Gourav Singh Tomar vs Lakkita Tomar

This revision petition under Section 19 (4) of the Family Courts Act read with Section 397/401 Cr.P.C. has been preferred by the petitioner being

aggrieved by the impugned order dated 15.05.2019 in M.J.C No. 411/2018 passed by Additional Principal Judge, Family Court, Bhopal allowing the

application under section 125 Cr.P.C, filed by the respondent and awarded the maintenance amount Rs. 17,000/- per month to the respondent.

According to case, the respondent filed an application under section 125 Cr.P.C. before the learned Family Court stating that her marriage was

solemnized with the petitioner on 28.01.2016 as per Hindu rites and rituals at Ratlam. At the time of marriage, the father of the

complainant/respondent has given sufficient articles and cash of rupees 3,82,000/- to the petitioner. After the marriage, she lived for some time with

the petitioner and his family members at Kadi (Gujrat) where the family members of the petitioner used to pressurize her to do all household works

like sweeping, washing, cooking etc. Further, in the month of February 2016, the petitioner along with her shifted to Mumbai and then only she got

knowledge about the petitioner being asthmatic, alcoholic and he was in a habit of having illicit relationship with other girls. The petitioner used to

perform late night cocktail party at home and he was also caught red-handed with the girl by the respondent. She found some inner wear of another

girl in the house and when she raised the issue, the petitioner had beaten her. In the meantime, the father of the petitioner demanded five lakhs rupees

as dowry. Further, when she came to her in laws place at Indore, the petitioner threatened her on the pretext of demand of dowry. Further, in the

month of February 2017, petitioner demanded Rs. 2.5 lakh on the ground that the company is sending him to London. In May 2017, at London,

petitioner let her to live in common room and forced to make food for friends also. The petitioner used to arrange night parties with girlfriends and

torture her over trivial issues. He has forced the respondent to leave house in London and sent her to in-laws house at Indore where the in-laws

behaved badly and demanded for dowry. Thereafter, she has been sent to her father's house at Bhopal. Since then she is residing with her father as

she has no other option. Further, when her father made an effort to resolve the issue, the mother in law demanded 20 lakh rupees as dowry. In the

month of January 2018, when the petitioner again went to London, he threatened the respondent. She stated about her survival saying that her father

has retired and she is unable to maintain herself. The petitioner is employed in a private company and earns Rs. 3,00,000/- per month. He has

sufficient means to maintain her but he is neglecting to do so. She is entitled to lead a life in the similar manner as she would have lived in the house of

her husband. She prayed for rupees 1,50,000/- per month as maintenance.

In reply, the petitioner has denied all the allegations made against him. He stated that on the willingness of both the parties, the marriage was

solemnized at Ratlam. Since, at the time of marriage, the expenses were beared by the petitioner's family and later, the father of the respondent has

deposited the same in the account of petitioner. The petitioner never demanded any dowry. The respondent was never compelled to do the household

works, for the same, a maid was arranged in the house. The respondent is a sceptic lady and spoiled his life. She went to her father's house on her

own will, the petitioner never compelled her to do so. Further, petitioner made a dependent Visa for the respondent to live with her at London. Further,

in London, the respondent's behavior was not good towards him whereas he made all the efforts to make her happy, he made some tour with her also.

She insisted on coming to India for which the petitioner beared all the expenses thereof. The respondent deserted the petitioner even then he made

various efforts to save their marital life by contacting her. He went to her parental home to bring her but she and her family members behaved rudely

to the petitioner and also threatened him to falsely implicate in the case. His parents also went to bring her back but she refused to come. The

petitioner has deposited rupees 15000/- for her expenses. He further stated that she is an educated lady having degree of post graduation in computer

also working in a private company and earning rupees 30,000/- per month. She also earns rupees 15,000/- through tuition work. With regard to his

income, he stated in his reply that he earns rupees 40 to 50 thousand per month. He has responsibility to pay the installment of his father's house

situated at Indore as well as rent of the house at Mumbai. Due to this litigation, he has resigned from his job. The respondent is capable to earn and

survive herself. He requested the learned Family Court to dismiss the application filed by the respondent.

After examining the evidence submitted by both the parties, the learned Family Court came to the conclusion that the respondent has sufficient

reason to live separately from the petitioner. The Court assessed the income of the petitioner about rupees 46,000/-per month and passed the

impugned order of maintenance.

