Calcutta High Court (Appellete Side)
Smt. Rupa Pramanik (Das) vs Sri Raju Pramanik on 14 January, 2025
14.01.2025
S.L No. 23
Ct. No. 30
SM
CRR 4359 of 2023
Smt. Rupa Pramanik (Das)
VS.
Sri Raju Pramanik
Mr. Saikat Roy Chowdhury
Mr. Aritra Ghosh
.....for the petitioner
Ms. Sananda Bhattacharya
.........for the Opposite Party
1. The present revisional application has been
preferred against an order of interim maintenance
passed under the Domestic Violence Act.
2. Vide the said order dated 05.10.2023 passed by the
learned Judicial Magistrate, 3rd Court, Ranaghat in
Misc Case No. 11 of 2022, the learned Magistrate
has been pleased to grant an amount of Rs. 2000/-
each for the wife and son as interim maintenance.
3. Affidavit of assets and liabilities were filed before
the Trial Court.
4. It is submitted by the learned Magistrate for the
petitioner/wife that the learned Magistrate passed
the said order without properly considering the
affidavit of assets and liabilities and as such the
petitioner has invoked the revisional
jurisdiction of this Court.
5. Learned counsel for the petitioner has relied upon
the following judgments in support of his
contention (i) Kunapareddy Alias Nookala Shanka
Balaji Versus Konappa Reddy Swarna Kumari and
2
Another (2016) 11 SCC 774 Relevant Paragraph No.
12; (ii) Mira Banik and Another Versus Smita
Bhattacharya and Ors. (2003) SCC Online Cal 385
Relevant Paragraph No. 11; (iii) State of Gujarat
Versus Vakhatsinji, Vaghela (Dead) by his legal
representatives 1968 SCC Online SC 102 Relevant
Paragraph No. 14; (iv) Rajnesh Versus Neha & Anr.
(2021) 2 SCC 324 Relevant Paragraph Payment of
Interim Maintenance Enclosure III.
6. Learned counsel for the opposite party submits
that the order under challenge in the present
case is appealable under Section 29 of the
Protection of Women from Domestic Violence
Act 2005 and as such the petitioner's
application is not maintainable.
7. Section 29 of the Protection of Women from
Domestic Violence Act 2005, is as follows:-
"29. Appeal: There shall lie an appeal to the
Court of Session within thirty days from the date
on which the order made by the Magistrate is
served on the aggrieved person or the respondent,
as the case may be, whichever is later.”
8. It is thus submitted that the present revision is not
maintainable and is liable to be dismissed.
9. As the petitioner prays for hearing by invoking
the inherent jurisdiction of this Court, the case
is taken up for hearing on merit.
10. In Dr. Arvind Kishore vs Neha Mathur, on
22.09.2022, the Rajasthan High Court at
Jodhpur, held:-
3
“24. This Court further observes, that the
judgment impugned was passed, while keeping
into consideration the judgment rendered by the
Hon’ble Apex Court in the case of Rajnesh v. Neha
& Anr. (supra). The judgment relied upon by on
behalf of the applicant-husband in K.N. v.
R.G (supra) do not render any assistance to his
case.
For the sake of brevity, the relevant portion
of Rajnesh v. Neha & Anr. (supra) is reproduced
as hereunder:-
“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.
(15 of 16) [CRLMA-243/2022] In Shailja and Anr.
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. In Sunita Kachwaha and 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 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
4discharge 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.
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.”
11. While disposing of an application under the D.V.
Act, 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).
12. 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 determining whether any
further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to
disclose the previous proceeding and the orders
passed therein, in the subsequent proceeding;
5
(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.”
13. 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
6punishment to the other 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
7
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.
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.
8
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
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
9
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.
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
10
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.
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
11
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.”
14. The quantum of interim maintenance granted
herein is reasonable and thus does not call for
interference.
15. Accordingly considering the materials on
record, the order of interim maintenance under
revision dated 05.10.2023 passed by the Learned
Judicial Magistrate, 3rd Court, Ranaghat, in Misc.
Case No. 11 of 2022 does not require any
interference at this stage.
16. 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.
17. CRR 4359 of 2023 is thus dismissed.
18. All connected applications, if any, stand disposed
of.
12
19. Interim order, if any, stands vacated.
20. Copy of this order be sent to the learned Trial Court
for necessary compliance.
21. Urgent certified website copy of this order, if
applied for, be supplied expeditiously after
complying with all, necessary legal formalities.
[Shampa Dutt (Paul), J.]