Dilip Sharma vs Krishna Sharma and Others

This appeal has been filed by the appellant, Dilip Sharma challenging order dated 13.08.2014 passed by Family Court, Ajmer (for short ''the Family Court'') whereby the appellant-non-applicant has been ordered to pay an amount of Rs. 3,000/- per month to Respondent No. 1-wife and Rs. 1,500/- per month to Respondent No. 2-son, total Rs. 4,500/- per month as interim maintenance from the date of order.

Brief facts of the case are that marriage of the appellant and Respondent No. 1 was solemnized on 02.12.2001 as per Hindu Customs and Rites at Ajmer. A son namely Piyush was born out of wedlock of the appellant and Respondent No. 1 on 09.08.2005. The appellant-non applicant has been granted a decree of judicial separation under the provision of Section 13 of the Hindu Marriage Act, 1955(for short ''the Act'') on 22.09.2012 in Case No. 515/2011, Dilip v. Krishna. Thereafter, the respondents-applicants field an application No. 677/2012 under Section 125 Cr.P.C. along with an application for interim maintenance dated 18.09.2013 stating therein that Respondent No. 1 is unemployed having no source of income and undertaking training, thus, dependent on her retired parents while her husband is working with daily newspaper "Punjab Kesri" at Ajmer, and earning an amount of Rs. 10,000/- per month. Reply to the application under Section 125 Cr.P.C. was filed by the appellant on 25.07.2013 and reply to application for interim maintenance was filed on 20.11.2013 by the appellant denying the averments of the application and stating that Respondent No. 1 is employed in Baba Diagnostic Centre, Opposite Jawahar Lal Nehru Hospital, Ajmer and earning a salary of Rs. 5,000/- per month. It was also stated in the reply that the application for custody of son Piyush is pending before the Family Court, Ajmer. It was pleaded that earning of the appellant is only Rs. 4,500/- per month, therefore, Respondent No. 1 is earning more than the appellant/non-applicant. The Family Court vide order dated 13.08.2014 directed the appellant to pay interim maintenance of Rs. 3,000/- per month to Respondent No. 1 and Rs. 1,500/- per month to Respondent No. 2 from the date of order. Being aggrieved of the order dated 13.08.2014, the appellant has filed instant appeal before this Court.

Learned counsel for the appellant has submitted that the impugned order passed by the Family Court is cryptic in nature and no reasons whatsoever has been assigned by the Family Court for granting interim maintenance. The impugned order is against the provisions of Section 125 Cr.P.C. as Respondent No. 1-wife is having sufficient means of earning and is living separately by virtue of decree of judicial separation which was passed because of her attitude, refusal of co-habit or restore the matrimonial life on the ground of free/unchecked living life style as well as forcing her husband to leave Ajmer and reside at Delhi where she was in employment with a private firm prior to her marriage and continued to reside at Delhi for about two years when her husband had already left Delhi for employment at Ajmer. Even after conciliation in the proceedings under Section 13 of the Act on 07.02.2009, the respondent applicant did not prefer to restore the matrimonial home because of her free/unchecked life style. It is argued that application for custody of minor son is pending before the Family Court as the respondent No. 1 cannot bring up the child rightly. Learned counsel for the appellant has submitted that the respondent No. 1 has sufficient means to maintain her out of the salary being paid by Baba Diagnostic Centre, Ajmer where she is employed at present. Respondent No. 1 is not entitled for maintenance or interim maintenance under the provisions of sub-section (1) and (4) of Section 125 Cr.P.C. which provide that no wife shall be entitled to receive an allowance for maintenance or the interim maintenance and expenses of proceedings, as the case may be, from her husband under this section, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. It is, therefore, prayed that order dated 13.08.2014 passed by the Family Court, granting interim maintenance to the respondents, may be quashed and set aside.

Having heard learned counsel for the parties and perused the impugned order passed by the Family Court, we are of the view that the provision is enacted for social justice and specially to protect women and children as also old and infirm poor parents and falls within the Constitutional sweep of Article 15(3) of the Constitution of India, reinforced by Article 39 of the Constitution of India. The provision gives effect to natural and fundamental duty of a man to maintain his wife. The object of the maintenance proceedings is not to punish the person for his past neglect but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support.

In fixing quantum of maintenance, standard of living consistent with the status of the family must be taken into consideration. Neither income nor poverty is an answer to an application seeking interim maintenance filed along with an application under Section 125 Cr.P.C. it ensures socio-economic rights of a woman and protects her from vagrancy. The husband-appellant can not say that he is unable to maintain his wife and children. In case wife and children were to live together, even then the appellant-husband would have to maintain the wife and children; therefore, contention of appellant-husband that he is unable to earn sufficient amount is no defence.

In view of above, we do not find any error in the impugned order granting interim maintenance of Rs. 3,000/- per month to Respondent No. 1-wife and Rs. 1,500/- to Respondent No. 2-son of the appellant. However, in the facts of the case, we direct that the Family Court shall finally decide the application for grant of maintenance under Section 125 of the Code of Criminal Procedure filed by the Respondent No. 1-wife within six months subject to cooperation by the appellant.

The appeal is dismissed, however, with the aforesaid observation. Stay application also stands dismissed.