Learned counsel for the petitioner submits that the impugned order is illegal and suffering from perversity. The learned Family Court has overlooked

the material evidence of the case. The respondent is living separately without any reason. The learned Family Court itself observed that the allegations

made by respondent have not been proved, hence, the impugned order is not sustainable. The petitioner never caused any cruelty towards the

respondent and he was always interested to live with her. He submits that in London, the respondent was enjoying and in this regard, he has also filed

some photographs in Family Court. The allegations made by the respondent are false, fabricated and afterthought. He submits that the petitioner and

his family members never demanded any money from the respondent or her father. The respondent has sceptic nature due to which the dispute was

arisen. He also submits that if the charges of harassment are not proved, applicant/respondent is not entitled to get maintenance. He further submits

that his parents are of old age and dependent upon him, he is paying the EMI of house loan and also paying rupees 12,000/- per month as rent of house

at Mumbai. He also spends rupees 10,000/- per month towards travel and food expenses. The learned Family Court itself observed that the petitioner

earns about rupees 46,000/- per month, therefore, after calculating the expenses of essential needs, maintenance amount is not justifiable. He submits

that as per the guidelines given by the Hon'ble Apex Court, the maintenance amount should not be more than 25 percent of the net salary of husband.

In this regard, he relied on the judgment of the Hon'ble Apex Court in the case of Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy

reported in (2017) 14 SCC 70. With the aforesaid, he prays to allow this petition.

On the other hand, learned counsel for the respondent opposes the submissions of petitioner's counsel saying that the learned Family Court has

rightly considered the fact that the respondent has sufficient reason to live separately from the petitioner as his behavior was cruel towards her. He

submits that the learned Family Court found that the petitioner himself admitted his relation with other girls which itself amounts to cruelty. He argued

all the facts as mentioned in the application filed before the learned Family Court. He further argued that the petitioner made an effort to mislead the

Court below, he made contradictory statements on various points. He further submits that the petitioner argued before this Court as well lower Court

that respondent's behavior was cruel towards him but in his Court statement he himself admitted his good marital relation with the respondent for the

time being. The petitioner falsely submitted that the respondent persuaded M.C.A degree whereas she is qualified with degree of M.Sc. only. He

further argued that the petitioner has filed an application before the Family Court on 23.07.2016 stating that the respondent has filed the application in

English language which is not understandable for the petitioner whereas in his cross examination he accepted that he knows English language. He has

also filed false affidavit in Court proceeding. He made false statement regarding his salary to be rupees 25,000/- per month whereas as per salary slip

his income of September 2018 was more than rupees 55,000/-. He also accepted that when he was in London, he earned rupees 2.5 to 3 lakh per

month as per Indian rupee. The photographs filed by the petitioner are also modified and morphed. The petitioner argued that he wants to live with the

respondent whereas he has not filed any application under Section 9 of H.M.A., per contra, the respondent has filed the same. He has also made a

false statement regarding income of the respondent. The petitioner has failed to file any documentary evidence in this regard. The petitioner has

suppressed his illness and to rebut the same, he has filed a different medical report of tuberculosis wherein test of asthma is not mentioned. Apart

from that the learned Family Court has itself awarded the maintenance amount on a lower side ignoring the income of the petitioner. The respondent

has right to live same standard as she would have lived in the house of the petitioner. Hence, no interference is warranted in the case. In support of

his contention, he has relied on the judgment of Hon'ble the Apex Court in the case of Dalip Singh Vs. State of U.P. and others passed in Civil Appeal

No. 5239/2002 vide order dated 03.12.2009

Heard both the parties and perused the record.

On perusal of the case, it is an admitted fact that there is marital relationship between the parties, consequently, the respondent is legally wedded

wife of the petitioner. Respondent/wife has filed the application under Section 125 Cr.P.C claiming the maintenance of Rs. 1,50,000/- per month from

the petitioner. The learned Family Court found proved the cruelty by the petitioner towards the respondent and awarded the maintenance amount

rupees 17,000/- per month. The Court assessed the income of the petitioner as rupees 46,571/- per month on the basis of his salary slips. The learned

counsel for the petitioner argued that the allegations of cruelty were not found proved, even then the Court has awarded such huge maintenance

amount. On perusal of the evidence, it is apparent that in her statement, the respondent made the allegation that on the demand of petitioner and his

family members, her father has deposited rupees 3,82,000/- in parts from time to time. She alleged that the petitioner and his family members

compelled her to do household works like sweeping, cleaning etc. She alleged that her mother in law also demanded money from her. She also alleged

against her sister in law saying that she snatched all her Stridhan. She alleged that her father in law abused her and on saying about the same to the

petitioner, he had beaten her. Although, respondent has not filed any complaint in this regard. She alleged against the petitioner that he suppressed the

fact of his being Asthamatic. He used to consume alcohol and arrange party with his girlfriend. He made stay of his girlfriend in the house even in her

presence and entered in her room in late night hours. In London, he used to arrange party and after consuming alchohol, beat her. He forcefully sent

her to Indore where from she has been sent to Bhopal to bring rupees 20 lakh from her parents.

Further, on perusal of statement of the petitioner, it is found that the respondent pressurized him to live at Bhopal to take care of her parents. He

stated that she has sceptic nature towards him. She suspects on him when he talks to his colleagues. He denied the allegation of demanding dowry.

