Calcutta High Court (Appellete Side)
For The vs Neha & on 16 January, 2025
Court No. 30
(266012)
CRR 2143 of 2023
16.01.2025
(AD 15) With
(S. Banerjee)
CRAN 1 of 2024
Mrinal Kanti Chakraborty
Verus
Itu Chakraborty
Mr. Sabyasachi Banerjee
Ms. Minal Palana
... for the petitioner
None
.. for the respondent
1. The present revisional application has been preferred
against the judgment and order dated 01.06.2023, passed
by the Court of the learned Additional Sessions Judge, 1st
Court Sealdah, South 24 Parganas in Criminal Revision No.
05/2003 whereby the learned Judge was pleased to dismiss
Criminal revision No. 05/2023 and affirm the order dated
25.11.2022 passed by the learned Judicial Magistrate, 6th
Court, Sealdah in M-169 of 2019 directing the husband to
pay interim maintenance of Rs. 15,000/- per month for the
wife and Rs. 10,000/- per month for the minor daughter
totaling to Rs. 25,000/- per month within 10th day of each
English calendar month, from the date of filing of the
application, i.e., 18.10,2019 .
2. Vide the order under revision, which was an appeal against
an interim order of maintenance in a proceeding under
2
Section 125 of the Cr.P.C., the learned Additional Sessions
Judge dismissed the appeal.
3. The learned trial Court had granted an amount of interim
maintenance of Rs. 25,000/- in favour of the wife and the
minor son.
4. The petitioner herein is the husband being aggrieved with
the said order of affirming the order of interim
maintenance granted by the learned Magistrate.
5. While disposing of an application under Section 125 Cr.P.C.
finally, the Learned Magistrate can now follow the guidelines
as laid down by the Supreme Court in Rajnesh Vs Neha &
Anr., ((2021) 2 SCC 324).
6. The said Judgment raises the issue of maintenance as a
whole. All the Acts providing the said benefit has been
considered discussed and guidelines laid down. The final
Direction there in is as follows:-
“VI Final Directions
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
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 uniformity in
the practice followed by the Family Courts/District
Courts/Magistrate Courts throughout the country. We
direct that:
(i) where successive claims for maintenance are made
by a party under different statutes, the Court would
consider an adjustment or setoff, of the amount
awarded in the previous proceeding/s, while
3determining whether any further amount is to be
awarded in the subsequent proceeding;
(ii) (ii) it is made mandatory for the applicant to disclose
the previous proceeding and the orders passed therein,
in the subsequent proceeding;
(iii) (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
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 pending
proceedings before the concerned Family Court /
District Court / Magistrates Court, as the case may be,
throughout the country.
(c) Criteria for determining the quantum of
maintenance
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. 56
The aforesaid factors are however not exhaustive, and
the concerned Court 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
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
For enforcement / execution of orders of maintenance,
it is directed that an order or decree of maintenance
may be enforced under Section 28A of the Hindu
Marriage Act, 1956; Section 20(6) of the D.V. Act; and
Section 128 of Cr.P.C., 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 r.w. Order XXI.”
7. The criteria determining quantum of maintenance as in
Rajnesh Vs Neha & Anr. (Supra) is:-
“III Criteria for determining quantum of
maintenance
(i) The objective of granting interim / permanent
alimony is to ensure that the dependant spouse is not
reduced to destitution or vagrancy on account of the
failure of the marriage, and not as a punishment to the
4other spouse. There is no straitjacket formula for fixing
the quantum of maintenance to be awarded.
The factors which would weigh with the Court inter
alia are the status of the parties; reasonable needs of
the wife and dependant 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.
In Manish Jain v Akanksha Jain (2017) 15 SCC
801 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.
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.
On the other hand, the financial capacity of the
husband, his actual income, reasonable expenses for
his own maintenance, and dependant 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.
(ii) 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.
5
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 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.
(iii) 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.
(iv) 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.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj
Hegde37 laid down the following factors to be
considered for determining maintenance :
“1. Status of the parties.
2. Reasonable wants of the claimant.
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 u/s 125 Cr.PC is adjustable
against the amount awarded u/ 24 of the Act. 17.”
(vi) Apart from the aforesaid factors enumerated
hereinabove, certain additional factors would also be
relevant for determining the quantum of maintenance
payable.
(a) Age and employment of parties
6
In a marriage of long duration, where parties have
endured the relationship for several years, it would be
a relevant factor to be taken into consideration. On
termination of the relationship, if the wife is educated
and professionally qualified, but had to give up her
employment opportunities to look after the needs of the
family being the primary caregiver to the minor
children, and the elder members of the family, this
factor would be required to be given due importance.
