹ 2,000/- on 06.05.202 .2022. It is not denied that all the above-mentio ntioned amounts were spent for pu r purchasing of wine and beer.

#12. On the other hand, respo espondent No.1 is barely able to meet the gro grocery requirements of herself a elf and the minor child. She has categorically lly stated before the learned Family mily Court that she does not have sufficient amo amount to maintain herself and the the minor child and is dependent upon her pare parents. The respondents are admit dmittedly, residing at the parental home of resp respondent No.1. Further, as per th er the Affidavit of Income, Assets and Liabilities ities (Annexure P9) filed by the re e respondent No.1, she is doing SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document private job fro b from which she is earning Rs.30,0 30,000/- per month. However, the said amount i nt is not sufficient to maintain the the respondents as the monthly expenditure o re of the respondents is Rs.70,000/ 000/-, of which maximum amount is being spent ent for the betterment of the min minor school-going son i.e. on his tuition, station ationery, fees, sports, crèche, day ca ay care, after school care, etc. It is to be greatly atly appreciated that the responde ndent no.1 is working as well as taking care of e of the minor child. The respond ondent no.1 would therefore be responsible no le not just for the emotional, ment ental and physical welfare of the minor child, b ld, but would also have to provide ovide for the day-to-day needs as well as for the r the school fees, transportation fe es, n fees, extra-curricular activities, sports training ining, for the overall and healthy thy development of the child. The entire burden den/responsibility cannot be foiste - oisted upon or shouldered single- handedly by t by the respondent no.1. The petitio etitioner, being the father is liable to contribute ute at least financially in the upbrin pbringing of his son. In fact, being the husband a nd and father of the respondents r is nts respectively, the petitioner is legally bound und to provide equal status of life to fe to them.

#13. It was further averred d by the respondents that the petitioner is is earning Rs.6 lakh per month as as a Merchant Navy Officer. The petitioner is is also having double storey house ouse and a car. Although this had been denied ied by the petitioner, learned F d Family Court noted that the petitioner had had filed an application seeking dire direction to bear all the expenses of the minor c nor child despite the fact that in hi in his Affidavit (Annexure P10) he had shown tha that at present he has no work. A k. Accordingly, the learned Family Court had cor correctly concluded that the peti petitioner is having considerable SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document income from h om his job as he is ready and willin illing to bear the expenses of the minor child.

#14. It is by now a settled tled trend that in matters of maintenance ce such as the present one, the the husband tries to depict his income on t n the lower side, whereas the the wife attempts to show an exaggerated in ed income of the husband. The tru e truth usually lies somewhere in between. In a In any event, these are all matte atters of evidence. The truth or otherwise of of the allegations and counter- -allegations made by both the parties can on n only be determined upon leadin ading of evidence. As such, it is neither desira sirable nor feasible for this Court urt to interfere at this stage, let alone return a rn a finding in respect of the contr ontrary assertions made by either ties. of the parties.

#15. Moreover, the grant of interim maintenance a is a temporary m measure of social justice to he help the abandoned wife and children to tid tide over the difficult period. It is o t is oft-repeated and no longer res integra that S at Section 125 Cr.P.C. is a measur asure of social justice to protect abandoned w d wife, children and parents from n rom vagrancy and destitution. In “Kirtikant D. V . Vadodaria v. State of Gujarat & 79, rat & Another” (1996) 4 SCC 479, the Hon’ble Su le Supreme Court has opined as follo follows: “15. ...While dealing with with the ambit and scope of the provision contained in Sect Section 125 of the Code, it has to be borne in mind that the the dominant and primary object is to give social justice to e to the woman, child and infirm parents, etc. and to preven event destitution and vagrancy by compelling those who can s can support those who are unable SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document to support themselves bu s but have a moral claim for support. The provisions in s in Section 125 provide a speedy remedy to those women, c en, children and destitute parents who are in distress. The p he provisions in Section 125 are intended to achieve this sp is special purpose. The dominant purpose behind the bene enevolent provisions contained in Section 125 clearly is that that the wife, child and parents should not be left in a ss, in a helpless state of distress, destitution and starvation ion…”

#16. Again, a three-Judge Ben Bench of the Hon’ble Supreme Court in “Vim Vimala (K.) v. Veeraswamy (K.) K.)” (1991) 2 SCC 375, speaking through Justic ws: stice Fatima Beevi, held as follows: “3. Section 125 of the Co e Code of Criminal Procedure is meant to achieve a socia social purpose. The object is to prevent vagrancy and dest destitution. It provides a speedy remedy for the supply of f of food, clothing, and shelter to the deserted wife...”

#17. Thus, the purpose of Sec Section 125 Cr.P.C. is to protect abandoned w d wives and children who are un unable to maintain themselves from vagrancy ancy and destitution, to grant social an, ocial justice to a destitute woman, child, or infirm infirm parents. Moreover, in view iew of the admitted relationship between the the parties, the petitioner cannot nnot escape his responsibility to maintain the r he respondents.

#18. Learned counsel for the p he petitioner is unable to dispute the above said said factual and legal position. SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document

#19. Accordingly, I find no grou ground is made out that calls for interference in ce in the impugned order. The prese resent petition is dismissed.

#20. Pending application(s) if an if any also stand(s) disposed of.

19.11.2024 Sunena (Nidhi Gupta) Judge Whether Whether her speaking/reasoned her reportable Yes/No Yes/No SUNENA 2024.11.20 18:18 I attest to the accuracy and integrity of this document