He admitted his liaison with lady employees of his office due to which the respondent suspected on him. He admitted that he used to upload his

photographs with lady employees and others on Facebook. Further, on perusal of document of Exb. D/12, it seems to be true that the petitioner is not

suffering from pulmonary tuberculosis but he admitted that in the report there is no mention about the test of Asthama. He also admitted that he has

not filed any application for restitution of conjugal rights but the respondent did so.

Hence, it is found that the petitioner/husband committed cruelty towards the respondent/wife and the findings of the learned Family Court in this

regard, is based upon proper and legal evidence, therefore, the respondent/wife had sufficient reason to live separately from the petitioner.

So far as quantum of maintenance amount is concerned, the learned counsel for the petitioner argued that the petitioner is paying monthly rent of

rupees 12,000/- for the house situated at Mumbai as well as EMI of the house at Indore. He is also paying premium of some LIC policies. He has

responsibility of his old age parents also. He submits that the respondent is qualified lady and capable to earn, hence, the maintenance amount of

rupees 17,000/- is much higher. In support, he has filed copy of rent agreement, receipt of LIC premiums and other bank details. He relied on the

judgment of Kalyan Dey Chowdhary (Supra) and submits that the maintenance amount should not be higher than 25 percent of the husband's net

salary. On careful reading of the above said pronouncement, it is manifest that the Hon'ble Apex Court has considered the scope of Section 25(2) of

Hindu Marriage Act holding that the Section 25 of the Hindu Marriage Act, 1955 confers power upon the Court to grant a permanent alimony to either

spouse who claims the same by making an application. Sub-section (2) of Section 25 of the Hindu Marriage Act confers ample power on the Court to

vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act

under the provisions contained in sub-section (1) of Section 25. In exercising the power under Section 25(2), the Court would have regard to the

“change in the circumstances of the partiesâ€. Further, the Hon'ble Court has followed its earlier judgment passed in the case of Kulbhushan

Kumar vs Raj Kumari & Anr reported in (1970) 3 SCC 129 and observed that 25% of the husband's net salary would be just and proper to be

awarded as maintenance to the wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the

capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the Court would beÂ

justified in moulding the claim for maintenance passed on various factors . Further, on reading of the Kulbhushan's case, it appears that

the Hon'ble Apex Court expressed its agreement with the finding of the High Court whereof the High Court fixed the limit of maintenance to the wife

as 25 percent of the income as found by the income tax authority. Further, with regard to argument of the petitioner regarding spendingÂ

money towards monthly rent of house and others, the Hon'ble Apex Court held in the Kulbhusan's case as under : -

“19………………...It was contended that not only should a deduction be made of income tax but also of house rent, electricity charges, the expenses for

maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view, some of these deductions are not allowable for the

purpose of assessment of “free income†as envisaged by the Judicial Committee. Income tax would certainly be deductible and so would contributions to the

provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges………...â€​

Although, the language of above said principal indicates that the same is not binding principle and depends upon the factual situation of the case.

In view of the various pronouncements of the Hon’ble Apex Court regarding maintenance, it is also well settled principal of law that while

granting the maintenance, following factors should be taken into consideration :-

(I) Income, property and capability of earning of both the parties.

(ii) Living standard and need of the parties keeping in mind the principle that wife is entitled to get an amount of maintenance which will enable her to maintain

almost the same standard of living to which she was entitled if she would have lived in the house of her husband.

(iii) Qualification of the wife and capacity to earn cannot be a ground to deny maintenance to a wife who is dependent and does not have any source of income.

Whether Appellant is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant is capable of earning is not

sufficient reason to reduce the maintenance awarded by the Family Court.

Herein, the learned Family Court found that the monthly net income of the petitioner is rupess 46,571/- and the petitioner did not challenge his

salary slip and admitted that he is getting salary of rupees 43 to 44 thousand per month. The respondent has not filed any other document showing the

property and other income of the petitioner. It is true the respondent is educated lady having a degree of M.Sc. but the petitioner has failed to prove

that she is earning. Therefore, the income of the petitioner assessed by the Family Court is found just and proper. But, I find that the learned Family

Court has not considered the experiences of the petitioner towards his liabilities in respect of his old age parents and other needful purposes. In view

of the observation made in the case of Kalyan Dey Chowdhary (Supra), and principle laid by the Hon’ble Apex Court for granting the

maintenance, I am of the opinion that the awarded maintenance amount is excessive and the same should be reduced.

The another arguments of the respondent regarding misconduct of the petitioner during the proceeding before the family Court, cannot be looked

into at this stage as same had not been raised before such Court.

Accordingly, this petition is partly allowed and impugned order is modified to the extent that the respondent is entitled to get the maintenance of

rupees 13,000/- per month instead of 17,000/- per month. However, the respondent is free to file the application under section 127 Cr.P.C to enhance

the amount under any change in circumstances.

Accordingly, this petition is partly allowed.