This is of particular relevance in contemporary society,
given the highly competitive industry standards, the
separated wife would be required to undergo fresh
training to acquire marketable skills and re-train
herself to secure a job in the paid workforce to
rehabilitate herself. With advancement of age, it would
be difficult for a dependant wife to get an easy entry
into the work-force after a break of several years.
(b) Right to residence Section 17 of the D.V. Act
grants an aggrieved woman the right to live in the
“shared household”. Section 2(s) defines “shared
household” to include the household where the
aggrieved woman lived at any stage of the domestic
relationship; or the household owned and rented jointly
or singly by both, or singly by either of the spouses; or
a joint family house, of which the respondent is a
member.
The right of a woman to reside in a “shared
household” defined under Section 2(s) entitles the
aggrieved woman for right of residence in the shared
household, irrespective of her having any legal interest
in the same. This Court in Satish Chander Ahuja v
Sneha Ahuja38 (supra) held that “shared household”
referred to in Section 2(s) is the shared household of
the aggrieved person where she was living at the time
when the application was filed, or at any stage lived in
a domestic relationship. The living of the aggrieved
woman in the shared household must have a degree of
permanence. A mere fleeting or casual living at
different places would not constitute a “shared
household”. It is important to consider the intention of
the parties, nature of living, and nature of the
household, to determine whether the premises is a
“shared household”. Section 2(s) read with Sections 17
and 19 of the D.V. Act entitles a woman to the right of
residence in a shared household, irrespective of her
having any legal interest in the same. There is no
requirement of law that the husband should be a
member of the joint family, or that the household must
belong to the joint family, in which he or the aggrieved
woman has any right, title or interest. The shared
household may not necessarily be owned or tenanted
by the husband singly or jointly.
7
Section 19 (1)(f) of the D.V. Act provides that the
Magistrate may pass a residence order inter alia
directing the respondent to secure the same level of
alternate accommodation for the aggrieved woman as
enjoyed by her in the shared household. While passing
such an order, the Magistrate may direct the
respondent to pay the rent and other payments, having
regard to the financial needs and resources of the
parties.
(c) Where wife is earning some income
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.
In Shailja & Anr. v Khobbanna, (2018) 12 SCC
199 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. 40 Sustenance does not
mean, and cannot be allowed to mean mere survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha
(2014) 16 SCC 715 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.
The Bombay High Court in Sanjay Damodar Kale v
Kalyani Sanjay Kale 2020 SCC Online Bom 694
while relying upon the judgment in Sunita Kachwaha
(supra), 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.
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 Prakash
Bodhraj v Shila Rani Chander Prakash, AIR 1968
Delhi 174. 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.
8
This Court in Shamima Farooqui v Shahid Khan,
(2015) 5 SCC 705 cited the judgment in Chander
Prakash (supra) with approval, and held that the
obligation of the husband to provide maintenance
stands on a higher pedestal than the wife.
(d) Maintenance of minor children
The living expenses of the child would include
expenses for food, clothing, residence, medical
expenses, education of children. Extra coaching
classes or any other vocational training courses to
complement the basic education must be factored in,
while awarding child support. Albeit, it should be a
reasonable amount to be awarded for extra-curricular
/ coaching classes, and not an overly extravagant
amount which may be claimed.
Education expenses of the children must be normally
borne by the father. If the wife is working and earning
sufficiently, the expenses may be shared
proportionately between the parties.
(e) Serious disability or ill health
Serious disability or ill health of a spouse, child /
children from the marriage / dependant relative who
require constant care and recurrent expenditure, would
also be a relevant consideration while quantifying
maintenance.”
8. The quantum of interim maintenance granted herein is
reasonable and thus does not call for interference.
9. CRR 2143 of 2023 is thus dismissed.
10. The Trial Court will decide the case finally as per the
directions in the body of this judgment and make all
endeavour to dispose of the case finally as expeditiously
as possible on hearing both sides, in case the opposite
party herein, appears during the final hearing of the
case.
11. All connected applications, if any, stand disposed of.
12. Interim order, if any, stands vacated.
13. Copy of this Order be sent to the learned Trial Court for
necessary compliance.
9
14. Urgent certified website copy of this Order, if applied for, be
supplied expeditiously after complying with all, necessary
legal formalities.
(Shampa Dutt (Paul), J.)
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